Decoding the International

Code of Conduct
for
Outer Space Activities
Decoding the International
Code of Conduct
for
Outer Space Activities

Ajey Lele (Ed)

INSTITUTE FOR DEFENCE STUDIES & ANALYSES

NEW DELHI
 Disclaimer: The views expressed in this book are of the authors
in their individual capacity and do not represent the views of
their employer, country and government.

Decoding the International Code of Conduct for Outer Space Activities

Ajey Lele (Ed)

First Published in 2012

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 Contents

Foreword ix
About the Contributors xiii
Introduction xvii

PART I
DEBATE
1. Space Code of Conduct: Inadequate Mechanism 5
Ajey Lele

2. Space Code of Conduct: Inadequate Mechanism—

A Response 9
Michael Krepon

3. Deliberating the Space Code of Conduct 13

Ajey Lele

PART II
GENESIS
4. Europe’s Space Diplomacy Initiative: The International
Code of Conduct 27
Jana Robinson

5. Origins of and Rationale for a Space Code of Conduct 30

Michael Krepon

6. Transparency and Confidence-Building Measures for

Space Security 35
Ram S. Jakhu
vi Decoding the International Code of Conduct for Outer Space Activities

7. PPWT: An Overview 47
Gunjan Singh
SPACE REGIMES
8. Space Treaty Mechanisms 53
Munish Sharma

9. Outer Space: Multilateral Mechanisms 61

Munish Sharma

PART III
GLOBAL OPINION
10. Is There a Need for a Code of Conduct for Outer Space
Activities? 77
Bhupendra Jasani

11. Space Code of Conduct: What is at Stake? 82

Isabelle Sourbès-Verger

12. Treaty vs Resolution 85

Armel Kerrest

13. Why States should Sign the Code of Conduct for

Outer Space Activities? 88
Stefan A. Kaiser

14. Japan, Space Security and Code of Conduct 94

Kazuto Suzuki

15. EU Code of Conduct on Activities in Outer Space:

Issues that Matter 97
Jessica Los Banos

16. Space Code of Conduct: Right Step Forward Although

not Perfect 101
Park Won-hwa

17. EU Draft Code of Conduct for Outer Space Activities:

Space Debris and Liability Convention 104
Doo Hwan Kim
 Contents vii

18. Securing Space: Will Code of Conduct Discussions Help?

A Perspective from Australia 108
Brett Biddington

19. International Code of Conduct for Outer Space Activities:

An Important Stepping Stone 113
Cesar Jaramillo

20. Russian Approaches Towards Ensuring

Security in Space 117

21. The Future of the International Code of Conduct for Outer

Space Activities: From Mission Impossible to Mission
Sustainable? 119
Li Juqian

22. CoC: Need for a Holistic Approach 122

Ciro Arévalo Yepes

23. The International Normative System and a Code of

Conduct for Outer Space Activities 125
Tare Brisibe

24. Space Code of Conduct: Need to Re-analyse 133

Zahid Imroz

25. ICoC: Need of the Hour 136

Victoria Samson

26. Supporting an International Code of Conduct for Space 140

Joan Johnson-Freese

27. The Code of Conduct: A Useful First Step 143

James Clay Moltz

28. International Code of Conduct for Outer Space:

An Industry Perspective 146
K.R. Sridhara Murthi

29. International Code of Conduct for Outer Space Activities 149

Ranjana Kaul and V. Siddhartha
viii Decoding the International Code of Conduct for Outer Space Activities

30. Space Code of Conduct: An Indian Perspective 152

Rajeswari Pillai Rajagopalan

31. Should India Conduct an ASAT Test Now? 155

Ajey Lele

Conclusion 158
Appendices
1 Text of International Code of Conduct for Outer Space
Activities (2010) 163
2 EU Launches Negotiations on an International Code of Conduct
for Outer Space Activities: Press Note 171
3 Text of the CoC Initiative by Henry L. Stimson Center 172
4 Canada Working Paper presented to CD (Jun 5, 2009) 176
5 Text of PPWT to the CD (Feb 12, 2008) 181
Index 187
 Contents ix

Foreword

Discussions and dialogue on space security are expected to pick up

when discussions on the EU supported International Code of Conduct (CoC)
begin in New York in October 2012.
The European Union, after an effort of several years, introduced the CoC
in 2008, followed by two revised drafts in 2010 and 2012. The CoC is
voluntary and non-binding. It puts together a set of principles and best
practices designed to promote responsible behaviour in space.
The concern about stability and security in space has been growing for
many years. Space has become an integral part of our lives. Nearly a thousand
satellites and numerous ground stations provide the backbone of economic
prosperity and national security. Security of space assets is of paramount
concern. Although space is being used for military purposes, it is of utmost
importance to prevent weaponization of space.
Space has also become highly congested. Apart from satellites, over 30,000
pieces of debris are circulating in spatial orbits. Although space is big, usable
spatial orbits are scarce. The floating debris creates danger of physical collision
with functional satellites. In 2009, a US and a Russian satellite collided in
space, creating over two thousand pieces of debris. The high-altitude ASAT
test in 2007 created thousands of pieces of debris which will continue to
float for centuries, posing dangers to existing and future satellites. The Chinese
space behaviour did not contradict space law but was it responsible behaviour?
This question has been nagging the analysts. The Chinese ASAT test gave a
stimulus to calls for responsible behaviour in space. Space situational
awareness, whereby the numerous space objects including space junk are
tracked, has become an important source of space security.
Because space is integral now to the well-being of humankind, it is being
treated as a global common. But there is growing realization that the existing
x Decoding the International Code of Conduct for Outer Space Activities

international space law consisting of five treaties and numerous UN

resolutions is not enough to address space security concerns.
In the backdrop of growing concerns about space security and the
inadequacy of excising space law, the European CoC is being projected as a
soft space law which will be voluntary, non-binding and in the nature of best
practices. It seeks to promote responsible space behaviour. The assumption
underlying the European CoC is that since it would be difficult to agree on
legally binding instruments, a voluntary Code of Conduct would be the next
best option.
The CoC has been controversial mostly because of the way it was
developed. Many countries, including leading space-faring ones, were kept
out of the process. Though the US is sympathetic to the CoC, the Russians
and the Chinese have been advocating a legally binding treaty, the Treaty on
the Prevention of the Placement of Weapons in Outer Space, the Threat or
Use of Force against Outer Space Objects (PPWT), to which many countries
are at best lukewarm. Many non-space-faring nations, with interest in secure
and stable space, have also been unhappy at having been kept out of the initial
discussions.
On the substantive aspects, critics point out that the CoC does not add
anything new to the existing space law. It will not stop conflicts in space. It
will also not prevent weaponization of space. Its exhortations are mere
declarations. The lack of enthusiasm by major space-faring nations does not
help either.
Proponents of the CoC say that the voluntary and non-binding nature
of the CoC is its strength. The best practices and responsible behaviour
enshrined in it will put moral pressure on space-faring nations to behave
responsibly in space. They point out that the CoC should be taken as soft
law, which will have a positive impact on ensuring stability in space. They
point out to the success of the Hague Code of Conduct on Ballistic Missiles
and hope that the space CoC will also be similarly helpful. Some analysts
have argued in favour of negotiating a “threshold” above which no ASAT
should be allowed.
It appears that the opposition to the CoC is mostly on the grounds of
its being too weak and on certain procedural issues. On the substantive side
the CoC can hardly be faulted.
Space security being such a controversial subject, geopolitically, space-
faring nations may interpret the CoC as restricting their freedom of action
in space. The US will be cautious towards it. The Russians and the Chinese,
 Foreword xi

who want a stricter space treaty, will be sceptical too. India will also be
cautious as the CoC might restrict its options on conducting an ASAT test.
However, many non-space-faring nations will support it even while
recognizing its limitations.
This book presents a collection of viewpoints of leading authors from
diverse backgrounds. Being presented on the eve of the discussions and
consultations which are scheduled to begin in October, it offers a variety of
viewpoints. It examines the scope and limitations of the CoC against the
background of developments in international space law and the evolving
geopolitical situation.
I am hopeful that the book will be well received by the readers.
Aug 22, 2012 Arvind Gupta
Director General
IDSA
 About the Contributors

Ms Jessica Los Banos is a lecturer at the Faculty of Law, Universitas Pelita

Harapan where she teaches international law courses including space law.
She obtained her law degree from the College of Law, University of the
Philippines, Diliman, Quezon City.
Prof Brett Biddington owns a Canberra-based consulting company,
Biddington Research Pty Ltd which specialises in space and cyber security
matters. He is the chair of the Space Industry Association of Australia.
He is an Adjunct Professor at Edith Cowan University in Perth, Western
Australia and a Member of the Order of Australia (AM) for services to
the Australian space sector.
Dr. Tare Brisibe was elected Chairman, Legal Subcommittee of the United
Nations Committee on the Peaceful Uses of Outer Space, for the period
2012 to 2013. He is member of the Nigerian Bar and holds a Doctorate
in International Air and Space law. He currently serves as Director,
Regulatory Affairs at OnAir, the joint venture established by SITA and
AIRBUS.
Dr. Joan Johnson-Freese is a Professor of National Security Affairs at the
Naval War College in Newport, Rhode Island. She is the author of several
books on space security, most recently, Heavenly Ambitions: America’s
Quest to Dominate Space (2009). She is also on the faculty of the
International Space University.
Mr Zahid Imroz has completed his M.Phil in Physics from Quaid-i-Azam
University, Islamabad in 2011. He is a poet, writer and researcher. He is
working on global peace and security issues. He has presented his work
in international symposiums. Currently, he is teaching Physics in a
University in Islamabad.
Prof Ram S. Jakhu B.A., LL.B., LL.M. (Punjab), LL.M., D.C.L.(McGill) is
xiv Decoding the International Code of Conduct for Outer Space Activities

an Associate Professor at the Institute of Air and Space Law, Faculty of

Law; McGill University, Montreal, Canada. He is a Member of Space
Security Council of World Economic Forum. He has earlier served at
the International Space University, Strasbourg, France and has written
extensively on space issues.
Mr Cesar Jaramillo is Program Officer at Project Ploughshares (Canada)
where he works on the Space Security and Nuclear Disarmament
programs. He manages the Space Security Index (SSI), an international
research consortium focused on research and analysis of space security
trends, and is managing editor of the SSI’s annual report. He holds an
MA in Global Governance from the University of Waterloo, as well as
degrees in honours political science and in journalism.
Prof Bhupendra Jasani MSc PhD (Nuclear Physics), University of London.
He has worked for the British Medical Research Council (1958-1972),
Stockholm International Peace Research Institute (1972-1987), the Royal
United Services Institute for Defence Studies, London, a Rockwell
International Fellow (1987-1990) and he is at King’s College London
since 1990. He has been a consultant, for a number of outer space and
nuclear weapons related UN studies.
Prof. Dr. LI, Juqian is a law professor of China University of Political Science
and Law, and Council-Member of the Space Security Council of World
Economic Forum, Standing Council-Member of the China Institute of
Space Law. He has published fifteen books and twenty articles on
international space law, WTO law and international environmental law
in Chinese or English.
Dr Ranjana Kaul is Partner, Dua Associates, (Advocates and Solicitors), New
Delhi, a leading corporate law firm in India. Dr. Kaul is a recognised
expert on air & space law and has often been a resource-person for the
Indian Ministries of External Affairs and Civil Aviation. She holds a
LL.M from Institute of Air & Space Law, Faculty of Law, McGill
University, Montreal, Canada and a PhD from University of Poona, India.
Mr Stefan A. Kaiser is head of the legal office of NATO’s AWACS operations
(Airborne Early Warning and Control Force—E-3A Component) since
2002. From 1992 until 2002 he practiced law as in-house counsel in the
telecommunication and high-tech industry. He is a qualified German
lawyer and aviator, holds an LL.M. of McGill’s Institute of Air and Space
law and is a graduate of the International Space University.
Prof Armel Kerrest is a University professor, vice chairman of the European
Centre for Space Law of the European Space Agency, teaches international
 About the Contributors xv

law especially space law in French universities of Western Brittany and

Paris south, he advises States, International Organisations and companies
for space law. He is a member of the academy of air and space and of the
international academy of astronautics.
Prof Michael Krepon is co-founder of Stimson, and director of the South
Asia and Space Security programs. Earlier he was at the Carnegie
Endowment for International Peace. During the Carter administration,
he was associated with the US Arms Control and Disarmament Agency.
Prof Doo Hwan Kim Honorary President, The Korean Association of Air
and Space Law at Seoul, Visiting Professor, Chuogakuin University in
Japan and School of Law, Beijing Institute Technology.
Mr K. R. Sridhara Murthi is the former Scientific Secretary of ISRO and
served as Managing Director of Antrix Corporation. He is an expert in
Space Policy and Space Commerce, with experience of over three decades
in the Indian Space Program particularly contributing to industry
cooperation and technology transfer programs. He represented India in
the UN Committee on Peaceful Uses of Outer Space for several years in
the past.
Prof James Clay Moltz is a professor at the U.S. Naval Postgraduate School.
He is the author of Asia’s Space Race (2012) and The Politics of Space
Security (2011).
Ms Jana Robinson leads the Space Security Research Programme at the
European Space Policy Institute (ESPI) since December 2009. Earlier,
she has served as Development Director for the Prague Security Studies
Institute (PSSI) from 2005-09. She holds an MA in Asian Studies from
George Washington University, specialising in Asia-Pacific security issues
and space policy, and an MA in Asian Studies from Palacky University,
Olomouc, Czech Republic.
Dr Rajeswari Pillai Rajagopalan is a Senior Fellow at the Observer Research
Foundation, New Delhi. She served in the National Security Council
Secretariat, Government of India, from 2003 to 2007.)
Ms Victoria Samson is Washington Office Director for the Secure World
Foundation. Before this she served as a Senior Analyst for the Center
for Defense Information (CDI) and Senior Policy Associate at the
Coalition to Reduce Nuclear Dangers. She holds a Bachelor’s of Art (B.A.)
degree in political science with a specialisation in international relations
from UCLA, and a Masters of Art (M.A.) in international relations from
the Johns Hopkins School of Advanced International Studies.
xvi Decoding the International Code of Conduct for Outer Space Activities

Mr Munish Sharma is a research scholar at Department of Geopolitics and

International Relations, Manipal University, India. He is an engineering
graduate with experience in Software Industry. He conducts research on
cyber security, space security, defence matters and role of technology in
geopolitics.
Dr. V. Siddhartha served during 2007-09 on invitation of the Secretary
General of the United Nations as a member of the Experts Group of the
Committee on UN Security Council Resolution 1540. He was the
Principal Scientific Adviser to the Government of India as Scientific
Consultant (Advanced Technologies). An Emeritus Scientist in DRDO
he retired in 2004. He is a graduate of IIT, Madras and received his PhD
from the Imperial College of Science & Technology, London.
Ms Gunjan Singh is a research assistant at the Institute for Defence Studies
and Analyses in New Delhi, India. Her research interest includes
geopolitics of China and East Asia. She also works on issues related to
Arms Control and Disarmament with special focus on Space security and
WMDs. She is co-editor of the book tiled Space Security and Global
Cooperation.
Prof Kazuto Suzuki is Professor of International Politics at Graduate School
of Law of Hokkaido University, Japan. He received Ph.D. from Sussex
European Institute, University of Sussex, England. He has been closely
involved in the development of Japanese space decision-making process
including the establishment of the Basic Law for Space Activities of 2008.
He is a member of International Academy of Astronautics and the
Chairman of the Space Security Committee of the International
Astronautical Federation.
Mr Park Won-hwa is teaching Air and Space Law as the professor of law at
the Korea Aerospace University, Seoul, since 2009. He was a Korean career
diplomat for more than 30 years period.
Ms Isabelle Sourbès-Verger is senior researcher at the National Centre for
Scientific Research (CNRS), France and member of the European Space
Policy Research and Academic Network (ESPRAN).
Ambassador Ciro Arévalo Yepes was Chairman of the UN-COPUOS (2008-
09); at the present time he is the Chairman of the International
Astronautical Federation IAF for Latin-America and the Caribbean
Region, IAF-GRULAC; member of the Standing Advisory Group on
Technical Cooperation to the Director General of the International
Atomic Energy Agency IAEA.
 About the Contributors xvii

