The European Union’s International Code of Conduct for responsible space-faring nations got mugged on the Lower East Side during the week of July 27th. The crime, which went unreported, occurred at the United Nations. The ringleaders were Russia and China, who lined up support from Brazil, India, and South Africa (the BRICS), as well as the Non-Aligned Movement. Critics of the EU’s handiwork got what they wanted in New York: At the end of the conclave, the EU conceded the need to pursue “negotiations within the framework of the United Nations through a mandate of the General Assembly.”
This could have been an important moment for the UN. It’s not every day that diplomats have the opportunity to write benchmark rules of the road for a global commons. But Moscow, Beijing, and their NAM supporters were in no hurry to do so. Their opposition was anticipated due to longstanding concerns that the EU drafting process wasn’t inclusive enough.
On this issue, critics were exactly right. The EU was trying to spare the International Code the fate of the Fissile Material Cutoff Treaty, now languishing for almost two decades in the purgatory of the Conference of Disarmament, where the UN’s consensus rule applies.
The good news – for glass-half-full readers of ACW – is that there is now a clear consensus on the utility of an International Code of Conduct for outer space – an important shift from just a few years ago. The bad news is that there is no consensus on its scope or on a few key provisions. The arguments on offer against the International Code at the UN didn’t need to be persuasive, since their purpose was delay. And it could take a very long while for the UN to negotiate an International Code nearly as good as EU’s draft.
Russia and China argued at the UN that an International Code ought to confine itself to ‘peaceful’ uses of outer space, while expressing deep concerns about an arms race in space. Some NAM states, led by Brazil, reinforced this double-speak by suggesting that the Code be negotiated in the UN’s Committee for the Peaceful Uses of Outer Space, whose mandate does not include military space-related issues.
Russia, China and some NAM states also expressed grave reservations about the International Code’s language reaffirming every country’s inherent national or collective right to self-defense. While this right is enshrined in the UN Charter, critics warned that its reaffirmation in this context would open a backdoor to the weaponization of space.
Capabilities for ASAT warfare have long existed but have not resulted in destroying or disabling another country’s satellites, even during the roughest patches during the Cold War. Why such uncommon restraint during the entirety of the Space Age? Because Moscow and Washington insisted on the right of self-defense and because they knew that warfare in space would not be confined to space.
The haphazard and inadvertent weaponization of space in the form of lethal debris is already far advanced. This clear and present danger received little sense of urgency from the assembled delegates. Instead, critics focused on purposeful, rather than unguided and indiscriminate anti-satellite weapons.
It was déjà vu all over again at the UN. The arguments used against the EU’s International Code reprised the old Soviet diplomatic playbook back when the the Nixon Administration demonstrated an interest in deploying ballistic missile defenses and again during the Reagan Administration’s pursuit of SDI. Moscow always tries to place constraints on U.S. military space programs through public diplomacy and negotiations. This time around, Moscow has Beijing’s company, as well as a good many NAM states.
Concerns over demonstrated space-warfare capabilities are entirely justified. As easily predicted, the Pentagon is in the process of clarifying that if Beijing and Moscow want to play with fire in space, it will be able to compete and compete effectively. But Washington is also willing to accept rules of the road for responsible space-faring nations that include transparency, confidence-building, and consultative measures. So far, Beijing and Moscow are not on board. Whether or not they join an International Code of Conduct, military space capabilities will advance. During this competition, it will be better for all major powers to accept rules of the road.
Russia’s and China’s preference has been a Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (PPWT). This proposed Treaty, which lacks verification provisions and which does not address ground-based ASAT testing, is widely recognized as a hollow exercise in public diplomacy.
The UN conclave clarified that the playing ground has shifted away from the PPWT to an International Code. If Moscow and Beijing seek to meld the PPWT into negotiations on an International Code, diplomats getting paid by the hour have a bright future.
Military space programs are non-negotiable. The EU’s International Code does, however, include norms against how these capabilities shall be exercised: All states are enjoined not to engage in harmful interference, to respect the security, safety and integrity of space objects, as well as to refrain from actions that damage or destroy space objects. These norms, if respected, could put an end to “hit-to-kill” ASAT tests and provide other benchmarks for satellite protection.
The EU’s International Code notes three exceptions where damage and destruction of space objects could be justified: if human life or health is at risk, if deemed necessary in order to reduce space debris, and the aforementioned right of individual or collective self-defense. If states remain at loggerheads over this provision, a UN negotiating process can leave these essential norms stranded, waiting for the last passenger on the bus.
