Europeanizing American Space Activities by Stealth

In the name of better managing the celestial environment, the Obama administration seems to be on the verge of imposing new international constraints on the American space establishment, without consultation with the Senate. Sources in the arms-control community inform me that, as part of its National Security Space Strategy released a couple months ago, the White House plans to sign an executive order soon that will compel both the U.S. military and commercial space industry to comply with the European Union “Code of Conduct” for space activities.

The proposed code is partly a response to the Chinese test of an anti-satellite weapon in early 2007, which created a huge mess in low earth orbit. Such concern was further heightened by the accidental collision between an Iridium communications satellite and a derelict Russian satellite a little over two years ago.

Originally drafted in 2008, with a revision last September, the code seems innocuous enough at first reading, basically forbidding the destruction of satellites and generating debris in low earth orbit. Among other things, it is an attempt by space arms controllers to accomplish what they have never been able to get by formal treaty -- a limit on space weaponry. An actual anti-satellite ban has been criticized as unworkable and unverifiable, so instead, they drafted up “rules of the road,” a series of best practices for operating in space.

However, the language concerns some analysts. There was a panel on the topic hosted by the Marshall Institute in February, which questioned the need for this, on which industry analyst/journalist Jeff Foust reported in March:

Paula DeSutter, former Assistant Secretary of State for Verification, Compliance, and Implementation, took issue at the Marshall Institute forum with Section 4.5, which calls for “further security guarantees within the appropriate fora for the purposes of enhancing the security of outer space activities by all States and the prevention of an arms race in outer space.” That passage, she said, is a “slippery slope” towards broader arms control in space that should be stricken from the document. “It sort of ties you to something you may or may not want to do, and probably in my view shouldn’t do,” she said.

DeSutter is also concerned with Section 5, which calls on signatories to “refrain from the intentional destruction of any on-orbit space object or other activities which may generate long-lived space debris”. “On its own, it’s not good,” she said, since it doesn’t include any exceptions for cases like self defense. However, she noted those caveats are found elsewhere in the document, so it would be simple to incorporate similar provisions in that section.

Scott Pace, Director of the Space Policy Institute at George Washington University, noted at the Marshall event that Section 2 of the EU Code refers to “international law and security, safety and integrity standards” for respecting the safety of objects in space, without being more specific. “I always worry about whose standards, and what are those requirements, and what do they mean,” he said.

“I would say the US should never sign an EU Code of Conduct,” said Pace, believing that other nations should be consulted with first.

Peter Marquez, the former director of space policy at the National Security Council who helped craft the current National Space Policy, brought up on the panel a passage in Section 6.1 of the Code that requires notification when spacecraft perform maneuvers in “dangerous proximity” of other objects. “‘Dangerous proximity’ all depends on one’s inherent capabilities,” he said. Some, like ISS partner nations, can safely operate very close to the space station. “Another nation that has no idea what they’re doing gets within one kilometer of my satellite, and I’m going to be scared.”

He was also skeptical about the utility of Section 9, which provides a “consultation mechanism” and means to “investigate proven incidents” in space, leaving the specific details of such investigations for later. “That one just seems to be, in some ways, ripe for theater,” he said. “I can just see this going the wrong way, that it just becomes an investigation after investigation of the US.”

Historically the U.S., and particularly the Department of Defense, has opposed any treaty banning space weapons, for two reasons. First, there is no current perceived threat of in-space weapons or space-to-ground weapons and hence, no need for such a treaty. Second, co-orbital, direct-launch, or directed-energy anti-satellite technology is so inherently dual-use that it would be unenforceable. For instance, as we saw with the collision in 2009, any satellite can be a weapon, if put on a collision course with another. And as always, such a treaty would have asymmetrical effects, restraining the US while allowing cheating by others.  There is also concern that it could establish a precedent for expansion of the principles into other media (e.g., air power).

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.