Limited rules of engagement: Even if the Code of Conduct for Outer Space Activities is adopted, a significant void will remain

Cesar Jaramillo Space Security

Author
Cesar Jaramillo

The Ploughshares Monitor Winter 2011 Volume 32 Issue 4

The draft Code of Conduct for Outer Space Activities proposed by the European Union is currently undergoing international consultations and is expected to be open for signatures in 2012. If adopted, the Code will establish a set of voluntary confidence-building measures aimed at increasing transparency and responsible behaviour in outer space activities. However, the Code of Conduct fails to tackle urgent questions relating to the militarization and weaponization of outer space. 

Space security dynamics have changed dramatically since the dawn on the space age over half a century ago when Sputnik 1 became the first artificial satellite launched into Earth’s orbit. For years after, the United States and Soviet Union were the only two players in the race for space supremacy, permeated by Cold War rivalry.

The end of the Cold War, the emergence of a highly profitable space services industry, and a sharp decrease in the financial and technological barriers to entry have all contributed to a dramatic increase in the number of actors with space assets. At least nine states have acquired an autonomous orbital launch capability, and over 60 nations or consortia now have assets in space that have been launched either independently or in collaboration with others (Jaramillo 2011, p. 17). This number will continue to grow every year.

The commercial sector is also growing steadily, with revenues in the hundreds of billions of dollars. Space-based commercial applications such as GPS and satellite TV and radio are more and more common. And while it is desirable to expand the pool of stakeholders with a vested interest in the sustainable use of space, the limited nature of some space resources poses increasingly complex governance challenges to ensure equitable access for newcomers.

There is also growing tension between a conception of space as a peaceful global commons and one that views space primarily as a strategic military domain. The use of space assets for military applications such as reconnaissance, intelligence, and surveillance has long been commonplace for countries like the United States and Russia. Now more countries are attaching greater importance to the benefits and strategic advantages of space-based military applications.

Not surprisingly, contemporary U.S. space policy documents, such as the 2010 National Space Security Strategy, characterize the space domain as congested, contested, and competitive. Yet, after more than 50 years, the 1967 Outer Space Treaty remains the primary point of reference for international space law, despite growing evidence that its precepts and underlying assumptions no longer reflect the drastically changed reality of outer space activities. In this context, the need for an adequate policy instrument for outer space activities that effectively tackles the most salient challenges currently facing the space domain becomes ever more apparent. Of the policy instruments that have been put forward by different actors,1 the one that seems most likely to galvanize broad international support is the EU’s proposed Code of Conduct for Outer Space Activities.

Code Limitations
The many challenges facing the outer space domain can be grouped into two broad categories. On the one hand, there are those related to the risks to space assets that result from ‘normal’ peaceful space operations. These include, for instance, the risk of collision between two satellites or between a satellite or manned spacecraft and a piece of space debris. On the other hand, there are risks associated with the militarization and potential weaponization of space, which are collectively referred to in the United Nations system as PAROS—the Prevention of an Arms Race in Outer Space.

The provisions of the Code of Conduct aim to address the first, through non-binding collaborative mechanisms such as sharing data related to positions, manoeuvres, and activities of space assets. Concerns related to PAROS, which are at least as urgent as those related to collision avoidance, are left essentially unresolved. Even though the Code, for example, calls upon states to respect “the security, safety and integrity of space objects in orbit consistent with international law” (my emphasis)—which could be interpreted as a measure to protect space assets against acts of aggression—the reality is that international law in this area is significantly lacking. This governance void is highly troubling, as a weaponized space domain could be a destabilizing factor for international peace and security on Earth.

Referring to multilateral, global diplomacy, one author argues that “debates in this context tend to circle endlessly around relatively insignificant problems while the true issues are left practically unaddressed” (Krause 2007). Certainly, this assessment cannot be fully applied to the debates about the scope and limitations of the Code, as the issues it tackles are anything but insignificant.

However, the lack of attention and energy given by the international community to the problems with space weapons must be acknowledged, as must the dire consequences for space and terrestrial security if such problems are not addressed.

In recent years, for example, countries such as the U.S. and China have conducted anti-satellite weapon (ASAT) tests, which have not only raised international concerns about the inherently belligerent nature of these capabilities, but have created hundreds of thousands of pieces of new space debris. Each piece poses an undiscriminating threat to the space assets of all actors, including those that created it in the first place. Yet no policy instruments exist to prevent future ASAT tests.

The link between Ballistic Missile Defence (BMD) systems and ASAT capabilities is often overlooked in policy discussions about space security. Indeed, “the same kinetic-kill interceptors that can destroy a missile in-flight could also be capable of destroying a satellite in low Earth orbit (and in doing so, effectively become anti-satellite weapons, or ASATs)” (Weeden 2009). This relationship is problematic from a space security perspective, as the similarity between the two technologies could contribute to the weaponization of outer space, while encouraging more countries to deploy similar systems.

The Code of Conduct does hold value. To be sure, its proponents have always conceded that it was designed to deal with ‘soft’ issues (i.e., not weapons). If it is adopted, the Code will do exactly what it openly sets out to do: codify a set of non-binding transparency and confidence-building measures. It is the broader multilateral governance architecture that has not effectively responded to legitimate concerns regarding the perils of space weaponization.

Even if the Code is adopted in 2012, a significant governance void will remain. No clear norms are in place to address the possibility of an arms race in outer space. The risks associated with such a prospect may not be apparent during peacetime, when nations exercise self-restraint in the deployment and use of weapons against space assets. But self-restraint is no substitute for effective governance mechanisms, codified in international law, especially when tensions are running high.

The matters addressed by the Code are significantly less contentious than those related to space weaponization. Still, the EU has had to work hard to gain the international support needed to secure adoption of the Code. The reality that discussions on the weaponization of space will be more complex should encourage policymakers to start them sooner rather than later. It is high time for the international community to give this issue the attention it demands.

Note
1. For a brief overview of different space security policy proposals, see Cesar Jaramillo, New competition for a space security regime, The Ploughshares Monitor, Summer 2010.

References
Council of the European Union. 2010. Document 14455/10.
Jaramillo, Cesar, ed. 2011. Space Security 2011.

Krause, Joachim. 2007. Nuclear Proliferation and International Order. Paper presented to the International Conference “Global Security in the 21st Century: Perspectives from China and Europe.”

U.S. Department of Defense. 2011. National Security Space Strategy Unclassified Summary.

Weeden, Brian. 2009. The space security implications of missile defense. The Space Review, September 28.

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