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.