Star-crossed: An international code of conduct for outer space?

There were many nicer places to spend the last week of July than a windowless conference room at the UN HQ in New York, but that was the venue for a gathering of over 100 states (including a Canadian delegation headed by Heidi Hulan of DFATD) to consider a proposed International Code of Conduct for Outer Space Activities.

This initiative of the European Union has been under development since 2008 and consists of a series of voluntary measures which its drafters hope would help “safeguard the continued peaceful and sustainable use of outer space.”

The EU has taken its time with consultations with leading spacefaring nations including three rounds of open-ended consultations in 2013 and 2014 and several revisions to the text. The EU had billed the New York meeting as “multilateral negotiations” and had hoped that the assembled states would now be ready to engage in the negotiations that would bring this draft to its final form and set the stage for its adoption.

Canada figured among the strong supporters of the Code of Conduct and signaled that after three rounds of consultations it was time to finalize the text and adopt what it characterized as valuable ‘rules of the road’ for space activities.

Alas a quick consummation was not to be. In multilateral diplomacy, process is at least as important as substance. The EU’s earlier efforts to shape the development of the text and retain exclusive control over which suggestions emerging from consultations were reflected in the revisions and which were not had soured some influential states on the entire process.

In particular the so-called BRICS grouping of Brazil, Russia, India, China and South Africa voiced their opposition to the EU approach. In a joint statement delivered at the opening of the New York meeting the BRICS “reaffirm their position that the elaboration of such an instrument should be held in the format of inclusive and consensus-based multilateral negotiations within the framework of the UN.”

Furthermore, the BRICS stressed that while they were onside with the transparency and confidence building measures contained in the Code of Conduct, work on this “should not prejudice or delay the elaboration of legally-binding instruments to strengthen the existing legal framework for outer space.”  In other words, voluntary measures are no substitute for legally binding agreements when it comes to reinforcing outer space security.

For the American delegation voluntary measures were just fine and U.S. representatives stressed in their interventions the non-legally binding nature of the Code of Conduct. This stance by the Administration reflects the antipathy that Congress has shown to any international agreements that might constrain American freedom of action in outer space.

The Canadian delegation tried to walk the narrow line between the BRICS and American positions by expressing support for the voluntary measures as a short-term step that would build momentum for space security diplomacy and facilitate longer term negotiation of legally binding instruments. Canada has espoused the goal of an agreement on the non-weaponization of outer space for decades, but in light of the opposition from the U.S. and other quarters to such a treaty has advocated more recently for politically binding measures like the Code of Conduct.

Whatever the status of the measures finally agreed on, the Canadian delegation called for states “to refrain from destabilizing activities, make their intentions in space clear, and act responsibly.”

These would all seem to be non-controversial sentiments, but what constitutes responsible action is interpreted in different ways by different states. A central focus of the Code of Conductis the desire to reduce harmful space debris, although exceptions are made in the draft for “imperative safety considerations” and “the inherent right of individual or collective self-defence.”

Some states fear that these exemptions could prove to be loopholes for states engaging in destructive actions in space and should be eliminated from the text. As one Brazilian diplomat put it “I cannot see how this reference to self-defence, that hangs like a sword over a person’s head can contribute to an atmosphere of understanding.” He went on to argue that by including the self-defence proviso “we are in fact referring to an attack that should never be allowed to happen. What we must do is to prevent the use of force in the first place.”

Such major differences in perspective are not overcome lightly even when states are ready to engage in active negotiations, which they clearly were not at the New York meeting. In the face of opposition from the BRICS and others, the EU had to settle for an outcome that fell far short of an endorsement of their draft text. The Chairman’s summary issued at the meeting’s conclusion noted the range of diplomatic options for negotiation of the Code of Conduct. In his assessment however “the most supported way forward would be the pursuit of negotiations within the framework of the United Nations through a mandate of the General Assembly.”

Such a transition to a multilateral negotiation under a UN General Assembly mandate would put all concerned states on an equal footing. It would also mean an end to the dominant position the EU has exercised since it first unveiled its proposed Code of Conduct in 2008. It remains to be seen whether the EU will accept such a severance of the umbilical cord and all the ensuing uncertainty as to the contents of a Code of Conduct emerging from a UN-led negotiation. In the absence of such a decision however, the EU initiative may just become another well-intentioned proposal that fails to gain the broad acceptance necessary for its international credibility and effective implementation.

This piece first appeared on Embassy News.