Michael KreponWill Gravity Lift the Space Code of Conduct?

Space may be the final frontier, but it’s also the cosmic dust that we’re made of. Our lineage traces back to seawater, as well. Is that why we humans stare out into space and the ocean?

Two wordless and magnificent movie scenes book-end our connection to the cosmos. The first, as you probably figured, is in 2001: A Space Odyssey, directed by Stanley Kubrick. In mesmerizing slow motion, our hairy ancestor heaves a bone into the air, end over end, and in a brilliant editing cut, the bone transforms into a rotating space station. The second is at the end of Gravity, by Alfonso Cuarón, where, after an impossibly harrowing space voyage, an astronaut returns to earth, barefooted, walking through the primeval ooze. (The actress playing this role babysat for our children, but that’s another story.)

Crotchety Sexagenarian Syndrome: If you haven’t seen Gravity yet, I suggest bringing earplugs for the previews of coming attractions. In our local theater, the previews were all science fantasy flicks — good vs. evil, fate of the world, a hero with magical powers, the obligatory love interest, standing indomitably against impending doom. What does this derivative drivel say about our popular culture and our youth? In case your attention wanders, the sound is amped up like a Metallica concert – a purely conjectural analogy. You might want to bring eyeshades as well, to avoid the dizzying effects of over-the-top computer graphics on an IMAX screen (3-D glasses optional) that prompt even bored game boys and thumb jockeys to pay attention.

Special effects and computer graphics are put to good use in Gravity to show the quiet wonders of spaceflight and the menace of debris – in this case, triggered by a hit-to-kill anti-satellite test. Perhaps Gravity will hammer the last nail in the coffin of these tests. The scales have been tipping that way since the 2007 Chinese ASAT test.

This long-windedness constitutes a preamble to plug, once again, an International Code of Conduct for responsible space-faring nations. The third draft of an ICoC, released in September by the European Union, is better than its predecessor, as enumerated on the Stimson Center’s website. This fall, China and Russia endorsed an ICoC in principle, but they have yet to endorse the EU’s handiwork. India and Brazil have also withheld official endorsement.

One reservation is that the ICoC will not be a legally binding treaty that constrains military space programs. This complaint has the practical effect of making pragmatic, useful steps hostage to a treaty that will either be too broad to be verifiable, or too narrow to matter. Besides, entry into force will be questionable. If, however, the pursuit of a treaty matters – more on this later – how would this goal to be advanced by withholding support for the ICoC?

The second reservation, related to the first, is that the draft ICOC makes reference to the inherent right of subscribing states to self-defense. Where to begin? Shall we also take issue with the UN Charter’s reference to the inherent national right of self-defense? What useful purpose would be served by not reaffirming the right of self-defense in the ICoC? Would the use of space weapons in extremis be less likely if the ICoC employed the cotton-candy phraseology of the Kellogg-Briand Treaty?

Not all types of weapons are OK to use in self-defense. Treaties ban the right of states to use chemical and biological weapons, for example. There has been a serious debate, with an assist from the World Court, on whether and when the use of nuclear weapons would be permissible in self-defense.

If we were to pursue a treaty banning the use of certain weapons in space for self-defense, what would those weapons be? Kinetic energy ASATs are the obvious place to start, but medium-, intermediate- and intercontinental-range ballistic missiles could be used in this way. Shall we ban them all? If not, how can we tell what they are programmed to do? Do advocates of a new space treaty propose to ban ballistic missile defense tests, as well? Do they consider the use of BMD to be prohibited acts of self-defense? If advocates of a new space treaty concede that BMD is a legitimate act of self-defense, and do not seek to ban all BMD tests, how would they propose to define and verify differences between BMD tests and ASAT tests? Do advocates of a space treaty consider all proximity operations in space to be surrogates or precursors to attack? If not, how would they propose to distinguish and verify benign and unacceptable proximity operations in space? What about the use of lasers? How about “black” programs? If violations are detected, how would treaty advocates propose to make plausible, public cases to assert violations? How do they propose to respond to violations?

Russia, China, and other advocates of a sweeping space treaty recognize that technologies and hardware that could be used to harm satellites or engage in space warfare could also have permissible uses. Since permissible uses ought not to be banned, Moscow and Beijing have instead proposed banning weapons (only in outer space, not on the ground) that are “specially produced or converted” to engage in prohibited acts.

