How Much Longer for a Space Code of Conduct?

Lyrics of the week:

“I fly a starship
Across the Universe divide
And when I reach the other side
I’ll find a place to rest my spirit if I can
Perhaps I may become a highwayman again
Or I may simply be a single drop of rain
But I will remain
And I’ll be back again, and again and again and again and again”
— The Highwaymen, Lyrics by Jimmy Webb. Check out the cover by Willie Nelson, Kris Kristopherson and Johnny Cash

“Who in the world would have ever known
What Columbus could do
If Queen Isabella hadn’t hocked her jewels
In fourteen-ninety-two?
But she had timin’
A-ticka, ticka, ticka, good timin’
Tocka, tocka, tocka, tocka
Timin’ is the thing
It’s true”
–Jimmy Jones, “Good Timin”

One low point in my professional career occurred on October 19, 2016, sitting in the balcony above the UN General Assembly. I was listening to the First Committee’s “thematic discussion” on diplomatic instruments to advance space security. The European Union did much to prompt this discussion, having authored iterative drafts of a Code of Conduct for responsible space-faring nations.

Representatives of nongovernmental organizations with a strong interest in this topic were invited to watch the proceedings. Some of us were even afforded an opportunity to comment. I was present because the Stimson Center authored the first draft of a code of conduct for space in 2002 with help from U.S. experts. Stimson’s code focused on preventing purposeful debris generation and purposeful interference.

Further refinements and improvements followed, thanks to nongovernmental partners from Russia, France, Canada, and Japan. Those of us supportive of guidelines to clarify responsible and irresponsible behavior in space felt grateful when the EU picked up this initiative in 2007 and ran with it.

Timing is everything – well, at least something – when it comes to diplomatic achievement. The timing of Stimson’s space policy entrepreneurship wasn’t good. Chris Clary and I produced a monograph in 2003 titled “Space Assurance or Space Dominance?” Our thesis was that major space-faring nations were obliged to choose between the two because seeking one would come at the expense of the other. The George W. Bush administration embraced a different formula, seeking assurance through dominance. Bush’s dance card during the Unipolar Moment was full, and space diplomacy wasn’t on it.

The EU’s drafting exercise was propelled by disturbing flight tests of anti-satellite capabilities. In 2007, Beijing proved to itself and to onlookers that it had mastered the black art of blowing up a satellite in low earth orbit by means of a ground-based missile. Space-faring nations are still dodging the debris field created by this test.

The following year, ostensibly for reasons of public safety, the Bush administration took aim at and downed a newly launched but nonfunctioning U.S. spy satellite carrying a full tank of highly toxic fuel. Despite professions to the contrary, this test felt like and served as a rejoinder to China’s test. Russia then resuscitated and reconfirmed its anti-satellite capabilities. For good measure, India subsequently tested a kinetic energy ASAT to join this club.

Any state with space tracking capabilities and a missile with long enough reach can smash to smithereens a satellite that we can see traversing the night sky. These capabilities do not need to be tested often to get one’s point across. Long-lasting debris from even a few of these kinetic kills underscore the utility of a code of conduct for space. Unless space-faring nations resolve not to deliberately produce debris, pinball effects will eventually become ruinous to space operations.

The assembled diplomats at the United Nations five years ago didn’t appreciate the value of a voluntary code of conduct. They found the EU’s handiwork woefully insufficient. Most of the speeches that day supported a legally binding treaty like that proposed by Moscow and Beijing banning the placement of weapons in space and prohibiting threats to objects in space.

There were glaring deficiencies and hypocrisy involved with this Russian and Chinese diplomatic gambit. Moscow and Beijing were engaged in a holding exercise designed to place Washington on the defensive. Meanwhile, they were acquiring capabilities that fundamentally undermined the objectives of their proposed treaty.

Both already possessed ground-based space warfare capabilities that were outside the scope of their proposed treaty, and both were hard at work on more advanced capabilities. The treaty they proposed was based on trust, but there was no basis for trust since their text had no verification arrangements, and none could be effectively devised for technologies that could be used for peaceful as well as military purposes.

The chart-topping argument against the EU’s draft code of conduct was that it permitted states to act in self-defense in space. I kid you not. This argument was part of the detritus of President Bush’s preventive war in Iraq, predicated on bad intelligence and justified as an act of anticipatory self-defense. If Bush could wage a preventive war in Iraq, or so the argument went, the United States could initiate space warfare, as well — with the blessing of the EU’s proposed code of conduct.

The Bush administration’s novel extension of the right of national defense under international law crashed and burned in Iraq. The basic right of self-defense remains sacrosanct, nonetheless. Language protecting this right could be found in the draft treaty text proposed by Russia and China, as well as in the UN Charter.

So, there I was, sitting in the balcony, listening to disingenuous arguments and feeling increasingly agitated. When I was recognized to offer a short intervention, I lost my composure. My words to the assembled diplomatic corps boiled down to “shame on you.” Lesson to self: Moral indignation doesn’t bring people over to your side. Not my finest moment.

It’s extremely rare for a U.S. President to place space diplomacy on a top tier to-do list. Lyndon Baines Johnson did. LBJ presided over the negotiation of the Outer Space Treaty as well as the Nonproliferation Treaty while preparing to begin strategic arms limitation talks. Likewise, the second Reagan administration produced the Intermediate Nuclear Forces Treaty and laid the foundation for deep cuts in strategic forces by including space in its negotiating agenda.

Since LBJ, every Democratic President has viewed space as a third rail that could electrocute higher priorities. President Obama took a pass on space diplomacy. His foremost arms control objective was to negotiate New START and to secure the supermajority needed in the Senate for ratification. After New START, Obama’s focus shifted, with good reason, to the Iranian nuclear program. Team Obama was content to have the EU take the lead on the space code of conduct. State Department officials never offered a full-throated endorsement, even on that sorry day at the United Nations.

Well, here we are, five years after that dispiriting discussion at the UN. The disingenuousness of the Russian/Chinese draft treaty is now evident to most onlookers. This initiative was meant to buy time to develop offensive capabilities, not to offer a workable plan to advance space security. Its drafters knew that prohibitions on inherently multi-purpose technology weren’t in the cards and that any proposed treaty without verification wouldn’t be taken seriously by Washington and other capitals.

And so, the weaponization of space has proceeded apace. It will continue to do so unless there are guardrails that a code of conduct could provide. If diplomats insist that behavioral norms must be embedded in treaties that are out of reach, then critical swaths of the space environment will become increasingly hostile to spaceflight and eventually unusable. 

Rules of the road can provide guardrails against purposeful debris generation and purposeful interference. Behavioral norms have a chance of success because they are now backstopped by unmistakable as well as inferential deterrence capabilities. Every major space-faring nation is now presumably working on ways to fight without generating debris. First use of punishing and attributable anti-satellite warfare, just like the first attributable use of nuclear weapons, would be self-defeating, because first use will prompt further use. 

As with nuclear weapons, stand-alone deterrence absent diplomacy is dangerous and can only become more so. Deterrence in space, as with nuclear weapons, needs to be accompanied by reassurance, guidelines and guardrails.

With the benefit of hindsight, we can now see that the 2007 Chinese ASAT test and the U.S. rejoinder constituted a watershed moment. Space Commands have been stood up. Deterrence capabilities are plainly evident as well as inferential. As war-fighting capabilities advance, diplomacy lags farther and farther behind. Which raises the obvious question: How long will it take for U.S., Russian, and Chinese diplomats to get behind a sensible code of conduct?