Debates on Space Code of Conduct

Here's an article by Michael Listner on space Code of Conduct issues published in Defense Policy. Dr. Listner cites me in the context of Asian debate on the Code.



TCBMs: A New Definition and New Role for Outer Space Security
July 7, 2011 by Michael Listner

Frank A. Rose, Deputy Assistant Secretary, Bureau of Arms Control, Verification and Compliance for the United States Department of State, recently participated as a panelist in “Defining Space Security for the 21st Century.” The panel, which convened on June 13, 2011, was part of the Space Security Through the Transatlantic Partnership Conference sponsored by the European Space Policy Institute and Prague Security Studies Institute, held June 12-14.

In his remarks, Mr. Rose discussed the diplomatic activities being pursued by the United States to enhance stability in outer space and as result its security. Specifically, Mr. Rose limited his remarks to the policy tools that the United States is considering, if not already using, to advance and to promote security and stability in outer space with an emphasis on the use of transparency and confidence-building measures (TCBMs). Mr. Rose noted the United States’ use of TCBMs through USSTRATCOM’s Joint Space Operations Center (JSpOC) and its provision of notifications to the Russian Federation and the Peoples’ Republic of China regarding close approaches between satellites.

Mr. Rose also remarked that the United States is considering signing on to the European Code of Conduct for Outer Space Activities (CoC) as part of its policy to strengthen stability and security in outer space. Mr. Rose further commented that the United States will be participating in the Group of Government Experts on Outer Space TCBMs in 2012. The Group of Government Experts, which was established by Resolutions 65/68 during the 65th session of the United Nations General Assembly, is anticipated by the United States to serve as a positive mechanism to examine voluntary and pragmatic TCBMs in space to remedy concrete problems presented in space stability and security. Ironically, or perhaps by design, Mr. Rose’s remarks concerning the use of TCBMs come one week after Huang Huikang, director of the Department of Treaty and Law in the Ministry of Foreign Affairs for the Peoples’ Republic of China addressed the 54th session of United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) on June 5th, where he spoke about China’s space policy. In his address, he noted the importance of space law as an important instrument for safeguarding the peaceful use of outer space.

While not mentioning the PRC’s defense policy or the PPWT in particular, Huang also noted that space law is important for the prevention of the weaponization of space, thus intimating that space stability and security can be achieved only through an expansion of the current legal regime for outer space. The approach of the United States policy and that of the PRC towards space stability are diametrically opposite and should provide an interesting dichotomy when the Group of Government Experts meets next year to consider the role of TCBMs should play in space activities.

Transparency and Confidence-Building Measures
Transparency and confidence-building measures (TCBMs) are part of the legal and institutional framework supporting military threat reductions and confidence-building among nations. They have been recognized by the United Nations as mechanisms that offer transparency, assurances and mutual understanding amongst states and they are intended to reduce misunderstandings and tensions. They also promote a favorable climate for effective and mutually acceptable paths to arms reductions and non-proliferation. The General Assembly at its 73rd plenary meeting on December 7, 1988 endorsed the guidelines for TCBMs decided upon by the Commission on Disarmament on December 12, 1984.

TCBMs have been used extensively for the purpose of arms control and specifically in the arena of nuclear weapons. However, when applied to space activities TCBMs can address other space activities outside of those performed for by the military or for those performed for national security reasons. While TCBMs promote transparency and assurance between states, they do not have the legal force of treaties and states entering into them are bound only by a code of honor to abide by the terms of the instrument. By their nature TCBMs are considered a “top-down” approach to addressing issues. They are not intended to supplant disarmament accords but rather to be a stepping stone to legally enforceable instruments.

Redefining TCBMs for outer space activities
TCBMs as envisioned by the United States provide the Obama Administration with a diplomatic and policy tool that it can utilize to unilaterally project its foreign policy agenda without interference from Congress and in particular the Senate. With the loss of the majority in the House of Representatives and a greatly diminished majority in the Senate, the Obama Administration is faced with a less than favorable political environment to propose a treaty such as the PPWT. TCBMs give the Administration an alternative to side-step political impediments to pursue its foreign policy objectives in place of an actual treaty in regards to outer space stability and security.The position set forth by the United States regarding the use of TCBMs does not coincide with the traditional view and use of TCBMs. Per the National Space Policy, the United States is seeking to enter into TCBMs to define space activity and conduct as an alternative to entering into legally binding treaties.