So, what to do in the face of delaying tactics? My suggestion is for supporters of the International Code drafted by the EU with help from outsiders to go ahead and informally set up an ad hoc body to begin implementing it — without prejudice to whatever might be negotiated in a UN channel operating under rules of consensus. If an even better International Code can be negotiated by consensus, that would be most welcome.
The argument for operating on two parallel tracks – ad hoc implementation of the EU’s International Code and ad hoc negotiation in a UN channel – is forthright: space deserves protective norms, and these norms will not be advanced by waiting for stragglers. There will always be stragglers, as is evident by the 16-year wait for China to sign up to the Outer Space Treaty. Stragglers that offer disingenuous arguments for not signing up to an International Code and that have very active space-warfare programs bear close scrutiny.
Ad hoc implementation of the International Code drafted by the EU could proceed in complete transparency, with open doors. Any country that wishes to observe or to engage in one or another activity called for by the International Code, such as workshops and consultations, would be free to do so. If, however, states that do not support the EU’s International Code act in ways to defeat its objectives and purposes, then Code-abiding states would be entirely free to take compensatory actions.
Over time, implementation of the International Code drafted by the EU will look better and better in comparison to an endless, fractious UN negotiation.
This is a very angry piece, Michael. That’s easy to understand. More than a dozen years have passed since you proposed the concept of a Code at a time when the Bush administration seemed bent on launching the full-scale weaponization of space (and got a good start by trashing the ABM Treaty). To see the Code come so far and seemingly so close to fruition, only to reach an apparent roadblock, must be extremely frustrating.
However, I believe the Code was not mugged in New York last week, and not by Russia and China. Rather, the seeds of its (hopefully temporary) defeat were planted by the EU, years ago, in order to please the United States.
I believe you originally intended that the Code would be a minimal step toward arms control, cooling competition and promoting cooperation in space, and discouraging further antisatellite weapon tests. But the Code soon came to be promoted as an initiative primarily focused on slowing and stopping the growth of space debris, and having the virtue of not being arms control.
The fatal poison was planted when the Code’s injunction against causing the “damage or destruction” of space objects was watered down with three exceptions: the lame-excuse “if human life or health is at risk” (as in the 2008 demonstration of SM-3’s operational ASAT capability), the inexplicable “to reduce the creation of space debris,” and the most egregious “inherent right of individual or collective self-defence,” i.e. in war.
With the inclusion of an explicit legitimization of antisatellite attacks in war, the Code became not merely not arms control, but actually anti-arms control. It would set a legal precedent against any future initiative to ban antisatellite weapons by treaty, since if the use of antisatellite weapons is legitimized both by the UN Charter and by the “inherent right” of self-defense, then clearly the development, testing, production and deployment of antisatellite weapons cannot be illegitimate. In refusing to accept the establishment of such a precedent, the BRICS did the right thing.
It is supremely ironic that you should write that “the Pentagon is in the process of clarifying that if Beijing and Moscow want to play with fire in space, it will be able to compete and compete effectively.” On the contrary, the United States has been and remains the world’s leader in developing and testing potential kinetic antisatellite weapons, potential laser ASATs, and deploying actual ASAT-capable but otherwise ineffective “missile defenses” as well as electronic means of satellite interference. After more than a decade’s delay while the United States mindlessly led the way to a space arms race, China and Russia are showing that they can and will respond accordingly. But they remain at least rhetorically committed to seeking space arms control.
Of course it is widely recognized that the Russian-Chinese treaty proposal lacks verification provisions and does not address ground-based ASATs, but to call their initiative “a hollow exercise in public diplomacy” begs the question of why the United States has not responded with an initiative of its own that corrects these flaws. Instead, the US has repeatedly made clear its disinterest in space arms control, no less under this administration than the previous one.
The result of this supremely misguided policy is that a space arms race is now well underway, while no solid diplomatic progress can be made even on best practices for non-weapons space operations.
The question now is where to go from here. The Code effort has not been in vain; it has provided a focal point for the growing international norm against extraordinary debris-creating events such as explicit kinetic antisatellite tests, even if this has only driven ASAT tests “underground” as missile defense tests. It has proposed a set of best practices and stimulated the development of other, more detailed proposals. It has established a diplomatic track toward… something.
I don’t understand why you would oppose the Code effort moving to the UN Committee on the Peaceful Uses of Outer Space. You are right to point out that COPUOS’s mandate does not include military space-related issues. That is exactly the point. Stripped of its language legitimizing antisatellite weapons and attacks in war, and negotiated in a purely civilian forum, the Code would have no damaging implications, and would leave the question of space arms control open, to be addressed in other fora.
