EU Code of Conduct: Response from India and other Asian countries ....

Here's an article by Michael Listner on the EU Code of Conduct and some of the Indian concerns, published yesterday by the Space Review. He has also cited my recent Occasional Paper on the subject.

The article says, "There has been no official comment to the response on the CoC from the international community outside of the European Union and the United States. However, open source material suggests that countries in the Asia Pacific Region, in particular India, have several concerns about the CoC, which could prevent them from adopting the measure."



There has been much debate in 2011 over the draft version of the European Union’s proposed Code of Conduct for Outer Space Activities (the CoC), released in October 2010. Since its release, the CoC has been analyzed by policy experts in several different forums including a panel discussion at the George Marshall Institute as well as the pages of this publication.1 Little has been said publically since the flurry of analysis in the first half of the year due in no small part to the State Department and other branches of the United States government’s review of the CoC in lieu of formal adoption by the United States.

Countries in the Asia Pacific Region, in particular India, have several concerns about the CoC, which could prevent them from adopting the measure.
The FAA’s Commercial Space Transportation Advisory Committee’s Space Transportation Operations Working Group (STOWG) met on August 4, 2011, and featured an update on the CoC by Richard Buenneke, Senior Advisor, Space Policy for the US Department of State.2 At that time Mr. Bunneke informed STOWG that the CoC was under review by the Department of Defense and that the United States remained interested in the CoC, but it was not prepared to sign the document in 2011. According to Mr. Bunneke, the European Council continued to present the CoC to the international community for consideration. The CoC was slated for adoption in 2012, but that deadline has been pushed back indefinitely.

There has been no official comment to the response on the CoC from the international community outside of the European Union and the United States. However, open source material suggests that countries in the Asia Pacific Region, in particular India, have several concerns about the CoC, which could prevent them from adopting the measure.

Indian concerns with the CoC
Dr. Rajeswari Rajagopalan, Senior Fellow at the Observer Research Foundation in New Delhi, India, presented an occasional paper in October 2011 discussing the CoC and India’s perspectives on it.3 Dr. Rajagopalan’s paper presents concerns that India and the Asian nations have with the current form of the CoC and whether those can concerns can be addressed to their satisfaction. Six fundamental concerns can be discerned from Dr. Rajagopalan’s dissertation: the non-binding nature of the CoC, repetition of and intrusion into a country’s domestic space policies, the failure of the EU to consult Asian countries when drafting the CoC, failure of the CoC to address the geopolitical realities of the Asian sphere of influence, ambiguity of terms and phrases within the CoC, and administration of the CoC. Each of these are briefly addressed below.

India’s prominent concern with the EU’s approach is the CoC’s lack of a legally binding mechanism, which is a long-standing requirement of some of the Asian counties. India takes the position that in order to be workable, the CoC requires a legal framework, an enforcement and verification mechanism, and a penalty mechanism for countries violating the CoC. The lack of legally binding measures is seen by the Asian countries as a weakness that will undermine and eventually defeat the CoC’s purpose.

Associated with the concern that the CoC is not legally binding is its voluntary nature and that its precepts replicate existing policies. Most of the principles and guidelines proposed in the CoC already exist either in the national space policies of some of the countries involved with the CoC or in bilateral and multilateral transparency and confidence building measures (TCBMs). Suggesting that countries adopt policies consistent with the CoC may also be considered an intrusion to the domestic policy-making of countries, who are already developing policies on their own initiative.

Another concern of India is EU’s omission to consult with India and the other Asian nations when the CoC was devised. This lapse is considered enough to preclude India and the other Asian countries from signing on to an otherwise acceptable instrument. India considers the inclusion of the spacefaring nations of Asia to be a crucial element during the creation of the CoC, especially considering that the fastest growing space programs are among the Asian countries, and it is among those countries where most new challenges relating to outer space will materialize.

Related to the India’s concern of exclusion in the creation of the CoC is the viewpoint that it is essential that the EU and the Western nations address the realities of geopolitics in the Asia-Pacific region. These considerations will prescribe suggestions from India and the Asian nations to amend the CoC, and not the other way around. The geopolitical realities of the Asia-Pacific region would translate into new terms and conditions in the CoC that are not currently within it, but what those interests are varies among the Asian nations, which could further complicate amendment to the CoC.

Amendments to the CoC could fundamentally alter its nature and estrange Western countries, such as the United States, from adopting it.
The ambiguous manner by which the CoC is written is another concern for India. Many phrases within the CoC are open to interpretation, and while phrases and terms contained within the current draft of the CoC may be interpreted one way by the members of the EU or the United States, those same phrases and terms could be construed in a different manner by Asian countries, including India. This concern is magnified by the possibility that countries with substantial diplomatic and political clout such as the United States or China could dictate how vague sections are interpreted to the detriment of countries such as India.

Finally, the question of who will administer the CoC once it is implemented is a prominent one in the eyes of India. India views administration of the CoC as feasible only by an authority that has the benefit of ample hard power and diplomatic clout. However, India sees the EU, which would be the likely choice as the administering authority of the CoC, as lacking in both these qualities. This calls into question the effectiveness of the CoC from India’s point of view.

Impact of Asian concerns
The concerns enunciated by Dr. Rajagopalan and the alterations to the CoC that India and the other Asian countries may seek before signing are the type that panelists hosted by the George Marshall Institute expressed concern about when asked whether the United States should adopt the CoC. During that discussion, the panelists were all of the opinion that the United States should not sign onto the CoC until other countries recommend their changes to CoC, perhaps explaining why the United States has delayed indefinitely its adoption of the instrument.4

Beyond the concerns that India and the Asian countries have articulated about the CoC, there is the issue of whether those concerns can be addressed by amendment of the CoC without altering its nature and structure. Amendments to the CoC could fundamentally alter its nature and estrange Western countries, such as the United States, from adopting it. For example, if the CoC was transformed from a non-binding confidence-building measure to a legally binding international accord, the United States may object and refuse to adopt it since signing it would implicate its national space policy with regard to signing onto outer space security treaties.

