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Iridium-Cosmos debris illustration
The Code of Conduct proposed by the EU is designed, among other things, to make less likely satellite collisions, like the Iridium-Cosmos collision in 2009, that generate dangerous amounts of orbital debris. (credit: AGI)

EU Code of Conduct: commentary on Indian concerns and their effects


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There has been much debate in 2011 over the draft version of the European Union’s proposed Code of Conduct for Outer Space Activities (the CoC), released in October 2010. Since its release, the CoC has been analyzed by policy experts in several different forums including a panel discussion at the George Marshall Institute as well as the pages of this publication.1 Little has been said publically since the flurry of analysis in the first half of the year due in no small part to the State Department and other branches of the United States government’s review of the CoC in lieu of formal adoption by the United States.

Countries in the Asia Pacific Region, in particular India, have several concerns about the CoC, which could prevent them from adopting the measure.

The FAA’s Commercial Space Transportation Advisory Committee’s Space Transportation Operations Working Group (STOWG) met on August 4, 2011, and featured an update on the CoC by Richard Buenneke, Senior Advisor, Space Policy for the US Department of State.2 At that time Mr. Bunneke informed STOWG that the CoC was under review by the Department of Defense and that the United States remained interested in the CoC, but it was not prepared to sign the document in 2011. According to Mr. Bunneke, the European Council continued to present the CoC to the international community for consideration. The CoC was slated for adoption in 2012, but that deadline has been pushed back indefinitely.

There has been no official comment to the response on the CoC from the international community outside of the European Union and the United States. However, open source material suggests that countries in the Asia Pacific Region, in particular India, have several concerns about the CoC, which could prevent them from adopting the measure.

Indian concerns with the CoC

Dr. Rajeswari Rajagopalan, Senior Fellow at the Observer Research Foundation in New Delhi, India, presented an occasional paper in October 2011 discussing the CoC and India’s perspectives on it.3 Dr. Rajagopalan’s paper presents concerns that India and the Asian nations have with the current form of the CoC and whether those can concerns can be addressed to their satisfaction. Six fundamental concerns can be discerned from Dr. Rajagopalan’s dissertation: the non-binding nature of the CoC, repetition of and intrusion into a country’s domestic space policies, the failure of the EU to consult Asian countries when drafting the CoC, failure of the CoC to address the geopolitical realities of the Asian sphere of influence, ambiguity of terms and phrases within the CoC, and administration of the CoC. Each of these are briefly addressed below.

India’s prominent concern with the EU’s approach is the CoC’s lack of a legally binding mechanism, which is a long-standing requirement of some of the Asian counties. India takes the position that in order to be workable, the CoC requires a legal framework, an enforcement and verification mechanism, and a penalty mechanism for countries violating the CoC. The lack of legally binding measures is seen by the Asian countries as a weakness that will undermine and eventually defeat the CoC’s purpose.

Associated with the concern that the CoC is not legally binding is its voluntary nature and that its precepts replicate existing policies. Most of the principles and guidelines proposed in the CoC already exist either in the national space policies of some of the countries involved with the CoC or in bilateral and multilateral transparency and confidence building measures (TCBMs). Suggesting that countries adopt policies consistent with the CoC may also be considered an intrusion to the domestic policy-making of countries, who are already developing policies on their own initiative.

Another concern of India is EU’s omission to consult with India and the other Asian nations when the CoC was devised. This lapse is considered enough to preclude India and the other Asian countries from signing on to an otherwise acceptable instrument. India considers the inclusion of the spacefaring nations of Asia to be a crucial element during the creation of the CoC, especially considering that the fastest growing space programs are among the Asian countries, and it is among those countries where most new challenges relating to outer space will materialize.

Related to the India’s concern of exclusion in the creation of the CoC is the viewpoint that it is essential that the EU and the Western nations address the realities of geopolitics in the Asia-Pacific region. These considerations will prescribe suggestions from India and the Asian nations to amend the CoC, and not the other way around. The geopolitical realities of the Asia-Pacific region would translate into new terms and conditions in the CoC that are not currently within it, but what those interests are varies among the Asian nations, which could further complicate amendment to the CoC.

Amendments to the CoC could fundamentally alter its nature and estrange Western countries, such as the United States, from adopting it.

The ambiguous manner by which the CoC is written is another concern for India. Many phrases within the CoC are open to interpretation, and while phrases and terms contained within the current draft of the CoC may be interpreted one way by the members of the EU or the United States, those same phrases and terms could be construed in a different manner by Asian countries, including India. This concern is magnified by the possibility that countries with substantial diplomatic and political clout such as the United States or China could dictate how vague sections are interpreted to the detriment of countries such as India.

Finally, the question of who will administer the CoC once it is implemented is a prominent one in the eyes of India. India views administration of the CoC as feasible only by an authority that has the benefit of ample hard power and diplomatic clout. However, India sees the EU, which would be the likely choice as the administering authority of the CoC, as lacking in both these qualities. This calls into question the effectiveness of the CoC from India’s point of view.

Impact of Asian concerns

The concerns enunciated by Dr. Rajagopalan and the alterations to the CoC that India and the other Asian countries may seek before signing are the type that panelists hosted by the George Marshall Institute expressed concern about when asked whether the United States should adopt the CoC. During that discussion, the panelists were all of the opinion that the United States should not sign onto the CoC until other countries recommend their changes to CoC, perhaps explaining why the United States has delayed indefinitely its adoption of the instrument.4

Beyond the concerns that India and the Asian countries have articulated about the CoC, there is the issue of whether those concerns can be addressed by amendment of the CoC without altering its nature and structure. Amendments to the CoC could fundamentally alter its nature and estrange Western countries, such as the United States, from adopting it. For example, if the CoC was transformed from a non-binding confidence-building measure to a legally binding international accord, the United States may object and refuse to adopt it since signing it would implicate its national space policy with regard to signing onto outer space security treaties.