This approach to TCBMs was articulated by Paula Desutter when discussing the implications of the United States signing onto the CoC. Ms. Desutter remarked that the CoC was preferable to the draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (PPWT) proposed by the Russian Federation and the Peoples’ Republic of China. She noted that the CoC could provide an alternative approach and vehicle to ensuring space security and stability that could undermine or ultimately lead to the demise of the PPWT. If this is the tack that the United States intends to take at next year’s meeting of the Group of Government Experts, then it will meet opposition from several constituencies.

The PRC and the Russian Federation will certainly oppose as they have in the past any form of TCBMs that are not linked to some sort of arms control agreement such as the proposed PPWT. The Russian Federation in particular has noted that TCBMs have been used in the past to address issues relating to space activities, and that it has used unilateral TCBMs itself in regards to notifications of launches and the pledge not to be the first to deploy space weapons. The Russian Federation has stated it will likely continue to support the use of TCBMs to lay the ground work for adoption of the PPWT and that the adoption of the PPWT would be the most important confidence-building measure in outer space.

If reaction by Asia-Pacific nations to the proposed CoC is any indicator, the United States could also find opposition from other space-faring nations in that region. Open-source material criticizing the CoC suggests that India might object to the United States’ approach to space security and stability. Dr. Rajeswari Pillai Rajagopalan’s, a Senior Fellow in Security Studies at the Observer Research Foundation remarked on whether India should endorse the CoC. Dr. Rajagopalan notes in her critique of the CoC that the European Council did not consult Asian nations while drafting the instrument, and that while the Coc is voluntary, its mandate for states to establish national policies and procedures to mitigate the potential for accidents in space could be seen as intrusive. She further critiqued that the voluntary nature of the CoC would preclude any penalty on states violating the norms within. Similarly, some of the concerns voiced by Dr. Rajagopalan could be expressed by India and other nations within the Asia-Pacific region concerning the use of TCBMs with the most prominent being their lack of enforceability and verification.
The United States will also find opposition from the non-space faring nations. The United States is portrayed as the neighborhood bully when it comes to matters of international security, especially in the realm of outer space security, and the realities of soft politics will ensure that will not change anytime soon. Attempts to address the issue of space security and stability via TCBMs as proposed by the United States will be met with suspicion by non-space faring nations and the delegation from the PRC and Russian Federation will likely stoke that dissension.

Conclusion
The use of TCBMs in place of treaties may not be the ideal diplomatic solution to deal with the issue of space security and stability. However, until such time that a reliably verifiable and workable treaty is introduced that can pass Congressional muster, the use of TCBMs are a prudent course for the United States to take to address the issue of stability and security in outer space while simultaneously preserving its national security interests in that realm. Only time will tell whether this approach will ultimately be embraced or rejected by space faring and non-space faring nations alike.

REFERENCES
Defining Space Security for the 21st Century, Bureau of Arms Control, Verification and Compliance Remarks, United States Department of State, June 13, 2001.Stephen Clark, “Nearly 400 satellite crash notices sent to Russia, China”, Space Flight Now, June 15, 2011.Jeff Foust, “Debating a code of conduct for space”, The Space Review, March 7, 2011.
Liu Gang, “Building harmonious outer space to achieve inclusive development: Chinese diplomat”, Xinhua, June 5, 2011.
Andrey Makarov, Transparency and Confidence-Building Measures: Their Place and Role in Space Security, Security in Space: The Next Generation-Conference Report, 31, March-1 April 2008, United Nations Institute for Disarmament Research (UNIDIR), 2008.
U.N. General Assembly, 43rd Session, 1988, Guidelines for confidence-building measures (A/43/78H).
George C. Marshall Institute, “Codes of Conduct in Space: Considering the Impact of the EU Code of Conduct on U.S. Security in Space”, February 4, 2011.
The Value of Transparency and Confidence-Building Measures – Next Steps, Statement by V.L.Vasiliev, Deputy Permanent Representative of the Russian Federation, at the UNIDIR Conference on Space Security 2010, Geneva, 29 March 2010.
Dr. Rajeswari Pillai Rajagopalan, “Establishing Rules of the Road in Space: Issues and Challenges”, Observer Research Foundation, May 6, 2011.