US rebuffs current draft of EU Code of Conduct: is there something waiting in the wings?by Michael Listner
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| This dichotomy between the administration’s previous position on the Code and the muddled position it has now taken brings into question exactly what the administration’s intentions are towards the EU Code. |
This announcement is in stark contrast to the public stance taken by administration officials throughout 2011. As early as last February, the administration signaled that it was preparing to accept the EU’s draft Code with negligible changes to the instrument and that an interagency review concluded in January 2011 determined that the Code would not damage US national security interests in outer space or limit research and development of classified programs relating to outer space activities.2 Again in April, Ambassador Greg Schulte, US deputy assistant secretary of defense for space policy, portrayed the draft Code as a “positive approach” but emphasized that the US government had not decided whether to sign the document.
Four months later, Richard Buenneke, senior advisor for space policy for the US Department of State, attended a teleconference of the FAA’s Commercial Space Transportation Advisory Committee (COMSTAC) Space Transportation Operations Working Group (STOWG). (See “An update on the proposed European Code of Conduct”, The Space Review, August 8, 2011.) During the telecon Mr. Buenneke discussed the status of the Code and noted that the Code was under review by the Department of Defense to determine how it might impact US military operations, in particular its space operations and security. He further elaborated that the EU continued to present the Code to the international community, and that while the US was interested in the Code, it would not sign the document in 2011. He did emphasize that it was probable that the US would sign the Code at an unspecified time in 2012. Any intentions to sign onto the Code in 2012 were left in limbo when the United States decided later in 2011 that it would refrain from signing the Code. No reason was publicly given for this decision.
Since then, the State Department issued no further comments. However, during a State Department press briefing Friday, the day after Tauscher’s remarks, spokesperson Victoria Nuland shed some more light on the issue:
We want to ensure that as we move from regional codes of conduct to a broader international code of conduct that the interests of a broad number of stakeholders are taken into account. So this is the message that we’re passing back to the EU, that we want to talk to them about these issues, but we’ve got more work to do together. Under Secretary Tauscher made a call yesterday to the EU’s ambassador here, Ambassador Vimont, to talk further about this. So we look forward to further work together.
Nuland, when further asked whether she sees the EU code of conduct as a good basis for broader discussions with other countries to jump off from, or whether an alternative approach was necessary, asserted that serious consultations about a code have just begun, and that work had to be done before she could answer that question.3
Domestic and international concerns
This dichotomy between the administration’s previous position on the Code and the muddled position it has now taken brings into question exactly what the administration’s intentions are towards the EU Code. Does the administration intend to discard the current Code and salvage its precepts for inclusion in another US-led instrument, or does the US seek to modify the existing Code to suit its political and national security interests?
The US apparently has reservations about the Code from the perspectives of both the Department of Defense and the Senate. Concerns over the Code from within the Department of Defense deal with the question of how the Code, in particular the Code’s strategy for space traffic management might restrict the scope of future operations in outer space. Despite its reservations, the Department of Defense agrees that provisions of the Code made sense for US national security.
| If the Obama Administration is not going to continue with the current draft of the Code, is there an alternative that it has in mind? |
Concerns were also prevalent among Republican members of the Senate, who voiced their concern that the administration was entering into negotiations that would lead to signing of the Code without the input or approval of the Senate. The administration correctly pointed out that it was not negotiating a legally-binding treaty, and therefore it did not have to consult with or seek the approval of the Senate.4 This lead to the concern that the administration, in its apparent zeal to sign onto Code, might give away too much in terms of US national security.
These concerns were aggravated by the view of insiders that the US should take custody of the Code from the EU and modify it to address its security interests. The fact that the US, as one of the leading spacefaring nations, did not have an ownership interest in the Code prompted the view that the US should take over custody of the Code not only to address its own national security concerns, but also to promote it to other nations. This signaled a de facto vote of no confidence in the ability of the EU to effectively promote and administer the Code. Interestingly, this opinion has been proffered as one of the concerns that India has with the current draft of the Code.
Arguably, this view does have its merits. In the time since the current draft of the Code has been disseminated very few countries have supported it. Japan in particular seemed to back the Code in its entirety, with Hirofumi Katase, Deputy Secretary General in Japan’s Secretariat for Space Policy, nearly endorsing the code while urging other spacefaring nations to adopt it.
However, other nations, such as Russia, China, India, and Brazil, have distanced themselves from the Code. India in particular has raised several specific concerns about the Code, including the fact that the Code is not a legally-binding instrument, that it replicates existing domestic policies of nations considering it, that the EU did not consult with the Asian-Pacific nations when drafting Code, that it was too ambiguous, and that the Code’s effectiveness would be weakened if it was administered by the EU. (See “EU Code of Conduct: commentary on Indian concerns and their effects”, The Space Review, November 28, 2011.) It is this last object, coupled with the apparent inability of the EU to promote it, that likely mirrors US concerns about the EU’s custody of the Code.
China’s objections to the Code relate more to its focus on arms control rather than regulating and defining conduct. Its co-sponsorship of the PPWT, a treaty that would ban the placement of weapons in outer space, would likely be rendered moot if the Code was adopted by a plurality of the spacefaring and non-spacefaring nations alike. In regards to the Code itself, Chinese objections include the Code’s insistence that states who adopt the measure must share information on their domestic national space policies, including objectives for security and defense related activities, as well as the Code’s focus on orbital space debris.
An American alternative to the Code?
If the Obama Administration is not going to continue with the current draft of the Code, is there an alternative that it has in mind? A comment by in the wake of Tauscher’s comment made by another government official may help to answer that question. According to the unidentified government official, the draft Code is not being rejected outright and it could serve as starting point for future discussions on an international code of conduct.
