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Fate of Space Code Remains Unclear
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Timothy Farnsworth

A new draft of the European Union’s proposed international code of conduct for activities in outer space was released during a May 27-28 meeting in Luxembourg, but despite the revisions, it is unclear which countries will support the code.

“We are fully aware that [the current draft] does not meet the concerns and expectations of all,” Jacek Bylica of the EU, chairman of the meeting, said in his closing remarks.

The meeting was the last of a series of three consultations that began in Kiev in May 2013 and continued in Bangkok in November 2013. The meetings represented an effort to expand the group of negotiating states beyond the established spacefaring countries. (See ACT, May 2013.) During the three meetings, officials from more than 80 countries met to discuss elements of a code, with many disagreements remaining throughout the process.

The EU began the process for establishing a code of conduct in outer space in 2008 by presenting an initial draft at the UN General Assembly as part of a call for proposals for transparency and confidence-building measures in outer space activities. The goal of the code is to establish guidelines for responsible behavior in space that would reduce the risk of debris-generating events and increase transparency in space operations in order to avoid collisions between space assets and debris.

Most of the changes to the current draft are minor, but there are two notable additions in the preamble. The first notes “the importance of preventing an arms race in outer space” as one reason a code of conduct is necessary.

In an e-mail exchange last month, Michael Krepon, co-founder of the Stimson Center, said the additional language “could be a nod to reluctant parties, but it clearly wasn’t enough to bring Moscow and Beijing on board.”

According to a recent analysis of the consultation process by Reaching Critical Will, which is part of the Women’s International League for Peace and Freedom, some countries, including Brazil, China, and Mexico, say references to self-defense within the draft code encourage an arms race in outer space. They argue that many weapons used for defense of assets can also be used as offensive weapons and that the language on self-defense should be removed.

In contrast, Canada, Japan, the United States, and the United Kingdom and other EU members say the language is consistent with the UN Charter and that the dual-use nature of many space assets and activities warrants references to security issues in any code of conduct, the analysis said.

Another point of debate during the meetings was how a code of conduct would relate to current international law and UN initiatives under way, such as the Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities, the UN Committee on the Peaceful Uses of Outer Space, and the thematic debate to prevent an arms race in outer space within the Conference on Disarmament (CD) in Geneva.

The second addition to the preamble is language that endorses initiatives that are politically but not legally binding, citing a July 2013 report by the experts group on space. That report attracted consensus support from a wide range of countries, including China, Russia, and the United States. In a June 10 statement to the CD, Frank Rose, U.S. deputy assistant secretary of state for space and defense policy, said the experts group’s report, which was adopted by the UN General Assembly last December, “demonstrates the importance and priority of working on these voluntary and pragmatic measures.”

Early in the process for developing the draft code, countries such as Brazil, India, and many Latin American states said there was a lack of transparency in the process and expressed “disappointment over not being sufficiently consulted,” according to the report from Reaching Critical Will.

Next Steps for the Code

According to many analysts, it is still unclear what the next steps are for finalizing a code of conduct, despite Bylica’s hopes to conclude the process by the end of 2014.

According to Bylica’s statement, the draft released during the Luxembourg meeting is not expected to be the final version, and the EU expects to produce a sixth version. But a diplomatic conference to negotiate a final text has not been announced despite calls for one by several countries, the Reaching Critical Will analysis said.

One option could be bringing the final draft of the code to the UN General Assembly for a vote. Many countries, such as Egypt, Pakistan, and Russia, have argued that the UN is the appropriate place to debate a code of conduct. Many other countries, including the United States and EU members, have been against negotiating a code within the UN fold.

But Krepon said in his e-mail that he is “in favor of bringing the concept, if not the language” of the draft code to a vote this fall in the General Assembly. “States that vote against [it] or abstain will clarify their outsider status,” he said.

Alternative to a Code

China and Russia argue that the draft code does not go far enough in preventing an arms race in space and have been pushing within the CD for a treaty that does that.

In June 10 remarks to the CD, Chinese ambassador Wu Haitao said that “the existing legal framework of outer space is not able to prevent weaponization of outer space or effectively prevent the threat or use of force against outer space objects.”

During the June 10 meeting of the CD, Russia and China introduced a new version of their draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects (PPWT). According to Wu, the new PPWT draft takes into account the recommendations from the July 2013 experts group report and the views of different countries.

Although the new draft makes extensive changes to the text and structure of the prior draft, it does not appear to have any new elements, such as language on prohibiting the testing of anti-satellite weapons.

The United States has been critical of the draft treaty since China and Russia introduced the original text in 2008. During his June 10 remarks, Rose reiterated the U.S. position supporting initiatives for arms control in space that are “equitable, effectively verifiable, and enhance the national security of international partners.”

Rose said the new draft PPWT fails to “address significant flaws” in the original version, citing its lack of an effective verification and monitoring regime and its failure to prohibit terrestrially based anti-satellite systems. Responding to the Chinese and Russian argument that the existing legal framework for operating in space needs to be revised, Rose said the current framework established by principles 50 years ago “provides a solid basis for operating in space today.”

Posted: July 2, 2014