Failure to Launch?

For decades, outer space has remained free of war and weapons. While science-fiction portrayals of space as an inter-galactic battlefield continue to captivate audiences, the happy reality is that our outer space is a peaceful place.  Today, approximately one thousand active satellites owned by 60 states or consortiums are in orbit.  These satellites provide us with a wide range of services ranging from navigation and telecommunications to weather-watching and environmental monitoring. These spacecraft have to cope with the hazardous operating environment of outer space but thus far have not had to worry about the threat or actuality of deliberate damage or destruction.

This peaceful environment is in part due to an early achievement of multilateral diplomacy in the form of the Outer Space Treaty of 1967. The treaty set out a special regime for outer space, declaring that this environment constituted a “province of all mankind” in which national appropriation would be precluded and the use of which should be for “peaceful purposes”.  This objective was further strengthened by the treaty’s prohibition on the deployment of any weapon of mass destruction in outer space.  The Outer Space Treaty provided an important normative framework in support of keeping space a benign environment for the general benefit of humankind, but it did not close all the gaps for potentially threatening action.  The states parties to the treaty choose to interpret its “peaceful purposes” mission as not incompatible with the pursuit of military as well as civilian activities.  Moreover, a potential loophole was created by the fact that the treaty did not prohibit all types of weapons – only weapons of mass destruction.  Finally, the treaty did not establish any procedure or infrastructure for sustaining state involvement in its implementation, and its provisions for consultations  were essentially left to state initiative and have not been exercised.

Consciousness of the limitations of the Outer Space Treaty led states to call for its reinforcement through additional measures.  Starting in the early 1980s, this sentiment has been expressed with almost universal agreement by means of a resolution adopted annually at the United Nations General Assembly. Prompted by Cold War tensions, the resolution, entitled, “Prevention of an arms race in outer space” (PAROS) recognizes “that the legal regime applicable to outer space by itself does not guarantee the prevention of an arms race in outer space … that there is a need to consolidate and reinforce that regime and enhance its effectiveness”.  The resolution (the latest version is A/RES/67/30) has been adopted annually with wide support – there have been no votes against it and only two abstentions registered by the United States and Israel.  The almost universally desired policy direction represented by the PAROS resolution was clear, but further measures to strengthen the existing legal regime and ensure continued peaceful usage of outer were not immediately forthcoming. Despite the latent concerns over the inadequacies of the legal regime for outer space security, the peaceful use of outer space continued in practice.

External Drivers

This benign situation was rudely disrupted by two tests of anti-satellite weapons (ASAT). The first ASAT test was undertaken in January 2007 by China against its own satellite. Due to the relatively high altitude of the interception, it produced a large and enduring cloud of debris.  This action, undertaken with no prior consultation and in a manner that generated a dangerous debris cloud, elicited an outcry from the space-faring community. The U.S. action in February 2008 against its own  de-orbiting satellite was conducted more responsibly. The satellite was intercepted at a low altitude (thus minimizing debris) and was presented as an intervention required for public safety.  Whatever its true motivation, the action did effectively demonstrate an ASAT capability on behalf of the U.S. as well.

These two tests revived long-dormant fears that ASAT weapons were again being developed and tested, and that a new era of destructive action against space-based assets could be on the horizon.  These fears had been dormant since the mid-80s, by which point the Soviet Union and the United States had tacitly agreed to abide by a moratorium on ASAT tests which both had experimented with as part of the Cold War. The renewal of ASAT testing, coupled with an unrelated accidental collision in 2009 between a defunct Russian satellite and an active American one, exacerbated growing concerns within the space community over the hazardous effects of cumulative space debris which had reached such magnitude as to pose a threat to satellite operations in low earth orbits.

Against this backdrop (and probably prompted by concerns over the negative direction outer space security appeared to be taking) the European Union (EU) undertook in December 2008 a diplomatic initiative by releasing a proposed “Code of Conduct for Outer Space Activities”. On the basis of this draft, the EU subsequently engaged in a series of bilateral consultations with selected countries, which resulted in a revised version of the Code being approved by the European Council in October 2010. A further version of the Code was issued in June 2012 at a multilateral consultation in Vienna.  There has been little change to the Code’s text over its three iterations. The following analysis of the Code’s contents will draw from the latest version of the proposal.

