US Proposal on Space CoC: International Responses

Space code of conduct is in news with new developments almost on a daily basis. Here's a quickie from me on the international responses and what India should do to capture the space in framing the debate, published by ORF.

The debates around setting up an international code of conduct for outer space activities is getting more interesting. Recent proposals such as the Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space (COPUOS) and the European Union-proposed Code of Conduct have highlighted the importance of a cleaner and safer outer space, although these have not found many takers around the world.



Most recently, the US rejected the EU Code saying that it is "too intrusive." Making the US position clear, Ellen Tauscher, Undersecretary of State for Arms Control and International Security, during a breakfast meeting on January 12, said, "it's been clear from the very beginning that we're not going along with the code of conduct." However, she clarified that "what we haven't announced is what we're going to do."Thereafter, Secretary of State Hillary Clinton issued a Press Statement and the Department of Defense (DoD) issued a Fact Sheet on space code of conduct arguing the need to come up with an international code of conduct. Specific concerns relate to space debris, radio frequency interference and competition as more countries and private corporations enter the fray.1

Official responses by Tauscher and thereafter by the State Department and DoD to the EU Code have sent mixed signals. On the one hand, the US has rebuffed the code saying it constrains the US military's options in space while the DoD suggested that the Code is "a promising basis for an international code." This indicates that there is probably only a minor disagreement - over who spearheads the Code initiative so that it musters wide support. However, this is a smart political move by the US. The EU could not have managed to gather much support for its initiative.

Meanwhile, there have already been some reactions to the US proposal. Moscow ridiculed Washington for sidelining or ignoring the earlier initiatives at framing measures for responsible behaviour in outer space. A few months back, Beijing used similar arguments as the US reached across to start bilateral talks on space security.

Moscow also found slip-ups in the new American approach saying that the critical issue of militarisation of space is missing in Washington's proposal. There is merit in this; the draft treaty proposed by Russia and China, "Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects"(PPWT) at the Conference on Disarmament (CD) makes "prevention of the placement of weapons in outer space and of an arms race in outer space" as important elements of their initiative. However, there are also several flaws with this formulation. First, the draft treaty considers only placement of weapons in outer space and does not take into account ground-based weapons for outer space operations. In fact, 'weaponisation of outer space' often refers only to weapons placed in outer space that will damage and destroy space-based assets. But this is inadequate because ground-based weapons can also target space activities. Ground-based lasers, for example, can target satellites.Operations based on ground-based weapons are likely to go up in the future.

Second, China had earlier made it clear that it did not consider space debris as a major issue to be included in a code,which reflects the Chinese intention to carry on with activities that may create debris, and damage and destroy space assets. Third, China's military space activities have continued unabated even as it suggests the PPWT. There are also other contradictions - China, on the one hand, works with COPUOS on the issue of space debris but on the other hand, it makes it clear that it will not support an instrument that considers space debris as an issue.

Now that Moscow has made its position clear, it will be the turn of Beijing to voice its opposition to the US effort as a superficial initiative that does not look at weaponisation of space. It appears that China and Russia will join hands again and earn some brownie points from arms controllers by harping about weaponisation of space while continuing with their weaponisation efforts. But more importantly, Moscow and Beijing need to introspect whether their activities are contributing and strengthening the writing of these rules. Michael Listner, for instance, opines that the two of them have in fact have done the "most destructive ASAT tests" creating debris to such levels where the "ISS is playing the orbital version of dodge ball."

Meanwhile, it appears that Australia is getting on board for an international code under the US leadership. Japan had already endorsed the EU Code and one can see an even greater effort on the part of Tokyo to push and muster support for the US proposal. Canada has also extended full support for the proposal.