Introduction

Over last few years the benefits of space technologies have infused our lives.
Satellite technologies have become endemic for human survival in every aspect
of life from education to military. Naturally, keeping the space assets secure
has become a major necessity for the states. Any damage to such assets would
lead to excruciating consequences. In order the ensure safety and security of
these assets it is important to establish a mechanism for international
cooperation relating to the activities in exploration and use of outer space.
For this purpose the European Union (EU) had floated an idea of code of
conduct for activities in outer space in 2008. Over last four years some
discussions and deliberations on the draft circulated by the EU had taken
place and certain modifications in their proposals have been carried out and
accordingly the draft has been modified. Appreciating, the universality of this
subject the EU has put forth this draft as an International Code of Conduct
for Outer Space Activities for multilateral negotiations. This code essentially
seeks consensuses on an idea of voluntary and nonbinding best practices and
transparency and confidence-building measures in regards to various activities
in outer space. The code expects the signatory states to declare their ongoing
and proposed activities in space. This book debates a range of issues in regard
to this code and presents a diversity of views from experts representing various
parts of the world. These discussions involve largely the sociological, political,
technological and legal interpretations of this draft.
For more than five decades, various space technologies have become
critical to diverse human activities. Space technologies and space sciences have
been increasingly aiding in such diverse fields as communication, education,
navigation, and remote sensing, meteorology and disaster management.
Rocket sciences and associated technologies need an extraordinary
conglomeration of highly advanced scientific and technical skills and also
significant amounts of investments. Only a few nation-states have succeeded
in establishing independent space programmes. In the last few decades they
xviii Decoding the International Code of Conduct for Outer Space Activities

have used their expertise to gain diplomatic mileage and commercial rewards
in the world community. Today, non-space-faring states are striving to own
satellites or procure/purchase various satellite-derived products. In the next
stage of evolution the private companies are also venturing into the space
arena.
The journey into space has mostly been a state-sponsored endeavour,
mainly because only states had the necessary capability and resources. Also,
in view of the dual-use nature of space-related technologies, states wanted
to keep them in control. Particularly since the 1991 Gulf War, states have
been discovering the increasing utility of space assets for strategic roles both
in peacetime and in war.
Interestingly, the current century is witnessing a mixed trend. The rapidly
evolving technology, the encouragement given to private industry for
investment, and the willingness of states to openly differentiate between
military and non-military sectors is changing the trend of exclusive state
investments. The role of private organisations in certain sectors of Outer Space
is increasing. At the same time, the strategic significance of space technologies
is also growing. The notion of Space War, which was discussed more as an
academic construct after the Sputnik Era, is now exhibiting symptoms of
becoming a reality. “Space” is currently being viewed as a fourth dimension
of warfare. All this is making the space environment increasingly challenging
for nation-states to handle. Apart from probable transnational threats, the
various assets operational in space, irrespective of the country of their origin,
are being threatened by orbital space debris, manmade or otherwise. There
is also a gradual increase of diverse players with undeclared intentions. All
this has fundamental implications for state security where safeguarding of
various national space assets is concerned.
Appreciating the complexities involved in safely undertaking various
activities in Outer Space, within the two decades of the Sputnik launch, five
international space law treaty mechanisms were formulated under the aegis
of the United Nations, as follows: Outer Space Treaty (1967), Rescue
Agreement (1968), Liability Convention (1972), Registration Convention
(1972), and the Moon Agreement (1979). These mechanisms mainly address
various specific/peripheral issues. But on the whole, no credible mechanism
is available which holistically addresses the core issues concerning space
security.
In the last few decades, space activities and space technologies have
expanded exponentially. Ben Baseley-Walker rightly argues that “assuring the
security and sustainability of outer space is still an area in which preventative
 Introduction xix

diplomacy to secure a sustainable and stable environment is possible. For this

purpose key steps need to be taken to create an international political climate
that is conducive to progress.”1 Currently, no working system is in place to
ensure future stability and safeguard the long-term utility of space. Some new
ideas have been formulated in the last few years in this direction. The
International Code of Conduct for Outer Space Activities (mostly cited as
ICoC/CoC in this book) is one such idea.
Over the recent decades, in support of maintaining the global security
balance, various arms control, disarmament and non-proliferation policy
mechanisms have been formulated mainly under the United Nations
umbrella. Complementing these efforts, various multilateral mechanisms have
also found evolved in various fields. Various policy mechanisms either under
the UN umbrella or otherwise have succeeded in eradicating various threats/
making them dormant to a great extent. Formulations of such mechanisms
have never been an easy process. The processes of negotiations normally cater
for both technical and geopolitical challenges. The negotiations on the ICoC’s
text will start at the Multilateral Experts Meeting of October 2012. To a
certain extent they could be based on the experiences of past negotiations.
Negotiations regarding nuclear, biological and chemical weapons
proliferation and banning such weapons have been the cornerstone of the
multifarious global disarmament efforts. These negotiations have clearly
demonstrated that disarmament and arms control is a universally creditable
goal; that states are keen to achieve this goal; but at the same time, that is
not the only goal they have in mind. In the past, negotiating states were found
to be extremely careful in primordially protecting—and boosting, if
possible—their own security interests. The Nuclear Non-Proliferation Treaty
(NPT), for example, may be said to have helped in arresting the likely
proliferation of nuclear weapons: but the treaty mechanism itself is extremely
biased, permitting only selected states to possess nuclear weapons. The
Biological Weapons Convention may be viewed as a case of limited success:
it lacks an effective mechanism for verification and compliance. Interestingly,
the Chemical Weapons Convention, which has been touted as a “prefect”
treaty, has actually suffered from “betrayal” by the United States and Russia,
both of which are far from fulfilling their commitment of total destruction
of chemical weapons from their inventory.
The forthcoming negotiations on the ICoC would have these experiences
and a few others in the background in their proceedings. It would be of
interest to observe whether the negotiations follow an established path,
focusing more on ideological positions, or whether the states concerned take
xx Decoding the International Code of Conduct for Outer Space Activities

realistic positions. The possibility also exists that the states involved could
use this opportunity to play their moves on the great-power chessboard.
There is currently broad agreement on the utility and need for a
mechanism as fine-tuned by the ICoC. The variety of states involved in the
discussions understand that such a mechanism, if debated and accepted by
the majority—which would imply addressing the major concerns of all
participants—could have an enduring impact on space security. This
mechanism would need to be transparent and allow a level playing field to
all signatory states. Going by experience, it should also have provisions to
address the issues arising from non-implementation. A compliance
enforcement mechanism would make the participating states more serious
about the obligations imposed by the code.
The variety of stakeholders in ensuring space security and sustainability
include, among others, policymakers, diplomats, military, lawyers, academics,
industry, and civil society. There has been growing frustration because of the
lack of legal mechanisms to address the challenges in Outer Space. The
launching of negotiations on the ICoC has given rise to hope that a useful
mechanism could be worked out. In an exercise of this nature, there is
obviously ample scope for a variety of opinions to begin with, all of which
must be listened to. It will be seen from the presentations in this book that
the field is wide open even for heresies. It needs to be mentioned that the
views by various contributors are in their individual capacity and should not
be attributed to the state or the organisation to which they belong.
Even though the ICoC has been in the public domain for some years,
very limited discussion has taken place on it. We consider that the proposal
is extremely important and deserves a far wider debate. With this objective,
an attempt was made to contact individuals from different backgrounds,
including lawyers, technologists, policymakers, academics, military officials
and industry representatives. Contact was established with individuals and
organisations, including space agencies, in various space-faring states and states
having interests in space. The response in general was very good; a few
individuals demurred, for varying reasons, including unclear state policy. A
corollary observation in this exercise was that in non-space-faring states there
is very limited acquaintance with the issue of space security in general, and
the ICoC in particular. Exceptionally, scholars have made an effort to
understand the subject, discuss with the respective space agencies officials,
and form a view.
The space industry was found bit shy in its response, with some of the
national space industries acknowledging the various reasons for their coyness.
 Introduction xxi

Less amount of internal debate and no engagement by the state (on this issue)
could be the reasons for this. It is also possible that the time provided to
individuals to respond—30 to 45 days—was inadequate.
This book is divided into three main parts. The introductory section,
Part I, captures the basic debate on ICoC. It presents two points of views
on this subject. Both, the opinions agree in principle on the necessity of such
mechanism but differ in regard to the mechanisms of implementation.
Although this debate is bit India specific, it needs to be appreciated at a
broader level as it represents the majority view prevalent in the ongoing global
discourse. Part II highlights the important issues and sets the stage for the
informed discussions by the experts. Specifically, the second part discusses
the various existing legal mechanisms in respect of Outer Space with an aim
to draw attention to the structures that are already put in place and
operational and also confers the genesis of some recent initiatives proposed
to ensure space security including the ICoC. This section highlights that the
ICoC was not the only mechanism for discussion in the recent past. None
of the other attempts reached the level of global negotiations; but, this does
not detract from their importance. Certain formulations under these
mechanisms could even provide scope for further deliberation in regard to
strengthening the ICoC and hence this section of the book attempts to put
them in perspective. Part III sketches the basic debate on the ICoC, giving a
different set of contrasting views on this subject highlighting a variety of range
of opinions. Finally, the conclusion captures the essence of the various
opinions expressed in the book. A few relevant documents are appended for
ready reference.

N OTE
1. Ben Baseley-Walker, “Outer space, Geneva and the Conference on Disarmament: Future
directions”, Space Policy, Vol. 28, 2012, p. 45.
PART I
DEBATE
 Chapter 1
Space Code of Conduct:
Inadequate Mechanism*
Ajey Lele

Imagine a day without mobile phone connectivity or a television blackout or

an internet shutdown. Human life has become so much dependent on satellite
technologies, which help in providing such services, that the smooth
functioning of our world could be disrupted without them! Presently, outer
space, known as a common heritage of humankind, is becoming increasingly
crowded. Satellite technology also has a major military relevance. Hence, in
order to safeguard the genuine interests of countries, a globally accepted legal
architecture to undertake various activities in outer space is necessary.
For the last few decades various activities in outer space are being
governed by a few globally acknowledged treaty mechanisms like the Outer
Space Treaty (OST, 1967), Moon treaty (1979) as well as UN initiatives like
the Prevention of Arms Race in Outer Space (PAROS) and the Committee
on the Peaceful Uses of Outer Space (COPUOS). In 2008, the European
Union (EU) suggested a more explicit Code of Conduct (CoC) to generate
greater ‘clarity’ about space activities. This CoC was revised further in 2010.
On June 6, 2012 the EU officially launched (in Vienna) a multilateral
diplomatic process to discuss and negotiate an International CoC for Outer
Space.
The CoC is aimed at providing a complementary mechanism to the
existing framework regulating activities in outer space. It is a voluntary
*First published at http://idsa.in/idsacomments/SpaceCodeofConductInadequateMechanism_
AjeyLele_180612, June 18, 2012
6 Decoding the International Code of Conduct for Outer Space Activities

mechanism and seeks to codify new best practices. The CoC’s main emphasis
is on transparency and confidence-building measures (TCBM). In addition,
it also prescribes measures on space debris control and mitigation and suggests
a mechanism for notification of various activities that states propose to
undertake in space. States are expected to remain committed to various
existing legal mechanisms to outer space activities as well as to formulate and
implement national policies in this regard. The basic purpose is to put
together policies and procedures to achieve the security of space assets, thus
minimising the likelihood of accidents and possible collisions of objects in
space as well as restricting the accidental/intentional creation of space debris
and attempts to interfere in the functioning of operational space systems.
Important space-faring countries like the US, Japan and India have, in
principle, welcomed the idea of a CoC. While they are unlikely to agree to
every fullstop and comma in this proposal, they are at least willing to debate
the EU draft. On the other hand, Russia and China have put on the table
during February 2008 the “Prevention of the Placement of Weapons in Outer
Space Treaty” (PPWT) which would ban the weaponisation of space.
However, the biggest drawback of the PPWT is that it is completely
unverifiable. More importantly it is silent about ground based weapons which
could damage/kill the satellites in space (China had used a Kinetic Kill
Vehicle, KKV, to demonstrate its ASAT capability in January 2007).
The EU’s CoC proposals are slowly gaining acceptability. However, it
needs to be understood that the conceptualisation of this code is basically
based on optimism that states are essentially ethical actors and that they
understand their responsibilities and duties and are keen to bind themselves
into following a mutually agreed upon set of rules. The proposed CoC is
non-binding in nature and more in the form of transparency and confidence
building measures. It could be compared with the arms control mechanism—
the Hague Code of Conduct (HCoC), which is a voluntary and non-binding
mechanism established to usher in transparency in the missile arena.
Interestingly, most of the signatories to this mechanism have no missile
capabilities!
In reality, mechanisms like HCoC or the proposed space CoC have
extremely limited relevance and actually serve no purpose beyond offering a
‘feel good’ notion. It would be naive to think that states actually care for
such non-binding mechanisms. On the other hand, any treaty mechanism
like PPWT has serious limitations, given that there is no clarity with regard
to defining what actually a space weapon is. It would be difficult to establish
a verifiable mechanism in this regard. More importantly, the coming into
 Space Code of Conduct: Inadequate Mechanism 7

being of a treaty mechanism banning the weaponisation of space would have

serious implications for missile defence programmes. In short, all existing
proposals have limitations.
Now, the question is why a space CoC is being pushed so aggressively
in spite of its serious limitations of this process? What is the use of forming
so called rules of behaviour, principles, values and standards when there is
no authority to punish? It has been seen in the past that even well established
treaty mechanisms like the Biological Weapons Convection (BWC) have failed
because of the absence of a verification protocol. If so, what is the use of
pushing for an imperfect CoC? This CoC has been advertised as a mechanism
to preserve the sustainability and security of space, but it is difficult to
comprehend how a non-binding and voluntary mechanism could help in
achieving this.
It is a reality that no progress would take place in the space arms control
arena without US support. But, because of its missile defence compulsions,
the US is unlikely to support any treaty mechanism in this regard. The issue
therefore is whether the rest of the world should surrender to US hegemony
and start negotiating a toothless mechanism like the CoC? Lobbying for a
non-binding mechanism actually demonstrates the weakness of its advocates
and indicates that they are giving up too early without even trying to debate
possible stronger alternatives.
It appears that the US, which initially had reservations, is likely to support
the CoC with certain amendments. Probably, it has understood the
limitations of taking a leadership role in this field and wants to drive the
agenda from behind the scenes. Since outer space has critical military
relevance and its commercial utility is increasing rapidly, many other states
are also probably not keen to become part of any binding treaty mechanism
particularly at this stage when the space realm is witnessing a process of
evolution. For them, the present situation is just ideal: their agenda gets served
and the blame goes to either the US or China!
Presently, the ‘context’ of the space security debate is at a crossroads. The
EU appears to have won step one by compelling other states to react to its
proposal. Against this backdrop, three possible options can be identified:
Option 1: Join the international space CoC by suggesting amendments (if
any). Everyone understands the element of ‘hypocrisy’ in the global arms
control agenda. The best option is not to criticise the CoC but to join the
bandwagon and demonstrate commitment towards global non-proliferation
and disarmament regimes! On the positive side, irrespective of its limitations,
8 Decoding the International Code of Conduct for Outer Space Activities

the CoC would help bring in more (some) transparency. From a state’s point
of view it will lose nothing since declarations are voluntary and it will not
gain the reputation of being a ‘spoiler’.
Option 2: PPWT in its present format is a bad option, but can it be fine-
tuned? Why not debate this issue and push for a treaty mechanism (difficulties
in this process are known but the challenge is to deal with them). It is
important to note that once CoC is put in place no additional initiatives are
likely to emerge in the near future. All this indicates that the world would
live with a false sense of security about the outer space arena, even as the
major powers actually have a ‘field day’. It would be incorrect to divide space-
faring countries into two groups, namely EU-US and China-Russia; even if
inadvertently, the CoC should not be guilty of this crime.
Option 3: The ongoing debate on a space CoC has helped to bring to the
fore the issue of space security and this opportunity should be used to widen
the scope of the debate and try and formulate an option that has a binding
mechanism. The CoC would thus become a first step towards preventing
the eventual weaponisaton of space. However, diluting the CoC agenda with
the belief that devising a strong mechanism is impossible is actually harmful
to space security. There is a need to learn from the history of nuclear and
climate change debates and allow a similar history to unfold in the space
security arena as well.
 Space Code of Conduct: Inadequate Mechanism 9

Chapter 2
Space Code of Conduct: Inadequate
Mechanism—A Response*
Michael Krepon

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

*First published at http://idsa.in/idsacomments/SpaceCodeofConductInadequateMechanism

AResponse_mkrepon_270612, on Jun 27, 2012.
10 Decoding the International Code of Conduct for Outer Space Activities

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
 Space Code of Conduct: Inadequate Mechanism 11

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
12 Decoding the International Code of Conduct for Outer Space Activities

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?
 Space Code of Conduct: Inadequate Mechanism 13

Chapter 3
Deliberating the Space Code of Conduct*
Ajey Lele

Introduction
Activities in Outer Space are increasing, with a growing number of states
either launching or keen to launch their own satellites. In view of such
expanding Space activities, there is a need to strengthen the existing legal
architecture to address various Space activities. Attempts are being made to
devise a set of rules and practices to formulate globally accepted guidelines
for the Space arena. In 2008, the European Union (EU), in its attempt to
provide a complementary mechanism to the existing framework regulating
Outer Space, had circulated a draft Code of Conduct (CoC) in this regard.1
Recently, on June 6, 2012, the EU officially launched (in Vienna) a
multilateral diplomatic process to discuss and negotiate an International CoC
for Outer Space. Negotiations on the basis of this text are expected to start
at the Multilateral Experts Meeting (October 2012) at New York amongst
all United Nations (UN) member states aimed at adopting the Code in 2013.

