Conduct of the Code

The European Union wants other governments to adopt its draft “Code of Conduct for Outer Space Activities.”  The administration of U.S. president Barack Obama has been working with the EU on this code for a couple of years, and according to a deputy assistant secretary of state is hoping “to make a decision as to whether the United States can sign on to the code in the coming months,” pending reviews of potential national security and foreign policy implications.  Should the U.S. join, reject or to defer action?

First, there may be in a procedural issue: can the administration, without consideration by the Senate, commit the U.S. to “making progress towards adherence to, and implementation of” several declarations, principles and treaties, including the Comprehensive Nuclear Test Ban Treaty (1996), which the U.S. senate has never ratified?  Whatever the legally correct answer, involving the Senate in these deliberations might strengthen whatever path the country eventually follows.

On the substance of the code, several arguments have been advanced in its favor.  Nothing in the text appears immediately egregious; the drafters promise to consider seriously any modifications that potential adherents might like to propose, and the “code” is not intended to be a treaty and will not have the force of international law.  Substantively, the code as currently drafted is largely in accord with principles advocated by the U.S. National Space Policy and does not threaten the considerable progress made recently by the United States and international groups to promote “best practices” to reduce debris and avoid collisions in space.  Moreover, the code might help forestall broader acceptance of the draft prohibition against weapons in space proposed by Russia and China.  The U.S., it would appear, can just sign up, see whether it can ameliorate the changes required to bring Russia into the fold, and drop out if things take a distasteful turn.

Yet “can’t hurt us too much” is not the same as a compelling net benefit.  The U.S. already espouses sound principles for conduct in space and encourages others to do the same.  Debris and best practices are already addressed through the Inter-Agency Space Debris Coordination Committee, comprising NASA together with the space agencies of Italy, France, China, Canada, Germany, India, Japan, Ukraine, Russia, the United Kingdom and the European community.  Conjunction analysis and collision avoidance warnings are provided bilaterally pursuant to a congressional direction (by the Air Force Joint Space Operations Center) and through cooperation in the industry (Space Data Association).  And there seems scant likelihood that the Russian and Chinese draft proposal against weapons in space will gain many advocates among space-autonomous governments (those that can design, build, launch and operate their own satellites).   What, then, is gained by endorsing the code, particularly now, in its current gestational status?

Doing so might in fact entail some costs, even if no legal penalties are incurred.  Rescinding a commitment, to the code or to the negotiations nurturing it, could provoke diplomatic and political reactions, as would surely be true if the U.S. pursued programs or actions that others might consider not in keeping with the code’s provisions or its spirit.  True, the code appears to advocate many of the principals advanced in the U.S. National Space Policy, but differences in history, context and aspirations may spark specific disagreements.  How far, for example, will others support the U.S. view of matters covered by the “inherent right of self-defense” – how imminent the threat?  How precautionary the reconnaissance?  How far will the U.S. support the views of others about obligations implied by agreeing that space is the “common heritage” or “common province” of mankind – terms of central import in declarations and principles that signers of the code pledge to observe and advocate?

Can the United States be so sure that participation in the code will not constrain U.S. policies, programs or activities?

And if it can be so sure, does endorsing the code look hypocritical?

This article appeared in Space News, Vol. 22, Issue 13, April 4, 2011 p. 19

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