Toward an International Code of Conduct for Space

In June 2010, the Obama administration released its National Space Policy (PDF), which declared: “The United States will pursue bilateral and multilateral transparency and confidence-building measures to encourage responsible actions in, and the peaceful use of, space.”
This statement referred to the draft European Union (EU) Code of Conduct for outer space, originally published in 2008 and revised in 2010. The EU code called on member states to establish “policies and procedures to minimize the possibility of accidents…or any form of harmful interference with other States’ right to the peaceful exploration and use of outer space.” The code is not legally binding, but is rather a voluntary agreement with no formal enforcement mechanisms. It is based on three principles:

1. freedom of access to space for peaceful purposes;
2. preservation of the security and integrity of space objects in orbit;
3. due consideration for the legitimate defense interests of states

Beginning in October 2010, Frank Rose, deputy assistant secretary of state for space and defense policy, has repeatedly said: “Over the past 18 months, the United States has been actively consulting with the EU on the Code. It is our hope to make a decision as to whether the United States can sign on to the Code in the coming months.”
Fifteen months later, the Obama administration finally made its decision after an extensive interagency review, which centered on responding to Pentagon concerns that the EU code would have an operational impact on the U.S. military’s uses of space. According to Secretary of State Clinton’s statement in the official press release:
“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.”
In other words, the administration has said “no” to the EU code—for now—but “yes” to an international version that incorporates the views of emerging space powers.
I half agree with the administration’s decision. As I argued in a Policy Innovation Memo in November 2011, the administration should have endorsed the EU code for four reasons:
First, the United States and EU had already engaged in four rounds of consultations about the code, after which Brussels incorporated suggested language, including the right to self defense in space.
Second, we do not know precisely what objections the Pentagon had to the EU code. Space capabilities are highly classified, but several U.S. officials told me that they believed the code aligned with all existing Pentagon space plans and policies. However, Undersecretary of State for Arms Control and International Security Ellen Tauscher told reporters last week, without any clarification, that the code was “too restrictive.”
Third, the majority of spacefaring countries, including Australia, Canada, and Japan, have already endorsed the EU code, making it the most widely acceptable coordinating mechanism to date.
Fourth, the dangers of orbital space debris resulting from human activities are a rapidly growing threat to civil, military, and commercial satellites. While an international code would be the preferred multilateral forum to deal with space issues, it will undoubtedly take many years to draft and reach an agreement. According to National Research Council study released in September 2011:
“The current orbital debris environment has already reached a ‘tipping point.’ That is, the amount of debris—in terms of the population of large debris objects, as well as overall mass of debris in orbit—currently in orbit has reached a threshold where it will continually collide with itself, further increasing the population of orbital debris.”
Despite the urgency to develop and agree upon an international code of conduct, it would have several advantages over the current version of the EU code:

• Other spacefaring nations—such as Brazil, Russia, India, and China—indicated that they might not sign the EU code because they were insufficiently consulted in its development and believe it could limit the future capacities of emerging powers in outer space.
• The United States is the predominant space power, with 75 percent of worldwide governmental space funding; roughly 40 percent of all the active spacecraft (both government and commercial) in orbit; and the free-of-charge services provided by the U.S. Strategic Command’s Joint Space Operations Center, which detects, tracks, and identifies space objects and warns other countries and commercial space operators when their satellites are at risk. As the primary user of space, the United States can ‘lead from the front’ in shaping an international code.
• Secretary Clinton’s statement represents a needed and marked departure from the Bush administration’s National Space Policy of 2006, which stated that “the United States will oppose the development of new legal regimes or restrictions that seek to prohibit or limit U.S. access to or use of space.” In 2007, Christina Rocca, U.S. ambassador to the Conference on Disarmament, said that the universalizing of existing space agreements (like the International Telecommunications Union) was a “much more practical and effective step towards guaranteeing the peaceful use of outer space,” while State Department official John Mohanco declared: “The cold war is over…and there is no arms race in outer space. Thus, there is no—repeat, no problem in outer space for arms control to solve.”

The Cold War is indeed over, but since 1957 there have been over 5,500 launches that have sent some 7,000 spacecraft  into space. Today, there are over sixty countries that own and operate approximately 1,100 active satellites in space. Consequently, humans have made a mess of space with reckless creation of debris, which could impact surveillance and communications satellites that play an invisible but essential role in almost all facets of our daily lives. The Obama administration must translate its word into action by overseeing the development and implementation of an international code of conduct for space, which cannot begin soon enough.