Backdrop
Outer Space has been described as a “congested, contested, and competitive”
medium. Nine (11 if Ukraine and Russia are included, over and above the
erstwhile USSR) countries have Space launch capabilities and over 60 countries
own and operate approximately 1,100 active satellites.2 These Space systems
belong to various categories like civil, military, and commercial satellites.

*First published at http://idsa.in/idsacomments/DeliberatingtheSpaceCodeofConduct_

AjeyLele_290612 on June 29, 2012
14 Decoding the International Code of Conduct for Outer Space Activities

Presently, various states in the world are depending significantly on Space

technologies for the purposes of communication, remote sensing and
navigation. Various assets in Space could encounter intentional or accidental
collision with orbital Space debris resulting from human activities.
At present, various activities in Outer Space are governed by a few globally
acknowledged treaty mechanisms like the Outer Space Treaty (OST, 1967)3
and Moon Treaty (1979).4 The agreement on the Rescue of Astronauts, the
Return of Astronauts and the Return of Objects Launched into Outer Space
(Rescue Agreement, 1968)5 and other agreements such as the Convention
on International Liability for Damage Caused by Space Objects (Space
Liability Convention, 1972)6 are two other important treaties in this regard.
The UN has also undertaken various initiatives like the Committee on the
Peaceful Uses of Outer Space (COPUOS, 1959)7 and Prevention of an Arms
Race in Outer Space (PAROS, 1982). The UN has produced various General
Assembly Resolutions, Meetings, Conference on Disarmament (CD) working
papers, etc., on the issue.
In recent times, apart from the EU-sponsored CoC, two other initiatives
have come to the fore. One, a Model Code of Conduct prepared by the
Stimson Center8 was made available for discussion and debate during October
2007. Two, in February 2008, Russia and China put on the table a draft of
the “Prevention of the Placement of Weapons in Outer Space Treaty”
(PPWT), 9 an international, legally binding treaty that would ban the
weaponisation of Space. Neither of these initiatives has generated much
interest. Probably, the PPWT has been viewed as a Treaty that allows Russia
and China to dominate international public diplomacy. The biggest
shortcoming of this Treaty in that it is silent about ground-based missiles
that can destroy satellites in Space. In addition, it is also being viewed as an
attempt to put pressure on the US missile defence plans. The Stimson Center
CoC, on the other hand, follows a very simplistic approach and not a
traditional detailed approach.
Also, in 2009, a Working Paper on TCBMs for Space Security was
presented by Canada to the CD.10 The paper argues that the CD should
consider security guarantees, such as a declaration of legal principles, a code
of conduct, or a treaty banning the placement of weapons in Space in any
form.
Amongst all these initiatives the EU-formulated International CoC for
Outer Space has found more acceptability from the point of view of
discussions. The EU has now officially begun the process of negotiations to
take this process forward.
 Deliberating the Space Code of Conduct 15

CoC for Outer Space Activities (2010)

The EU Code11 is about measures to be undertaken towards enhancing the
protection for various activities in Outer Space. It is aimed at endorsing best
practices and undertaking confidence building measures through a series of
voluntary disclosures about the Space agendas of states, as pursued by both
governmental and non-governmental entities.
The subscribing states are expected to take appropriate measures to avoid
accidents/collisions in Space between objects and also to avoid any form of
harmful interference in legitimate activities undertaken in Space. States are
also expected to remain committed towards limiting the creation of Space
debris. The CoC expects member states to register Space objects and provide
timely information with regard to their launch schedules, various proposed
space manoeuvres, collisions/break-ups in orbit, re-entry events, Space
environmental conditions, etc. In addition, states are required to share their
Space policies and strategies. The code also has provisions like biennial
meetings, creation of an electronic database and communication systems, etc.

Acceptability
The majority of countries with interests in Space, including Australia, Canada,
and Japan, have supported this international code.12 The most powerful
Space-faring state, the United States, has decided to join the negotiations on
the CoC. However, it does not propose to enter into any mechanism that in
any way constrains its national security-related activities in Space or its ability
to protect itself or its allies.13 The US has announced that it would not
subscribe to any code that would be legally binding.14 It views the CoC as a
good foundation focused on the use of voluntary and pragmatic Transparency
and Confidence Building Measures (TCBMs) to help prevent mishaps,
misperceptions and mistrust in Space.15 The US military is also keen to join
the Code because they feel that it would bring greater transparency into the
system. According to them, the sheer volume of Space—from geosynchronous
orbit down to the earth’s surface—is about 73 trillion cubic miles. They do
not have systems that could keep a tab on movement of every broken piece
of old satellites, debris from collisions or explosions, and so on.16 Hence,
they view the CoC as an ideal instrument to deal with the issues related to
Space debris and Space Situational Awareness (SSA)—a network of radars,
telescopes and other instruments to trace Space debris.
Opposition to a CoC for Space is expected to arise probably from other
major Space-faring states like Russia and China. These states have already
16 Decoding the International Code of Conduct for Outer Space Activities

made their political and diplomatic posturing by proposing an international

treaty—the PPWT—in 2008.
India is yet to present its position on this issue and has not made any
statement either in support of or against the CoC. It is important to note
that India has been following the UN Space Debris Mitigation Guidelines
(2008) very systematically. India is against the weaponisation of Space.
By and large, various states have been taking part in the UN COPUOS
discussions on the Long-term Sustainability of Outer Space Activities. Even
though China conducted an Anti-satellite (ASAT) test in 2007, it is keen to
form a treaty regime for Outer Space and is (overtly) against the idea of
weaponisation of space. Both Russia and China have time and again expressed
concerns about the US approach towards evolving space security mechanism.
They understand that the development of any stringent space regime would
go against the US missile defence programme, and hence the US is unlikely
to support any legally binding mechanism on this issue.

Decoding the Code

The proposed draft of the Code has a preamble highlighting the importance
of the issue and four major sections covering various requisite elements of
the Code. They are:
1. Purpose, Scope and Core Principles
2. General Measures
3. Cooperation Mechanism
4. Organisational Aspects
Adherence to this Code is voluntary. The Code expects states to comply
with various existing treaties and conventions on Outer Space activities
(Article 3.1). Surprisingly, it also asks signatories to promise to follow the
Comprehensive Nuclear Test Ban Treaty (CTBT, 1996), which actually does
not serve any purpose. The CTBT is about banning nuclear explosions in
all environments. Naturally, one of the environments is expected to be Outer
Space. However, commitment to the OST, 1967, already caters for that and
hence there is no need to include clauses involving controversial mechanisms
like the CTBT. Alternatively, a more relevant treaty (formed under the UN
aegis), the Moon Treaty (1979), has not been mentioned. Such an omission
is obvious because no major Space-faring nation is a signatory to this Treaty
(India has signed but not yet ratified this Treaty). With the increasing focus
on Moon Missions in the 21st century by various states, it would be incorrect
to believe that the Moon has no direct relevance to current Space activities.
Also, expecting loyalty to the International Code of Conduct (ICoC)/
 Deliberating the Space Code of Conduct 17

The Hague Code of Conduct (HCoC) does not serve much purpose as this
is not going to restrict the activities of states such as Iran and North Korea
in any way.
Article 4.1 of the Code mentions states are expected to evolve their own
policies and procedures to minimize the possibilities of accidents in Space.
This is a valid suggestion. However, it is important to evolve a global strategy
to reduce the chances of accidents in Space because satellites do not follow
geographical boundaries as demarcated on Earth. Hence, addressing the issue
in isolation (i.e., at the level of the individual state) may not be of much
help.
The issues related to the notification of Outer Space activities are covered
in Article 6. This segment is a part of the overall ‘cooperation mechanisms’
identified in this draft Code. This section could be viewed as the heart of
this draft Code because it involves sharing of information on Outer Space
activities.
As per Article 6.1, states are expected to report chances of collisions,
break-ups in orbit, malfunctioning and predicted re-entry of Space objects.
It is important to note that today increasing numbers of states are becoming
owners of satellites systems; however, they all do not possess the technical
and observational capabilities to anticipate such events. This brings the
importance of space situational awareness (SSA) to the fore. It is important
to establish a system for providing notification of such events at the global
level.
Article 8.1 covers the sharing of information on Outer Space activities.
One key demand of this article is that states should provide information on
security- and defence-related activities in space. It is unlikely that all states
would be keen to provide such information either on a voluntary basis or
otherwise. Article 8.2 is about providing information on Space environmental
conditions collected by SSA networks of the state. Presently, apart from the
US, no other state has dedicated SSA infrastructure. Some states could receive
some information on the Space environment (e.g., movement of debris)
because of the presence of radar networks developed/established by them for
strategic purposes. It may not be always possible for these states to disclose
the information gathered because of the secrecy associated with the source
of observation. This again highlights the need for a universal SSA architecture.
It is also important for the Code of Conduct to make provisions with
regard to Space weather. “Space weather is of particular concern to the long
term sustainability of our space activities. Besides the direct hazard it poses
to earth-orbiting satellites, space weather events greatly complicates SSA and
18 Decoding the International Code of Conduct for Outer Space Activities

collision prevention.”17 The draft Code has made provisions for the Outer
Space activities database (Article 12, which could also maintain the record
of the weather). Every state having satellite assets may not have the
infrastructure for monitoring and forecasting Space weather. However, it is
important to make this information available in time to everyone, and SSA
architecture or a separate system under the World Meteorological
Organisation (WMO) could be established for the same.
The basic limitation of this draft Code appears to be its inadequacy in
addressing future issues. It is important to appreciate that, along with the
number of existing challenges, the Code should also cater for impending
issues. A simplistic approach to address such challenges (as and when they
arise) is through the mechanism of biennial meetings of subscribing states
(Article 10). However, there is a need to devise a minimum basic structure
while formulating the Code. Mining of Asteroids and the Moon and Mars
for exploiting raw materials and minerals is expected to become a reality. It
is important to have clarity about the ownership of such resources.
Furthermore, there are indications that along with space tourism in Low Earth
Orbit (LEO), a possibility also exists for private travel in deep space region
(Moon Mission). Technology is expected to develop in areas like Space
elevators, Space solar power, and airborne lasers (for the boost phase kill of
ICBMs), etc. The issue of Space-based weapons is dormant at this point in
time but there are no guarantees for the future. Presently, no strict provisions
are available in the Code to address issues like counter-Space abilities. While
it would be incorrect to expect the Code to offer issue-specific solutions for
likely future events, what is important is that the Code needs to be cognizant
of these realities.

Options for India

It is important that India devises a policy based on its existing and proposed
Space agenda, its security requirements and the interests of its Space industry.
It is also important for India to consider the larger issue of Space security
and the need to prevent Space weaponisation. Counter-Space systems are not
the norm in present-day military hardware, but since Space is being visualised
as a fourth dimension of warfare there are no guarantees for the future. India
is yet to announce its official position with regard to the proposed draft Code.
If India proposes to join the multilateral experts meeting of October 2012 in
New York, then it could consider some of the contentions discussed here.
The debate on the Space CoC so far indicates that some states are in
agreement about devising a voluntary and non-binding mechanism. However,
the legitimacy of such provisions could always be questioned. The history of
 Deliberating the Space Code of Conduct 19

non-binding mechanisms like the HCoC indicates that they have limited
utility. It is important to appreciate that since the domain of Space offers a
large number of benefits in civilian, commercial and military sectors, threats
to the Space environment are likely to increase in the coming years. In view
of this, there is a need to have a respectable agreement on Space issues and a
regime should be evolved that offers a protection mechanism to guard against
existing and emerging threats. Thus attempts such as the suggested CoC
should be welcomed and provisions thereof should be debated.
For every state, its own interests—geostrategic and economic—are of
paramount importance and they usually join multilateral arrangements mainly
to serve their own interests. Multilateralism is all about universally-accepted
obligations, which could be morally or legally binding. Over the years, it has
been observed—in a broad sense—that provisions of international treaties
and other similar mechanisms with conditions annexed, and having a penalty
for non-fulfilment, generally give better results. A political agreement by a
state to join a multilateral mechanism without any legal obligation suffers
from various limitations; these are less trustworthy and non-serious
arrangements. In certain cases, it could become difficult to devise a legally-
binding proposal, probably because of technological and financial limitations.
However, it is important to recognise that such difficulties could, at least, be
partially overcome with more efforts.
Presently, the argument given with regard to the Outer Space CoC is
that attaining binding status is not a realistic option (because of technical
and geopolitical reasons), and, particularly, the US would only become a part
of any mechanism that is non-binding in nature, and hence it would be
unproductive to push for a binding mechanism.18 Now, the question that
India needs ask is: “Is the EU proposing a mechanism to suit the US interests
or for the purposes of achieving space security?” It is not necessary that every
(Space) non-proliferation regime should be inclusive to such extent that all
major Space-faring nations should be part of it (this may be desirable but
definitely not necessary and, more importantly, achievable). In the nuclear
arena, too, not all nuclear weapon states are members of the Non-Proliferation
Treaty (NPT).
The Outer Space CoC is about asking states to provide information about
their ongoing and proposed space activities and future plans. It is done with
a view to bring transparency into the system and guard against the eventual
weaponisation of Space. The basic purpose behind CoC gets defeated if
insufficient, inaccurate and irregular information is provided by states. Space
is one arena where the presence of a satellite, once it is launched, usually
cannot be hidden. However, for predicting the possibility of any likely Space
20 Decoding the International Code of Conduct for Outer Space Activities

collision it is important to have knowledge of various parameters relating to

that satellite such as orbit position, speed, any plans for increasing or
decreasing the orbit altitude, etc. No state would like to share technical
information which could be used to understand, and probe more deeply into,
its scientific and technological capabilities.
A binding mechanism could help to institute a system of trust amongst
the members and would also keep them responsible to the CoC mandate.
Making states accountable to the CoC would have its own advantages. It
would enhance its purpose and goals and would attract states having genuine
interest in achieving Space security and could expose fence sitters. India, being
an important player in the Space arena, needs to lobby for a transparent and
binding CoC, which would eventually help in realising Space security.

Conclusion
The International CoC for Outer Space Activities is an important step towards
making Outer Space more safe and secure for the conduct of various
operations. The Code has correctly identified various issues for the notification
of Outer Space activities by the states. This CoC has been written with the
aim of ensuring the security, safety and sustainability of all Outer Space
activities. This raises the question whether the CoC has the potential to fulfil
this aim. It appears that, in its present avatar, the CoC is not capable of
realising this dream fully. This is mainly because the Code lacks an
accountability mechanism. Undertaking confidence-building measures
through a series of voluntary disclosures is likely to have limited utility and
would not help to identify the “bad sheep” and this, in the long run, could
be detrimental to overall Space security. It is important to appreciate that
creating an ineffective non-proliferation instrument is in nobody’s interest.

