Michael KreponComplaints about the Code

Major diplomatic accomplishments for space are as rare as triple crown winners in baseball. The last year both occurred was in 1967, when the Outer Space Treaty was finalized and Carl Yastrzemski powered the Red Sox into the World Series. (Yaz and outer space have something else in common: shift the number 8 on Yaz’s jersey along its axis and you get infinity.)

The Obama administration has now expressed its support for a Code of Conduct for responsible space-faring nations, picking up where the Outer Space Treaty left off. The primary purposes of a Code of Conduct are to affirm norms to mitigate debris, help establish traffic-management procedures and increase safety for space operations. The European Union and the governments of Japan, Canada, and Australia have already expressed support for an initiative along these lines.

With the Obama administration’s declaration of intent, debate over a Code of Conduct has become sharper. It is hard to make the case against strengthening norms for responsible behavior in space, but the outlines of domestic and international criticism are now evident. One set of arguments finds the Code of Conduct lacking because it is insufficient. In this view, the Obama administration should focus on a treaty that bans weapons and warfare in space. This critique is voiced most strongly by Moscow, Beijing, and by some U.S. analysts who note that space-warfare capabilities are advancing, especially those inherent in U.S. theater missile defense systems.

These arguments are weak for several reasons. A treaty banning weapons that can be used in space is neither feasible nor verifiable, since many essential, multi-purpose military capabilities can be used to interfere with, disable, or destroy objects in space. Some of these capabilities, such as land- and sea-based ballistic missiles, have existed for over half a century. Their number has declined greatly, but they are not going to be eliminated any time in the foreseeable future.

Other capabilities that could be applied to space warfare, including theater missile defense interceptors, are growing in number. Concerns that hundreds of TMD interceptors could be used as KE-ASATs are over the top: the use of only a few of them would produce destructive pin-ball ASAT effects by means of debris fragments. China demonstrated this folly in 2007. Adherence to a space Code of Conduct would effectively end this particular practice. It would not, however, end BMD testing that avoids the creation of undesirable debris fields.

Banning all military capabilities that can be directed against satellites isn’t feasible. Banning weapon systems “dedicated” to the ASAT mission isn’t consequential, because so many technologies and weapon systems could be used as potential ASATs. Russia and China have proposed a treaty that adopts an Alice-in-Wonderland approach by banning “any device placed in outer space, based on any physical principle, specially produced or converted to eliminate, damage or disrupt normal function of objects.” This definition is both too narrow and broad at one at the same time – a rare feat. It does, however, have the virtue of clarifying how difficult it is to define and ban space weapons.

No agreement can foreclose wars of aggression or lesser forms of deliberate mischief making in space. But a Code of Conduct can clarify wrongdoing and facilitate corrective responses, while setting norms that reduce the likelihood of devastating accidents and grave miscalculations.

Beijing and Moscow are ramping up their space warfare capabilities as they call for a treaty that they know won’t be negotiated. The Pentagon is not sitting still, either. The relevant choice before us is whether to set norms for responsible behavior by major space-faring nations, or to maximize flexibility to engage in space warfare.

Some critics in the United States oppose a Code of Conduct because it seems too much like a treaty that could impede U.S. war fighting in space. For example, Dean Cheng and Baker Spring at the Heritage Foundation argue that a Code of Conduct would jeopardize the U.S. ability to engage in testing of both space weapons and space combat doctrines. In their view, a Code of Conduct would diminish American security without creating widely accepted norms. John Bolton has echoed this line, calling the pursuit of a Code of Conduct “mindless.”

These critiques dwell on potential rule breakers, especially China. If, as critics assert, a Code of Conduct would not be helpful for norm setting, how would its rejection improve the conduct that they find most objectionable in others? An analogous argument could be made against highway traffic regulations. There are speeding limits and other rules to promote highway safety, but not everyone abides by them. Would we be safer by dispensing with traffic regulations?

To be sure, rule breaking in space can be far more consequential than anarchy on the highways. As a practical matter, if China and Russia play by their own rules, the United States will, as well. A Code of Conduct will fall short unless it includes the three most important space-faring nations. India, a rising space power, also has a rare opportunity to get off the sidelines and to help shape and join this compact.

