Note:

This is the second of two postings devoted to the issue of space security in the context of the European Union’s draft “Code of Conduct” for operations in space.  (The previous NPF offering on this subject can be found by clicking here .)  Ambassador Gregory Schulte, who presently serves as Deputy Assistant Secretary of Defense for Space Policy, provided NPF with this new essay on recent developments in this arena.  Dr. Ford adds his own comments afterwards.

Moving Toward a Space Code of Conduct

by Gregory Schulte

On January 17, Secretary of State Hillary Clinton announced that 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.  The U.S. Department of Defense supports the concept of an international code of conduct, because such a code can encourage responsible space behavior by reducing the risk of mishaps, misperceptions, and mistrust, enhancing U.S. national security.

As I wrote on this website in September 2011 , space is vital to our nation’s security and economy, but space is increasingly congested, contested, and competitive.  The National Security Space Strategy (NSSS) responds to the challenges of a space environment that is congested with a growing number of satellites and debris, contested by an ever-increasing number of man-made threats, and competitive as more countries and companies field space capabilities.  The NSSS recognizes that one of the ways to address this challenge is to promote international cooperation and norms of responsible behavior.

As the number of space actors grows, it is in our interest that they act responsibly, protecting the sustainability and safety of space.  A widely-subscribed Code can encourage responsible behavior, and reduce the risk of misunderstanding and misconduct.  Debris mitigation standards, guidelines for reducing radiofrequency interference, and shared space situational awareness can help protect space and the advantages we derive. An international code of conduct can enhance U.S. national security.

The EU’s draft code of conduct for space is a promising basis for an international code.  It emphasizes minimizing debris creation and increasing transparency of space operations, and focuses on behaviors, rather than unverifiable capabilities.  The EU draft is not legally binding, and recognizes the inherent right of self-defense.  It better serves our interests than a legally-binding ban on space weapons.

The U.S. is committed to ensuring that any Code advances our national security.  We are already leading by example – in fact, the EU’s draft code reflects U.S. best practices on notification of space launches and sharing of space data to avoid collisions.  We will continue to shape an international Code through active participation in international negotiations.  DoD has assessed the operational impact of the current draft and is developing steps to ensure that a final Code fully supports our national interests and strategy.  Throughout the international process, we are committed to keeping Congress and other interested parties informed.

-- Gregory Schulte

DR. FORD COMMENTS

It is a pleasure to have Greg Schulte appear again on NPF.

Let me say at the outset that I have no problem, in principle, with a space “Code of Conduct” as a careful articulation of spacefaring “best practices” and taking the form of a merely politically-binding, as opposed to legally-binding, commitment by a broad range of spacefaring states.  I know that Greg and other supporters of a Code generally don’t like to refer to it as a form of “arms control,” perhaps in order to avoid the stigma attached to that phrase in some U.S. conservative circles.   Although I would myself argue, from an analytical perspective, that a Code is a form of arms control – specifically, a form of behavioral arms control, although arms control more traditionally focuses upon constraining concrete capabilities – the terminology isn’t all that important.  The key is what it would do , or not do.  And here there’s a good case to be made that a well-crafted and appropriately limited Code of Conduct would serve both U.S. interests and those of international peace and security more generally.  The challenge lies in making sure that it does so.

In general, the historical record suggests that although politically-binding commitments of the “Code of Conduct” variety are certainly no panacea for international security problems, they are quite capable of prodding the behavior of many states in a more constructive direction.  The Missile Technology Control Regime (MTCR) – and its associated Hague Code of Conduct (HCOC) – provide a case in point.

For the most part, there are few “hard” rules in the MTCR system, which is only “ politically binding ” anyway, with members being left subject only to good-faith self-enforcement with regard to their collective pledge to exercise restraint in the transfer of ballistic missile technology to non-MTCR members.  The MTCR/HCOC system is thus a rather “fuzzy,” basically unverifiable, and essentially unenforceable one.  Nonetheless, it seems to have done some real good by articulating a widely-subscribed set of technology-transfer “best practices” and export control guidelines, and by providing grounds for criticism of states that do not follow such guidance.  When I was at the State Department during the administration of President George W. Bush, we put an MTCR compliance section into our 2005 “Noncompliance Report ,” believing that MTCR/HCOC system to be a valuable adjunct to global nonproliferation efforts and feeling that countries’ compliance with its guidelines – while not a legal requirement – was important and worth publicly assessing.  As people today mull over at least the potential value of a “Code of Conduct” for space operations, it’s worth recounting the nice things we said about the analogous MTCR at that time:

“ Over the course of the MTCR’s history, the Regime has made some important strides in slowing missile proliferation worldwide. The MTCR Partners’ efforts have: induced most major suppliers to control their missile-related exports responsibly, reduced the number of countries with MTCR-class missile programs, and added countries with significant economic and political potential to the MTCR to increase its influence and capabilities. The MTCR Partners also have cooperated to halt numerous shipments of proliferation concern and have established the MTCR Guidelines and Annex as the international standard for responsible missile-related export behavior. In addition, they have established a broad outreach program to non-members, in order to increase awareness of the global missile proliferation threat and to urge countries that have engaged in missile proliferation to desist. In recent years, the MTCR Partners also have focused increasingly on new ideas for addressing ongoing global missile proliferation challenges and the demand-side issues posed by non-MTCR members.”

