With the initial negotiations surrounding the Space Code of Conduct set to begin in October, questions surrounding its success will doubtless be debated by commentators and pundits alike. However, what is the measure of success for the Code of Conduct, or more substantially what is different about this Code effort that distinguishes it from the last? Arguably, how success is defined will vary from the perspective of individual nations, but if the Code of Conduct fails to attract signatures of key players will its success be taken into question?
The original Code of Conduct effort ran into substantial obstacles when several nations voiced both common and unique concerns with the EU’s approach. In the interim the EU has spoken directly with many of these nations, but it is still uncertain whether all of their concerns have been allayed. The EU’s approach was less than effective and the moniker that the Code of Conduct was a European effort and not an international one led to the misperception that the Code was more of a Western effort than a truly international effort. With its new back-drop against the United Nations with UNIDIR in particular taking an active role in promoting the Code of Conduct and with a new focus on the Code being a truly international effort, the hope is that nations who were skeptical of the original effort will reconsider their stance.
There are definite hold outs though. China is one that will certainly not be a party to the negotiations for the Code in October. Official statements by China bear this out, particularly Micah Zenko at the Council on Foreign Relations has said that China will be absent from the negotiations.
IThis stance is not surprising given the preference of China to pursue outer space security through top-down measures such as the Treaty on the Prevention of the Placement of Weapons in Outer Space (PPWT), which China has co-sponsored in the Conference of Disarmament (CD) with the Russian Federation. Such top-down approaches to outer space security have met fierce resistance from the United States and its allies; however, China is likely not to budge from this approach.
Notably, China does seem to recognize the Code of Conduct effort. This appears to be in line with China’s consistently publicized policy of using outer space for peaceful purposes and opposing weaponization or any arms race in outer space, developing and utilizing space resources in a prudent manner and taking effective measures to protect the space environment, and ensuring that its space activities benefit the whole of mankind.
II However, while publically reaffirming that China stands for the proposition of preventing the weaponization of or an arms race in outer space and thus its sponsorship of the PPWT, the fact remains that China is developing a space weapons capability of its own and has an active direct-ascent ASAT capability, which it demonstrated in 2007 with the now infamous FY-1C intercept. China’s efforts in this area are taken while trying to convince other nations to abandon activities which could be construed as developing a similar capability.
A bottom-up approach to outer space security such as the Code of Conduct or the United States’ effort to address these issues directly via transparency and confidence-building measures (TCBMs) runs counter to China’s efforts in the CD and threatens to permanently derail the PPWT and the soft-power advantage that China currently enjoys in the UN because of it. Therefore, it is unlikely that China will not be supportive of these efforts and will look for any reason to save face and bow out the negotiations, similar to what it did for the current Code effort, unless the Code itself is negotiated against the back drop of the Conference of Disarmament at the UN and leads to a legally binding treaty such as the PPWT.
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Likewise, the Russian Federation is unlikely to be favourable to the Code of Conduct for the similar reason that along with China it is a co-sponsor of the PPWT and prefers the top-down approach to outer space security. Interestingly, the Russian Federation is not opposed to the traditional concept of TCBMs and acknowledged their utility in the past to addressing issues relating to space activities.
IV It has itself used unilateral TCBMs specifically in regards to notifications of launches and its pledge not to be the first to deploy space weapons. Moscow has also stated it will continue to support the use of TCBMs, which could include the Code of Conduct, but like China it still sees such support as laying the groundwork for adoption of the PPWT, and has also contended that the adoption of the PPWT would be the most important confidence-building measure in outer space.
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Aside from the detractors, there are supporters of the EU Code of Conduct who have affirmed their support of the International Code of Conduct. Notably, Canada and Japan supported the EU Code of Conduct and support the International Code of Conduct. Australia in particular has come our very strongly in support of the International Code of Conduct noting that now is precisely the time for a structured international conversation to occur about the future regulation of space.
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Whether countries such as India and Brazil, who were holdouts for various reasons during the EU Code of Conduct will sign on after this effort remains to be seen. India in particular had numerous concerns with the EU effort.