N OTES
1. See http://www.consilium.europa.eu/uedocs/cmsUpload/st14455.en10.pdf, accessed on
January 12, 2012.
2. Micah Zenko, “A Code of Conduct for Outer Space”, Policy Innovation Memorandum
No. 10, available at http://www.cfr.org/space/code-conduct-outer-space/p26556, accessed
on June15, 2012.
3. http://www.opanal.org/Docs/Desarme/TD/OuterSpace_Treaty.pdf, accessed on June 28,
2012.
4. http://www.oosa.unvienna.org/pdf/publications/STSPACE11E.pdf, accessed on June 28,
2012.
5. http://www.oosa.unvienna.org/oosa/SpaceLaw/rescue.html, accessed on June 28, 2012.
6. http://www.oosa.unvienna.org/oosa/SpaceLaw/liability.html, accessed on June 28, 2012.
7. http://www.oosa.unvienna.org/oosa/COPUOS/copuos.html, accessed on Jun28, 2012.
8. http://www.stimson.org/research-pages/model-code-of-conduct/, accessed on June 28,
 Deliberating the Space Code of Conduct 21

2012.
9. http://www.cfr.org/space/treaty-prevention-placement-weapons-outer-space-threat-use-
force-against-outer-space-objects-ppwt/p26678, accessed on June 28, 2012.
10. http://www.unog.ch/80256EDD006B8954/(httpAssets)/C40D0B92E5F37A9
CC12575FC003BCE37/$file/CD_1865_E.pdf, accessed on June 28, 2012.
11. See http://www.consilium.europa.eu/uedocs/cmsUpload/st14455.en10.pdf, accessed on
January 12, 2012.
12. Micah Zenko, “A Code of Conduct for Outer Space”, Policy Innovation Memorandum
No. 10, available at http://www.cfr.org/space/code-conduct-outer-space/p26556, accessed
on June15, 2012.
13. Hillary Rodham Clinton, “International Code of Conduct for Outer Space Activities”,
Press Statement, Washington DC, January 17, 2012, available at http://www.state.gov/
secretary/rm/2012/01/180969.htm, accessed on June14, 2012.
14. Statement by Rose Gottemoeller, Acting Under Secretary of State for Arms Control and
International Security
Washington, March 14, 2012, http://www.nytimes.com/2012/03/16/opinion/a-code-for-
outer-space-as-seen-from-the-state-dept.html, accessed on May 10, 2012.
15. Remarks by Frank A. Rose, Deputy Assistant Secretary, Bureau of Arms Control,
Verification and Compliance, “Space Sustainability Through International Cooperation”,
at the International Symposium on Sustainable Space Development and Utilisation for
Humankind: Orbital Space Debris—Challenges and Opportunities, Tokyo, Japan, March
1, 2012, available at http://www.state.gov/t/avc/rls/184897.htm, accessed on June 18,
2012.
16. Sydney J. Freedberg Jr., “Safe Passage: Why The Pentagon Wants An International ‘Code
Of Conduct’ For Space”, available at http://defense.aol.com/2012/03/22/safe-passage-
why-the-pentagon-wants-an-international-code-of-c/, accessed on June 18, 2012.
17. Remarks by Frank A. Rose, Deputy Assistant Secretary, Bureau of Arms Control,
Verification and Compliance, “Space Sustainability Through International Cooperation”,
at the International Symposium on Sustainable Space Development and Utilisation for
Humankind: Orbital Space Debris—Challenges and Opportunities, Tokyo, Japan, March
1, 2012, available at http://www.state.gov/t/avc/rls/184897.htm, accessed on June 18,
2012.
18. Based on author’s interactions with experts.
PART II
GENESIS
 Chapter 4
Europe’s Space Diplomacy Initiative:
The International Code of Conduct
Jana Robinson

Europe considers space systems to be strategic assets. Europe’s space policy,

jointly configured by the European Union (EU) member states, the European
Space Agency (ESA), and the EU, is an increasingly essential component of
broader domestic and foreign policy planning and decision-making. The
Lisbon Treaty of 2009, which provided the EU with an explicit mandate to
be involved in space matters as a competence to be exercised in parallel with
its member states, enabled the EU to pursue and invigorate current space
efforts for the benefit of humankind and Europe’s overall global standing.
Promoting the draft Space Code of Conduct, introduced by the EU in
2008, 2010, and 2012, respectively, has been Europe’s most significant space
diplomacy initiative to date. The code was largely stimulated by the troubling
display of non-transparency and insensitivity to the space environment shown
by China in its 2007 anti-satellite (ASAT) test. A document, entitled “Food
for Thought on a Possible Comprehensive Code of Conduct for Space
Objects”, was offered by Italy in the Conference on Disarmament (CD) in
March 2007. The document highlighted a number of gaps in the existing
transparency and confidence-building measures (TCBMs) and suggested that
new measures would be necessary to strengthen compliance with, and the
implementation of, binding and non-binding space security-related
obligations. The EU endorsed this initiative under Title V of the EU Treaty
Concerning the Common Foreign and Security Policy (CFSP), which was
presented to the United Nations General Assembly (UNGA) as the European
reaction to UNGA Resolution 61/75 on TCBMs.1 Also in 2007, Germany
28 Decoding the International Code of Conduct for Outer Space Activities

organised a workshop entitled “Security and Arms Control in Space and the
Role of the EU” in Berlin as part of its effort to place space security formally
on the EU agenda.
In the autumn of 2007, the Portuguese EU Presidency prepared the first
version of a draft Code of Conduct, later updated by the Slovenian EU
Presidency into “Best Practice Guidelines for/Code of Conduct on Outer
Space Activities”. By the summer of 2008, the first informal consultations
were undertaken with key space-faring nations, including the US, China and
Russia. The French EU Presidency, that began in July 2008, continued to
promote the Code, which resulted in the official release of the first draft Code
of Conduct by the EU Council in December 2008.2 The EU Council
Conclusions stated that the Code of Conduct includes “transparency and
confidence-building measures as a basis for consultations with key third
countries” involved, or interested in, Outer Space activities.3
The EU then introduced the Code to other nations as well as
international bodies. The EU engaged in extensive bilateral discussions on
the draft with a number of countries, including the US, China, Russia, Brazil,
Canada, India, Indonesia, Israel, South Korea, South Africa and Ukraine.4
These talks resulted in a revised version of the Code introduced in September
2010. During these negotiations, the EU encountered certain reservations
concerning the process adopted to support the Code from a number of
nations, including the US, Russia, China, India and Brazil.
The US announced on 17 January 2012 its readiness to support
negotiations on an “international code of conduct”, having earlier hesitated
to support the European version. In addition to the US and Europe, Japan,
Australia and several other countries expressed their support for this latest
initiative. As a result, the EU officially introduced at the UNCOPUOS in
Vienna a revised draft of the International Code of Conduct for Outer Space
Activities in June 2012. The meeting’s purpose was to prepare countries for
the upcoming negotiations on the new draft proposal that will take place in
October 2012.
By introducing the Code of Conduct, the EU supported the notion that
voluntary rules of the road, grounded in “best practices” among space actors,
offer the most promising approach to achieving space behavioural norms.
The EU emphasised that the Code of Conduct represents a pragmatic and
incremental process which can assist in achieving enhanced safety and security
in space. The Code has a preventive focus, emphasising that activities
undertaken in space should involve a high degree of care, due diligence, and
transparency with the aim of building confidence and trust among space
actors.
 Europe’s Space Diplomacy Initiative: The International Code of Conduct 29

The perceived shortcomings of such initiatives, or global-level governance

measures generally, include the lack of definition concerning which authority
can effectively verify and enforce the agreed rules and procedures. Moreover,
the general nature of the objectives stated in the Code leaves considerable
room for differing, and even conflicting, interpretations. In this connection,
the formulation of more concrete TCBMs could help reinforce formal
initiatives such as the Code. Implementation of the Code will have, beyond
political considerations, scientific, technological, industrial, financial and
operational implications. Coordinated management by various space actors
will be needed to make this European space diplomatic initiative viable.
In sum, the draft Code is the most serious proposal to date for a voluntary
international agreement to enhance space security. It is also, in part, designed
to serve as an alternative to binding treaty proposals that seek to prevent an
arms race in Outer Space or ban weapons in space (e.g. the draft Treaty on
the Prevention of the Placement of Weapons in Outer Space, the Threat or
Use of Force against Outer Space Objects, known as PPWT) and is currently
being structured outside of traditional multilateral institutions like the UN
and the CD. This top-down initiative is an effort on the part of the EU to
play a normative role in space security through the “principled” identity it
seeks to achieve.5

NOTES
1. Hobe, Stephan, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl (eds.). Cologne
Commentary on Space Law, Volume 1: Outer Space Treaty. Cologne: Carl Heymanns Verlag,
2009. 180.
2. Rathgeber, Wolfgang, Nina-Louisa Remuß, and Kai-Uwe Schrogl. “Space Security and
the European Code of Conduct for Outer Space activities.” Disarmament Forum 4
(2009). 35–6.
3. Council of the European Union. Cover Note from the General Secretariat to the
Delegations—Council Conclusions and Draft Code of Conduct for Outer Space
Activities. 17175/08 of 17 December 2008. Brussels: European Union. 15 December
2010, ‹http://register.consilium.europa.eu/pdf/en/08/st17/st17175.en08.pdf›:2.
4. Rathgeber et al. “Space Security and the European Code of Conduct for Outer Space
activities”. n. 2: 38.
5. Robinson, Jana. “The Role of Transparency and Confidence-Building Measures in
Advancing Space Security.” ESPI Report 28. September 2010, <http://www.espi.or.at/
images/stories/dokumente/studies/ESPI_Report_30_FINAL.pdf5> : 52
30 Decoding the International Code of Conduct for Outer Space Activities

Chapter 5
Origins of and Rationale for a Space
Code of Conduct
Michael Krepon

The Henry L. Stimson Center began to promote a Code of Conduct for

responsible space-faring nations in 2002, with grant support from The John
D. and Catherine T. MacArthur Foundation. Space has long been used for
various military purposes, but even during the cold war, the United States
and the Soviet Union exercised uncommon restraint with respect to the testing
and deployment of weapons in space. Back then, both superpowers possessed
multiple ways to create havoc in space, but they flight-tested anti-satellite
(ASAT) weapons relatively few times, and deployed rudimentary ASAT
systems only for short periods before mothballing them. In effect, a low-cost,
non-deployed form of deterrence of warfare in space existed throughout the
cold war. Both superpowers knew that to open this Pandora’s box would invite
catastrophic consequences, since satellites were intimately tied to nuclear
forces. The requirements for deterrence in space were remarkably minimal,
compared to the requirements for nuclear deterrence.
After the cold war ended, this modus vivendi was called into question
with the advent of the George W. Bush Administration. Concerns over the
weaponisation of space were stoked by a US commission report chaired by
Donald Rumsfeld, warning of a “space Pearl Harbor”. This report appeared
immediately prior to his second stint as Secretary of Defense. Concerns over
the weaponisation of space were also heightened by the Bush Administration’s
decision to withdraw from the Anti-Ballistic Missile Treaty (ABM Treaty),
 Origins of and Rationale for a Space Code of Conduct 31

and by its refusal to engage in any diplomatic undertaking that could reduce
the US military’s freedom of action in space.
As a counterpoint to the pursuit of the weaponisation of space, the
Stimson Center championed the concept of “space assurance”. Satellites are
vulnerable as well as invaluable. They save many lives every day, and they
have become integral to national, international, economic, and personal
security. The growing dependence on satellites by all major powers in a
domain that cannot be “protected” by classical military means suggests that
an uncommon level of interdependence is not only possible, but necessary.
For example, long-lasting space debris, whether created by ASAT tests or other
means, constitutes a threat to space objects regardless of nationality. Likewise,
the absence of a space traffic management system raises hazards to space
operations.
The goal of US space diplomacy, in the Stimson Center’s view, ought to
be the creation of global norms to promote safer practices in this global
commons, so that the benefits of space operations could be more assured
for all space-faring nations. In our analysis, the testing, deployment, and use
of weapons in space would constitute threats to space assurance, and should
be avoided, if possible. To clarify the costs and risks of engaging in
destabilising activities in space, it seemed appropriate that the United States
consider championing a policy of no further, purposeful, dangerous misuse
of space. This would require rules of the road against purposeful, harmful
interference against space objects, including kinetic-kill ASAT tests, as well
as the evolution of an international traffic management system for space. Since
some major space-faring nations or outlier states might not play by these rules
of the road, national security requires being able to retaliate, as needed, if
another state crosses unwelcome thresholds first. The maintenance of
capabilities to defend national interests—a hedging strategy—would therefore
be expected under a Code of Conduct. Because so many capabilities already
exist to defend national interests in space, hedging strategies do not require
dedicated ASAT tests or deployments. For example, states such as the United
States, Russia, China and India could, in effect, demonstrate ASAT
capabilities by means of ballistic missile defence tests. Consequently, major
space-faring nations do not need to take destabilising and provocative actions
in space in order to demonstrate hedging strategies.
Stimson championed the concept of a Code of Conduct because this
diplomatic initiative can help set norms for responsible space-faring nations
in the near term. In contrast, a space treaty could take many years to
negotiate, and decades to enter into force. “Rules of the road” for space would
be a far easier way to proceed, since customary practice can eventually become
32 Decoding the International Code of Conduct for Outer Space Activities

the basis for international law. Rules of the road exist for other domains,
but they are lacking in space. Granted, rules could be broken, but their
existence could make rule-breaking less prevalent, while facilitating
appropriate responses. Since a Code of Conduct would take the form of an
executive agreement between the United States and other space-faring nations,
it could bypass the Conference on Disarmament, which has not been able
to agree upon a programme of work for more than a decade, as well as the
harsh realities of Senate treaty ratification in a highly polarised US political
environment.
Stimson convened a group of experts conversant with military space
policy and international law to consider how these key elements might be
worded in a draft Code of Conduct aimed at preventing destabilising military
activities in space. These deliberations were held in October 2003 and
December 2003. Stimson’s project advisors suggested that the best way to
develop rules of the road in space would be to work by analogy, mostly by
applying and adapting provisions of the 1972 Incidents at Sea (“IncSea”)
Agreement and the 1988 Prevention of Dangerous Military Practices
Agreement.
The initial Stimson draft of a Code of Conduct, released in May 2004,
looked very much like a treaty, with a preamble, a section defining terms,
and various articles. We sought at this early stage to ban space weapons, but
we later had second thoughts about the utility of this approach. Since many
technologies and military systems have multiple capabilities, banning only
those “dedicated” to serve as space weapons would be insufficient, while
banning all technologies and weapon systems that could serve as space
weapons, such as ballistic missiles and missile defence interceptors, would
be impractical.
While Stimson was trying to particularize and popularize the concept of
a Code of Conduct, others offered more ambitious proposals. The Russian
and Chinese governments were clearly inclined to endorse a far-encompassing,
unverifiable space treaty, especially after the Bush Administration’s withdrawal
from the ABM Treaty in December 2001. The following June, Russia and
China submitted a paper at the Conference on Disarmament entitled
“Possible elements for a future international legal agreement on the prevention
of the deployment of weapons in outer space, the threat or use of force against
outer space objects”. In February 2008, they tabled a draft treaty along these
lines. In contrast, several European capitals were very receptive to the idea
of a Space Code of Conduct, and resolved to pursue it as a European Union
(EU) initiative. The EU’s initial draft was released in December 2008.
 Origins of and Rationale for a Space Code of Conduct 33

International support for a Code of Conduct gained traction, partly in

reaction to the Bush Administration’s rejection of diplomacy and the
infeasibility of the draft Russian-Chinese treaty. Stimson then decided to enlist
the inputs of partnering NGOs from major space-faring nations to re-draft
its model Code of Conduct. Efforts to enlist Indian and Brazilian NGOs
with expertise in space to help produce a revised Code of Conduct were
unsuccessful. Potential Indian partners with expertise in space-related matters
politely declined for lack of staffing; others politely declined for lack of
expertise. But Stimson did succeed in recruiting outstanding NGO partners
from Canada, China, France, Japan, and Russia. Stimson convened two
workshops, held in Washington in August 2006 and April 2007 with our
NGO partners, to consider a revised draft Code of Conduct. In between
these workshops, in November 2006, Stimson assembled a small group of
US project advisors to receive their guidance during the re-drafting process.
After exchanging several drafts and numerous email exchanges with our NGO
partners, a revised draft Code of Conduct was released publicly by the
Stimson Center and by our Canadian, French, Japanese, and Russian partners
in October 2007. Our Chinese NGO partners, who made constructive inputs
during the drafting process, chose not to endorse this text.
The revised Code of Conduct included language in the preambular
section acknowledging the desire by many, including our Russian and Chinese
colleagues, for a more ambitious diplomatic undertaking. None of the drafters
viewed the Code of Conduct as an end state. Indeed, all of us were aware
that the 1967 Outer Space Treaty was preceded by an October 1963 United
Nations General Assembly Resolution on “Stationing Weapons of Mass
Destruction in Outer Space” that laid out norms and principles for the
peaceful uses of Outer Space that were later codified in treaty form. Treaties
that codify norms are usually preceded by less formal arrangements, and we
wished to provide impetus to a near-term, norm-setting initiative. The EU’s
initial draft Code of Conduct, released in December 2008, was similar in
content and intent as the Stimson Center’s initiative.
Toward the end of the Bush Administration, several events combined to
clarify the utility of an International Code of Conduct for responsible space-
faring nations. Over a twenty-five-month period, from January 2007 to
February 2009, there were four wake-up calls attesting to the need for rules
of the road in space, particularly with respect to debris mitigation and space
traffic management. In January 2007, the People’s Liberation Army conducted
a kinetic energy ASAT test that produced the largest man-made debris field
in the history of the space age. In February of that year, a Russian missile
body orbiting Earth broke up, creating another large debris field. In February
34 Decoding the International Code of Conduct for Outer Space Activities