To give just one very recent example of the kind of normative pressure that the MTCR/HCOC system can apparently create even for states not normally known for being particularly virtuous in their international dealings, it has been reported that even though Russia proved willing to transfer an entire nuclear-powered attack submarine to India – a sophisticated Akula II -class vessel re-commissioned in Indian service as the INS Chakra on January 23, 2012 – Moscow did not transfer the submarine’s usual complement of 3,000-kilometer cruise missiles as well, because to do so would have constituted a breach of MTCR standards.

There is no guarantee, of course, that similar degrees of success can be achieved by formulating analogous “best practices” for space operations.  But neither can one say that this is impossible: there is nothing per se wrong with behavior-regulatory approaches such as a “Code of Conduct,” and sometimes they clearly can be valuable.

There has been a good deal of debate over the merits of the European Union’s draft Space Code, or some still-to-be negotiated successor.  Some conservatives, such as the analysts at the Heritage Foundation , dislike and distrust the effort in its entirety.  Other conservatives – such as my one-time boss, former Assistant Secretary of State Paula DeSutter – have voiced qualified endorsements of the idea , in part because it may represent a way to co-opt and undermine more aggressive arms control efforts, such as the longstanding Russian and Chinese proposals for legally-binding treaty mechanisms designed principally to impede further development of American space capabilities.  For their part, liberals clearly favor a Code of Conduct, though one gets the impression that many of the hard-core arms controllers are indeed miffed that the Code isn’t more prescriptive and would be only politically binding.

For my part, I acknowledge that “Code”-type approaches can sometimes be valuable, and I am open to the idea of a politically-binding code that would promote the important principles of preventing harmful interference with other nations’ space objects in peacetime, minimizing the creation of persistent space debris, and promoting space situational awareness, information exchanges, and sound traffic management.  Such an instrument would need to contain appropriate acknowledgment of self-defense rights and law-of-war principles, and it would need to be carefully written in order to avoid infringing upon legitimate national security uses of space.  Even if it were very well crafted, moreover, a Code wouldn’t solve all of humanity’s outer space problems, nor prevent genuine malefactors’ misuse of the medium or the further development of anti-satellite weaponry or other tools of space mischief-making.  But it could still do some good.

To my knowledge, the Obama Administration has not yet said anything to indicate that its hopes and planning for the negotiation of a Space Code of Conduct would turn it from a helpful into a harmful instrument.  And so Greg can still count me as being more or less in his camp in support of working to see if we can negotiate a good Code with at least the more responsible countries among our fellow spacefarers.  This support is conditional, of course, for it might turn out that a bad one gets negotiated.  So far, however, I haven’t seen a significant problem.

In fact, it seems still to be the case – as I noted with some amusement in my earlier NPF comments on this subject – that the Obama Administration hasn’t really deviated from the Bush Administration’s national security space policy in any substantive way.  This doesn’t mean that Obama won’t do so in the future, of course, but I remain struck by the degree to which current space policy amounts merely to the repackaging and rebranding of a generally bipartisan U.S. approach to space policy that has remained fairly consistent over multiple U.S. administrations.  We conservatives might begrudge the cynically self-congratulatory public relations elements of the current administration’s “old wine in new bottles” approach – with its unfair, albeit implicit, denigration of past policy – but so far there’s not been much to complain about for us connoisseurs of that old wine.

The Obama team has also been careful to declare, with surprising emphasis, that it won’t accept restrictions on U.S. national security activities in space.  Many conservatives feared that the seductions of the European Union’s draft Code would prove irresistible for an administration headed by a man who has gone to such trouble to cultivate the image of being a deeply committed arms controller.  Yet the little-remarked corollary of the Obama Administration’s much-publicized recent embrace of the idea of negotiating a Space Code of Conduct has been its emphatic rejection of the European effort.

After U.S. officials had mulled over the European Union proposal for several months, Undersecretary of State for Arms Control and International Security Ellen Tauscher said on January 12 that the European draft was “too restrictive” and that “we’re not going to be joining with the Europeans on their treaty [sic].”   She even repeated the message for emphasis: “ We made it very definitive that we we’re not going to go along with the European code of conduct.”  Secretary of State Clinton has declared, furthermore, that as negotiations proceed on some kind of new draft, “ 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.”   (These comments echo those of various other U.S. officials, both on and off the record, emphasizing that the European draft was unacceptable without “ modification to ensure that it does not, intentionally or otherwise, restrict U.S. freedom of action in space with respect to national security.”)  If such statements are sincerely meant and resolutely followed – an important “if,” but not an entirely implausible one – there may end up being little for U.S. conservatives to complain about.

As with the Obama Administration’s approach to some other national security issues – e.g. , nuclear weapons policy , nonproliferation and nuclear materials security , and counter-terrorism , which I have discussed in previous NPF postings – current U.S. space policy seems to be somewhat at war with itself, torn between instincts firmly rooted in politically-correct international moralism and a more practical wisdom born of discovering oneself to have real responsibilities as a superpower in a complicated and sometimes violent world.

President Obama clearly wants some form of space arms control, but his team has so far retained the good sense to be wary of bad space arms control.  His administration has rejected everyone else’s proposals, and it has declined to spell out what it wants instead , but it nonetheless appears terrified of seeming to be uninterested in international agreements in this arena – which, after all, is what  the president’s media cheerleaders like to depict George W. Bush as having been.

This cognitive dissonance can sometimes elicit some awkward rhetoric and odd positional optics.  In fairness, however, it has so far not made for bad space policy.

So I’m still on board, Greg.

-- Christopher Ford