Europeanizing American Space Activities by Stealth

In addition to this, it could make life more difficult for commercial space enterprises. For instance, the enhanced notification requirements will impose additional costs on launch and orbital operations. Beyond that, the Russians reportedly made noise at the UN in Geneva (home of the Office of Outer Space Affairs) a couple weeks ago that they want the Code to embrace their proposed “transparency and confidence building measures.” These would require all satellites, rockets, and mating procedures to be inspected prior to launch, by “international observers.” This would in effect require American commercial operators to allow foreign nationals in their operations and manufacturing flows, thus putting their intellectual property at risk not just to their home-grown competitors, but to potentially hostile states.

Despite these long-standing concerns, a couple of weeks ago the Pentagon gave a tentative endorsement of the idea at the National Space Symposium in Colorado Springs:

Gregory L. Schulte, deputy assistant secretary of defense for space policy, insisted that no decision has been made on adopting the code of conduct, which is a gentlemen’s agreement-type of document that has no force of law.

“The administration has made no final decision,” Schulte said here during the National Space Symposium. “But our preliminary assessment finds that it is a positive approach.”

But as the article notes, many in the Pentagon remain concerned about entering into a code so vague, and which may be subject to change in the future with no US input. And of particular concern is that it might be done without the advice and consent of the Senate. The White House knows that this will not be forthcoming, because thirty-seven senators, led by John Kyl (R-AZ) wrote a letter to Secretary of State Clinton in February, expressing their own concerns, one of which was the degree to which it would preclude space-based missile defense. Baker Spring at the Heritage Foundation notes that for the White House to sign on to this code without Senate consent would be a violation of the law, and raised other concerns:

Section 2573 of Title 22 of the U.S. Code prohibits the Administration from taking any action, including entering into non-treaty agreements, that limit the armed forces of the U.S. in a militarily significant manner. Accordingly, any agreement that limits U.S. military operations -- such as will reportedly be the case with the Code of Conduct -- is an arms control agreement and is subject to the relevant provision in the law requiring that the agreement be drafted as a treaty and made subject to the Senate’s advice and consent process prior to ratification and entry into force.

Second, there is a substantive question about how the negotiations on the code of conduct are structured. By focusing on limiting military operations, the Code of Conduct blurs the distinction between arms control agreements on the one hand and law of war agreements on the other. Arms control agreements are about limiting the quality or quantity of arms in peace time. Law of war treaties are about defining permitted and prohibited actions in the conduct of war.

This is not a trifling distinction for military commanders. They can be put in jeopardy of prosecution for violating the laws of war. Accordingly, a future military commander who has to make a split-second decision in the conduct of a space operation that could generate space debris may face a war crime charge if the Code of Conduct, following its entry into force, is deemed to be a law of war agreement.

If my sources are correct, and the administration plans to do this soon by executive order, it may be time for those senators opposed to do more than write letters to Foggy Bottom.  But it wouldn't be the first time that this White House has bypassed the traditional checks and balances of the Constitution, and unfortunately, as long as the Democrats remain in charge of the upper house, there may be little that the minority can do.