2008, the United States shot down a non-functioning satellite in a way not
to create persistent debris, ostensibly for safety reasons. In February 2009, a
dead Russian satellite collided with a functioning US communication satellite,
further compounding the debris problem in heavily trafficked areas of space.
Efforts to create norms for responsible space-faring nations are rare, and
successes are rarer still. In the United States and Russia, nuclear negotiations
always jump to the head of the queue, and on those rare occasions when
Washington or Moscow engage in space diplomacy, one or both typically
overreach. Beijing is starting from scratch with respect to space diplomacy,
and is pursuing this issue with evident discomfort and hesitancy. New Delhi
may well approach discussions on an International Code of Conduct in the
same manner. India has previously stood at a distance from multilateral
compacts related to military matters, seeking autonomy and finding fault with
process—even when the proposed agreement is widely viewed as being
consistent with Indian national security.
The Code of Conduct approach is gaining adherents, but it still faces
formidable hurdles. The Obama Administration is enmeshed in deeply
partisan domestic politics, and a newly elected Republican President might
back away from this initiative. It is unclear whether the European Union
can enlist the support of key states, like India and Brazil, who were peripheral
to its drafting process. Russia and China continue to champion an
unverifiable treaty of extremely broad scope. While Moscow appears to be
more receptive to an International Code of Conduct than before, it is unclear
whether Beijing can be brought on board. Far more effort is required to gain
a working consensus among major space-faring nations to establish a Code
of Conduct that sets norms of responsible behaviour. If agreement among
them on an International Code of Conduct remains elusive, a rare
opportunity will be missed.
 Transparency and Confidence-Building Measures for Space Security 35

Chapter 6
Transparency and Confidence-Building
Measures for Space Security
Ram S. Jakhu

Introduction
During informal discussions on the prevention of an arms race in outer space
(PAROS) in the Conference on Disarmament (CD) in 2009, Canada tabled
a Working Paper on “The Merits of Certain Draft Transparency and
Confidence Building Measures and Treaty Proposals for Space Security”.1 The
rationale for this Paper, according to Canada’s Ambassador Marius Grinius,
was that “transparency and confidence-building measures (TCBMs) can serve
as important instruments in their own right, as well as elements toward an
eventual treaty.” In order to adopt TCBMs in outer space, Canada argued
that “the CD should consider security guarantees, such as a declaration of
legal principles, a code of conduct, or a treaty, that would: (a) ban the
placement of weapons in space, (b) prohibit the test and use of weapons on
satellites so as to damage or destroy them, and (c) prohibit the use of satellites
themselves as weapons. Agreement on robust security guarantees as a first
step could help in laying the foundation and building the momentum for
future legal protections.”2 Contrary to Canada’s high hopes that this Working
Paper would at least “contribute to the debate and discussions on how the
CD can address the security challenges in outer space, in the context of a
programme of work”, nothing concrete came out of this proposal. This was
partly because Canada itself did not actively pursue this issue or promote its
proposal any further. Canada’s Working Paper has been just one of several
efforts and initiatives that have proposed TCBMs as a means of achieving
36 Decoding the International Code of Conduct for Outer Space Activities

space security, either as standalone or supplementary mechanisms to other

binding or non-binding measures.3
This brief paper outlines various initiatives and proposals related to
TCBMs in outer space and the efforts so far made by the international
community towards reaching consensus on TCBMs.

Role of TCBMs
TCBMs are actions and procedures undertaken within the context of policy,
legal and/or institutional framework(s) for the purpose of enhancing openness
and transparency, assuring mutual understanding and reducing
misunderstandings, threats and tensions among States. The international
community has long been advocating the use of TCBMs for the purpose of
promoting peace and security among States. The major objectives of TCBMs,
according to the UN Disarmament Commission, are “to reduce or even
eliminate the causes of mistrust, fear, misunderstanding and miscalculation
with regard to relevant military activities and intentions of other States, factors
which may generate the perception of an impaired security and provide
justification for the continuation of the global and regional arms build-up;
… to reduce the risk of surprise attacks and of the outbreak of war by accident;
and thereby, finally, to give effect and concrete expression to the solemn pledge
of all nations to refrain from the threat or use of force in all its forms and to
enhance [international] security and stability.”4
To date, TCBMs have been adopted either as standalone actions or in
combination with other means: (a) to complement legally binding treaties,
particularly those that facilitate verification of arms limitation and
disarmament agreements; (b) to lay the foundations, as a first step, that could
build the momentum for future legal agreements or other binding
instruments; and, (c) to reduce mistrust, fear, and misunderstanding in
specific areas of human activity.
There is no standard and particular form or configuration for TCBMs
in outer space. Some of the possible forms of TCBMs for outer space may
include: (a) measures aimed at enhancing the transparency of the outer space
programmes conducted by States; (b) measures aimed at improving and
expanding the range of public information about objects in outer space; and,
(c) measures related to the implementation of both binding or non-binding
rules of conduct during outer space activities.5 TCBMs for outer space may
be adopted and implemented by States through formal exchange of
information; unilateral notifications; bilateral or multilateral consultations;
focused workshops, etc. For the purpose of maintaining or enhancing space
 Transparency and Confidence-Building Measures for Space Security 37

security, States may choose from, agree upon, subscribe to and implement,
many individual or combinations of TCBMs in several forms (i.e. actions,
procedures and measures). The following are some of the initiatives that
underline the need for, and present various forms of, TCBMs related to space
security.

Initiatives and Proposals

Since the dawn of space age in 1957, the United Nations Committee of
Peaceful Uses of Outer Space (UNCOPUOS) has provided the main forum
for the adoption of international principles and rules governing the conduct
of outer space activities. Five international treaties, the last of which was
concluded in 1979, have been successfully negotiated and adopted under the
auspices of the UNCOPUOS.6 Collectively, these treaties created a fairly
successful international legal order. Since the early 1980’s, the trend has been
to adopt non-binding instruments, which are also known as ‘soft law’
mechanisms, in the form of declarations, resolutions and guidelines that
complement the existing mandatory regulatory regime.7 The latest of such
mechanisms is the 2007 UNCOPUOS Space Debris Mitigation Guidelines
that were endorsed by the UN General Assembly.8 These Guidelines “are not
legally binding under international law.”9 However, once implemented at the
national level, they can be expected to “increase mutual understanding on
acceptable activities in space, thus enhancing stability in space and decreasing
the likelihood of friction and conflict.”10 They are important forms of TCBMs
in outer space.
Pursuant to a recommendation by France, the UNCOPUOS recently
established within its Scientific and Technical Subcommittee a new Working
Group on the Long-Term Sustainability of Outer Space Activities, (LTSOSA)
for the purpose of examining and proposing “measures to ensure the safe and
sustainable use of outer space for peaceful purposes, for the benefit of all
countries.”11 At its meeting held in February 2012, Working Group created
four expert groups, namely: (a) sustainable space utilisation; (b) space debris,
space operations; (c) space weather; and, (d) regulatory regimes. The scope
of work of the Working Group is quite broad and, inter alia, includes topics
such as: (a) collection, sharing and dissemination of data on functional and
non-functional space objects; (b) re-entry notifications regarding substantial
space objects, and also notifications on the re-entry of space objects with
hazardous substances on board; (c) technical developments and possibilities
regarding space debris removal; (d) collision avoidance processes and
procedures; (e) pre-launch and manoeuvre notifications; (f ) data centres for
the storage and exchange of information on space objects and operational
38 Decoding the International Code of Conduct for Outer Space Activities

information; (g) information-sharing procedures; etc.12 These matters are

essentially related to civilian and commercial uses of outer space but certainly
have important implications for military space operations. In this regard, it
should be noted that there is a widely-held belief that the mandate of the
UNCOPUOS does not include military space activities. This view has
persisted in spite of the fact that the provisions of the 1967 Outer Space
Treaty, which was drafted by the UNCOPUOS, have enabled the partial de-
weaponisation of outer space and the full demilitarisation of celestial bodies.13
In any event, it is widely expected that the guidelines to be drafted by the
Working Groups on LTSOSA would serve as TCBMs in outer space, when
they are eventually endorsed by the UNCOPUOS and the United Nations
General Assembly (UNGA). However, the drafting and adoption by
consensus of such TCBMs will be a very tedious and time-consuming effort;
thus one must not expect that any speedy and viable solutions to the issue
of space security will emanate from the UNCOPUOS in the short term.
Since the conclusion of the Outer Space Treaty in 1967, the only specific
and significant proposal for a binding treaty to ensure space security that
has been put forward is the 2008 Chinese-Russian joint proposal of a draft
“Treaty on Prevention of the Placement of Weapons in Outer Space and of
the Threat or Use of Force Against Outer Space Objects” (PPWT).14 Under
Article II of the draft PPWT, States Parties would undertake “not to place
in orbit around the Earth any objects carrying any kind of weapons, not to
install such weapons on celestial bodies, and not to station such weapons in
outer space in any other manner; not to resort to the threat or use of force
against outer space objects …” Without specifying any TCBMs, however,
Article VI of the draft PPWT specifies that States Parties shall practice
TCBMs on a voluntary basis, with a view to facilitate assurance of compliance
with the Treaty. In general, there have been mixed reactions to the PPWT
proposal, and the U.S. in particular has expressed serious concern about, and
advanced detailed criticisms of, the PPWT.15 Thus, neither the PPWT nor
any of the possible TCBMs supplementing the proposed Treaty can be
expected to have any potential for adoption in the near future.
It is interesting to note that China and Russia have been actively
promoting the adoption of TCBMs for outer space. For example, in 2006
they jointly submitted to the CD the Working Paper on “Transparency and
Confidence-Building Measures in Outer Space Activities and the Prevention
of Placement of Weapons in Outer Space.”16 As noted above, both countries
have indicated their shared preference for a binding international treaty to
prevent an arms race in outer space and have thus presented a draft PPWT
to the CD. However, in their view, TCBMs and binding agreements are two
 Transparency and Confidence-Building Measures for Space Security 39

different modes for achieving space security. China and Russia believe that
“TCBMs are neither a substitute for the measures of arms control and
disarmament, nor a precondition of implementation of such measures.
Neither can TCBMs replace verification measures. However, TCBMs may
facilitate work on disarmament commitments and measures of their
verification.”17
The U.S., on the other hand, has consistently opposed the adoption of
any international agreement or arrangement that, in its opinion, would limit
its freedom of action in outer space. Thus, not surprisingly, the U.S. has
earnestly criticized the draft PPWT and has refrained from making a counter-
proposal.
Against the backdrop of these two polarized positions, the European
Union (EU) initiated its “Code of Conduct for Outer Space Activities,” which
has recently been revised and now is being promoted as an International Code
of Conduct for Outer Space Activities, “as a means to achieve enhanced safety
and security in outer space through the development and implementation
of transparency and confidence-building measures.”18 The EU Code offers
nothing significantly new and essentially reiterates certain arbitrarily selected
commitments that are already included in some binding agreements and some
other non-binding resolutions and guidelines. Like the PPWT, there have
been mixed reactions to the EU Code. While Brazil, China, India, Russia
and South Africa are not particularly favourable to the Code, countries like
Australia, Canada, and Japan have expressed their support for it. For its part,
the U.S. “has decided to join with the European Union and other nations
to develop an International Code of Conduct for Outer Space Activities.”
However, the U.S. has made it clear that it “will not enter into a code of
conduct that in any way constrains [its] national security-related activities
in space or [its] ability to protect the United States and [its] allies.”19
Domestically, in the U.S. (particularly in the U.S. Congress), there is some
strong opposition to any agreement or arrangement that will directly or
indirectly restrict the freedom of action of the U.S. in outer space. Thus,
the prospect that the U.S. will sign the Code in the near future, particularly
in its current form, seems very limited. Moreover, the space-faring States that
have not yet acquired their own capablity to protect their national security
interests and space assets might not be willing, for the same reason as that
of the U.S., to sign the Code believing that it would restrain their freedom
of action in space. Consequently, global acceptance of the International Code
of Conduct for Outer Space Activities as a form of TCBMs may appear to
be gloomy, at least in the near future.
40 Decoding the International Code of Conduct for Outer Space Activities

In the context of achieving a general and complete disarmament, the

UNGA has regularly and consistently expressed serious concern about space
security and the need to prevent an arms race in outer space. Over the last
two decades, the General Assembly has adopted PAROS resolutions on an
annual basis, the latest version of which was approved on 2 December 201120
by a vote of 176 in favour to none against, with 2 abstentions (Israel and
the U.S.).21 The UNGA recognizes that the “prevention of an arms race in
outer space would avert a grave danger for international peace and security,
[and that there is a] growing convergence of views on the elaboration of
measures designed to strengthen transparency, confidence and security in the
peaceful uses of outer space.”22 It should be noted that the U.S. and, to a
good extent, Israel, are the only States that have often abstained and
sometimes opposed a PAROS resolution at the General Assembly.
Additionally, the UNGA has also received various proposals related to
TCBMs in outer space. In its resolutions 45/55 B of 4 December 1990 and
48/74 B of 16 December 1993, the UNGA emphasised the need for increased
transparency and confirmed the importance of TCBMs “as a means conducive
to ensuring the attainment of the objective of the prevention of an arms race
in outer space.” Between 2007 and 2010, the UN Secretary-General collected
and compiled the views of UN Member States on TCBMs in outer space
and issued three reports.23 In 2009, a group of about sixty States presented
a draft resolution on TCBMs in outer space activities and requested the
Secretary-General to submit a report “containing concrete proposals from
Member States on international outer space transparency and confidence-
building measures.”24 Pursuant to these initiatives, the UNGA adopted a
resolution (A/RES/65/68) on “Transparency and Confidence-building
Measures in Outer Space Activities”25 by a vote of 183 in favour to none
against, with 1 abstention (U.S.). 26 The resolution requested the UN
Secretary-General to establish a group of governmental experts (GGE) to
conduct a study on outer space transparency and confidence-building
measures, without prejudice to the on-going substantive discussions on the
prevention of an arms race in outer space within the framework of the
Conference on Disarmament.27 Consequently, the UN Secretary-General
created the GGE, which is composed of experts from 15 States.28 The Group
held its first meeting from 23 to 27 July 2012 under the chairmanship of
Victor L. Vasiliev of the Russian Federation.29 It is interesting to note that,
although the U.S. abstained during the vote on resolution A/RES/65/68,30
it has since nominated its expert to participate in the discussions of the GGE
that has been established under the resolution. Moreover, Frank A. Rose, an
official of the U.S. Department of State, has expressed the commitment of
 Transparency and Confidence-Building Measures for Space Security 41

the U.S. to work with other “international colleagues in a GGE that serves
as a constructive mechanism to examine voluntary and pragmatic TCBMs
that enhance stability and safety, and promote responsible operations in
space.”31
In its deliberations, the GGE has considered specific topics related to
TCBMs, including: “Basic principles related to the use of outer space; Political
measures related to rules of conduct; Information-sharing measures aimed
at enhancing the transparency of activities in outer space; Operational
measures aimed at enhancing the transparency of activities in outer space;
and, Consultative mechanisms in connection with outer space” TCBMs.32
Though official documents issued by the GGE do not expressly say so, a
Press Release from the Russian Ministry of Foreign Affairs reports that, at
the GGE’s first meeting, the group also considered undertaking a review of
TCBMs, including those “in the military” sphere.33 The GGE intends to
submit its study to the sixty-eighth (2013) session of the UN General
Assembly and its next meeting is scheduled to take place from 1 to 5 April
2013 in Geneva.
Welcoming the progress made by the GGE at its first session, U.S.
Ambassador Laura Kennedy expressed the view that the “program of work
adopted by the GGE provides a solid framework for Experts to conduct a
comprehensive review of the role of bilateral and multilateral mechanisms
to strengthen stability in space… this GGE study provides a unique
opportunity to explore opportunities for international cooperation on
pragmatic, voluntary, effective, and timely TCBMs. By maintaining a focus
on voluntary and non-legally binding measures, a consensus GGE report can
contribute to substantive discussion on space security […] at the Conference
on Disarmament.”34
China believes that appropriate and practical TCBMs in outer space “can
play a positive role in enhancing mutual-trust, reducing misjudgments and
regulating space activities”. In China’s opinion, TCBMs “can be
complementary to the negotiation of a legal instrument on PAROS …”
However, China cautions that “when discussing TCBMs which are voluntary
in nature [in the GGE], we should not selectively lose sight of the risks of
weaponisation of, and arms race in outer space. Initiatives to promote TCBMs
should not substitute PAROS process, or undermine the work carried out
by the CD on the basis of the draft PPWT.”35
If one takes the Chinese statement concerning the GGE’s deliberations
on TCBMs in a positive note, it may be concluded that some momentum is
being gathered towards global discussion on TCBMs in outer space, although
42 Decoding the International Code of Conduct for Outer Space Activities

the possibility of achieving a final agreement on any specific TCBMs still

cannot be foreseen with any certainty.