The weaknesses of this approach are too numerous to mention, but here’s a start: Is it possible to reach consensual agreement on what is “specially produced or converted” so as to ban its use as a space weapon? How can ground-based systems be excluded? How can any state, including the United States, China and Russia, prove that existing capabilities, those in research and development, as well as black programs have not been specially produced or converted for ASAT purposes? Are we all supposed to take assurances at face value?

For all of these reasons and more, prospects for a treaty banning weapons in space are remote. In contrast, there is an excellent opportunity at present to strengthen a nascent international norm against further tests of hit-to-kill ASATs that produce long-lasting, lethal and indiscriminate space debris. In addition to doing this, the ICoC would facilitate visits to space launch sites, flight control centers, other outer space infrastructure facilities, observations of launches of space objects, and demonstrations of rocket and other space-related technologies. States that have cold feet about extending these invitations can’t possibly be expected to help verify compliance with more ambitious undertakings. The ICoC would also provide for welcome international consultative measures.

So what’s the hold-up? The notion of an ambitious treaty alternative to the ICoC is both a holy grail for those who seek unrealistic outcomes and a dodge for those who wish to avoid pragmatic ones.

One way to get off this merry-go-round would be to supplement the ICoC with pledges by the three states that have carried out hit-to-kill ASAT tests to affirm what the ICoC clearly seeks to prevent: further ASAT tests that generate long-lived, indiscriminately lethal space debris. These pledges would be verifiable and incontrovertible – unlike pledges not to “specially” produce or “convert” multi-use technologies and hardware for space warfare. Offering pledges against further testing of K-E ASATs could help make the ICoC a reality. Reluctance to make these pledges will be clarifying, and would remove one veil of flimsy opposition to the ICoC. Other veils, including discomfort with transparency and military insistence on freedom of action, would remain.

The EU’s new draft has been released prior to “open-ended consultations” among space-faring nations in Bangkok from November 18-22. It’s one thing to strive for something better; it’s another to allow something better to be the enemy of the good. Will hold-outs and free-riders demonstrate their seriousness about the sustainable use of space, or seek continued refuge in specious reasoning?


  1. Cthippo (History)

    TL:DR version: A binding treaty on space weapons is probably out of reach, but an agreement not to do things that create more hazards might be achievable? Sure, I’ll buy that.

    The movie Gravity getting average folks interested in some pretty obscure policy matters? That’s asking way too much.

  2. John Schilling (History)

    I am not optimistic. China doesn’t need to pledge, promise, or agree to not do kinetic ASAT testing; if they decide it isn’t in their best interest for such testing to occur this year, they csn just not do it all by themselves. There is very little chance that anyone else will do such a test, so there is very little benefit to China in a mutual agreement not to test.

    So they won’t go along with this unless they get something beyond a halt to kinetic ASAT testing, something they actually want but can’t arrange all by themselves. And I think they have made it clear that what they want is either A: a minimally-enforceable treaty that “bans space weapons”, or B: a bunch of negative diplomatic brownie points attached to the United States for “being in favor of weaponizing space”.

    They won’t get the former, but the latter is within their reach. And neither one will be viewed with great favor by the United States Senate. I don’t see the common ground for an agreement. Common ground on not producing vast swarms of debris in low orbit, yes, at least in the short term, but in the short term China can do that all by itself.

    • krepon (History)

      You may be right, and China (as well as Russia) have certainly been playing the option 2 card since the Bush administration withdrew from the ABM Treaty. That’s the origin of the PPWT. But recent Track 1.5 discussions may suggest a softening toward useful conversations on space. We’ll see.

  3. Mark Gubrud (History)

    Michael, as the original father of the Code of Conduct idea, you are justly proud and no doubt eager to see your brainchild step out into the real world.

    This EU draft is in many ways much improved over previous versions, and would be beneficial for space and global security in many ways. However, it has picked up one very seriously negative provision that must be removed if conclusion of the ICOC, and its signature by many nations, is not to cause great and lasting harm.

    Paragraph 49, Section 4.2 of the current draft states that

    “The Subscribing States resolve, in conducting outer space activities, to:

    * refrain from any action which brings about, directly or indirectly, damage, or destruction, of space objects unless such action is justified:

    o by imperative safety considerations, in particular if human life or health is at risk; or

    o by the Charter of the United Nations, including the inherent right of individual or collective self-defence; or

    o in order to reduce the creation of space debris;

    and, where such exceptional action is necessary, that it be undertaken in a manner so as to minimise, to the greatest extent practicable, the creation of space debris;”

    The subject here is “action which brings about, directly or indirectly, damage, or destruction, of space objects”. It is clearly stated that such action may be “justified” by any of three reasons. Two of the three are consistent with purely peaceful activity. However, the second reason clearly refers to warfare.