Your suggestion of ad-hoc implementation of the Code is fraught with the danger that if a body is set up for that purpose, it may become an embodiment of the New Cold War. Such an initiative should be pursued or endorsed only if, again, the language justifying antisatellite weapons and attacks is excised from the Code itself, and only if Russia, China, India and Brazil are in no way excluded. The worst case would be the establishment of competing space treaty organizations and alliances. Of course, voluntary adherence with the Code’s best practice guidelines by all nations is to be encouraged, and does not require the establishment of any new organization.
Michael, I am personally grateful for all that you have done to advance diplomacy. But I am also relieved to hear that the Code is not moving forward with language justifying antisatellite attacks in war.
Just for the record: I don’t consider planetary defense a ‘lame excuse’.
MK
And by the way, this business of ‘peaceful uses only’ and channeling the negotiations on the Code toward COPUOS is too clever by half.
If the Code is only about civil and commercial uses, there would be no reason for norms relating to military applications.
Think about that.
The Pentagon might like that.
Seriously, what are Moscow, Beijing and Brasilia thinking?
MK
Again, the problem with the current draft of the Code is that it establishes a norm legitimizing antisatellite attacks in war and, by ineluctable implication, weapons. Not establishing any new norms for military uses of space is better than that.
But is it clear that COPUOUS would have no implications for “peaceful” non-weapons military uses of space? Even if that were formally true, norms established for civilian space operations would put the burden on militaries to explain any need for egregious violations of those norms. Other than some cases of actual weapons testing and use, there would not seem to be any.
Re any restrictions on space weaponization being DOA in the US Senate, that is another good argument for separating the Code from any attempt to address weaponization. However, I think that advocates for arms control should advocate arms control regardless of whether it is currently politically viable in Washington, because, in the however much longer run, we need it, and actually, we need it urgently. Some might regard this as unrealistic thinking, but I think it is unrealistic to ignore the mounting crisis of space weaponization just because you don’t think you can win this year or next. Clearly, the task is to change what people refer to as “political realities” before “hardware realities” start to dictate the further course of events.
While some in the DOD might enjoy being thought of as mysterious and nefarious (along with that warmongering thing) the reality is that most are just muddling through their responsibilities as best they can.
Dr Carter certainly understands the basis physics issues that mandate treatment of space as a scarce natural resource. Given debris cascades as an inherent risk; KE ASATs are just an expensive suicide pact that ruins space for the DOD. Its profoundly unwise for the DOD to talk about ‘offensive counter-space’ in context and perhaps they ought to explain exactly what they propose.
The Defense Space Council exists to support the NSC on space issues. Since the rationale for a code of conduct falls above the DOD in the hierarchy; Michael may properly ask if the NSC will undertake tasking the DOD to clarify their specific concerns with the Code of Conduct.
Always good to see efforts at promoting cooperative security arrangements for outer space get some profile regardless of the understandable frustration over the meagre results to date. A few comments on your piece:
1. Please correct the month (July) for the NY talks in the first line.
2. There are options for negotiation of the Code other than the consensus-bound dead end of the CD. UN General Assembly can initiate a process through a resolution (simple majority vote) that would also bring it the full legitimacy that only UN auspices confer.
3. EU could seek to convene an ad hoc diplomatic conference to adopt the Code (this was its original plan) but it has its downsides, if only a small band of the righteous take the oath. Since the Code is largely a re-packaging of existing multilateral principles and provisions relating to outer space, it arguably doesn’t add much to the current normative framework. What I found most promising about the Code was its provisions for institutionalization of an on-going inter-state dialogue concerning the security of outer space.
4. Your blunt statement that “Military space programs are non-negotiable”. begs the question why not? Other military programs have been constrained via bilateral and multilateral agreement – what is so special about military space in this regard?
5. Personally I hope the EU decides to introduce a resolution at this fall’s UNGA to begin an open process to negotiate a Code based on its draft. After 7 years of gestation it is incumbent on the EU to bring this initiative to some form of conclusion. A suivre.
Paul:
Thanks for the comment.
Codes of Conduct are about behavior, they are not about limitations on military capabilities. To try to mix the two, as some would like, would (a) lead to endless negotiations, and (b) would be DOA in the Senate.