Final Remarks
While all States are concerned about increasing threats to space security and
agree on the need to resolve this problem, there is a clear division on the
course of action that should be taken by the international community in this
regard. One group of States, led mainly by China and Russia, prefer the
adoption of a legally binding treaty to prevent an arms race in outer space
while others argue in favour of voluntary, non-binding TCBMs.
With respect to a legally binding treaty, the Chinese-Russian draft PPWT
is the only substantive proposal currently on the table. This notwithstanding,
the proponents of this proposal have made no further attempt to take their
proposal to any international forum other than the CD. Thus, at present,
the option of negotiating a legally binding treaty for space security purposes
seems to be stagnant at best and dead at worst. Hence, the only option left
is non-binding TCBMs. However, as described above, the TCBM initiatives
being pursued at present and the various fora in which they are being pursued
indicate that there is broad consensus for discussions on TCBMs to continue,
and lists of topics are being prepared for this purpose. Undoubtedly, these
developments are very important positive steps, but the actual drafting of
precise texts of any meaningful TCBMs and their acceptance by consensus
would be very complex, time-consuming, and politically challenging. In this
regard, one should be reminded of the fact the negotiations that culminated
in the adoption of the 2007 UNCOPUOS Space Debris Mitigation
Guidelines spanned a period of more than a decade.
It is difficult to predict the future. However, by examining publicly
announced policies and initiatives being pursued by key players, one may be
able to obtain some ideas about the future of TCBMs in outer space.
Undoubtedly, much will depend upon the policy options followed by the
U.S. Even if Barack Obama wins his second term as the President of the
U.S., the dominance of the Republican Party in the Congress will not allow
the U.S. to make any concessions on TCBMs, which might be perceived even
indirectly as constraining freedom of U.S. action in outer space. It is well
known that an international arrangement (guideline or recommendation) in
its simplest form possesses the potential to place limits (though even trivial)
on the freedom of action of the concerned States. To expect that the U.S.
would agree to even non-binding TCBMs does not seem to be realistic in
the near future. China and Russia seem to be leaning towards the adoption
 Transparency and Confidence-Building Measures for Space Security 43

of TCBMs, though they keep insisting on the need for a binding international
treaty. The European-initiated International Code of Conduct for Outer
Space Activities, if unexpectedly signed by the U.S., might be accepted by
several States. However, even of this there is no guarantee, particularly since
Code of Conduct is seen as a means of imposing restrictions on those space
powers that prefer to achieve the technological capability to secure their
national space assets. In this context, the conspicuously passive attitude
adopted by India, a major space-faring State, in recent global discussions on
space security initiatives is an enigma that could also shape the final outcome
of negotiations on TCBMs in outer space. Can this flaccid approach of India
be attributed to the fact that it has not yet equalled itself in anti-satellite
capability with that of China?
It must be kept in mind that whether States sign a binding treaty or
subscribe to a Code of Conduct or any other TCBM is based on a careful
determination of whether the target treaty or TCBM would be in its national
interest. In other words, one should not expect a State to negotiate or
subscribe to a Code of Conduct or any TCBMs in outer space if that State
would not derive any significant benefit by doing so. In addition, when its
supreme interests are jeopardised, a State would not hesitate to withdraw from
a binding treaty even though it might have been a party to that treaty for
about thirty years. Therefore, in case a State’s vital interests are at stake, it
would readily take an action that is contrary to a non-binding TCBM to
which it already subscribes.
Moreover, TCBMs are merely a means for achieving space security but
their effectiveness highly depends upon their precise contents, pertinent scope,
uniform and effective implementation, objective compliance monitoring and
verification, and the presence of efficient dispute settlement mechanisms.
Compliance with non-binding undertakings under TCBMs cannot be fully
expected or guaranteed. It is well-known that neither the information sharing
regime under the non-binding 2002 Hague Code of Conduct for Ballistic
Missiles nor the registration of space objects under the binding 1969
Registration Convention are fully respected by the subscribing States. We
should also be aware that there is always a possibility of an abuse of TCBMs,
as for example there have been instances when ‘violations’ of the Missile
Technology Control Regime—a form of TCBM—had been alleged against
some States that were not subscribers to the Regime.
Irrespective of the good intentions and the abundance of possible means
for preventing an arms race in outer space, the lack of political will, primarily
on the part of major space-faring nations, has so far constrained any serious
44 Decoding the International Code of Conduct for Outer Space Activities

progress in achieving space security. Only time will tell if the recent initiatives
being undertaken by the international community on TCBMs in outer space
will bear any fruit.

N OTES
1. CD/1865 (5 June 2009). Canada’s interest in taking this initiative is based on its national
policy; i.e. “As a space faring nation Canada has a strong role to play in ensuring
continued open access to space, with the many tangible benefits it brings to Canadians’
daily lives. [Canada is] working closely with [its] partners to ensure that the peaceful
uses of outer space are not jeopardized by a potential arms race in space:” Canada, Foreign
Affairs and International Trade, http://www.international.gc.ca/arms-armes/non_nuclear-
non_nucleaire/index.aspx?view=d (accessed on: 11 August 2012).
2. http://www.unog.ch/80256EDD006B8954/(httpAssets)/354F156CA8A8D44FC
1257585003D51EF/$file/1134_Canada_Space_E.pdf (accessed on 11: August 2012).
3. “Space security”, according to Space Security Index, means “The secure and sustainable
access to, and use of, space and freedom from space-based threats,” SPACE SECURITY 2011, p. 7.
4. UN General Assembly, Special Report of the Disarmament Commission to the General
Assembly at its Third Special Session Devoted to Disarmament, UN document A/S-
15/3 (28 May 1988), p. 31.
5. CD/1778 (22 May 2006).
6. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and other Celestial Bodies (hereinafter referred to as the Outer
Space Treaty), entered into force on 10 October 1967; The Agreement on the Rescue of
Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space,
entered into force on 3 December 1968; The Convention on International Liability for
Damage Caused by Space Objects, entered into force on 1 September 1972; The Convention
on Registration of Objects Launched into Outer Space, entered into force on 15 September
1976; and The Agreement Governing the Activities of States on the Moon and Other Celestial
Bodies, entered into force on 11 July 1984.
7. The Principles Governing the Use by States of Artificial Earth Satellites for International
Direct Television Broadcasting, adopted by the UN General Assembly on 10 December
1982; the Declaration of Legal Principles Governing the Activities of States in the Exploration
and Use of Outer Space, adopted by the UN General Assembly on 13 December 1963;
the Principles Relating to Remote Sensing of the Earth from Outer Space, adopted by the
UN General Assembly on 3 December 1986; the Principles Relevant to the Use of Nuclear
Power Sources In Outer Space, adopted by the UN General Assembly on 14 December
1992; and the Declaration on International Cooperation in the Exploration and Use of Outer
Space for the Benefit and in the Interest of All States, Taking into Particular Account the
Needs of Developing Countries, adopted by the UN General Assembly on 13 December
1996.
8. Official Records of the General Assembly, Sixty-second Session, Supplement No. 20 (A/62/
20), paragraphs 117 and 118 and annex. Also see: United Nations General Assembly,
Sixty-second session, Agenda item 31, Document A/RES/62/217 (10 January 2008),
paragraph 26.
9. The 2007 UNCOPUOS Space Debris Mitigation Guidelines.
10. Report of the Scientific and Technical Subcommittee on its forty-sixth session, held in Vienna
from 9 to 20 February 2009, A/AC.105/933 (6 March 2009), paragraph 68.
 Transparency and Confidence-Building Measures for Space Security 45

11. Terms of reference and methods of work of the Working Group on the Long-term Sustainability
of Outer Space Activities of the Scientific and Technical Subcommittee, Document A/AC.105/
C.1/L.307/Rev.1 (28 February 2011), paragraph 11.
12. Ibid, paragraph 14.
13. Article IV of the 1967 Outer Space Treaty.
14. CD/1839 (29 February 2008): Letter dated 12 February 2008 from the Permanent
Representative of the Russian Federation and the Permanent Representative of China
regarding the draft PPWT.
15. CD/1847 (26 August 2008): Letter dated 19 August 2008 from the Permanent
Representative of the U.S. regarding the draft PPWT.
16. CD/1778 (22 May 2006).
17. Ibid.
18. European Union, “EU launches negotiations on an International Code of Conduct for
Outer Space Activities”, Brussels, A 252/12 (6 June 2012).
19. Hillary Rodham Clinton, U.S. Secretary of State, INTERNATIONAL CODE OF CONDUCT
FOR OUTER SPACE ACTIVITIES, Press Statement, Washington, DC, January 17, 2012.
20. Resolution adopted by the General Assembly, PREVENTION OF AN ARMS RACE IN OUTER
SPACE, A/RES/66/27 (12 January 2012).
21. GA/11182 (176-0-2) (2 December 2011).
22. Supra note 20.
23. A/62/114 (3 August 2007), A/62/114/Add.1 (17 September 2007) and A/65/123 (13
July 2010). Responses included in the reports were received from: Argentina, Austria,
Australia, Bangladesh, Bolivia (Plurinational State of ), Canada, Chile, China, Colombia,
Cuba, Czech Republic (on behalf of the European Union), France (on behalf of the
European Union), Kenya, Lebanon, Libyan Arab Jamahiriya, Mexico, Nicaragua, Oman,
Panama, Portugal (on behalf of the European Union), Qatar, Russian Federation, Syrian
Arab Republic and Ukraine.
24. A/C.1/64/L.40 (16 October 2009), proposed by Armenia, Austria, Belarus, Belgium,
Brazil, Bulgaria, Chile, China, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Guatemala, Hungary, Iceland,
Indonesia, Ireland, Italy, Kazakhstan, Kyrgyzstan, Lithuania, Luxembourg, Malta,
Mongolia, Myanmar, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Poland,
Portugal, Republic of Moldova, Romania, Russian Federation, Serbia, Slovakia, Slovenia,
Spain, Sudan, Sweden, Switzerland, Syrian Arab Republic, the former Yugoslav Republic
of Macedonia, Turkey, Turkmenistan, United Kingdom of Great Britain and Northern
Ireland, Uruguay, Uzbekistan, Venezuela (Bolivarian Republic of ) and Viet Nam.
25. A/RES/65/68 (13 January 2011).
26. http://www.un.org/News/Press/docs//2010/ga11033.doc.htm (Annex XXII).
27. Supra note 25.
28. Experts have been nominated by the Governments of Brazil, Chile, China, France, Italy,
Kazakhstan, Nigeria, the Republic of Korea, Romania, the Russian Federation, South
Africa, Sri Lanka, Ukraine, the United Kingdom of Great Britain and Northern Ireland
and the United States of America.
29. Group of Governmental Experts on Transparency and Confidence-Building Measures
in Outer Space Activities, Note on the first session of the Group of Governmental Experts
on Transparency and Confidence-Building Measures in Outer Space Activities, First Session,
New York, 23-27 July 2012, A/CONF.220/1 ( 27 July 2012).
30. The reason for an abstaining vote by the U.S. appears to be its objection to the mention,
in resolution A/RES/65/68, of the Chinese-Russian draft PPWT.
46 Decoding the International Code of Conduct for Outer Space Activities

31. Frank A. Rose, Space Security—An American Perspective, The 7th Ilan Ramon
International Space Conference, Herzliya, Israel, January 29, 2012, at http://
www.state.gov/t/avc/rls/182703.htm (accessed on: 11 August 2012).
32. A/CONF.220/1 (27 July 2012).
33. The Ministry of Foreign Affairs of the Russian Federation, Press Release: On the First
Session of the UN Group of Government Experts on Transparency and Confidence-
Building Measures in Outer Space Activities, at http://www.mid.ru/brp_4.nsf/0/
5359480032B11CC944257A4F004235BB (accessed on: 11 August 2012).
34. Statement by Ambassador Laura Kennedy, U.S. Permanent Representative to the
Conference on Disarmament Second Thematic Debate on PAROS, Geneva, July 31,
2012, at http://geneva.usmission.gov/2012/08/01/ambassador-kennedys-statement-on-
stability-in-space/ (accessed on: 11 August 2012).
35. Statement by H.E. Ambassador Wu Haitao, Permanent Representative of China to the
Conference on Disarmament, on PAROS, 2012/06/05, at http://www.china-un.ch/eng/
hom/t938642.htm (accessed on: 11 August 2012).
 PPWT: An Overview 47

Chapter 7
PPWT: An Overview
Gunjan Singh

The draft Treaty on the Prevention of the Placement of Weapons in Outer

Space, the Threat or Use of Force against Outer Space Objects (PPWT)1 was
submitted by Russia and China on 12 February 2008 before the plenary
session of Conference on Disarmament (CD).2 Its text was based on a
Working Paper that was introduced before CD in 2002, titled “Possible
Elements for a Future International Legal Agreement on the Prevention of
the Deployment of Weapons in Outer Space, the Threat or Use of Force
Against Outer Space Objects”.3 Its primary argument is the need and urgency
to prevent weaponisation of space.4
In August 2009, Russia and China separately submitted their working
papers, which addressed the questions and comments raised on the initial
draft treaty proposal.5 They argued that the existing space regime and laws
were inadequate to deal with the emerging situation. The PPWT does not
talk about disarmament, but only about prevention of weaponisation of
space.6
Turkey, Iran, Belarus, Republic of Korea and Kazakhstan have supported
the draft PPWT and have stated that it can be a good model on which a
universal space treaty can be framed.7
PPWT, going a step ahead of the Outer Space Treaty (OST), essentially
argues that the state parties to it should not place any type of weapons in
space. The OST essentially is not a treaty about space, but focuses on
preventing testing of weapons of mass destruction in Outer Space.8
48 Decoding the International Code of Conduct for Outer Space Activities

Criticizing the PPWT proposal, US Ambassador Christina Rocca

reiterated on 19 August 2008, in a letter to the CD, Her country’s opposition
to “prohibitions on military or intelligence uses of space”.9 The United States
further stated that the PPWT was unverifiable.10
Russia and China on 18 August 2009 jointly addressed the concerns
highlighted by the CD members regarding the PPWT before the CD. The
Russian Federation asserted the following. “The PPWT:
1. Prohibited the use or threat of force against Outer Space objects.
2. Did not prohibit the use or threat of force in Outer Space.
3. Did not alter the right to self-defence allowed under Article 51 of the
UN Charter, so long as that weapon was not prohibited by international
law and was not used against a signatory of the PPWT.
4. Did not prohibit the development, testing, and deployment of anti-
satellite weapons (ASATs) so long as they did not meet the definition of
“weapon in Outer Space” as defined by the PPWT.
5. Did not prohibit the development, testing and deployment of ground-
based lasers and electronic suppression systems.
6. Did not address the issue of “dual-purpose” space technologies that could
be employed both for peaceful or aggressive purposes.
7. Did not include any mechanism for verification.”11
The Russian response did not, however, provide an explanation on the core
issue of weaponisation of space, especially with respect to ASAT tests. Even
though it addressed the issue of weapons in space, it failed to cover the issue
of ground-based technologies which could be used against space assets. It
also failed to come up with a sound verification mechanism.12 It also fails to
discuss the issues related to dual-use technologies.13 Particularly, the Chinese
ASAT test of 2007 exposed the limitations of PPWT. This test was conducted
by using a kinetic kill vehicle, essentially by using a surface-to-air (space)
missile. In sum, PPWT allows for space weaponisation and keeps the scenarios
for space race open.
Russia and China nevertheless are keen to get their treaty mechanism
more legitimacy. In June 2012, Wu Haitao, China’s Permanent Representative
to the CD, on Prevention of an Arms Race in Outer Space (PAROS), stated
that Beijing was keen to start negotiations in the CD on the draft of PPWT.14

