Commentary | U.S. Should Take a Cold, Hard Look at Space Code of Conduct
The International Code of Conduct for Outer Space Activities, which succeeded the European Union code of conduct and was publicly released as a draft in September 2013, represents an evolution from the original EU code of conduct. The EU code was rejected by the United States for several reasons, including national security concerns, but even though the code of conduct has been substantially overhauled it still does not offer the United States tangible benefits and potentially places greater burdens and restrictions on the United States.
The issue of space debris is a substantial focus of the code. Section 4 focuses specifically on the issue and would require a subscribing state to refrain from actions that could create space debris, to take appropriate measures to minimize collisions and to implement the U.N. Space Debris Mitigation Guidelines, which were endorsed by the United Nations in General Assembly Resolution 62/217 in 2007. Considering the impact and potential future threat of space debris, this a valid set of principles to abide by.
The United States unquestionably has contributed significantly to the current space debris environment; however, the United States has also led the way in space debris mitigation. NASA was the first space agency in the world to develop orbital debris mitigation guidelines in 1995 and two years later developed Orbital Debris Mitigation Practices. These practices became mandatory under the George W. Bush administration and the 2006 National Space Policy through NASA Procedural Requirement 8715.6A. The Obama administration went one step further and extended this requirement to the Department of Defense.
Comparatively, the United Nations adopted its voluntary guidelines, which are heavily based on the guidelines established by NASA, in 2007. If one of the goals of the code of conduct is to compel subscribing states to abide by the United Nations’ guidelines, then by adopting the code the United States will be promising to abide by guidelines that it created and voluntarily mandated. The question is, what is the benefit of promising to follow the U.N. guidelines when the United States has led the way on orbital debris mitigation?
Another concern is where the code of conduct essentially duplicates a legally binding treaty. Section 5 of the code, which deals with notification of space activities, is essentially taken from Article 9 of the Outer Space Treaty. Section 5’s notification requirements cover prenotification of launch of space objects, notifications of potentially malfunctioning of or loss of control of space objects or potential collisions. These concerns form the basis of Article 9 of the treaty and are already binding on the United States. This suggests that while holding out the Outer Space Treaty as binding international law, the code is attempting to circumvent the Outer Space Treaty and use a political mechanism to promote and put into force an obligation that is already legally binding on the United States.
Beyond this, the United States, through U.S. Strategic Command (Stratcom) and its Joint Space Operation Center, provides orbital telemetry for space objects and issues notifications for potential collisions. Stratcom is engaged in creating bilateral transparency and confidence-building measures with other nations, including the Russian Federation, for sharing of space situational awareness data. If the objective of the code of conduct is to increase cooperative sharing to increase space situational awareness, then that objective is duplicative of what the United States is already doing proactively. If anything, adopting the code would co-opt the efforts of Stratcom and create a heavier burden for the United States, and mandate it through political promises channeled into legally binding regulations to provide data that it is already doing proactively. Moreover, the code could implicate sensitive national security information and methodologies and require that information to be disseminated to fulfill a political promise made within the code.
The bottom line is that the code of conduct espouses principles and norms for outer space activities that the United States has taken upon itself to perform unilaterally and will continue to do so without the code. In view of this, what potential benefit is there for the United States to bind itself with a measure?
This question needs to be viewed from the standpoint of geopolitics and not globalism. Therein lies the catch, because proponents of the code of conduct, including diplomats and nongovernmental organizations in the arms control community, look at the code from a globalist perspective and not a geopolitical viewpoint. This raises the question as to whether the code is truly about ensuring outer space security or rather a masked effort to constrain the United States and its outer space capabilities.
Proponents of the code of conduct quickly point out that it is not legally binding under international law, which means it does not have the effect of a treaty and Congress would not be required to pass new statutes to comply with an adopted code. However, if the United States adopts the code, the executive branch has the privilege to implement domestic regulations to comply with the code, which the intelligence community and the Department of Defense would be compelled to adopt. This concern is exacerbated by the nature of the code being a transparency and confidence-building measure; traditionally those have been used as precursors to arms control measures. This raises the question as to whether the code is a veiled attempt by the arms control community to constrain the outer space capabilities of the United States by means other than a legally binding treaty, which would require the approval of the Congress to negotiate and ratify.
The code as a political agreement also has no standard of interpretation. Legally binding treaties are generally interpreted according to the Vienna Convention, and states subscribing to a treaty can rely upon that accord to interpret their legal obligations under a legally binding measure. The code is a nonlegal political agreement, and with no agreed-upon interpretation or legal measuring stick of the principles and the extent of the responsibilities they entail, a subscribing state could be pushed into a political corner to its detriment.
Additionally, the code allows for modification after it is entered into. This opens the possibility that if the United States is enticed into signing onto the measure more burdensome political requirements could be added such as classifying a group of space objects or activities, including commercial activities, as needing further regulation. The allowance for open modification would give other nations the leverage to dictate the space policy of the United States based upon their own geopolitical interests under the guise of “cooperation.”
All this means the United States, being the premier outer space actor and depending greatly on its outer space assets for national security, could be forced to make unfavorable compromises far in excess of those other spacefaring nations are willing to make. It would also allow the executive branch to make unilateral compromises purely for political expediency and to appease other subscribing states, which could implicate space capabilities and as a result national security interests, including limiting the ability of the military and intelligence to function in the outer space environment.
The United States should take a cold, hard look and thoroughly analyze the code of conduct from a geopolitical standpoint and not allow palls of cooperation to cloud its analysis. Talking points and promises of cooperation are not a substitute for hard legal, national security and political analysis.
The United States enjoys a substantial advantage in outer space capabilities, which its national and economic security rely heavily upon, and while misinformation about its intentions in the use of those capabilities is spread by its geopolitical competitors, the presence of those capabilities and the practices developed have done more to promote and advance outer space security and stability than detract from it. Compromising those capabilities for the sake of an agreement that would do little more than act as a political tool to lull the giant to sleep so it can be subdued does little to promote outer space security and creates a more dangerous and unpredictable situation for all space actors.
Michael Listner is an attorney and the founder and principal of Space Law and Policy Solutions, a think tank and consultation firm that concentrates on legal and policy matters relating to space security and development, including issues surrounding space debris. He is also the interim president and chief executive of the International Space Safety Foundation. The views expressed are those of the author and do not represent those of the foundation.