These comments suggest that the administration may already have an alternative to the Code in mind. Insiders may have also corroborated Tauscher’s statement in that the administration may soon be publically announcing a series of talking points, which could serve as the foundation of a campaign leading to a US-led international code of conduct.
If the US is indeed seeking to spearhead its own code of conduct, it will likely face the same challenges and criticisms that the EU effort faced in addition to a potentially hostile EU, who may be reluctant to participate after having its effort effectively commandeered. It is also likely that nations such as China and Russia will remain steadfast against any attempts to institute an international code of conduct given their preference to address outer space security matters through legally-binding arms control measures such as the PPWT, which both nations have co-sponsored in UN Conference of Disarmament.
A more important issue is whether a US-led effort would be inclusive and seek the input of other nations such as India in crafting an international code so as to address specific geographic and cultural interests, or whether the U.S. will unilaterally craft a code or otherwise only invite the major space-faring nations in an effort to curry their support for the measure. However, Nuland’s statements suggests that the US may reach out to countries, such as India, to ensure that their geopolitical security interests are also represented. The question remains whether those countries would be open to engaging in, or otherwise trust direct negotiations with, the US.
| Whatever the true rationale for derailing the EU Code effort, if the US decides to pursue its own international code effort, it will certainly have rough waters to traverse. |
There is also the question of how spearheading an international code of conduct will dovetail into the current approach towards space security laid out in the current US space policy. The United States will be participating in the Group of Government Experts on Outer Space in 2012 to present its plan to use redefined and repurposed transparency and confidence-building measures (TCBMs) in lieu of legally-binding treaties to address outer space security issues.5 Selling the idea to the international community is not going to be an easy task, taking into account that China and Russia have made it clear they do not support the US approach. Both of these nations have collaborated in generating a soft-power din in the UN over the issue of outer space security in general and space weapons in particular, which the US may find hard to overcome. If the US does pursue an international code, it could be intended to supplement the current US approach.
However, an international code effort by the United States might also be intended to supplant the administration’s plans to present TCBMs to the Group of Government Experts, thereby bypassing the UN and, as a result, the soft-power advantage that China and Russia wield there. If this is the case, doing so would still be consistent with US space policy since the Code or a successor would still technically be considered a TCBM. The only difference in such an approach is that the US would engage other nations outside the UN, thus eliminating the factor of UN politics.
The question remains if the administration never intended to sign on to the Code why did it wait so long and go through the diplomatic effort to review the EU Code? One explanation is that the U.S. played along with the EU effort to see how the Code would be received by space-faring and non-space-faring nations alike possibly as a litmus test for its own space policy’s foray into repurposing transparency and confidence-building measures. This effectively would allow the U.S. to keep its political and diplomatic powder dry while the EU expended their own political and diplomatic capital on the draft Code. The U.S. could then gauge the potential response to its own approach and decide whether it would be prudent to continue along its current path or pursue a different course of action.
On the other hand, the timing and manner of the announcement suggests that the decision has more to do with election year politics than the acceptability of the Code by the US. Rather than a planned and well-articulated announcement that the administration did not intend to pursue the Code in its current form, the announcement was made in a haphazard manner in the course of a breakfast meeting with the press. Whether it was the intention of the administration to deliberately sow confusion or if the announcement was unplanned is unclear. One would think that such a major policy announcement would have deserved a more formal press briefing by the State Department.
It is clear, though, that if the administration does unveil a new effort for a code under US leadership, the timing during an election year, with President Obama at loggerheads with Congress on domestic issues, could elicit accusations both from domestic and foreign political opponents. They would argue that the administration intentionally derailed the EU effort so that it could make political gains at home by wielding its foreign policy abroad. Such an accusation has merit considering the president’s sagging polls in this election year. Thus, it is fair to suggest that he would use the foreign policy power exclusive to the executive branch to boost his polls.
On the other hand, the administration could have had legitimate last-minute reservations about the Code and decided not to pursue. This would not be an unprecedented move by the Obama Administration. It made a similar move in regards to its negotiations with Russia over the US plan to deploy SM-3 interceptors in Europe as part of phased-in approach of deploying an ABM system. In June 2011, the administration rejected its own proposed ballistic missile-defense agreement with Russia at the last minute because of concerns that two provisions within the four-part agreement would limit US missile defenses to be deployed in Europe. The agreement was to be signed by the two nations in June during the G-8 summit in Deauville, France.6
Whatever the true rationale for derailing the EU Code effort, if the US decides to pursue its own international code effort, it will certainly have rough waters to traverse. Not only will the US have to address the same challenges that the EU faced during its effort, but it will also face the task of rebuilding diplomatic bridges with the EU. Whether the EU will be willing to meet the US halfway in that effort is unclear, but it is certain that an international code effort at this juncture will be a difficult sell.
Endnotes
1 Marcus Weisgerber, “U.S. Wants Changes to EU Space Code of Conduct”, Space News, January 12, 2012.
2 Eli Lake, “Report calls for restraints in space activity”, Washington Times, February 7, 2011.
3 US Department of State, Daily Press Briefing, January 13, 2012.
4 The Code of Conduct is in effect a transparency and confidence-building measure (TCBM). By nature TCBMs do not hold the legal force of treaties, therefore the Executive Branch would theoretically have the power to negotiate and enter into TCBMs without involving the Senate in during their negotiation or otherwise seek the Senate’s approval to sign. Since TCBMs do not hold the same stature as treaties, measures entered into do not have the force of federal law and essentially have the power of executive policy.
5 See Michael Listner, “TCBMs: A New Definition and New Role for Outer Space Security”, Defense Policy.Org, July 7, 2011.
6 Michael Listner, “Russian PM Confirms Obama Administration Scrapped BMD Deal”, Defense Policy.Org, July 15, 2011.