The Contents of the Code

The EU Code is modelled (to some degree) on the 2002 Hague Code of Conduct for Ballistic Missiles. They are both politically-binding arrangements that would be  voluntarily subscribed to by interested states, and thus differ from international legal instruments such as the Outer Space Treaty, which must be formally ratified . The ratification process is often time-consuming and politically problematic; in choosing to formulate the code as a politically-binding agreement, the EU was likely trying to make signing on more attractive to states, and to the United States in particular.

The Code’s preamble sets out a variety of principles and considerations, including the conviction that, “the formation of a set of best practices aimed at ensuring security in outer space could become a useful complement to international law as it applies to outer space”. The main body of text begins by stating the purpose of the Code as, “to enhance the security, safety and sustainability of all outer space activities.” It continues with sections on “General Principles” and “Compliance with and Promotion of Treaties, Conventions and other commitments relating to outer space activities” that essentially repeats principles and enumerates documents that already exist. Operational content starts to appear in section four of the Code: “Measures on Space Operations and Mitigation of Space Debris”. 

Provision 4.1 is more aspirational than specific. It asks states commit “to establish and implement policies and procedures to minimise the possibility of accidents in space, collisions between space objects or any form of harmful interference with another State’s peaceful exploration, and use, of outer space”. As the Outer Space Treaty would already seem to require such prudent behaviour, it is questionable what this provision adds, beyond the injunction to actually establish and implement the appropriate policies.

Provision 4.2 begins promisingly with reference to states committing themselves to “refrain from any action which brings about, directly or indirectly, damage, or destruction, of space objects” but then proceeds to undermine this restraint by indicating that exceptions would be alright if “justified by the inherent right of individual or collective self-defence … or by imperative safety considerations”.  This could be seen by states as a loophole creating a wide opening for destructive actions by states against space objects as long as such actions are accompanied by claims of self-defence and/or “imperative safety considerations”.  The residual injunction to try to minimize the creation of space debris as a result of such action may seem rather ineffectual in comparison.

The Code’s operational requirements are modest and mainly repetitive of existing agreements. However, the notification, information-sharing and consultative provisions hold a little more interest.  In section 6, states are to notify in a timely manner “all potentially affected subscribing states” of outer space activities, including pre-launch notifications, proximity manoeuvres, debris-creating events, and high-risk re-entry events. A fuller information exchange is also envisioned in section 8, with states sharing information on space policies, strategies and procedures to minimise accidents, collisions and the creation of space debris on an annual basis.  The consultation arrangements in section 9 go beyond those of the Outer Space Treaty. According to the Code, an affected state can be granted the initiative to request consultations regarding activities of another subscribing state deemed in contravention of the Code. Intriguingly, provision 9.1 raises the possibility of (but does not go so far as to create a standing capability for) ad hoc fact-finding missions to be staffed by international experts for the purposes of conducting an investigation of specific incidents.

Finally, in the last part of the Code, under the rubric “Organizational Aspects”, a series of mechanisms are described that if implemented, would provide an on-going capacity for interaction amongst subscribing states and a degree of secretarial support. For example, Section 10 provides biennial meetings of the subscribing states with a wide mandate “to define, review, and further develop this Code and to ensure its effective implementation”.  At the same time it stipulates that the decisions at these meetings “both substantive and procedural, are to be taken by consensus”, thus affording a strong basis for any dissenting state to block any decision.  In addition, a “Central Point of Contact” is to be established which is to inter alia “maintain an electronic database and communications system” and “serve as secretariat at the Meeting of Subscribing States”.  The database is further described in section 12 as a means to “collect and disseminate notifications and information submitted in accordance with the provisions of this Code; and serve as a mechanism to channel requests for consultations”.  The concluding section of the Code provides for the participation of subscribing states of “Regional Integration Organisations (aka the EU) as well as “any international intergovernmental organisation which conducts outer space activities if a majority of the states members of the organisation are subscribing states to this Code”. The full scope of this provision is not clear but it would seem to permit participation by outer space engaged international organisations such as the International Telecommunications Union or the UN Committee on Peaceful Uses of Outer Space.

