Tuesday, November 12, 2013

EU’s New Space Code: A Significant Improvement, my OpEd on the EU's new space code, published in this week's Space News....

Here's an OpEd of mine on the EU's new Space Code published in this week's Space News.

A new draft of the European Union (EU)-initiated International Code of Conduct for Outer Space Activities is out. The text of this draft is a huge progress from the previous versions, incorporating many of the comments and suggestions from countries around the world. The language of the new document is tighter and avoids some of the vagueness of the earlier drafts, which had been a cause for concern.

For the full essay, click here.

A new draft of the European Union (EU)-initiated International Code of Conduct for Outer Space Activities is out. The text of this draft is a huge progress from the previous versions, incorporating many of the comments and suggestions from countries around the world. The language of the new document is tighter and avoids some of the vagueness of the earlier drafts, which had been a cause for concern.

One of the key changes is that the new draft has made it amply clear that it is not in conflict with any of the existing treaties and conventions and that it is fully consistent with other U.N. instruments, including previous international legal instruments, declarations, principles and guidelines.

Starting with the Preamble, the new draft makes explicit the objectives of the code, highlighting “greater international cooperation, collaboration, openness and transparency.” More importantly, the new text omits the reference to the “legitimate defence interests of States.” This clause was seen as particularly troublesome by many states given that it could be interpreted subjectively, favoring certain states to potentially weaponize their space capabilities.

Under General Principles, the new draft clarifies the right to individual or collective self-defense in the face of vehement criticism that the right may be pursued by states to legitimize acts of weaponization. While the reference to the right to self-defense has been retained, it has been balanced with the principle of refraining “from the threat or use of force against the territorial integrity or political independence of any state or in any manner inconsistent with the purposes of the Charter of the United Nations” in an effort to reflect customary international law, as enshrined in the U.N. Charter. Oddly, this clause generated no debate in the Asian context or even among the major spacefaring powers. The principle is also mentioned in the draft treaty proposed by Russia and China (Article 5) — a fact that could infuse confidence among a large number of developing countries.

In the section on Safety, Security and Sustainability of Outer Space Activities, clause 4.2 avoids a troubling qualification (contained in the 2012 version) that in conducting outer space activities, states will “refrain from any action which brings about ... damage, or destruction, of space objects unless such action is conducted to reduce the creation of outer space debris” (emphasis added). The new version has removed this qualification. The earlier version raised problems because of the subjective manner in which actions could be justified as legitimate and also who determines what actions can be deemed legitimate and that a particular activity has been undertaken to reduce creation of outer space debris.

The one area where some concerns continue is the distinction made between countries that sign the code and those that do not.

Section 5 of the new version, Cooperation Mechanisms, is a good example. Clause 5.1 of the new text says that subscribing states “resolve to notify, in a timely manner, to the greatest extent practicable, all potentially affected Subscribing States of any event related to the outer space activities they are conducting which are relevant for the purposes of this Code, including: scheduled manoeuvres that could pose a risk to the safety of flight of the space objects of other Subscribing States.” Similarly, clause 5.2 says, “The Subscribing States resolve to provide the notifications on any event related to the outer space activities described above to all potentially affected Subscribing States.”

This distinction continues in Section 6, on Information on Outer Space Activities, which also calls for sharing information only among subscribing states. Indeed, the new text actually omits the reference in the previous text to sharing information with nonsubscribing states. Clause 6.2, for instance, states that subscribing states may provide “timely information on outer space environmental conditions and forecasts ... to relevant governmental and non-governmental entities of other Subscribing States.”

Such distinctions between subscribing and nonsubscribing states may have been included in order to create pressure on states to endorse and become parties to the code, but there are two problems, especially when it comes to information sharing:

n It goes against many of the U.N. and other multilateral instruments on space that encourage sharing of information among all states.

n Outer space being truly global commons, any threat to space assets that could cause damage or destruction through collision or other means needs to be shared irrespective of whether a particular state is a party to the code. Space debris does not make a distinction between subscribing and nonsubscribing states, and a collision will result in polluting the outer space environment further. Sharing information with nonsubscribing states might create free-rider problems, but is it really in the interest of any state, including those that accept the code, to not share information when all states could be potentially affected?

The second area of concern is with regard to the terms and conditions for international cooperation, which the new code leaves to individual states to determine. While the code should not be restraining those that are aspiring to emerge as spacefaring nations, leaving it to individual countries to formulate rules of engagement and cooperation could make the situation far more dangerous. Cooperation between states could be seen as positive, as a means of building greater confidence. But unregulated cooperation could increase regional or international insecurities, affect regional military balance, and even contribute to an arms race in space. Therefore, cooperation in space needs some regulation, and regimes need to spell out rules of the game for such cooperation.

Of course, this should not be in the form of technology controls and arms control in space, which are unlikely to work. What needs to be pursued is regulation in terms of how space technology is used, which would involve establishing rules for operations and activities rather than control of technology.

Thus, the new draft is a significant step forward. The language has been tightened to make it more precise and thereby avoid ambiguity and loopholes. The document is particularly mindful of the interests of emerging space actors and instituting measures for greater international cooperation. There have also been several practical measures suggested for more transparency (influenced by the language of existing instruments such as the Report of the U.N. Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities) that could instill greater confidence among states, which also could address the political difficulties among major powers.

Given the growing number of challenges to safe and sustainable exploitation of outer space, it is time for concerted action by the global community. Outer space is truly a global commons and the responsibility for its safety and sustainability needs to be shared. One state’s action in this domain can affect a large number of states and their assets, which also suggests the need for greater cooperation and mutual consideration. Space is also a limited commodity and therefore measures to strengthen sustainable use of outer space should be actively pursued.

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