By Rajeswari Pillai Rajagopalan*
The European Union’s proposed International Code of Conduct for Outer Space Activities has been making progress for several years now. Responding to U.N. General Assembly resolutions 61/75 (2006) and 62/43 (2007) on Transparency and Confidence Building Measures (TCBMs) in Outer Space Activities, and a request from the U.N. secretary general for concrete proposals for TCBMs, the EU initiated a draft proposal for an international code of conduct. After preliminary consultations within the EU, a more formal draft was released in December 2008 and thereafter in 2010 with the expectation of a large-scale endorsement by 2012.
The code has come a long way since then and the negotiations are set to begin soon. Many countries have been making demands on the EU to start actual negotiations and a drafting process instead of consultations where states were simply offering their views. To the credit of the EU, most of the suggestions that came through the three open-ended consultations in Kiev, Ukraine (May 2013), Bangkok (November 2013) and Luxembourg (May 2014) have been incorporated into the draft code. The May 2015 text of the code has seen big changes.
The U.N. announcement of multilateral negotiations on the code in New York July 27-31 marks significant progress. However, the geopolitical divide between major powers has become sharper in the last couple of years and it remains to be seen how these negotiations will go.
While the need for international rules of the road in the area of outer space is unquestionable, the code ran into troubled waters primarily owing to the fact that this was prepared by the EU on its own without consultation even with other major spacefaring powers or their space agencies. There have also been differences on the substance of the code, but the process issue has been more significant than the substance.
But substantial differences are important too and a few critical ones are highlighted here.
First, the code is seen as placing restrictions on operations and not weapons or capabilities. This point has raised objections in terms of the overall objectives of the code and whether it is just promoting Western vested interests.
For instance, the code protects the right of self-defense of states even in outer space, which has raised concerns mostly from countries in Latin America and Africa. They believe that an overt reference to the right to self-defense in the code could accelerate the trend toward space weaponization. It should be noted that these countries are still in the early stages of developing their space programs and they do not yet have counterspace technologies to defend themselves should there be a need. On the other hand, this is a right that is already part of international law, enshrined in Article 51 of the U.N. Charter, and so the EU is not trying to introduce any new element. This is one area of serious discord between the established and developing space powers.
Second, countries from Africa and Latin America are also suspicious of the code because it is seen as possibly restricting their development. Given that most of these countries are yet to develop their space capabilities, they perceive any instrument developed by the West as an effort to limit the development of their capabilities, much like the nonproliferation regime that restricted their access to nuclear technologies. This concern is despite the emphasis on international cooperation, including technology transfers, in the code.
A third major objection relates to the nature of the code itself. Several countries including Russia, China, Ukraine, Mexico, Thailand, Brazil and Ethiopia believe the code should focus only on the peaceful uses of outer space and should accordingly be retitled. Though they may have a point, the reality is that it is a thin line between peaceful and military uses of outer space and the dual-use nature of the space technology makes a compelling case for initiating a comprehensive instrument. Many countries including the United States, United Kingdom, Italy, Germany and Canada have reiterated the need for including military- and security-oriented uses of outer space. India appears to have taken a similar approach.
There are also differences among the major spacefaring powers, such as on whether it is better to have political declarations or legally binding treaties. While there is merit to both types of instruments, a realistic appraisal of the current political climate would suggest that building consensus for a legal mechanism remains difficult as compared with reaching political agreements.
Even as this is unlikely to change in the near future, states must approach outer space security from a long-term sustainability perspective, and accordingly measures to strengthen responsible behavior in outer space must be pursued. This calls for a certain amount of accommodation among the major spacefaring powers. The need for an effective instrument – on account of a number of challenges including space debris, a potential arms race and radio frequency interference – should not be compromised for achieving small gains in the short term.
The negotiations set to begin in New York provide an opportune moment for states to narrow down their differences and help establish a comprehensive instrument. The EU on the other hand must be patient and develop the necessary consensus so that it establishes a strong support base, vital for the longevity of the code.
*Rajeswari Pillai Rajagopalan is a senior fellow at Observer Research Foundation, Delhi