How should India react to the developments? It is in India's interests to institute a code for guiding certain responsible behavior in order to ensure a cleaner, safer, and less congested outer space. It is also in Indian interests to ensure that a code takes shape that brings certain restraint on China. And, it will be to our benefit if India took the lead in spearheading the creation of a code along with the US and other major spacefaring powers. It is understood that in a recent briefing on the issue in Washington DC, US officials repeatedly emphasized the potentially critical role that India could play in developing a code, starting from negotiations to giving shape to the final instrument. Consultative meetings should start towards this end in the next few months and it will do well if India debates this internally and reaches considered and constructive position on the subject. India should recognize that it should not let opportunity pass again on a major global issue. New Delhi has to be inside the tent rather than outside if it is to be able to frame the rules and regulations that will affect its own future in space.
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1 It is estimated that there are around 60 nations and government consortia that operate satellites. There are additionally several commercial and academia satellite operators, which make outer space a congested place. There are roughly 22,000 objects in orbit out of which 1,100 are active satellites, tracked by the US Department of Defense. In addition, there are hundreds of thousands of small objects that may be difficult to track but those that can still cause damage to assets in the orbit. For info, see Department of State, International Code of Conduct for Outer Space Activities: Strengthening Long-Term Sustainability, Stability, Safety, and Security in Space, January 17, 2012, available at http://www.state.gov/documents/organization/181208.pdf.

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.

Establishing the Rules of the Road in Space: Issues & Challenges

Here's the link to an article of mine on the Code of Conduct on Space published by ORF.

Should India endorse the CoC? Does it advance India’s interests? An arrangement that focuses on a broad set of principles, without any concrete action plans, without any in-built verification mechanism and no legal obligations, helps India little. The EU Code remains a highly idealistic one with no practical utility in tackling three important concerns ? space debris, space overcrowding and avoidance of collision. For instance, it is highly ambitious to assume that the US or China are going to do prior notifications of an ASAT test. Similarly, States reporting on their national policies, including the intent for defensive uses of space assets, can be interpreted in an adverse manner. These are concerns that cannot be pushed under the carpet.



Establishing the rules of the road on space seems to be gaining a "top-down" push and momentum as though acceptance of these rules will amount to solving all the concerns about outer space activities. Currently, there are two Code of Conduct (CoC) that are doing the rounds for universalisation of certain norms that might strengthen the legitimacy and credibility of the Code. The two codes are the EU Code of Conduct for Outer Space Activities (hereafter EU Code) and the Model Code of Conduct, prepared by the Stimson Center. Here, I look only at the EU Code: can it become a universal space code of conduct?

Some of the salient provisions of the EU Code are:

• The Code will codify new best practices while contributing to transparency and confidence-building measures and will be complimentary to the existing arrangements on outer space activities.

• The Code is a voluntary measure open to all States.

• The "inherent right or collective self-defense in accordance with the United Nations Charter" will be observed.

• States becoming parties to the Code will also be guided by the existing legal framework while "making programme towards adherence to, and implementation of:" among other treaties, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967); the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968), the Constitution and Convention of the International Telecommunications Union and its Radio Regulations (2002).

• States that become party to the Code "will establish and implement national policies and procedures to minimise the possibility of accidents in space, collisions between space objects or any form of harmful interference with other States’ right to the peaceful exploration and use of outer space."

• States that become parties are also obliged to provide "information on national space policies and strategies, including basic objectives for security and defence related activities."

• State parties engaged "in the consultations shall seek solutions based on an equitable balance of interests."

Safety and security of space assets have so far been ensured through bilateral and regional agreements. But three incidents in the recent past ? the Chinese ASAT test of January 2007, the US shooting down of a satellite in February 2008 and the collision of a US Iridium satellite with a defunct Russian satellite in 2009 ? have triggered concerns of new dangers in space that is becoming crowded, raising the potentials for accidents. These concerns have fuelled the developments of these CoC.

On the surface of it, the EU Code appears to be an innocuous document. But not many non-EU States have accepted the EU code. Why?

For States to be party to global mechanisms, few questions need to be answered. What does the Code seek to do that is not achievable through other bilateral or regional means? Does the Code enhance a state’s security significantly or will it be an obstacle to carrying out some of its legitimate activities in space? Lastly, is the Code an inclusive framework?

The EU Code has already generated official reservations around the world, particularly in Asia. Europe has to make genuine efforts to reach across to Asia and facilitate a consensus with Asian powers if the Code has to be endorsed and universalised.