Another argument used against the Code is that it is unnecessary because it is superfluous. If, indeed, a Code of Conduct would merely reaffirm what is widely acknowledged as responsible behavior, why oppose it? In actuality, an effective Code of Conduct would both reaffirm some existing norms, such as debris mitigation, while extending them to the realm of space traffic management.

Yet another argument against the Code is that it does not impose severe penalties or sanctions for misbehavior. Critics fail to clarify how their desire to impose penalties or sanctions can be advanced by opposing a Code of Conduct. Without rules, there are no rule breakers.

Some critics worry that a Code could lull the United States into a false sense of security when China is increasing its military capabilities in space, on land and at sea – especially China’s growing sea-denial capabilities against the U.S. Pacific Fleet. These concerns were also expressed in the 1970s, when the Soviet Union placed satellites in orbit that could sometimes track U.S. surface combatants.

Back then, Washington and Moscow tested anti-satellite weapons infrequently before shelving them. During the Cold War, the notion of protecting surface navies by preemptively attacking satellites was widely dismissed as being extremely dangerous, especially because satellites were intertwined with the nuclear deterrents of both superpowers.

Yet another argument against the Code is that it should not take the form of an executive agreement, thereby avoiding the Senate’s powers of advice and consent. This ignores considerable precedent, including the 1972 Incidents at Sea Agreement, the 1989 Dangerous Military Practices Agreement and the 2002 Hague Code of Conduct, which established comparable practices for operations at sea, on the ground, in the air, and related to ballistic missiles. These executive agreements were negotiated during the presidencies of Richard Nixon, George H.W. Bush and George W. Bush.

With one Cold War receding in the rear-view mirror, it makes little sense to invite a new one, if it can be avoided. The United States and China have the ability to interfere with or destroy satellites. As was the case with the Soviet Union, mutual capabilities to engage in space warfare constitute a basis for restraint and deterrence. This reality will exist with or without a Code of Conduct. This reality also makes a Code of Conduct all the more essential to affirm responsible behavior and to facilitate appropriate responses if others act irresponsibly.

Domestic critics of a space Code of Conduct from the Left want an ambitious new treaty that cannot be scoped properly, is not verifiable, and is unacceptable to the US Senate. Critics from the Right want maximum flexibility to develop and use space warfare capabilities. Their approach was tried during the Bush administration during which there was ASAT testing, a satellite collision, and a huge increase in the space debris population. Critics from the Left and the Right have not made a persuasive case against the Code of Conduct. Nor have they offered a better alternative.

Comments

  1. krepon (History)

    Note to readers: A shorter version of this essay appeared in Space News.

  2. John Schilling (History)

    Comparison with the 1972 and 1989 agreements is particularly apt. The great danger of weapons in space is not that they will be used in World War III. If World War III happens, nobody will much care about what happens in outer space. The danger is that space weapons – including ground-to-space weapons, and including improvised space-based weapons – will be used in the sort of brinksmanship that used to be characterized by destroyers bumping hulls in the North Atlantic. Soft-killing, or even hard-killing, an adversary’s satellites is an effective way of degrading critical military capabilities and signaling intent without creating martyrs, violating territorial sovereignty, or causing unpleasant images to appear on CNN.

    And if opposing parties disagree as to where the “acceptable peacetime brinksmanship” vs “this means war” line is drawn, we get big problems.

    For the next generation or two at least, the military forces of the major powers will be sized and shaped to cover the “What if World War III happens after all?” contingency, and that will include space weapons. We can camouflage them, if certain people insist hard enough. But with a proper code of conduct, we can probably keep them from being used in anything less than an actual World War III. That is worth doing.

  3. Mark Gubrud (History)

    Michael,

    As the principal author and advocate of the Code of Conduct idea, you can justly be proud, take a bow, and accept the thanks of all of us for what has been accomplished. Even if the manner in which it came about is somewhat awkward, the Obama administration has now officially committed itself to the negotiation and implementation of an International Code of Conduct (ICoC), and barring defeat in November will undoubtedly carry that through. Whether it will obtain the partnership of China, Russia, India and other important spacefaring powers in this endeavor remains to be seen, but regardless of that, US commitment to the Code idea is a great step forward.