Continuing to persuade the PRC to accept measures such as the CoC is futile and will only make the process of persuading others to adopt such measures more difficult.
There is also the issue of the stance the People’s Republic of China (PRC) has taken with certain precepts of the CoC. In particular, the PRC has taken the position that the issue of orbital space debris should not be included in the CoC. The PRC also objects to the CoC’s insistence that states who adopt the CoC share information on their domestic national space policies, including objectives for security and defense related activities. There is little chance the PRC’s “no” will turn to a “yes” on these two issues, so the EU is faced with the option of diminishing the CoC to accommodate the PRC or having the PRC refuse to adopt the accord. If the success of the CoC is dependent on the PRC adopting it, then the EU could be disappointed.

How any amendment of the CoC to address Indian and other Asian concerns will impact US national space policy is also a concern. US diplomatic efforts are presently focused on addressing outer space security issues through redefined and repurposed TCBMs instead of legally-binding treaties.5 The current US interest in the CoC—effectively a TCBM—is one path of that policy, with a more robust effort intended for engaging other countries via the United Nations. Many of the concerns articulated by India about the CoC can apply equally to the planned application of TCBMs in the UN and effectively derail the United State’s effort should those concerns be amended into the CoC.

Alternative approaches
The EU is faced with the possibility that the CoC in its current form will not accommodate the concerns of the Asian countries without substantially altering the nature of the instrument. This possibility is not lost on India, and one of India’s considerations, aside from adopting the CoC, is to develop a code of their own. Such a code could take a similar form to the CoC and would address a significant portion of the concerns enunciated by India and the Asian countries, with the bonus of having an indigenous accord reflecting Asian interests instead of an instrument drafted from the viewpoint of Western geopolitics. It is plausible that such a code could coexist with the CoC. The dual-code approach could parallel each other in some areas and distinguish themselves to address issues that are relevant to their respective geopolitical and security situations.

Another alternative that could allow for a greater integration of Asian concerns into the CoC is for the EU and the United States to face the reality that the PRC is not going to acquiesce to the precepts of the CoC nor will it ever adopt it. This assertion is highlighted by Dean Cheng, Research Fellow for Asian Studies at the Heritage Foundation, where he dispels the myth that the PRC is interested in cooperation in space by noting that the PRC is engaged with a power competition with the United States, and space is a major venue of that competition. The upshot of this is that the PRC is unlikely to be swayed by proposals of codes of conduct or symbolic meetings with space officials from the United States.6

Policymakers from the EU and the United States would do well to face this reality, particularly in the context of the CoC. Continuing to persuade the PRC to accept measures such as the CoC is futile and will only make the process of persuading others to adopt such measures more difficult. If the EU and the US are serious about adopting the CoC, they must acknowledge that the PRC has no intention of engaging in good faith negotiations over the CoC and instead focus their efforts on addressing the concerns of countries such as India, which has a better chance of reaching consensus with the EU on its own absent the presence of the PRC at the negotiating table.

It is plausible that the current form of the CoC may not be able to accept amendment without substantially altering it.
Beyond TCBMs, including measures such as the CoC, an effective way to establish a “code of conduct” is through legally binding agreements. This author postulated shortly after the collision of Iridium 33 and Cosmos 2251 in February 2009 that bilateral accords defining conduct for outer space activities would be an effective means of preventing incidents in outer space more so than a treaty banning “space weapons.”7 Accords defining conduct have been implemented in maritime law and have opened a line of dialogue between the parties that have prevented incidents and subsequent escalations that could have led to full-blown confrontations.

Applying this concept to outer space activities would differentiate itself from the CoC and the current approach to TCBMs by the United States. Since these agreements would be legally binding, countries such as India would be more inclined to enter them, and it would eliminate the objection of the Russian Federation likely to leveled at the current track of United States space policy. Bilateral treaties negotiated between two countries would also avoid the multiplicity of converging cultural and geopolitical differences encountered during the negotiation of multilateral accords, and they could be tailored to satisfy the national space policy’s requirement that any treaties be equitable and verifiable.

Conclusion
Whether the CoC is ultimately adopted depends in no small measure how it originators address the concerns of India and the Asian nations. It is plausible that the current form of the CoC may not be able to accept amendment without substantially altering it. If that is the case, the EU and United States must resist the impulse to strong-arm these nations into otherwise adopting the CoC. Alternatively, if the concerns of India and other Asian nations cannot be addressed within the framework of the CoC, then the EU and the United States need to be prepared to consider measures other than the CoC to address security and cooperation in outer space.

Footnotes
1 Jeff Foust, “Debating a code of conduct for space”, The Space Review, March 7, 2011.

2 Michael Listner, “Update on the proposed European Code of Conduct”, The Space Review, August 8, 2011.

3 Dr. Rajeswari Rajagopalan, Debate on Space Code of Conduct: An Indian Perspective, Observer Research Foundation, ORF Occasional Paper #26, October 2011.

4 “Codes of Conduct in Space: Considering the Impact of the EU Code on U.S. Security in Space.”, George Marshall Institute, February 4, 2011.

5 Michael Listner, “TCBMs: A New Definition and New Role for Outer Space Security”, Defense Policy.Org, July 7, 2011.

6 Dean Cheng, “Five Myths About China’s Space Program”, The Heritage Foundation, September 29, 2011.

7 Michael Listner, “A bilateral approach from maritime law to prevent incidents in space”, The Space Review, February 16, 2009.

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.