Continuing to persuade the PRC to accept measures such as the CoC is futile and will only make the process of persuading others to adopt such measures more difficult.

There is also the issue of the stance the People’s Republic of China (PRC) has taken with certain precepts of the CoC. In particular, the PRC has taken the position that the issue of orbital space debris should not be included in the CoC. The PRC also objects to the CoC’s insistence that states who adopt the CoC share information on their domestic national space policies, including objectives for security and defense related activities. There is little chance the PRC’s “no” will turn to a “yes” on these two issues, so the EU is faced with the option of diminishing the CoC to accommodate the PRC or having the PRC refuse to adopt the accord. If the success of the CoC is dependent on the PRC adopting it, then the EU could be disappointed.

How any amendment of the CoC to address Indian and other Asian concerns will impact US national space policy is also a concern. US diplomatic efforts are presently focused on addressing outer space security issues through redefined and repurposed TCBMs instead of legally-binding treaties.5 The current US interest in the CoC—effectively a TCBM—is one path of that policy, with a more robust effort intended for engaging other countries via the United Nations. Many of the concerns articulated by India about the CoC can apply equally to the planned application of TCBMs in the UN and effectively derail the United State’s effort should those concerns be amended into the CoC.

Alternative approaches

The EU is faced with the possibility that the CoC in its current form will not accommodate the concerns of the Asian countries without substantially altering the nature of the instrument. This possibility is not lost on India, and one of India’s considerations, aside from adopting the CoC, is to develop a code of their own. Such a code could take a similar form to the CoC and would address a significant portion of the concerns enunciated by India and the Asian countries, with the bonus of having an indigenous accord reflecting Asian interests instead of an instrument drafted from the viewpoint of Western geopolitics. It is plausible that such a code could coexist with the CoC. The dual-code approach could parallel each other in some areas and distinguish themselves to address issues that are relevant to their respective geopolitical and security situations.

Another alternative that could allow for a greater integration of Asian concerns into the CoC is for the EU and the United States to face the reality that the PRC is not going to acquiesce to the precepts of the CoC nor will it ever adopt it. This assertion is highlighted by Dean Cheng, Research Fellow for Asian Studies at the Heritage Foundation, where he dispels the myth that the PRC is interested in cooperation in space by noting that the PRC is engaged with a power competition with the United States, and space is a major venue of that competition. The upshot of this is that the PRC is unlikely to be swayed by proposals of codes of conduct or symbolic meetings with space officials from the United States.6

Policymakers from the EU and the United States would do well to face this reality, particularly in the context of the CoC. Continuing to persuade the PRC to accept measures such as the CoC is futile and will only make the process of persuading others to adopt such measures more difficult. If the EU and the US are serious about adopting the CoC, they must acknowledge that the PRC has no intention of engaging in good faith negotiations over the CoC and instead focus their efforts on addressing the concerns of countries such as India, which has a better chance of reaching consensus with the EU on its own absent the presence of the PRC at the negotiating table.

It is plausible that the current form of the CoC may not be able to accept amendment without substantially altering it.

Beyond TCBMs, including measures such as the CoC, an effective way to establish a “code of conduct” is through legally binding agreements. This author postulated shortly after the collision of Iridium 33 and Cosmos 2251 in February 2009 that bilateral accords defining conduct for outer space activities would be an effective means of preventing incidents in outer space more so than a treaty banning “space weapons.”7 Accords defining conduct have been implemented in maritime law and have opened a line of dialogue between the parties that have prevented incidents and subsequent escalations that could have led to full-blown confrontations.

Applying this concept to outer space activities would differentiate itself from the CoC and the current approach to TCBMs by the United States. Since these agreements would be legally binding, countries such as India would be more inclined to enter them, and it would eliminate the objection of the Russian Federation likely to leveled at the current track of United States space policy. Bilateral treaties negotiated between two countries would also avoid the multiplicity of converging cultural and geopolitical differences encountered during the negotiation of multilateral accords, and they could be tailored to satisfy the national space policy’s requirement that any treaties be equitable and verifiable.

Conclusion

Whether the CoC is ultimately adopted depends in no small measure how it originators address the concerns of India and the Asian nations. It is plausible that the current form of the CoC may not be able to accept amendment without substantially altering it. If that is the case, the EU and United States must resist the impulse to strong-arm these nations into otherwise adopting the CoC. Alternatively, if the concerns of India and other Asian nations cannot be addressed within the framework of the CoC, then the EU and the United States need to be prepared to consider measures other than the CoC to address security and cooperation in outer space.

Footnotes

1 Jeff Foust, “Debating a code of conduct for space”, The Space Review, March 7, 2011.

2 Michael Listner, “Update on the proposed European Code of Conduct”, The Space Review, August 8, 2011.

3 Dr. Rajeswari Rajagopalan, Debate on Space Code of Conduct: An Indian Perspective, Observer Research Foundation, ORF Occasional Paper #26, October 2011.

4 “Codes of Conduct in Space: Considering the Impact of the EU Code on U.S. Security in Space.”, George Marshall Institute, February 4, 2011.

5 Michael Listner, “TCBMs: A New Definition and New Role for Outer Space Security”, Defense Policy.Org, July 7, 2011.

6 Dean Cheng, “Five Myths About China’s Space Program”, The Heritage Foundation, September 29, 2011.

7 Michael Listner, “A bilateral approach from maritime law to prevent incidents in space”, The Space Review, February 16, 2009.


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