N OTES
1. For the full text, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/604/02/PDF/
G0860402.pdf?OpenElement.
2. Listner, Michael. 2011. “An exercise in the Art of War: China’s National Defense white
paper, outer space, and the PPWT”, Space Review, 25 April, http://www.thespacereview.
com/article/1828/1.
 PPWT: An Overview 49

3. “Outer space: Militarisation, weaponisation, and the prevention of an arms race, Reaching
Critical Will”, http://www.reachingcriticalwill.org/resources/fact-sheets/critical-issues/
5448-outer-space.
4. “China and Russia jointly submitted the draft Treaty on PPWT to the Conference on
Disarmament”, 12 February 2008, http://www.fmprc.gov.cn/eng/wjb/zzjg/jks/jkxw/
t408634.htm.
5. Listner, Michael. 2011. “An exercise in the Art of War: China’s National Defense white
paper, outer space, and the PPWT”, Space Review, 25 April, http://www.thespacereview.
com/article/1828/1.
6. Jaramillo, Cesar. 2009. “In Defence of the PPWT Treaty: Toward a Space Weapons Ban”,
Space Security, Winter, 30(4), 12 January, http://www.ploughshares.ca/content/defence-
ppwt-treaty-toward-space-weapons-ban.
7. Irsten, Gabriella. 2012. “CD debates prevention of an arms race in outer space: reaching
critical will”, 5 June, http://www.reachingcriticalwill.org/disarmament-fora/cd/2012/
reports/6031-cd-debates-prevention-of-an-arms-race-in-outer-space.
8. Abramson, Jeff. “EU Issues Space Code of Conduct”, Arms Control, http://
www.armscontrol.org/print/3506.
9. Ibid.
10. Listner, Michael. 2011. “Is China committed to the prevention of an arms race in outer
space?”, http://www.examiner.com/article/is-china-committed-to-the-prevention-of-an-
arms-race-outer-space.
11. Listner, Michael. 2011. “An exercise in the Art of War: China’s National Defense white
paper, outer space, and the PPWT”, Space Review, 25 April, http://www.thespacereview.
com/article/1828/1.
12. Tronchetti, Fabio. 2011. “Preventing the weaponisation of outer space: Is a Chinese-
Russian-European common approach possible?”, Space Policy 27: 81-88, http://
law.hit.edu.cn/newsuploadfiles/2011/10-14/2011101492630212.pdf.
13. Lukaszczyk, Agnieszka, “International Code of Conduct for Outer Space Activities vis
a vis Other Space Security Initiatives”, Space for Human and Environmental Security
in the Americas: Space policy, Long-term Sustainability and Cyber-health, 2 May, 2012,
http://swfound.org/media/66118/11_International%20Code%20of%20Conduct%
20for%20Outer%20Space%20Activities.pdf
14. Statement by H.E. Ambassador Wu Haitao, Permanent Representative of China to the
Conference on Disarmament, on PAROS, 5 June 2012, http://www.china-un.ch/eng/
hom/t938642.htm.
SPACE REGIMES
 Chapter 8
Space Treaty Mechanisms
Munish Sharma

Following the initial competition between the former Soviet Union and the
United States as pre-eminent space-faring nations, the number of space-faring
nations has grown, to include France, United Kingdom, India, Japan, China,
Israel and Iran.
Space sciences and technologies have major utility for peaceful civilian
purposes such as remote sensing, navigation, communication, and geological
and meteorological information. Space is also being used for intelligence
gathering, surveillance, reconnaissance and high-bandwidth military
communication. Increasing fears have also been expressed about the likely
weaponisation of Outer Space.
Over the years, various legal mechanisms have been set up to formulate
rules to govern human activities in space. The United Nations has been in
the forefront to identify the various challenges and, accordingly, to find
remedial legal mechanisms. Figure 1 summarizes the overall UN architecture
of agencies which directly or indirectly or jointly address space-related issues.

COPUOS
The UN General Assembly established an ad hoc COPUOS in 1958 shortly
after the first artificial satellite, Sputnik-1, was launched in October 1958.
In 1959, a permanent COPUOS was established with the following objectives:
to review the scope for international cooperation in peaceful uses of Outer
Space; to devise programmes; to encourage continued research; to disseminate
information on Outer Space matters; and to study legal problems arising from
54 Decoding the International Code of Conduct for Outer Space Activities

United
Nations

Conference on UN General International Telecom-

Disarmament Assembly munications Union
(ITU)

Committee on the Preven- Committee on the Peaceful

tion of an Arms Race in Uses of Outer Space
Outer Space (COPUOS)

Legal Scientific and

Subcommittee Technical Sub-
committee

Figure 1: UN architecture to address space-related issues

the exploration of Outer Space.1 In 1961, the mandate of COPUOS was

extended to include the following: (i) maintain close contact with
governmental and non-governmental organisations concerned with Outer
Space matters; (ii) exchange information related to Outer Space activities;
(iii) study measures to promote international cooperation in Outer Space
activities; and (iv) maintain a public registry of objects launched by states
into orbit or beyond.
COPUOS has addressed various issues over the years leading to a few
“declarations” or “resolutions” by the General Assembly. They do not carry
the same legal weight as international treaties, but they do carry political
weight, because they seek to encourage a practice resulting from an in-depth
collaboration within member states of COPUOS. These items include:
• 1963: Declaration of Legal Principles Governing the Activities of States
in the Exploration and Use of Outer Space
• 1982: Principles Governing the Use by States of Artificial Earth Satellites
for International Direct Television Broadcasting
• 1986: Principles Relating to Remote Sensing of the Earth from Outer
Space
• 1992: Principles Relevant to the Use of Nuclear Power Sources in Outer
Space
• 1996: Declaration on International Cooperation in the Exploration and
Use of Outer Space for the Benefit and in the Interest of All States,
Taking into Particular Account the Needs of Developing Countries.2
 Space Treaty Mechanisms 55

Over the last four decades, COPUOS has come up with five treaties, legal
principles on activities of the states in Outer Space, and a number of
recommendations on space matters and UNGA resolutions. The five treaties
transmitted by COPUOS for approval to the General Assembly for signature
and ratification are as follows:
• 1967: Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies (Outer Space Treaty)
• 1968: Agreement on the Rescue of Astronauts, the Return of Astronauts
and the Return of Objects Launched into Outer Space (Astronaut
Rescue Agreement)
• 1972: Convention on International Liability for Damage Caused by
Space Objects (Liability Convention)
• 1975: Convention on Registration of Objects Launched into Outer
Space (Registration Convention)
• 1979: Agreement Governing the Activities of States on the Moon and
Other Celestial Bodies (Moon Agreement)
Table 1 offers a few details about these mechanisms.

Table 1: UN Treaty Mechanisms Regarding Space Activities

Opened Enforced Signatory Party Non-Party
in in Nations Nations Nations
Outer Space Treaty 1967 1967 26 101 68
Rescue Agreement 1968 1968 24 92 79
Liability Convention 1972 1975 23 90 82
Registration Convention 1974 1976 4 57 134
Moon Agreement 1979 1984 4 13 178
Source: UNOOSA.

Outer Space Treaty

The Outer Space Treaty (OST) was put forward by the Legal Subcommittee
of COPUOS in 1966 and reached agreement in the same year. The treaty is
based on the principles of international cooperation and peaceful exploration
to carry out Outer Space exploration for the benefit and in the interest of
humankind and all countries, irrespective of the degree of their economic or
scientific development. It designates space as not a subject to national
appropriation by claim of sovereignty, by means of use or occupation and
free for exploration or use by all states.3 Article IV of the treaty forbids states
parties from placing nuclear weapons or other weapons of mass destruction
56 Decoding the International Code of Conduct for Outer Space Activities

in orbit or on celestial bodies or stationing them in Outer Space. Furthermore,

it forbids establishment of military bases, installations and fortifications, the
testing of any type of weapons and the conduct of military manoeuvres on
celestial bodies. OST regards astronauts as envoys of humankind, while
restricting the use of the Moon and celestial bodies for peaceful uses only.
The treaty holds a state responsible for national space activities (whether
carried out by governmental or non-governmental entities) and liable for
damage caused by their space objects.4
OST formed a framework for the forthcoming treaties, which
supplemented various articles of the treaty, such as Articles V, VII, VIII and
XI.
OST has a provision to hold international consultation if a planned event
might cause harmful interference to the activities of another state: this
provision has not been used. 5 For instance, China did not hold any
consultations prior to its anti-satellite (ASAT) test in 2007. After forty-five
years of existence, the treaty needs revisions to address contemporary issues
such as threats to the space environment, increasing rivalry between civil space
programmes, an expanding role for space applications in regional conflicts,
and the prospect of new technologies to threaten space-based assets.6 The
treaty mechanism puts a check on weaponisation of space, but militarisation
of space has already taken place with the development of missile defence and
early warning systems. An expanded OST could include, first and foremost,
a prohibition on all weapons in space, both offensive and defensive, as they
are not distinguishable.7 The treaty would be put to the real test amidst the
growing geo-strategic competition amongst nation-states (political, military
and technology dimensions) and surge in the number of space-faring nations.

Rescue Agreement
The Rescue Agreement was negotiated by the Legal Subcommittee from 1962
to 1967. The agreement supplements Articles V and VIII of the OST. It
ensures that states parties take all possible steps to rescue and assist astronauts
in distress and promptly return them to the country of origin, and upon
request, assist countries in recovering space objects that return to Earth outside
the territory of the launching state.8 Article I of the agreement has a provision
for each contracting party to immediately notify the launching authority/the
Secretary-General of the United Nations, when it receives information or
discovers that the personnel of a spacecraft have suffered accident or are
experiencing conditions of distress or have made an emergency or unintended
landing in territory under its jurisdiction or on the high seas or in any other
place not under the jurisdiction of any state.9
 Space Treaty Mechanisms 57

Liability Convention
The Liability Convention was negotiated by the Legal Subcommittee from
1963 to 1972. The Convention, elaborating on Article VII of the OST, makes
the launching state absolutely liable to pay compensation for damage caused
by its space objects on the surface of the Earth or to aircraft, and liable for
damage due to its faults in space, and provides the procedures for the
settlement of claims for damages.10

Registration Convention
The UN Secretariat has been maintaining a registry and information of objects
launched into space since 1962. The Registration Convention entered into
force in 1976. Another register of launchings has been established for
information received from member states and intergovernmental organisations
that are parties to the Convention.11 The Convention requires the launching
state to furnish information of each space object to the UN, such as its
registration number, date and territory of launch, orbital parameters (nodal
period, inclination, apogee, perigee) and general function. The inventory
provides detailed and updated information about the objects/craft in space.12

The Moon Agreement

The Moon Agreement was considered and elaborated by the Legal
Subcommittee from 1972 to 1979, adopted by the General Assembly in the
same year but came into force in 1984 after Austria ratified it. The agreement
elaborates on provisions of the OST, restricting the use and exploration of
the Moon and other celestial bodies, exclusively for peaceful purposes in
accordance with international law and the Charter of the UN. The agreement
mandates states parties to inform the UN about the location and purpose of
any station established on these bodies. In addition, it provides that the Moon
and its natural resources are the common heritage of humankind and that
an international regime should be established to govern the exploitation of
such resources when such exploitation is about to become feasible.
Article III of the agreement prohibits any threat or use of force or any
other hostile act or threat of hostile act on the Moon or use of the Moon to
commit/engage in any such act related to the Earth, the Moon, spacecraft,
and the personnel of spacecraft or man-made space objects. Furthermore,
states parties should not place objects carrying nuclear weapons or weapons
of mass destruction in orbit/other trajectory around the Moon or on the
Moon and other celestial bodies. The establishment of military bases,
installations and fortifications, the testing of any type of weapons and the
conduct of military manoeuvres on the Moon are prohibited.13
58 Decoding the International Code of Conduct for Outer Space Activities

The Moon Agreement has drawn arguments for being ineffective, since
none of the major space powers—US, Russia or China—is a party to it.
Human activity on the Moon has been absent since the US-led Apollo
programme of the late 1960s to early 1970s. The Moon Agreement would
be put to the test in the coming years if the US plans to return to the Moon
in 2018 are realised and if China, Russia, or the European Union decide to
pursue manned lunar missions.14
All these treaty mechanisms could be viewed to have played an important
role in achieving space security in a broad sense. However, there is no
multilateral agreement available to ban the deployment of weapons other than
weapons of mass destruction in Outer Space. This essentially highlights the
inadequacy of the legal regime to ban space weapons. This gave rise to the
Prevention of an Arms Race in Outer Space (PAROS) resolution, which
reaffirms the fundamental principles of the OST and advocates a ban on the
weaponisation of space.15

Prevention of an Arms Race in Outer Space (PAROS)

In order to address the contemporary and future challenges in space security
the UNGA adopted the resolution on PAROS in 1981. In 1982, PAROS
was added to the Agenda of the Conference on Disarmament (CD). On 29
March 1985 the CD agreed to establish an Ad Hoc Committee on PAROS.16
During 1985-94, the PAROS committee held meetings; several
recommendations for space-related confidence-building measures were
made.17 The CD faced a deadlock from 1998 onwards and was unable to
address the PAROS mandate to develop an instrument related to space security
and the weaponisation of space. Although the voting patterns demonstrated
unanimous international support for the PAROS resolution, there was a
significant shift in the PAROS debate, with the US and Israel in opposition
of the resolution. US officials maintained a long-held position that there is
no arms race in space and that the existing multilateral arms control regime
adequately deals with the non-weaponisation of space.18
In 2002, Russia and China presented a working paper highlighting the
possibility of an international legal instrument on prevention of deployment
of weapons in Outer Space. The two states revised the original proposal and
submitted a draft treaty on the Prevention of the Placement of Weapons in
Outer Space in 2008. There has been lack of working paper contributions
towards PAROS by the CD members. Moreover, the European Union took
the initiative of coming up with a Code of Conduct for space activities, with
the first draft in 2008 and a revised version in 2010, but kept it outside the
purview of the CD.19
 Space Treaty Mechanisms 59

PAROS has been a primary subject of discussion for the last thirty years
and features among the “core issues” on the CD agenda. The absence of
contribution by members of CD and opposition by the US makes its future
uncertain.
In conclusion, it may be said that the various mechanisms discussed above
have played an important role towards ensuring space security. However,
currently the world is witnessing a major change in the global space order.
Also, there exists a possibility the existing geopolitical situation could
eventually lead to space weaponisation is a significant fashion. Under these
circumstances there is a need to evolve a robust legal architecture for Outer
Space.