To start with, some of the simpler objections: the fact that the European governments have formulated the Code without consulting any of the Asian space powers is an issue. It is in Asia that one is going to witness heightened space activities and potentially the challenges are also going to come from Asia. Therefore this was not a smart move on the part of the EU.

However, fresh efforts can be made to limit the damage if the EU is open to understanding what the Indian and broader Asian concerns are, how they can be accommodated. Alternatively, more problematically, the Asian countries might insist on developing a space CoC on their own. Europe has to consider the impact of changing geopolitics and the increasing importance of Asia, particularly in the space domain.

Clearly, space is once again becoming the sphere of rivalry and potential conflicts and the EU has admirably taken the lead in establishing the rules of the road to avoid intended or unintended consequences of any action in space. However, the CoC does not move towards a legally binding mechanism that has been the demand from the Asian countries at various multilateral forums. In the absence of the fact that it does not meet this basic demand, it is unclear if Asian powers will become party to it. India has consistently pointed out the need for a legally binding mechanism to be put in place to prevent weaponization of outer space. India as part of the Group of 21 (Non-Aligned Nations in the Conference on Disarmament)has argued that global and inclusive transparency and confidence-building measures (TCBMs), which are supported by the West, could be important complementary measures but there is need for legally binding measures.

Though the EU CoC is voluntary, it expects States to "establish and implement national policies and procedures" to tackle issues such as the increasing traffic in space and thereafter the potential for accidents up in the orbit. This may be seen as binding the States and "intrusive" although in an indirect manner. On the other hand, the CoC being voluntary means it defeats its purpose as it would imply that there is no penalty on States / entities violating certain norms that might get institutionalised with the adoption of the CoC.

Therefore, why should States adopt, institutionalise and internationalise a CoC? The general set of principles enumerated in the EU CoC already exist in different forms in various countries ? in the national space policies of countries like the US or policy statements by various leaders in the Parliament and at multilateral fora the case of countries like India which does not articulate policies in one single policy document.

Similarly, the loose and vague manner in which the CoC is worded could lead to misinterpretations. Operationalising the CoC will become that much more difficult. Phrases like "to promoting the common and precise understandings" and "shall seek solutions based on an equitable balance of interests" are cases in point. These objectives are idealistic but vague and can be quite subjective. And then there’s ’equitable balance of interests’ ? whose interests are we talking about? Therefore the more difficult issue will be that different countries will interpret this differently, affecting the Asian interests adversely. This has fuelled more suspicion than confidence.

Next, who will enforce the CoC? The CoC is enforceable when the enforcing power has significant amount of hard power and clout. The credibility of the EU in this regard is questionable. Take for instance the Hague Code of Conduct on Ballistic Missile Proliferation (H-COC). While 128 countries have accepted H-COC, the Code is yet to have many of the Asian countries ? China, Pakistan, Iran, North Korea ? as endorsed parties, which makes it an unsuccessful attempt at tackling missile proliferation.

Should India endorse the CoC? Does it advance India’s interests? An arrangement that focuses on a broad set of principles, without any concrete action plans, without any in-built verification mechanism and no legal obligations, helps India little. The EU Code remains a highly idealistic one with no practical utility in tackling three important concerns ? space debris, space overcrowding and avoidance of collision. For instance, it is highly ambitious to assume that the US or China are going to do prior notifications of an ASAT test. Similarly, States reporting on their national policies, including the intent for defensive uses of space assets, can be interpreted in an adverse manner. These are concerns that cannot be pushed under the carpet.

Lastly, codes cannot establish responsible conduct. In fact, geopolitics will facilitate or block the implementation of the CoC. The more powerful will dictate the terms. Even if the US as the most powerful country on earth decides to become a party to the CoC, the numerical superiority of Asian countries could push the wind in the other direction. The fact that the code does not provide an inclusive framework makes it even harder to implement. European States have established a set of ideals without consultation of Asian countries, without the understanding the Asian ground realities and such a mechanism is not going to be accepted that easily in Asia. For Europe to unilaterally decide what is good for the world does not augur well. It appears like they are making yet another mistake like the H-COC.