    I don’t know of any “critics from the Left” who are opposed to the Code, and if they are, they are dead wrong. But so are you when you use those of us who believe that actual space arms control is possible — and necessary in order to call a halt to the actual space arms race — as strawmen to position the Code as the sensible center, balancing the weak but potentially troublesome opposition from the Right.

    The Code, as you know, is not arms control at all. It avoids the issue of space weapons — ASATs and any weapons stationed or prepared for stationing in space — and places no meaningful restrictions whatsoever on their development, testing, production, stockpiling, deployment or transfer to other states.

    The 2010 EU draft even explicitly allows “action which intends to bring about, directly or indirectly, damage, or destruction, of outer space objects” provided such action “is justified by the inherent right of individual or collective self-defence in accordance with the United Nations Charter or imperative safety considerations”. This legitimizes not only the use of ASATs in war — Is there a UN member state which will not claim to be acting in self-defense if it goes to war? — but implicitly also their development, testing, production and ownership. If such language survives in the ICoC, it will become not merely not arms control, but a precedent against arms control of space weapons.

    As if in recognition of this, you argue that actual space arms control “cannot be scoped properly, is not verifiable, and is unacceptable to the US Senate.”

    As to the last point, those who advocate arms control are supposed to be about defining and when necessary working to change what is politically acceptable.

    The rest of your arguments here are as wrong as can be:

    “Concerns that hundreds of TMD interceptors could be used as KE-ASATs are over the top: the use of only a few of them would produce destructive pin-ball ASAT effects by means of debris fragments.” Are concerns that thousands of nuclear weapons could be used, ending our civilization, also “over the top”? How about just a few of them? The fact is that the US is planning to deploy hundreds of TMD/NMD interceptors which could be used as KE-ASATs just by putting in the appropriate targeting data and pushing the button. As-planned, as-deployed, they will be operationally ready for use as ASATs. How can anyone expect that China will refrain from deploying similar weapons which could be used against American satellites? How can anyone expect India not to respond to China? How can anyone expect Russia to stay out? Last I heard, even France was moving towards joining the KE-ASAT club.

    I agree it is unlikely that the US would ever decide use its planned arsenal of hundreds of globally mobile KE-ASATs in a spasm of destruction that renders Low Earth Orbit unusable for hundreds of years into the future. But is it so completely implausible that one or a few of them would be so used in a dire emergency, a crisis or war pitting the US against China or another nuclear armed “peer competitor”? And what hope is there of restraining an arms race in less environmentally damaging forms of space weaponry, such as coorbital ASATs, as well as ground-based lasers and jammers, if multiple nations deploy arsenals of KE-ASATs for “space deterrence”?

    “…many essential, multi-purpose military capabilities can be used to interfere with, disable, or destroy objects in space. Some of these capabilities, such as land- and sea-based ballistic missiles, have existed for over half a century.” This is the “hammer is a weapon” argument — since anything can potentially be used as a weapon, it is impossible to define and ban or control weapons. The same argument can be made against any arms control, and it is no more true in space than any other domain. Space weapons, like any other weapons, will be developed, tested and optimized for their intended uses, and they will be recognizable as such. The residual potential for other things to be used as weapons is of much less concern than the prospect of an arms race to develop and deploy arsenals of highly threatening space weapons primed for immediate use.

    The idea that ballistic missiles would be used as ASATs is really “over the top;” if you are talking about nuclear warheads, the effects would be too unpredictable and indiscriminate, and might include collateral damage on Earth via EMP. Above all, to use nuclear weapons in any role potentially opens the Gates of Hell. If you are talking about conventional warheads, they would not be effective without terminal homing, in other words, they could not be used as ASATs unless they were, in fact, ASATs.

    “Banning all military capabilities that can be directed against satellites isn’t feasible.” Nor is it necessary. Blinding lasers are banned under the CCW, but I can buy one on ebay for a few hundred bucks. Again, what can reasonably be banned is not the existence of hardware that can potentially be used as a weapon, but rather the development of such hardware as weapons, suitable and readied for military use, produced in quantity, deployed for use as weapons and integrated into military doctrine. As well as their actual use.

    “Banning weapon systems “dedicated” to the ASAT mission isn’t consequential, because so many technologies and weapon systems could be used as potential ASATs.” See how this sentence slides from “dedicated” ASATs to “potential ASATs.” But it is the “dedicated” ones that we have to worry about; the “potential” ones are much less dangerous and their existence does not constitute a destabilizing arms race. Moreover, a treaty banning any ASATs makes it much less likely that “potential” ones would ever be used as such.