Assessment

In assessing the draft Code of Conduct as a whole, one can divide it into three parts. The first part (preamble to section 5) is essentially a re-packaging of existing principles and practices. The second part, corresponding to the chapter entitled “Cooperation Mechanisms” (sections 6 to 9), calls for an exchange of notifications and other information that while qualified by phrases such as “to the greatest extent possible and practicable” and “where available and appropriate” would, if implemented, represent an expanded distribution of information amongst subscribing states.  Section 9 outlines a consultative mechanism considerably broader and more flexible than that offered under the Outer Space Treaty. This section also raises the prospect of expert fact-finding missions (although importantly, any decision to establish such a mission would be subject to the consensus requirement for meetings of subscribing states as per section 10.2) . The third part would include the remaining provisions under the rubric “Organizational Aspects” (sections 10-13). These sections would, for the first time, create an on-going inter-state dialogue regarding outer space, establish a central database and communication mechanism, and initiate a secretariat-like support function that could form the basis of a permanent implementation support entity. The term “Central Point of Contact” is not elaborated upon and could cover a variety of forms, for example, one of the subscribing states fulfilling this function or the establishment of a distinct secretariat to carry out the assigned tasks. The development and maintenance of the proposed outer space activities database is conditional upon future agreements of the meeting of subscribing states (12.2). These elements of a supporting infrastructure to facilitate implementation of the Code represent a potential advance for cooperation on outer space, however their realization is made largely dependent on future consensual decisions of the subscribing states.

Process

More than four years have passed since its initial circulation but the Code still has not been the subject of an ad hoc diplomatic conference for adoption, which was the express target of the EU.  Bilateral consultations were undertaken by way of a “hub and spoke” approach with several space-faring nations, but these did not appear to result in any significant changes to the draft text. Major powers such as Russia, China, India, and Brazil expressed concern that the EU drafters were not considering their views or suggestions.  The United States’ position on the Code remained ambiguous. In June 2010, the Obama Administration issued a National Space Policy, which expressed support for Transparency and Confidence Building Measures (TCBMs) similar to those contained in the Code, but it did not endorse the Code per se. The administration avoided taking an authoritative position on the initiative (likely due in part to vocal Republican opposition to the EU Code) until January 17, 2012, when Secretary of State Hillary Clinton announced that, “the United States has decided to join the European Union and the other nations to develop an International Code of Conduct for Outer Space Activities”. 

The announcement of U.S. support for the Code did not translate into an acceleration of the diplomatic process. EU management of the file seemed plagued by delays, personnel changes, and bureaucratic reorganisations. It was not until March 2012 that the first multilateral consultation on the Code occurred in Brussels, followed by a further round in Vienna in June 2012. Vienna was where the current version of the Code was presented to 40 states.  At the time, a European Union press release announced that a further multilateral meeting would be held in New York in October 2012 with the goal to adopt the Code in 2013. The October 2012 meeting never occurred nor did the replacement meeting scheduled for January 2013. The  impression left was that the EU was either fumbling the diplomatic ball or had decided to extricate itself from a leadership role on the initiative. Further multilateral consultation will be required to arrive at a consensus on the contents of the Code. The norm in multilateral diplomacy is that states which are expected to subscribe to a new political arrangement such as the Code of Conduct will want to feel they had a say in its development, and that the contents of the agreement reflect their inputs.

Prospects

Currently, the fate of the EU Code of Conduct is uncertain. A complex multilateral initiative of this nature needs leadership and diplomatic energy to bring it to fruition, both of which seem absent. While the United States has signalled, through the January 2012 statement, its support for an international code, there is no indication that it is looking to take up the mantle of leadership from the EU. There have been no policy utterances from the second term Obama Administration suggesting that outer space security and/or the Code of Conduct proposal is or will be a priority file for Washington. The coolness of certain key non-Western states to the Code (probably reflecting frustration at the handling of prior consultations as much as real differences over substance) further darkens the prospects for progress. Re-energizing the diplomatic process to focus attention on the draft proposal and some skilled negotiating will be required to produce a text that can command general agreement. In the absence of this, even the modest potential contribution to sustaining outer space security, which the Code of Conduct represented, may not be achieved.