U.S. Backs Efforts to Draft Space Code

Timothy Farnsworth

The United States will join with the European Union and other space-faring countries to develop an international code of conduct for outer space activities, but will not sign on to the EU’s current draft of a proposed code, U.S. officials have said.

“The long-term sustainability of our space environment is at serious risk from space debris and irresponsible actors…. A Code of Conduct will help maintain the long-term sustainability, safety, stability, and security of space by establishing guidelines for the responsible use of space,” Secretary of State Hillary Rodham Clinton said in a Jan. 17 press release. U.S. officials have discussed whether to support the EU’s draft of the code since the original version was circulated in December 2008. (See ACT, January/February 2009.)

The EU released the latest draft of the code in 2010 after receiving feedback from other countries, including the United States. That document retained much of the language from previous versions, including a clause establishing a voluntary commitment to refrain from intentionally harming space objects, measures to control space debris, and mechanisms for cooperation and consultation. It added language to protect countries’ rights to self-defense under the UN Charter. (See ACT, November 2010.)

Despite the negotiations between the United States and the EU, Undersecretary of State for Arms Control and International Security Ellen Tauscher told reporters on Jan. 12, “It’s been clear from the very beginning that we were not going with the [EU] code.” When asked why the United States would not sign on to the EU draft, Tauscher said that “it’s too restrictive.”

Speaking a week later at the Stimson Center, Deputy Assistant Secretary of State for Space and Defense Policy Frank Rose said Tauscher’s comment was referring to the process surrounding the creation of the EU code more than the substance of the code. “Before you convene a multilateral ad hoc conference to sign the code, you need to develop a process in between to build consensus on a code,” Rose said.

In a Jan. 25 interview, Michael Krepon, co-founder of the Stimson Center and director of its South Asia and space security programs, said that “leaders from other space-faring countries not in Europe, like India, rightly complained that they didn’t have co-authorship of the EU’s draft.” The code “already has important partnerships, like Japan, Canada, Australia, and Europe, but the task now is to get the concept of a code of conduct greater international standing,” Krepon said.

EU reaction to the U.S. decision not to sign on to the current draft of the code was “rather mixed and quite negative from the senior officials,” according to an EU government official familiar with negotiations over the proposed code.

According to the unclassified summary of the U.S. “National Security Space Strategy,” released in January 2011, space “is becoming increasingly congested, contested, and competitive.” The clutter of manmade objects is exacerbated by actions such as the “irresponsible” 2007 Chinese anti-satellite test that created more than 3,000 pieces of debris, the report said.

Next Steps

At the Stimson Center event, Rose said the EU will take the lead on negotiating an international code and plans to host a series of experts meetings over the next several months. The United States “plans to actively participate in those discussions,” which aim “to develop a consensus text that could become an eventual international code,” he said.

Rose said the United States hopes to involve all space-faring nations in the meetings, but he highlighted five countries that should be a focus of EU efforts: Brazil, India, Indonesia, Nigeria, and South Africa. However, experts say China and Russia are the two countries that matter most because they are the biggest space-faring countries after the United States.

In a Jan. 26 e-mail to Arms Control Today, Rajeswari Pillai Rajagopalan, a senior fellow in security studies at the Observer Research Foundation in New Delhi, pointed to the fast-growing space programs in Asia and said that, “in the absence of an inclusive mechanism, the EU Code is likely to see a repeat” of the experience with the Hague Code of Conduct Against Ballistic Missile Proliferation, “where the majority of the Asian countries that contribute to the challenge of missile proliferation remain outside the mechanism.”

As Arms Control Today went to press, India had not come out with a formal position on the EU’s draft. However, India’s informal position is that the code lacks a provision for a legally binding mechanism, which has been “a long-standing demand from some of the Asian countries,” Rajagopalan said. Nevertheless, she said, India is “prudent” enough to “recognize that a legal framework may emerge much later” and legal frameworks often “are the by-products of normative exercises.”

Krepon said that any involvement by India to help draft an international code would be “a change in its strategic culture, which is currently to be an outsider and to complain,” citing India’s reluctance to participate in the UN Group of Governmental Experts (GGE) on Space and its absence from the Hague Code of Conduct.

The GGE, which was established by UN General Assembly Resolution 65/68 in October 2011 to examine transparency and confidence-building measures, is scheduled to start in July 2012 and is expected to finish by July 2013. The GGE process is separate from the one that Rose proposed and is not a formal negotiating process. It is not clear whether the GGE process will include discussion of a code of conduct.

China and Russia have proposed their own space agreements, most recently a draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects (PPWT). Rose stressed that the U.S. position is not to negotiate on the PPWT. The United States sees the code “as a pragmatic and responsible alternative to the PPWT,” he said. U.S. officials, including Rose, have said that the PPWT’s language is weak and lacks an effective mechanism for verification.

Domestic Politics

Four congressional Republicans expressed their support of the State Department’s decision on the EU code in a Jan. 28 letter to President Barack Obama, but said they were concerned about the administration’s plans to negotiate an international agreement similar to the EU’s draft.

“Such an international agreement could establish the foundation for a future arms control regime that binds the United States without approval of Congress,” said the letter signed by Reps. Michael Turner (Ohio) and Joe Heck (Nev.), and Sens. Jeff Sessions (Ala.) and Jon Kyl (Ariz.). Turner, Heck, and Sessions hold senior positions on their respective chamber’s armed services or intelligence committees; Kyl is the Senate minority whip and a leading Republican voice on national security issues.

At the Jan. 19 Stimson Center event, Deputy Assistant Secretary of Defense for Space Policy Gregory L. Schulte said nothing in the code would keep the United States from developing, deploying, or testing land or space ballistic missile defense systems. He said that any code would not be a legally binding arms control agreement, but a set of nonbinding “guidelines” that countries would follow.

The four lawmakers said in their letter that although “it is worth considering whether a non-binding arrangement for outer space activities could be in the interest of the United States, we are not comfortable that all policy and operational impacts of doing so have been assessed.” They went on to say that Republicans “are deeply concerned about the unknown consequences such limitations would have on future military or intelligence programs given that the draft Code appears to be of unlimited duration.”