    In reality, the list of “potential” but not “dedicated” ASATs is far shorter than you seem to think. Even jamming satellite uplinks from the ground requires special equipment if the uplinks are hardened to military standards. The most dangerous “dual use” technology, apart from KE-BMD/ASAT, is that of robotic maneuvering satellites designed for operations in proximity and contact with other spacecraft, e.g. for refueling, repair, debris-clearing or orbital transfer. But this technology can potentially be developed in less threatening ways, e.g. by using economical electric propulsion instead of more muscular chemical rockets, and by openness and accountability in the way it is done.

    Under a agreement by all spacefaring powers that they will abstain from developing ASATs and weapons stationed in space, activities that border on space weapons development would be open to question and would need to be justified in terms of their legitimate non-weapons purposes. Capabilities and numbers would matter. If any nation were developing a threatening space arsenal, this would be visible to all. This would undoubtedly lead to a breakdown of the agreement, but that would only leave us in the same situation we will be in if we continue to follow the present course. No nation would stand to gain from such a breakdown, and none would want to risk its consequences, so we may reasonably hope that that the agreement would hold.

    “Beijing and Moscow are ramping up their space warfare capabilities as they call for a treaty that they know won’t be negotiated. The Pentagon is not sitting still, either.” As you know, this turns reality on its head; the US, far from sitting still, has led the way in developing, testing and deployment of every type of space weapons technology that is important today. Back in the 1990s and early 2000s, Washington’s attitude was that the US was so far ahead that it could do as it pleases without worrying about Russia, China or anybody else. Beijing and Moscow have a long way to go to catch up, but of course they will challenge the American monopoly on space weapons, even as they continue their calls for restraint and for an agreement by everybody to stop before it is too late.

    I can’t apologize for the ravings of Dean Cheng and Baker Spring, but of course any claim that “a Code of Conduct would jeopardize the U.S. ability to engage in testing of both space weapons and space combat doctrines” is utter nonsense. To the contrary, again, the EU draft even implicitly legitimizes such activities. The evident US intention is to continue its pursuit of “space control” even while advancing and presumably adhering to an ICoC. That remains the problem.

    Again, congratulations and thanks, Michael, for a great achievement. The Code of Conduct is a step forward to a safer world. But it is not nearly enough. Now that its realization has become official US policy, perhaps it is time for NGOs and other arms control advocates to move on, toward the next task: defining, advocating and achieving substantive space arms control, and putting a stop to the dangerous and destabilizing spiral that is fast becoming a real arms race in space.

    • Derek (History)

      “But is it so completely implausible that one or a few of them would be so used in a dire emergency, a crisis or war pitting the US against China or another nuclear armed “peer competitor”?”

      It becomes even more likely if the DF-21D actually functions as performed, because the only plausible defense is concealment. Destroying a Chinese RORSAT will leave debris…not destroying it means a Carrier and 5000 sailors might go to the bottom of the South China Sea. I can’t see this looking like a prelude to a nuclear first strike either — RORSATs aren’t used for early warning, and the Chinese thankfully have neither the capability nor the inclination to Launch on Warning anyway.

  4. Mark Lincoln (History)

    What nation has done more to violate the ‘code’ than the USA?

    • John Schilling (History)

      The USA is not (yet) a party to the EU’s Code of Conduct for Outer Space Activities, and so cannot do anything to violate it. Nor can any other non-European nation. Furthermore, said code was only established in 2008 and is not retroactive.

      However, if we imagine the code to have been binding international law for the past generation, the nation which has done more to violate it than the USA would be the PRC. Having just reviewed the actual text of the code to make sure I am not missing anything, the only violations I could find on the US side are the possible non-registration of some stealthy satellites. China gets credit for the 2007 ASAT test, which in terms of practical consequences dwarfs every other “violation” of every other nation on Earth combined.

      What other “violations” of the actual EU code (see below) are you imagining the US has committed?

      http://www.eu2008.fr/webdav/site/PFUE/shared/import/1209_CAGRE_resultats/Code%20of%20Conduct%20for%20outer%20space%20activities_EN.pdf

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