VII However, a common concern between Brazil and India was the oversight that neither country was invited to participate in the drafting of that particular measure. The United States, aware of this sensitivity of the two countries, with which it has cordial relations, has taken the initiative to ensure that their concerns are addressed.
Still, it is the United States itself that could be the lynchpin of whether this new Code effort is deemed successful. Its refusal to sign onto the EU draft because of national security concerns eradicated any possibility of the EU Code gaining acceptance. More so, even though the United States has supported this new initiative with EU in the form of the International Code of Conduct, it is far from certain that it will follow through and sign onto the new Code of Conduct, especially if negotiations do not assuage its national security and geopolitical concerns.
Even with the acquiescence of the United States to the Code of Conduct, the presumed absence of the Russian Federation and China will bring into question whether the Code of Conduct can be successful without the participation of these major space powers. More so, if countries in the Asia Pacific region such as India decide not to sign on to the Code of Conduct the effort could be viewed as a measure representing the western view of outer space security to the exclusions of others.
The measure will surely be considered a failure if the United States again decides that the Code of Conduct will run contrary to its national security and geopolitical interests or political changes on the domestic front influence it to refrain from signing. Without the participation of the United States the Code of Conduct would lose the support of the one remaining major space power that could otherwise provide the necessary support to give the Code of Conduct the appearance of being successful.
While one could discuss several potential scenarios for failure, it is safe to say that the only certainty about the current Code of Conduct effort is its uncertainty. It is unclear how negotiations will play out and whether agreement can be had among the multitude of nations that will be involved. To that end if the attempt at the International Code of Conduct fails to achieve whatever measure of success its proponents define for it, it will not be the end game.
Progress in a sense will be made because the nations of the world who chose to participate did so because they gathered together and recognized the validity of the issue of space security. That awareness of the problem in itself may be enough to convince the space faring nations that they have to take corrective and preventative actions on their own. The issue of outer space security is of too much importance to be left to chance, and it is that recognition that may motivate actors to fill in the vacuum left by the failure to adopt a Code of Conduct with best practices, informal understandings, voluntarily action, and custom may soon fill the void.
If that is the end result, whether it succeeds or fails, that recognition would fulfill the intent of the Code of Conduct in real meaning if not in a signed measure. Only as negotiations begin in earnest will we see how this new Code effort will proceed, and whether the nations of the world choose on their own to act responsibly in outer space regardless of a piece of paper that promises to do so.
(Michael J. Listner is an attorney and the principal of Space Law and Policy Solutions. He is a member of the New Hampshire Bar and also the International Institute of Space Law. He has authored numerous papers and articles relating to space law.)
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IGeneral Statement By His Excellency Ambassador Cheng Jingye Head of Chinese Delegation At The 55th Session of UN Committee on the Peaceful Uses of Outer Space, June 6, 2012.
IIDr. Jinyuan Su,
How Far is China from the European Code of Conduct for Outer Space Activities?, E-International Relations, July 30, 2012.
IIIId
IVTCBMs have traditionally been used as non-binding measures leading up to arms control agreements. In the case of the Code of Conduct and the United States’ efforts in the Group of Government Experts TCBMs have been re-tasked as an end in of themselves instead of a means to an end. See Andrey Makarov, Transparency and Confidence-Building Measures: Their Place and Role in Space Security, Security in Space: The Next Generation-Conference Report, 31, March-1 April 2008, United Nations Institute for Disarmament Research (UNIDIR), 2008.
VMichael J. Listner,
Geopolitical Challenges to Implementing the Code of Conduct for Outer Space Activities E-International Relations, June 26, 2012.
VIBrett Biddington,
Space Code Of Conduct: An Australian Perspective ? Analysis, July 25, 2012
VIIDr. Rajeswari Rajagopalan,
Debate on Space Code of Conduct: An Indian Perspective, Observer Research Foundation, ORF Occasional Paper #26, October 2011.
General Statement By His Excellency Ambassador Cheng Jingye Head of Chinese Delegation At The 55th Session of UN Committee on the Peaceful Uses of Outer Space, June 6, 2012.
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