EU takes the next shot in the battle of the codesby Michael Listner
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| If the American decision not to support the EU Code and proceed with its own code of conduct could be considered the opening shot in the battle of the codes, then the EU’s decision to support its own code could be considered a shot in retort. |
To that end, the EU Council decision outlines three specific projects to be undertaken: outreach activities promoting the proposal for an international Code of Conduct for outer space activities, the organization of up to three multilateral experts’ meetings to discuss the proposal for an international Code of Conduct, and the coordination of a consortium of non-governmental experts. The technical performance of these projects will be the responsibility of United Nations Institute of Disarmament Research (UNIDIR). The Council Decision allocates the sum of €1.49 million (US$1.85 million) to implement these projects.
The decision by the EU Council to support its proposed international Code of Conduct is a significant movement for the EU code of conduct, since the United States announced it would not support the EU effort and subsequently proposed its own International Code of Conduct on January 17 of this year. While the United States has yet to present its version of an international Code of Conduct, the EU is apparently undeterred and is taking advantage of the lead it has with its proposal by pressing ahead with the initiative.
If the American decision not to support the EU Code and proceed with its own code of conduct could be considered the opening shot in the battle of the codes, then the EU’s decision to support its own code and delegate it to UNIDIR for implementation could be considered a shot in retort. To the EU’s credit, deciding to support its own measure is a bold move and the substantial head start that it has in developing its code of conduct is significant. However, the tack the EU Council is taking by employing UNIDIR to promote its code of conduct is a different from the one it took when it had the United States in its corner. Before, the EU Council relied on its own resources along with those of the United States to promote its code of conduct, thus showing a willingness to pursue agreement outside of the political and diplomatic influence of the UN.
For its part, the United States may find its own code of conduct effort outflanked. If the United States intended to negotiate a code of conduct outside of the United Nations and the influence there of Chinese and Russian efforts to ban space weapons through the Treaty on the Prevention of the Placement of Weapons in Outer Space (PPWT), then the EU Council’s move to delegate the technical pursuit of its code will stymie that effort and close off a potential diplomatic avenue for the United States.
However, the fact that little has been seen or heard of the International Code of Conduct since it was announced by the United States is puzzling. One possibility for the lack of a publicly-released document is that United States intends to use its code of conduct as the flagship for its efforts this year before the UN Group of Government Experts on Outer Space to discuss the use of transparency and confidence measures (TCBMs) to address outer space security matters. If this is the case, then the EU Council’s move to employ UNIDIR to promote its code of conduct can be construed as a response to the US move to use the UN as a vehicle instead of excluding it.
A more important issue is whether this new venue will overcome the difficulties the original code of conduct encountered in terms of its acceptance among spacefaring and non-spacefaring nations alike. While the original EU code presented for discussion found initial support with countries like Japan, it did have its share of detractors. Most notably, Russia, China, India, and Brazil have distanced themselves from that code.
| One thing is certain: as the battle of the codes continues, the likelihood grows that the competing codes have the potential of creating the very divisiveness that they are intended to avoid. |
India in particular 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 Asia-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.) That the United States and EU apparently are seeking to use the UN as a mechanism to promote their individual code of conduct efforts is no guarantee that these issues will be overcome. There is also the possibility that, instead of creating consensus, competing efforts will create more divisiveness about the form that a code of conduct should take.
For the United States, the situation is more complex. Aside from overcoming resistance to a code of conduct in the international arena there is the issue of dissent among members of Congress about whether a code of code should be implemented. For its part, the United States itself may not be politically ready to sign on to its own measure given the political environment at home. The President is running for reelection and attempts by Congress to inject itself into discussions concerning the Code of Conduct have overshadowed efforts to adopt it. Congress has threatened to use its powers under the Commerce Clause to block implementation of the Code of Conduct and has introduced, as part of a defense authorization bill, a provision that forbids the expenditure of funds on the implementation of the Code of Conduct should the President sign onto a code of conduct (see “Separation of powers battle over a space code of conduct heats up”, The Space Review, May 21, 2012).
Another contentious issue is if another country or region of the world presents its own version of a code of conduct. India in particular has expressed dissatisfaction with the current draft of the EU code because it is presented from the Western worldview and does not take into account the geopolitical realities of the Asia-Pacific region. One way that those concerns could be addressed is through a code of conduct written by the nations of the Asia-Pacific region. Whether such a code of conduct would harmonize with the current code efforts may depend on whether it was written with the intent to complement or compete with them.
As the battle of the codes of conduct continues, the outcome depends on whether the competing codes seek to establish a middle ground or seek to overshadow each other. One thing is certain: as the battle of the codes continues, the likelihood grows that the competing codes have the potential of creating the very divisiveness that they are intended to avoid.