MK
For any Code to have the legitimacy that is essential for it be universally adhered to, it must have de-novo buy-in in formulation, negotiation, as well as multi-Space farer membership of any institutions that may be evolved for the governance of any such Code. Regrettably, the manner in which ‘the’ EU (draft) Code was marketed has given rise to the suspicion that some sort of ‘Space-NPT’ is in the offing; with only some space farers ‘allowed’ to possess military-usable assets in Space. For this important reason, the only ‘Code’ that will have a chance to be universally acceptable is one that has its sole objective and purpose the evolution of regulations for establishing and maintaining standards of Space sanitation and norms for scavenging. Any attempt to piggy-back Space arms-control on any such Code will fail and, in the process, put paid to the now-urgent need to secure a low-debris environment that will be to the benefit of all Space-farers: old, young and yet-to-emerge..
Consequently, any ‘norm of behaviour’, enshrined in a Code — that might in future morph into a Treaty — must have the following characteristics:
1. Must not admit any Space power an unilateral interpretation of ‘national security’ with respect to Space-based assets, and/or access to Space to place or service those assets.
2. Not have any ‘NPT’ type discrimination between those who can and cannot access Space and place space-based assets to further their national security interests, subject to (1) above.
3. Agree on interim altitude upper-limit for ASAT tests until a treaty is negotiated to ban them. In a published article:
http://www.idsa.in/book/DecodingtheInternationalCodeofConductforOuterSpaceActivities.
Kaul & Siddhartha have argued that, as with the primary purposes of the Limited and Threshold N-test ban treaties, the purpose of such an interim ‘Space-threshold’ treaty would be to obviate irreversible debris-pollution that threatens all Space users equally.
4(a). Very detailed recent studies, such as:
Aero-thermal Demise of Reentry Debris: A Computational Model
http://www.sinphi.com/TroyOwens_Thesis_AerothermalDemise.pdf
provide adequate incentive to revisit:
(b) The results from the Japanese ‘Hiten’ spacecraft aerobrake experiment that provides a sound scientific basis for agreeing on a [TBD, crica 100km] interim upper altitude limit.
which could form the basis for
(c) An internationally collaborated experiment can/should be designed with a scientific mission: Validate [TBD, circa 100 Km.], to be enshined in a Code in the first instance, and a Treaty in the second, above which no ASAT tests may be conducted.
The problems with trying to establish a maximum altitude for ASAT tests are that ABM tests and ASAT tests are functionally identical in terms of debris potential at altitude, and that there essentially is no safe altitude above the atmosphere to do them. The debris is centered on the vectors of the two source objects, but diverges wildly from that, to the extent that two suborbital objects could leave orbital debris in stable orbits.
George William Herbert is correct. But what is overwhelming military necessity to conduct ABM tests, as target-destruction tests, in the free-molecule regime?
A couple of comments –
1) US ABM tests by MDA and its predecessors always selected intercept engagements with an eye to minimizing the potential for generating persistent orbital debris. The tests involving high velocity targets and long range interceptors were conducted with both object vectors descending (past apogee).
2) Interceptor tests are performed in the intended use environment. Interceptors that operate by design above the transition flow regime (for design issues tied to sensor phenomenology) can only be meaningfully tested in the free molecular flow regime.
3) Impact events create three debris populations; one per object and one originating in the collision center-of-mass frame, conservation laws apply.
Taking into account some definitions from this:
http://www.dtic.mil/doctrine/new_pubs/jp3_14.pdf
how certain provisions of the EU proposal for existing draft of iCoC could be considered as the TCBMs and serve as a tool aimed to extend safety and security in space?
J-kies’ elucidation is most welcome. But again, how does the requirement to test-and-evaluate sensor phenomenology in the free molecule regime make it absolutely essential to effect a kinetic, or explosive, “kill” in that regime? The performance of sensors can be validated any number of times in tests that do not result in a kill.
In any case, if the objections of the military are insurmountable, agree — for the interim — to exclude ABM sub-orbital tests from any Space Code-Of-Behaviour (COB).
As with all codes and/or treaties, there is always available the ‘supreme national interest’ clause – and in extremis – withdrawal from even Treaties (US-ABM anyone?!) not to say codes and agreements. Even ‘rouges’ who withdrew from NPT have not violated N-LTBT.
Point is that the knowledge base in the pertinent disciplines is now sufficiently dense to enable novel solutions to be found, provided of course that the intention is to reduce, if not eliminate, the now-getting-severe threats to the Commons of Space.
Siddhartha:
To prohibit ASAT tests somewhere is to invite them somewhere else.
Test prohibitions also invite testing for “other” purposes, which may be bogus.
I’ve come around to the view that the best approach is to focus on verifiable behavior — which is what the EU’s international scape code does with respect to KE ASAT testing..
MK