Commentary | EU Courts Support for Space Code of Conduct

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The attempt at global governance of outer space has been gaining momentum in recent years. There are multiple efforts underway — the European Union-proposed International Code of Conduct for Outer Space Activities, the Russia- and China-proposed draft Treaty on the Prevention of the Placement of Weapons in Outer Space (a revised text of which was presented June 10 at the Conference on Disarmament) and the Prevention of an Arms Race in Outer Space are the most prominent.

The EU’s code of conduct, in particular, has been gaining considerable momentum. The EU drafted this document back in 2008, but with the exercise being limited largely to the European countries it did not enlist much support from the international community. Initially the EU had set a deadline of 2012 to get an international endorsement, but international criticism of the code was too strong for the EU to ignore.

While there are debates and disagreements on substantial aspects of the EU code, a major chunk of the criticism is aimed at the process by which it was developed. Addressing this, the EU held its first open meeting in Vienna in June 2012. In an effort to reach out to countries and understand regional concerns, the EU also hired the U.N. Institute for Disarmament Research to hold regional conferences on the development of an international space code of conduct in Malaysia, Ethiopia, Mexico and Kazakhstan. Critically, the EU held three open-ended consultations on the development of the code — the first in Kiev, Ukraine, in May 2013, the second in Bangkok in November 2013 and the third in Luxembourg in May 2014 — in an effort to make the process truly international. However, these remained only of a consultative nature, with states offering their views on the most current drafts of the EU code but not participating in any drafting exercises.

To the EU’s credit, numerous views were taken on board in subsequent drafts in an effort to increase international support for the text. The last round of open-ended consultations involved 63 countries and a total of 111 participants. Over the three consultations, more than 80 countries took part in the process. A new draft of the EU code is expected to be released later this summer, along with the announcement of what lies ahead for the code.

While there has been progress over the last few years in terms of garnering greater support for the EU code, there appear to be a few outstanding issues that need further elaboration and alteration to make the code more appealing. In an edited volume brought out by India’s Observer Research Foundation in March, many of these issues were addressed by officials who were closely associated with the debate. This volume contained both regional perspectives and debates on substantive and procedural issues. Some of the issues raised in the volume and those that remain to be addressed by the EU in a satisfactory fashion are detailed here.

Many countries, including Russia, China, Ukraine, Mexico, Thailand, Brazil and Ethiopia, have argued that the code should be restricted to only peaceful uses of outer space and that it should be retitled to reflect as much. The EU, on the other hand, articulated the need to have a comprehensive document that will deal with safety and security for both peaceful and military uses of outer space. Countries such as the United States, Japan, the United Kingdom, Italy, Germany and Canada made a strong case for the inclusion of security issues because of the dual-use functions of space assets. If anything, the argument that there is a need for a broader instrument encompassing both the civilian and security aspects is also gaining momentum around the international community. Compartmentalization may not be a useful approach, and outer space activities likely need to be approached in a holistic manner.

One of the concerns that many countries expressed is how signing on to a code may restrict their options in the future. These concerns have come from countries, mostly in Africa and Latin America, that are not yet spacefaring but have ambitions to be so. The concern is very similar to that found in the debates on the regulation of carbon emissions, particularly since even the imposition of space debris mitigation guidelines will inherently invoke additional costs in order to ensure clean and responsible space activities. The perception is, therefore, that this is an instrument proposed by the established spacefaring powers to slow down the entry of newcomers into this domain.

On the other hand, there is an emphasis on international cooperation in the EU code that might lead to benefits such as technology transfers, but this also raises some concerns. A code could, ideally, list out certain broad norms for engagement and cooperation. Cooperation that is totally unregulated has the potential to spur regional and international insecurities, and even contribute to an arms race in space. A section on international cooperation in the code might outline certain rules of engagement in order to attract support from emerging space actors. Alternatively, the established spacefaring states that are pushing for the adoption of the code could make independent political arrangements to ease access to space technology to those states that adopt the new framework.

Another concern is about the categorical reference in the code to the right to self-defense under Article 51 of the U.N. Charter, which reiterates the sovereign right to national self-defense. Countries across Latin America and also a few African countries have found the reference to Article 51 as particularly objectionable. Under their legal culture, such a reference could be seen as something that will accelerate the process of space weaponization. Also, given that these countries are in the nascent stages of developing their space capabilities, they do not yet have counterspace technology to defend themselves even if the need arose. Again, under their legal culture, they argue that an obvious reference makes it easier for greater space powers to justify resorting to military solutions in space rather than diplomatic means. Other countries, including the United States and India, see this reference as being in line with the language of the U.N. Charter.

The reality is that a reference to or the absence of such a right in the code changes nothing. It already is part of international law, enshrined in the U.N. Charter. Thus, the states find themselves at an impasse with some saying that if nothing changes, why keep it, and others saying that if nothing changes, there is no need to strike it. Many states will have a difficult time selling the code back home depending on this particular reference.

Lastly, if one is to see a meaningful process leading to a successful completion of the EU code, there has to be better accommodation among the major powers. Lack of consensus to deal with challenges has contributed to slow development of space norms. However, the need for a new regime is real given the growing challenges in outer space from an arms race to space debris and radio frequency interference. Under the current international climate, where political differences between states are major hindrances in instituting legal measures, the code is a good effort.

A final word on the way forward for the EU code. The next stage might be to shift from a consultative to a negotiating phase, before moving to hold a diplomatic conference that could call upon state parties to sign and endorse the mechanism. Also, some states have called for a U.N. endorsement in order to make the code a truly international instrument.

Given that the consultative phase has now been completed, the EU seems poised to finalize the code. It is likely that a significant number of states will be ready to adopt it, including the EU, the United States and their allies, as well as some developing countries in Africa and Latin America. However, many of the states whose space activities could pose a threat to the safety and stability of outer space could see the code as a hindrance, and much like other agreements dealing with carbon emissions or missile proliferation, they simply will not sign.

 

Dr. Rajeswari Pillai Rajagopalan is a senior fellow at the Observer Research Foundation in New Delhi. She served in India’s National Security Council Secretariat from 2003 to 2007. Daniel A. Porras is a visiting fellow at the Observer Research Foundation. He formerly was the project manager at the U.N. Institute for Disarmament Research on the project to facilitate the development of an international code of conduct for outer space activities.