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.