According to the recent news, the United States will not be signing the European Union Code of Conduct for Outer Space Activities. This is good news, but it ignores other Administration statements that indicate that the Administration is ignoring congressional calls for avoiding measures that would limit U.S. space operations.
According to Ellen Tauscher, Undersecretary of State for Arms Control and International Security, “it’s been clear from the very beginning that we’re not going along with the code of conduct.” It was not clear in February 2011, when 37 Republican Senators requested more information about Administration’s negotiations on this issue. Before then, the Administration stated that the U.S. “is working closely with the European Union on a draft international Code of Conduct, which could serve as an important first set of norms of responsible behavior.”
It is possible that Tauscher’s comments reflect tactical considerations rather than substantive ones. Following the passage of the New Strategic Arms Control Treaty, after it became clear that it is lopsided to the U.S.’s disadvantage, the Administration will have a hard time passing another arms-control treaty in the Senate. In Tauscher’s own words, “We will never do a legally binding agreement because I can’t do one. I can’t get anything ratified.” This would have not been the case if the State Department negotiated a treaty that advances U.S. interests.
There are substantive problems with the Administration’s effort to adopt the code as an executive agreement. First, if the Obama Administration joins the code of conduct, as a non-treaty agreement it will violate the law. 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 other than through the treaty agreements or a specific congressional authorization.
Second, it is not clear how the negotiations on the code of conduct are structured. The Administration’s conduct has the potential to blur the distinction between arms-control agreements and law-of-war agreements. In addition, even if applied only during the peacetime, the conduct would jeopardize the U.S.’s ability to engage in testing of both space weapons and space combat doctrines, since this could be interpreted as failing to “minimize the possibility of harmful interference” and engaging in “actions that damage or destroy space objects unless reducing debris.”
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. U.S. military commanders could be put in jeopardy of prosecution for violating the laws of war if the distinction is not maintained if in the future a military commander has to make a split-second decision that could generate space debris. Later he could face a war crime charge if a code of conduct is deemed to be a law-of-war agreement. Unfortunately, it is in that essential handful of seconds at the start of a conflict that space systems are most vulnerable—but also when commanders might be subject to peacetime, rather than wartime, rules of engagement.
Any such code would have significant implications on ways the United States operates its satellites and trains its military. Some of them were outlined in an excellent paper prepared by the George C. Marshall Institute. The Administration should not move to establish a code until all the questions surrounding this matter are not resolved.