    Although the Charter of the United Nations requires a Security Council resolution to authorize offensive action, it recognizes the inherent right of self-defense. In practice, member states including the United States have routinely ignored the requirement of UNSC authorization when it was not convenient to seek it, and have invoked self-defense to the extent that they felt compelled to offer legal justification for their actions. I doubt there has been a conflict in human memory in which all sides did not claim to be acting in self-defense.

    So, in practice, this provision legitimizes the use of damaging or destructive antisatellite weapons to attack satellites in war. An unavoidable further inference is that the development, testing, production, deployment and stockpiling of ASATs, as well as their integration into operational planning and practice, cannot be illegitimate. The invocation of “collective self-defense” suggests that even transfer of such weapons can be justified.

    The clarity with which this language legitimizes ASAT weapons and attacks is only reinforced by the expressed preference for such attacks to be carried out in “a manner” that minimizes space debris. Development, testing and deployment of less debris-creating weapons then becomes an expression of compliance with this preference of the global community.

    I do not see an alternative interpretation of this language which would be consistent with a future initiative to restrict or ban ASAT weapons or attacks. If many nations sign in acceptance of this language, it will set a clear precedent against space arms control or even any restraint on the use of ASATs in war.

    Michael, the problem here is not the invocation of the UN Charter or the right of self-defense.

    This draft of the ICOC invokes the UN Charter in paragraph 12 of the preamble, in paragraph 24 of General Principles, where it also mentions that the Charter recognizes “the inherent right of states to individual or collective self-defence”, and in paragraph 28 on other agreements.

    It is not clear that there is any need to mention the Charter, the supreme document of international law, in this document which ostensibly will have no legal force. However, by the same token, such mention is unobjectionable in itself, and at least it establishes that the ICOC should not be taken as in any way inconsistent with either the Charter or the right of self-defense.

    However, the acceptance of a separate undertaking to forswear the development, testing, possession and use of ASAT weapons (or just use if actual arms control were unattainable) would not be inconsistent with the Charter or with the right of self-defense, either. Nations enter into such agreements in furtherance of their security interests.

    The problem is that the statement in paragraph 49 that the Charter and the right of self-defense may justify the damage or destruction of space objects establishes a precedent against any such future agreement.

    This precedent may not have legal force, but it could be cited in any judicial opinion on the legality of an ASAT attack. It would likely be cited in any debates in diplomatic or political fora about a further agreement to control or ban ASATs and attacks. The fact of many nations having accepted this language would be taken as a strong indicator of the direction chosen by the global community.

    Michael, the direction that I see being chosen is toward a world in which space will be weaponized. This is beginning with Earth-based ASATs and ABMs, but it will not likely stop there. Space-basing of “defensive” weapons and perhaps of “dual-capable” systems that look increasingly ASAT-capable seems a likely further step into the unknown. Questions about such developments will be harder to ask if the legitimacy of ASAT attacks in war has been established by a global agreement.

    I think it is so important not to signal acceptance of this trend that it would be better that the ICOC not be concluded at this time if it cannot be concluded without the egregious language in Sec. 4.2.

    You ask many questions in your column about the practicality of space arms control. I have many answers. I don’t know if you would be interested in hearing them. I am reasonably certain that the US government is not interested. It seems to me that US NGOs concerned with peace and security in space and on Earth should be in the business of providing such answers and working to change US policy. At the very least, we should all stand against measures that demonstrably take us a substantial and difficult-to-reverse step in the wrong direction.

    Respectfully yours,

  4. J House (History)

    Actually,in 2001, the bone morphs into a orbiting nuclear weapon, not a space station.

  5. Dan (History)

    Hi Michael,

    The bone actually does not turn into a space station. It turns into a satellite. The satellite is a spaced – based nuclear weapon/s. Later on in the movie/book, the space child comes back. Not in the movie, but in an earlier version of the movie and/or in the book, the space child destroys the orbiting nuclear weapons.

    So, from an ACW pov, a much cooler scene than you even imagined!

    • MK (History)

      Dan & J House:

      Boy, that’s embarrassing. My memory played tricks on me.


