Space Code of Conduct: Inadequate Mechanism

Imagine a day without mobile phone connectivity or a television blackout or an internet shutdown. Human life has become so much dependent on satellite technologies, which help in providing such services, that the smooth functioning of our world could be disrupted without them! Presently, outer space, known as a common heritage of humankind, is becoming increasingly crowded. Satellite technology also has a major military relevance. Hence, in order to safeguard the genuine interests of countries, a globally accepted legal architecture to undertake various activities in outer space is necessary.

For the last few decades various activities in outer space are being governed by a few globally acknowledged treaty mechanisms like the Outer Space Treaty (OST, 1967), Moon treaty (1979) as well as UN initiatives like the Prevention of Arms Race in Outer Space (PAROS) and the Committee on the Peaceful Uses of Outer Space (COPUOS). In 2008, the European Union (EU) suggested a more explicit Code of Conduct (CoC) to generate greater ‘clarity’ about space activities. This CoC was revised further in 2010. On June 6, 2012 the EU officially launched (in Vienna) a multilateral diplomatic process to discuss and negotiate an International CoC for Outer Space.

The CoC is aimed at providing a complementary mechanism to the existing framework regulating activities in outer space. It is a voluntary mechanism and seeks to codify new best practices. The CoC’s main emphasis is on transparency and confidence-building measures (TCBM). In addition, it also prescribes measures on space debris control and mitigation and suggests a mechanism for notification of various activities that states propose to undertake in space. States are expected to remain committed to various existing legal mechanisms to outer space activities as well as to formulate and implement national policies in this regard. The basic purpose is to put together policies and procedures to achieve the security of space assets, thus minimising the likelihood of accidents and possible collisions of objects in space as well as restricting the accidental/intentional creation of space debris and attempts to interfere in the functioning of operational space systems.

Important space-faring countries like the US, Japan and India have, in principle, welcomed the idea of a CoC. While they are unlikely to agree to every fullstop and comma in this proposal, they are at least willing to debate the EU draft. On the other hand, Russia and China have put on the table during February 2008 the “Prevention of the Placement of Weapons in Outer Space Treaty” (PPWT) which would ban the weaponisation of space. However, the biggest drawback of the PPWT is that it is completely unverifiable. More importantly it is silent about ground based weapons which could damage/kill the satellites in space (China had used a Kinetic Kill Vehicle, KKV, to demonstrate its ASAT capability in January 2007).

The EU’s CoC proposals are slowly gaining acceptability. However, it needs to be understood that the conceptualisation of this code is basically based on optimism that states are essentially ethical actors and that they understand their responsibilities and duties and are keen to bind themselves into following a mutually agreed upon set of rules. The proposed CoC is non-binding in nature and more in the form of transparency and confidence building measures. It could be compared with the arms control mechanism—the Hague Code of Conduct (HCoC), which is a voluntary and non-binding mechanism established to usher in transparency in the missile arena. Interestingly, most of the signatories to this mechanism have no missile capabilities!

In reality, mechanisms like HCoC or the proposed space CoC have extremely limited relevance and actually serve no purpose beyond offering a ‘feel good’ notion. It would be naive to think that states actually care for such non-binding mechanisms. On the other hand, any treaty mechanism like PPWT has serious limitations, given that there is no clarity with regard to defining what actually a space weapon is. It would be difficult to establish a verifiable mechanism in this regard. More importantly, the coming into being of a treaty mechanism banning the weaponisation of space would have serious implications for missile defence programmes. In short, all existing proposals have limitations.

Now, the question is why a space CoC is being pushed so aggressively in spite of its serious limitations of this process? What is the use of forming so called rules of behaviour, principles, values and standards when there is no authority to punish? It has been seen in the past that even well established treaty mechanisms like the Biological Weapons Convection (BWC) have failed because of the absence of a verification protocol. If so, what is the use of pushing for an imperfect CoC? This CoC has been advertised as a mechanism to preserve the sustainability and security of space, but it is difficult to comprehend how a non-binding and voluntary mechanism could help in achieving this.

It is a reality that no progress would take place in the space arms control arena without US support. But, because of its missile defence compulsions, the US is unlikely to support any treaty mechanism in this regard. The issue therefore is whether the rest of the world should surrender to US hegemony and start negotiating a toothless mechanism like the CoC? Lobbying for a non-binding mechanism actually demonstrates the weakness of its advocates and indicates that they are giving up too early without even trying to debate possible stronger alternatives.

It appears that the US, which initially had reservations, is likely to support the CoC with certain amendments. Probably, it has understood the limitations of taking a leadership role in this field and wants to drive the agenda from behind the scenes. Since outer space has critical military relevance and its commercial utility is increasing rapidly, many other states are also probably not keen to become part of any binding treaty mechanism particularly at this stage when the space realm is witnessing a process of evolution. For them, the present situation is just ideal: their agenda gets served and the blame goes to either the US or China!

Presently, the ‘context’ of the space security debate is at a crossroads. The EU appears to have won step one by compelling other states to react to its proposal. Against this backdrop, three possible options can be identified:

Option 1: Join the international space CoC by suggesting amendments (if any). Everyone understands the element of ‘hypocrisy’ in the global arms control agenda. The best option is not to criticise the CoC but to join the bandwagon and demonstrate commitment towards global non-proliferation and disarmament regimes! On the positive side, irrespective of its limitations, the CoC would help bring in more (some) transparency. From a state’s point of view it will lose nothing since declarations are voluntary and it will not gain the reputation of being a ‘spoiler’.

Option 2: PPWT in its present format is a bad option, but can it be fine-tuned? Why not debate this issue and push for a treaty mechanism (difficulties in this process are known but the challenge is to deal with them). It is important to note that once CoC is put in place no additional initiatives are likely to emerge in the near future. All this indicates that the world would live with a false sense of security about the outer space arena, even as the major powers actually have a ‘field day’. It would be incorrect to divide space-faring countries into two groups, namely EU-US and China-Russia; even if inadvertently, the CoC should not be guilty of this crime.

Option 3: The ongoing debate on a space CoC has helped to bring to the fore the issue of space security and this opportunity should be used to widen the scope of the debate and try and formulate an option that has a binding mechanism. The CoC would thus become a first step towards preventing the eventual weaponisaton of space. However, diluting the CoC agenda with the belief that devising a strong mechanism is impossible is actually harmful to space security. There is a need to learn from the history of nuclear and climate change debates and allow a similar history to unfold in the space security arena as well.