The Facts Behind the Code of Conduct

The Department of Defense (DOD) is intensifying its advocacy for the U.S. accession to the proposed European Union Code of Conduct for Outer Space Activities. In a “fact sheet” released a few weeks ago (see http://www.defense.gov/home/features/2011/0111_nsss/docs/DoD%20Fact%20Sheet%20- %20International%20Code%20%208-18-11.pdf), the DOD advances four propositions as “facts”.

Fact #1: “Space is vital to our nation’s security and economy, but space is increasingly congested, contested, and competitive.” True. Trends suggest greater use of space by more nations (and private entities) and for purposes that create conditions for competition and potentially conflict.

Fact #2: “An international Code of Conduct can enhance U.S. national security.” Maybe true, maybe false. Certainly, it is not a “fact;” it is the DOD’s opinion. The “fact sheet” rightly suggests that it is in the interest of the United States for countries and companies operating in space to act responsibly. The DOD then offers the following: “A widely-subscribed Code can encourage responsible space behavior and single out those who act otherwise, while reducing risk of misunderstanding and misconduct.” How? Apparently, they see a linkage between the code and creation of “Debris mitigation standards, guidelines for reducing radiofrequency interference, and shared space situational awareness.” Of course, each of those things can be developed without an international code of conduct and there is no evidence to suggest that a code aids the development of these regimes. In fact, rather than spending time and political capital negotiating a Code, the U.S. would be better off focusing on the construction of these standards, guidelines, and other tools that would address the practical problems affecting space operations. In that way, the U.S. would visibly demonstrate leadership while furthering meaningful standards of behavior. A code of conduct or norms without practical insight into how to behave consistent with said code or norms is meaningless, at best, and, at worst, open to misinterpretation and misperception, which is exactly the kind of destabilizing outcome the U.S. wishes to avoid in space.

Fact #3: “We are evaluating the EU’s draft as a promising basis for an international Code.” This seems a bit disingenuous, as the regular endorsement of an international code by DOD officials, the release of this “fact sheet,” and the absence of any other competing version of a code of conduct makes it likely that DOD will grant a positive endorsement to the EU Code, if it hasn’t already. More important than the semantics concerning where the DOD is in its evaluation process is the straw man comparison of the code to space arms control. The DOD fact sheet asserts the code is preferable to international space arms control and “better serves” U.S. interests. If those were the only two choices, they would be correct. But, those are not the only two choices. page1image25872

Fact #4: “We are committed to ensuring that any Code advances U.S. national security.” Good. Signing a code of conduct leaves significant operational details unanswered and open to further negotiation. The DOD, and other code advocates, are fond of pointing out that a code of conduct is not legally binding and would not preclude steps to preserve our right to self-defense. Taking either one of these propositions further reveals the short-sighted nature of this line of argument. Are we to expect no diplomatic consequences if the U.S. were to rescind its commitment to the code, after having approved of it, or withdraw from negotiations? There may be no formal penalties, but U.S. “leadership” surely would suffer. And what if the U.S. were to take actions that others judged inconsistent with the code, but which we judged as in our right to self-defense? Again, there are no formal penalties, but it would hardly be cost-free. Finally, while many of the proposed elements of a code of conduct are entirely consistent with U.S. practice, do our international partners view them the same way we do? The EU Code is little more than wide ranging collection of statements. Those statements leave little to quibble with, but it is also quite clear that detailed technical meetings are required to flesh them out. As the saying goes, “the Devil is in the details.” The U.S. should take no step toward a code until those details are clear and their implications are fully vetted publicly.

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