  6. Fred (History)

    I remember Rep. Cynthia McKinney’s efforts to pass an Arms Trade Code of Conduct in the ’90s. It had several big advantages over the ICoC: it was unilateral, only needing approval by our own government. It concerned conventional arms exports, making it a lot easier to explain and defend, and it had a long history of arms export blowback to justify it. Congress was remarkably more sane and mature back then, but even so, the ATCC never really had a chance. It vanished without a trace long before the 9/11 attack.

    On the other hand, I also recall the Landmine Treaty, which remains unratified by the US, Russia, China, the Koreas, and several other key nations. Even so, it has changed the way wars are fought and the way civilians die. Even terrorist groups don’t scatter mines any more, and the death rate from antipersonnel mines is drastically reduced. The Mine Ban was a diplomatic failure but a real world success.

    The Mine Ban had a big advantage over the ATCC: public sentiment. Thousands of activists worked to raise awareness and pressure legislators on behalf of the treaty. An army of celebrities spoke up for it, led by Princess Diana. Any military organization contemplating widespread use of landmines knows it will immediately lose a lot of public good will.

    Whether creating an ICoC is diplomatically possible, and whether ratification is politically possible, may not be important. Many of the treaty’s goals may be met by generating a strong tide of public opinion.

    The struggle to draft a treaty can help generate such a groundswell. Movies like Gravity can do the same. Having a Princess on board is a great boost, but good Princesses are scarce. Unfortunately, the best way to convince a lot of decision makers of the need to keep space free from weaponization may be to wait for a space debris episode of some sort.

  7. j_kies (History)

    The ICoC is a great idea in the control domain, based on history, treaties and understandings are more likely to be accepted by the affected militaries if the treaty appears to be advantageous to their interests. Maintaining usability of space is strongly in the national interest of all space faring nations so a normative understanding that even open warfare does not motivate destruction of space assets is ‘salable’ concept. I suggest that unobservable protocols are unenforceable so it probably suffices to just ban the conduct of any hit-to-kill test against any object in stable orbit. Military developments especially ‘black’ programs are the essence of ‘unobservable’ if they don’t test in manners that are remotely observable. Untested capabilities are not trusted by military planners, without demonstrated reliability kinetic ASAT capabilities will not be trusted for inclusion into war-plans. In a world of finite resources, such capabilities will not be resourced if they cannot be considered as usable weapons.

    • John Schilling (History)

      Nit: You also need a requirement that hit-to-kill tests not be conducted with the interceptor in a “stable orbit” at the time of planned impact. Hypervelocity impacts tent to produce two debris clouds, one roughly centered on the interceptor’s pre-impact trajectory, so a KE ASAT or ABM with a burnout velocity of 8+ km/s can produce substantial long-lived debris even against a suborbital target in some geometries.

      But generally, yes, focusing on the observable testint would seem to be the way to go.

    • Mark Gubrud (History)

      Unfortunately the EU draft of the ICOC does not ban or impede ASAT testing in any meaningful way. Rather, it legitimizes even destructive ASAT use in “self-defence”, i.e. warfare, and thus by implication, it legitimizes development and testing (plus production, deployment, and integration into operational planning) not only of destructive ASATs but by inference all other types.

      The draft does express a preference for ASAT attacks and tests to be carried out “in a manner so as to minimise, to the greatest extent practicable, the creation of space debris”.

      For testing of even high-closing-speed hit-to-kill ASATs, this is easy to comply with. You just test them as “missile defense,” i.e. against non-orbital targets. 100% of all testing requirements to validate an HTK ASAT can be carried out without requiring a single test against an orbital target.

      For use of such weapons, of course, compliance would not be feasible. Dommage.

      But states can also develop non-debris creating ASATs, including ground-based lasers and coorbital ASATs with kinetic, electromagnetic, or mechanical mechanisms of damage or interference.

      The EU draft of the ICOC does not suggest any opprobrium let alone restriction of such weapons; in fact, its emphasis on avoiding debris creation makes their development seem almost a praiseworthy undertaking.

    • j_kies (History)

      John; yep actually might as well clarify the orbital weapons ban (not precisely up on the language of the Outer Space Treaty) to include orbital ASATs explicitly.

      Mark; happy to let let experts negotiate observable proximity limits to others satellites. If you have nefarious expectations of various lasers, RF systems etc, I don’t think we have the means of observing the effects that they might induce on their own systems. Pretty sure that the US at least is moving away from such systems as you might note the location and flight status of the ALL and YAL-01a. Please accept the overall hype associated with Directed Energy is likely peaking and we should see those funds reduced generally as the physical results achievable are pretty disappointing.

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