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Space Code of Conduct: Inadequate Mechanism—A Response

June 27, 2012

Ajey Lele’s IDSA Comment on the Space Code of Conduct: Inadequate Mechanism encourages a deeper conversation about whether and how a space diplomacy initiative might best serve Indian and international interests. Major space diplomacy initiatives are extremely rare; the last one was the Outer Space Treaty over four decades ago. The proposed International Code of Conduct for responsible space-faring nations is not nearly as sweeping. Nor will it take the form of a treaty, which is one of Lele’s concerns. In his view, the draft International Code of Conduct is “imperfect,” and that something better ought to be pursued by the community of space-faring nations, ideally a legally binding instrument.

Regardless of our nationality, we have all had experience with “imperfect” laws. The back and forth of legislative initiatives and vote counting usually does not lend itself to perfection. Lele himself acknowledges that the alternatives to a code of conduct are also imperfect. We must therefore make hard choices about which less-than-perfect approach can best serve national and international security. Lele concludes that the best approach is a binding mechanism that would punish wrongdoers.

The Outer Space Treaty has no such provision, nor do the treaties dealing with nuclear, chemical and biological weapons. No amount of haggling over a Code—in whatever form—is likely to produce a binding mechanism. India would not accept being bound by punishments meted out by others; nor would the United States or any other major space-faring nation. It is nonetheless possible to increase penalties for wrongdoing by other means, such as by UN sanctions, but this presupposes the existence of norms upon which sanctions or other penalties can be imposed. Without rules, there are no rule breakers. One essential test of whatever diplomatic instrument we might seek is whether it establishes or strengthens norms of responsible stewardship for this global commons.

The value of norms is crucial in international relations. They allow us to distinguish between responsible and irresponsible behaviour. They facilitate appropriate responses against rule breakers, and they provide the foundation, in due course, for legally binding agreements. It is easy to underestimate the value of norms, because we take them for granted after they become customary practice.

Lele argues that norms are insufficient, and that they should be backed up with verification and enforcement. But if enforcement provisions have to be integral to a legally-binding agreement, how many of these agreements would be negotiated? The key drafting issue is not about enforcement, but about whether monitoring provisions ought to be imbedded in an agreement. This has been the case for nuclear arms control and reduction treaties since the early 1970s. The Nuclear Nonproliferation Treaty, negotiated in 1968, does not have verification arrangements embedded in the treaty text, but incorporates them in corollary arrangements implemented by the International Atomic Energy Agency. Some treaties have no verification arrangements whatsoever. Lele argues that the Biological Weapons Convention has “failed” for this reason. By this standard, the Chemical Weapons Convention has “failed,” as well. Both treaties have significant weaknesses, but they appear to have contributed to the remarkable absence of biological and chemical weapons’ use over many decades. The reasons for this uncommon restraint are many and varied, but surely one significant reason has to do with the international opprobrium that would fall on the state initiating biological or chemical warfare.

This track record provides powerful testimony that norms matter. There is a definite absence of norms for outer space, particularly with respect to space traffic management and purposeful, harmful interference against satellites and other objects in space. There is an emerging international norm for space debris mitigation, having been affirmed by the Inter-Agency Space Debris Coordination Committee in 2002, and subsequently affirmed by the United Nations. As is the case for newly established norms, this one is in need of strengthening.

An “imperfect” International Code of Conduct can help establish and strengthen norms for responsible space-faring nations. Is this approach better than a treaty? The answer depends on what the provisions of the treaty are, whether verification matters, and how long it would take for a treaty to be negotiated, ratified by the requisite number of states, and then enter into force.

Lele argues that the Code of Conduct is naively “based on optimism that states are essentially ethical actors.” The same argument could be made against a space treaty. In my view, the opposite is true: there would be no need for an International Code of Conduct or a new treaty if space-faring nations would all be inclined to act responsibly. The reason why norms need to be established and strengthened for space operations is because a few space-faring nations might well behave dangerously and inappropriately. Rules are important, but there will still be rule breakers. The existence of rules helps a nation or a group of nations to pursue appropriate responses to their violation.

Supporters of an International Code of Conduct are not pursuing this initiative to “feel good,” as Lele argues. Instead, they wish to strengthen norms because debris and traffic management problems are already threatening to make some orbits unusable for major powers as well as for rising powers. States with ambitions to utilize space, like India, have growing, vested interests in setting rules of the road for space so that they can realize those ambitions.

Lele suggests three options as to how India might react to the draft International Code of Conduct: to suggest amendments to the draft text, to “fine tune” a draft Russian and Chinese treaty that seeks to ban space weapons, or to “widen the scope of debate and try to formulate an option that has a binding mechanism.”

How realistic is the pursuit of a “binding” space agreement? Would India, or any other major space-faring nation, be willing to set aside its sovereign rights and accept supranational enforcement? Would India be ready, willing and able to punish others?

Lele acknowledges that the second option, the draft Russian and Chinese treaty, is deeply flawed. It has no verification arrangements, and fails to define clearly what it attempts to ban. China’s ground-based interceptor, which created the world’s largest man-made debris hazard, endangering 400 satellites and manned space operations, may not be covered in the current text. Banning multi-purpose technologies that could be used as space weapons—including ballistic missiles, missile defence interceptors, and lasers—is not feasible, and would be unacceptable to India. And because these latent space warfare capabilities will continue to exist, banning weapons “dedicated” to carry out anti-satellite attacks would be ineffectual. It is hard to see how a treaty this deeply flawed can be “fine tuned,” no matter how many years are dedicated to this task.

Lele’s remaining option is constructive Indian involvement in the drafting process for an International Code of Conduct. If this option is to be pursued, two questions appear paramount for India: What rules of the road for space best serve national interests? And what elements of an International Code of Conduct would be detrimental to national interests? Isn’t this the heart of the matter, rather than whether an agreement is legally binding and has enforcement provisions?

There is a fourth option for India that Lele does not mention: to find fault with the drafting process and to refrain from joining an International Code of Conduct, without violating its provisions. If this approach were to be adopted, India will once again find itself betwixt and between, neither leading nor following.

India is a responsible space-faring nation with important national interests at stake in the use of space. So why not affirm these practices in a Code of Conduct?