The Non-EU Space Code of Conduct

For over a year, there has been concern that the White House would sign an executive order requiring U.S. space activities to adhere to the so-called EU Code of Conduct for space. As I explained at PJMedia a few months ago:

Historically the U.S., and particularly the Department of Defense, has opposed any treaty banning space weapons, for two reasons. First, there is no current perceived threat of in-space weapons or space-to-ground weapons and hence, no need for such a treaty. Second, co-orbital, direct-launch, or directed-energy anti-satellite technology is so inherently dual-use that it would be unenforceable. For instance, as we saw with the collision in 2009, any satellite can be a weapon, if put on a collision course with another. And as always, such a treaty would have asymmetrical effects, restraining the US while allowing cheating by others. There is also concern that it could establish a precedent for expansion of the principles into other media (e.g., air power).

In addition to this, it could make life more difficult for commercial space enterprises. For instance, the enhanced notification requirements will impose additional costs on launch and orbital operations. Beyond that, the Russians reportedly made noise at the UN in Geneva (home of the Office of Outer Space Affairs) a couple weeks ago that they want the Code to embrace their proposed “transparency and confidence building measures.” These would require all satellites, rockets, and mating procedures to be inspected prior to launch, by “international observers.” This would in effect require American commercial operators to allow foreign nationals in their operations and manufacturing flows, thus putting their intellectual property at risk not just to their home-grown competitors, but to potentially hostile states.

The concern wasn’t just over the policy itself, but the process:

…of particular concern is that it might be done without the advice and consent of the Senate. The White House knows that this will not be forthcoming, because thirty-seven senators, led by John Kyl (R-AZ) wrote a letter to Secretary of State Clinton in February, expressing their own concerns, one of which was the degree to which it would preclude space-based missile defense. Baker Spring at the Heritage Foundation notes that for the White House to sign on to this code without Senate consent would be a violation of the law, and raised other concerns:

Section 2573 of Title 22 of the U.S. Code prohibits the Administration from taking any action, including entering into non-treaty agreements, that limit the armed forces of the U.S. in a militarily significant manner. Accordingly, any agreement that limits U.S. military operations — such as will reportedly be the case with the Code of Conduct — is an arms control agreement and is subject to the relevant provision in the law requiring that the agreement be drafted as a treaty and made subject to the Senate’s advice and consent process prior to ratification and entry into force.

Second, there is a substantive question about how the negotiations on the code of conduct are structured. By focusing on limiting military operations, the Code of Conduct blurs the distinction between arms control agreements on the one hand and law of war agreements on the other. Arms control agreements are about limiting the quality or quantity of arms in peace time. Law of war treaties are about defining permitted and prohibited actions in the conduct of war.

This is not a trifling distinction for military commanders. They can be put in jeopardy of prosecution for violating the laws of war. Accordingly, a future military commander who has to make a split-second decision in the conduct of a space operation that could generate space debris may face a war crime charge if the Code of Conduct, following its entry into force, is deemed to be a law of war agreement.

Well, in a surprise announcement at a luncheon last Thursday:

…Ellen Tauscher, undersecretary of state for arms control and international security, told reporters that the US was not going to go along with the proposed European Code of Conduct for Outer Space Activities. Citing the current draft of the Code as too restrictive, she said that it was clear from the beginning that the Obama Administration was not going along with the Code.

As Michael Listner notes at the link, it was not clear at all, for months, with continual administration hints that they just needed some minor tweaks to be willing to go along. I noted yesterday at my blog that there was likely another shoe to drop soon, if not a millipede’s worth. Well, today, Marcia Smith over at Space Policy Online reports that Secretary Clinton has dropped it:

“The long-term sustainability of our space environment is at serious risk from space debris and irresponsible actors. Ensuring the stability, safety, and security of our space systems is of vital interest to the United States and the global community. These systems allow the free flow of information across platforms that open up our global markets, enhance weather forecasting and environmental monitoring, and enable global navigation and transportation.

“Unless the international community addresses these challenges, the environment around our planet will become increasingly hazardous to human spaceflight and satellite systems, which would create damaging consequences for all of us.

“In response to these challenges, the United States has decided to join with the European Union and other nations to develop an International Code of Conduct for Outer Space Activities. A Code of Conduct will help maintain the long-term sustainability, safety, stability, and security of space by establishing guidelines for the responsible use of space.

“As we begin this work, the United States has made clear to our partners that we will not enter into a code of conduct that in any way constrains our national security-related activities in space or our ability to protect the United States and our allies. We are, however, committed to working together to reverse the troubling trends that are damaging our space environment and to preserve the limitless benefits and promise of space for future generations.

What does this mean? It’s not clear, but one of the issues with the EU Code of Conduct, and why the administration didn’t sign on, was that it was becoming clear that neither India or China was going to get on board, if for no other reason than it originated from the EU. Presumably, the administration hopes that in restarting discussions on an international basis, they can get substantially the same result, but untainted by the initial EU connection. Whether it will continue to require the “Transparency and Confidence-Building Measures” that are so problematic, as well as other issues, remains to be seen. Unfortunately, with this White House, one can only hope for the best, and expect the worst, which given recent behavior, also means continuing to ignore the Senate in what is really a treaty.

[Update on Wednesday morning]

There’s more on this over at Space Politics.