NOTES
1. http://www.oosa.unvienna.org/oosa/en/COPUOS/cop_overview.html.
2. http://unidir.org/pdf/articles/pdf-art2561.pdf
3. http://www.unoosa.org/oosa/SpaceLaw/outerspt.html
4. http://www.unoosa.org/pdf/publications/STSPACE11E.pdf.
5. Back to the future: The Outer Space treaty turns 40, see http://www.thespacereview.com/
article/982/1.
6. Ibid.
7. “Space Weapons and the Risk of Accidental Nuclear War”, see http://www.armscontrol.
org/act/2005_12/DEC-SpaceWeapons.
8. See http://www.unoosa.org/oosa/SpaceLaw/rescue.html.
9. http://www.unoosa.org/pdf/publications/STSPACE11E.pdf.
10. Ibid.
11. The information is accessible through a database of this register at www.unoosa.org/
oosa/osoindex.html
12. See http://www.oosa.unvienna.org/oosa/SORegister/regist.html.
13. http://www.unoosa.org/pdf/publications/STSPACE11E.pdf.
14. Bert Chapman, “Selected U.S. Laws and International Agreements”, Space Warfare and
Defense (ABC-CLIO: California, 2008), pp. 230-231, http://www.scribd.com/doc/
62132477/Space-Warfare-Hist-Encyclopedia.
15. http://www.fas.org/programs/ssp/nukes/ArmsControl_NEW/nonproliferation/NFZ/NP-
NFZ-PAROS.html
16. “The CD and PAROS: A Short History”, http://unidir.org/pdf/activites/pdf3-act597.pdf,
p. 2.
17. “Space Security: 2006”, http://www.spacesecurity.org/SSI2006.pdf, p. 52.
18. Ibid., pp. 52, 14–15.
19. See http://unidir.org/pdf/activites/pdf3-act597.pdf, p. 5.
 Treaty Regimes
COPUOS Outer Space Treaty Rescue Agreement Liability Convention Registration Convention Moon Agreement
(1958) (1967) (1968) (1972) (1972) (1979)

Members Signed Ratified Acceded Signed Ratified Acceded Signed Ratified Acceded Signed Ratified Acceded Signed Ratified Acceded
France 1958 1967 1970 1975 1975 1975 1975 1980 — —
India 1958 1967 1982 1979 1979 1982 1982 — —
Iran 1958 1967 — 1968 1970 1972 1974 1975 — — — — —
Israel — 1967 1977 1968 1969 1977 — — — — — —
Japan 1958 1967 1967 1983 1983 1983 — — —
People’s Republic

Space faring
of China 1980 1983 1988 1988 1988 — — —
Russia 1958 1967 1967 1968 1968 1972 1973 1975 1978 — — —
Ukraine 1994 1967 1967 1968 1969 1972 1973 1975 1977 — — —
United Kingdom 1958 1967 1967 1968 1968 1972 1973 1975 1978 — — —
United States of
America 1958 1967 1967 1968 1968 1972 1973 1975 1976 — — —
(Contd.)
 COPUOS Outer Space Treaty Rescue Agreement Liability Convention Registration Convention Moon Agreement
(1958) (1967) (1968) (1972) (1972) (1979)

Members Signed Ratified Acceded Signed Ratified Acceded Signed Ratified Acceded Signed Ratified Acceded Signed Ratified Acceded
Brazil 1958 1967 1967 1973 1972 1973 2006 — — —
North Korea — 2009 — — — — — — 2009 — — —
South Korea 2001 1967 1967 1968 1969 1972 1980 1981 — — —
Canada 1958 1967 1967 1968 1975 1975 1975 1976 — — —
Germany 1973 1967 1971 1968 1972 1975 1976 1979 — — —
Indonesia 1973 1967 2002 2000 1996 1997 — — —

Aspiring
Nigeria 1973 1967 1968 1973 2005 2009 — — —
Pakistan 1973 1967 1968 1973 1972 1973 1975 1986 1986
Saudi Arabia 2001 1976 — — — 1976 — — — — — —
United Arab Emirates — 2000 — — — 2000 2000 — — —
Viet Nam — 1967 1980 1968 — — — — — — — — — — —
Legend: Year of Signature/Ratification/Accession/Member
— : Not Signed/Ratified/Acceded/Non-Party

Sources: COPUOS UN COPUOS: Memebers, http://www.oosa.unvienna.org/oosa/en/COPUOS/members.html

Outer Space Treaty
Rescue Agreement Treaty Signatures, http://www.oosa.unvienna.org/oosatdb/showTreatySignatures.do
Liability Convention
Registration Convention
Moon Agreement
62 Decoding the International Code of Conduct for Outer Space Activities

Chapter 9
Outer Space: Multilateral Mechanisms
Munish Sharma

There have been various coordination mechanisms for research in space

sciences and technologies at multilateral, regional and international levels.
These focused groups, committees, institutions and forums have played a
significant role in capacity building across different applications of space. The
areas of cooperation that have been identified are, primarily, to increase the
outreach of the benefits of space technology to a wider cross-section of society,
spread across education, meteorology, disaster management, etc. These may
be specifically categorised as arrangements made for space research and
coordination, formulation of space laws, Earth observation satellites,
astronautics, meteorology, and disaster management. The forums and expert
committees are engrossed in providing consultancy to states and space agencies
through discussions, capacity building and training. They have been advising
the UN over various space-related technical and legal issues.

Space Research and Coordination

International Space Exploration Coordination Group (ISECG)
The International Space Exploration Coordination Group was established in
2007, as a response to “The Global Exploration Strategy (GES): The Framework
for Coordination” developed by fourteen space agencies1 for coordinated
human and robotic space exploration focused on Solar System destinations
where humans may one day live and work. The GES framework also identified
the need to establish a voluntary, non-binding international coordination
mechanism for space agencies to exchange information regarding their
 Outer Space: Multilateral Mechanisms 63

interests, plans and activities in space exploration, and to collaborate for

exploration programmes.2

Committee on Space Research (COSPAR)

The International Council of Scientific Unions (ICSU), now the International
Council for Science, established its Committee on Space Research during an
international meeting in London in 1958. COSPAR’s first Space Science
Symposium was organised in Nice in January 1960. COSPAR’s objectives
are to promote international-level scientific research in space, with emphasis
on the exchange of results, information and opinions, and to provide a forum,
open to all scientists, to discuss problems that may affect scientific space
research. The committee is responsible for organising biennial Scientific
Assemblies. Several path-breaking contributions are made at these assemblies,
mostly by countries engaged in space research, to promote the use of space
science for the benefit of humankind and for its adoption by developing
countries and new space-faring nations; to advise the UN and other
intergovernmental organisations on space research matters or on the
assessment of scientific issues; and to promote an international-level research
in space. COSPAR has played a central role in the development of new space
disciplines such as life sciences or fundamental physics, by facilitating
interaction between scientists in emergent space fields and senior space
researchers.3

Formulation of Space Laws

International Institute of Space Law (IISL)
The International Institute of Space Law was founded by the International
Astronautical Federation (IAF) in 1960 to foster cooperation among
appropriate international organisations and national institutions in the field
of space law, by holding meetings, colloquia and competitions on juridical
and social science aspects of space activities, and by the preparation or
commissioning of studies and reports and their publication. The IISL hosts
annual Space Law Colloquia in conjunction with the International
Astronautical Congress (IAC) in order to address topics of substantive interest
to all space actors, and to involve them in the discussions. It is also consulted
by international bodies such as the United Nations. Members of the IISL are
designated as IISL observers to the sessions of the UN Committee on the
Peaceful Uses of Outer Space (UN-COPUOS) and its Scientific and Technical
and Legal Subcommittees.4
64 Decoding the International Code of Conduct for Outer Space Activities

International Institute for the Unification of Private

Law (UNIDROIT)
The International Institute for the Unification of Private Law was established
in 1926 as an auxiliary organ of the League of Nations, and following the
demise of the League, re-established in 1940. It is an independent
intergovernmental organisation to study the needs and methods for
modernizing, harmonizing and coordinating private and in particular
commercial law as between states and groups of states and to formulate
uniform law instruments, principles and rules to achieve those objectives.
UNIDROIT has sixty-three member states representing a variety of legal,
economic and political systems as well as different cultural backgrounds.
UNIDROIT has over the years prepared over seventy studies and drafts, many
of them resulting in international instruments. 5 The Protocol to the
Convention on International Interests in Mobile Equipment on Matters
Specific to Space Assets was adopted at the Diplomatic Conference held in
Berlin, March 2012. This Protocol seeks to extend the Cape Town regimen
to commercial financing in Outer Space.6

Earth Observation Satellites

Global Earth Observation System of Systems (GEOSS)
In July 2003, the Earth Observation Summit brought together thirty-three
nations along with the European Commission and many international
organisations to adopt a declaration that signified a political commitment
toward the development of a comprehensive, coordinated and sustained Earth
Observation System to collect and disseminate improved data, information,
and models to stakeholders and decision-makers.7
The GEOSS is a global network of content providers to administer a
flexible decision-support tool to a wide array of users. It proactively links
existing and planned observing systems, promotes common technical
standards and offers a single internet access point for users seeking data,
imagery and analytical software packages relevant to all parts of the globe.
The GEOSS is simultaneously addressing nine areas of critical importance
to people and society. It aims to empower the international community to
protect itself against natural and human-induced disasters, understand the
environmental sources of health hazards, manage energy resources, respond
to climate change and its impacts, safeguard water resources, improve weather
forecasts, manage ecosystems, promote sustainable agriculture and conserve
biodiversity.8
 Outer Space: Multilateral Mechanisms 65

Committee on Earth Observation Satellites (CEOS)

The Committee on Earth Observation Satellites was established in 1984 for
space agencies to enhance international coordination and data exchange and
to optimize societal benefit. It is comprised of national and international
governmental organisations which are responsible for a civil space-borne Earth
observations programme.9 The objectives of CEOS are primarily: (a) to
optimize the benefits of space-borne Earth observations through cooperation
in mission planning and development of compatible data products, formats,
services, applications and policies; (b) to serve as a focal point for international
coordination of space-related Earth observation activities; (c) to exchange
policy and technical information so as to encourage compatibility among
space-borne Earth observation systems and the data received from them.10

Astronautics
International Astronautical Federation (IAF)
The International Astronautical Foundation was established in 1951 by
scientists working in the field of space research.11 The IAF has emerged as a
worldwide federation of organisations active in space, with the largest
worldwide networks of space experts and decision-makers; it also holds
responsibility for the International Astronautical Congress. The federation
advances the knowledge about space and the development and application
of space assets for the benefit of humanity. It addresses all aspects of space–
developments, activities, knowledge, experts and the future. It is the world’s
leading space advocacy organisation, with 226 members in 59 countries,
including all leading agencies, space companies, societies, associations and
institutes.12 The IAF is networked with a number of partner organisations,
including the United Nations Office for Outer Space Affairs (UN-OOSA)
and the United Nations Committee for the Peaceful Uses of Outer Space
(UN-COPUOS).13

International Academy of Astronautics

The International Academy of Astronautics was established in 1960 as an
independent non-governmental organisation with the aims: (a) to foster the
development of astronautics for peaceful purposes; (b) to recognize individuals
who have distinguished themselves in a related branch of science or
technology; (c) to provide a programme through which members may
contribute to international endeavours; and (d) to foster cooperation in the
advancement of aerospace science. The academy encourages international
scientific cooperation through scientific symposia and meetings and the work
66 Decoding the International Code of Conduct for Outer Space Activities

of six specialised commissions: Space Physical Sciences; Space Life Sciences;

Space Technology and System Development; Space Systems Operations and
Utilisation; Space Policy Law and Economy; Space and Society Culture and
Education. A major initiative of the academy is the development of a series
of “Cosmic Studies” and “Position Papers” dealing with the aspects of
international cooperation endeavours in: the exploration and habitation of
the solar system and beyond; space debris, small satellites, inexpensive scientific
satellite missions, space traffic management, knowledge management in space
activities, and cost-effective Earth Observation Missions.14

Meteorology
World Meteorological Organisation
The World Meteorological Organisation originated from the International
Meteorological Organisation (IMO), which was founded in 1873. The WMO
was established in 1950 and it became the specialised agency of the United
Nations in 1951 for meteorology (weather and climate), operational hydrology
and related geophysical sciences. WMO provides the international cooperation
framework for development of meteorology and operational hydrology as well
as to reap the benefits from their application. Under the framework of WMO
programmes, national meteorological and hydrological services contribute
substantially to the protection of life and property against natural disasters,
to safeguard the environment and enhance the economic and social well-being
of all sectors of society in areas such as food security, water resources and
transport. Furthermore, it facilitates the free and unrestricted exchange of
data and information, products and services in real or near-real time on
matters relating to safety and security of society, economic welfare and the
protection of the environment.15
The WMO’s programmes provide vital information for advance warnings
of weather-, climate- and water-related hazards to reduce damage to property
and the environment. The WMO’s objectives are: (a) to facilitate worldwide
cooperation in the establishment of networks of stations for the making of
meteorological observations as well as hydrological and other geophysical
observations related to meteorology; (b) to promote the establishment and
maintenance of systems for the rapid exchange of meteorological and related
information; (c) to promote standardisation of meteorological and related
observations and to ensure the uniform publication of observations and
statistics; (d) to promote activities in operational hydrology and to further
close cooperation between meteorological and hydrological services; (e) to
further the application of meteorology to aviation, shipping, water problems,
 Outer Space: Multilateral Mechanisms 67

agriculture and other human activities; (f ) to encourage research and training

in meteorology and, as appropriate, in related fields, and to assist in
coordinating the international aspects of such research and training.16

Coordination Group for Meteorological Satellites (CGMS)

The Coordination Group for Meteorological Satellites (CGMS) came into
being in 1972, when representatives of the European Space Research
Organisation (since 1975 called the European Space Agency, ESA), Japan,
the United States of America, observers from the World Meteorological
Organisation (WMO) and the Joint Planning Staff for the Global Atmosphere
Research Programme met in Washington to discuss questions of compatibility
among geostationary meteorological satellites. CGMS provides an
international forum for the exchange of technical information on geostationary
and polar orbiting meteorological satellite systems.
The main objectives of CGMS are: (a) to have a clear focus on
coordination of long-term and sustainable satellite systems relevant to weather
and climate to which both operational and R&D agencies contribute; (b) to
give a technical focus to the discussions handled by the group; (c) through a
close interaction with WMO, to respond to requirements from WMO and
related programmes.17

Disaster Management and Rescue

International Charter on Space and Major Disasters
The International Charter on Space and Major Disasters is an international
agreement among space agencies to support with space-based data and
information relief efforts in the event of emergencies caused by major
disasters.18 The Charter aims at providing a unified system of space data
acquisition and delivery to those affected by natural or man-made disasters
through Authorised Users. Each member agency has committed resources to
support the provisions of the Charter and thus is helping to mitigate the
effects of disasters19 on human life and property.20 In promoting cooperation
between space agencies and space system operators in the use of space facilities
as a contribution to the management of crises arising from natural or
technological disasters, the Charter seeks to pursue the following objectives:
(a) supply during periods of crisis, to states or communities whose population,
activities or property are exposed to an imminent risk, or are already victims,
of natural or technological disasters, data providing a basis for critical
information for the anticipation and management of potential crises; (b)
participation, by means of these data and of the information and services
68 Decoding the International Code of Conduct for Outer Space Activities

resulting from the exploitation of space facilities, in the organisation of

emergency assistance or reconstruction and subsequent operations.21

United Nations Platform for Space-based Information for Disaster

Management and Emergency Response (UN-SPIDER)
The United Nations General Assembly established the United Nations
Platform for Space-based Information for Disaster Management and
Emergency Response—UN-SPIDER—in 2006, with the mandate to “Ensure
that all countries and international and regional organisations have access to
and develop the capacity to use all types of space-based information to support
the full disaster management cycle”. UN-SPIDER focuses on the need to
ensure access to and use of such solutions during all phases of the disaster
management cycle, including the risk reduction phase, which will significantly
contribute to reducing the loss of lives and property. UN-SPIDER has been
a gateway to space information for disaster management support, and serves
as a bridge to connect disaster management and space communities and by
being a facilitator of capacity-building and institutional strengthening, in
particular for developing countries.
UN-SPIDER is being implemented as an open network of providers of
space-based solutions to support disaster management activities. Besides
Vienna (where UNOOSA is located), the programme also has an office in
Bonn and will have an office in Beijing. Additionally, a network of Regional
Support Offices multiplies the work of UN-SPIDER in the respective regions.

International Search and Rescue Advisory Group (INSARAG)

INSARAG is a global network of more than eighty countries and organisations
under the United Nations auspices to deal with Urban Search and Rescue
(USAR) related issues and establish minimum international standards for
USAR teams and methodology for international coordination in earthquake
response.22 The advisory group was established in 1991 within the framework
of existing humanitarian coordination. Its primary purpose is to facilitate
coordination between the various international USAR teams who are available
for deployment to countries experiencing devastating events of structural
collapse, primarily due to earthquakes.23 The mandate of INSARAG includes
activities: (a) to render emergency preparedness and response activities; (b)
to improve efficiency in cooperation among international USAR teams
working in collapsed structures at a disaster site; (c) to develop internationally
accepted procedures and systems for sustained cooperation between national
USAR teams operating on the international scene; (d) to develop USAR
 Outer Space: Multilateral Mechanisms 69

procedures, guidelines and best practices, and strengthen cooperation between

interested organisations during the emergency relief phase.24
The governments and space agencies in the Asia-Pacific region have
evolved multilateral forums to foster coordination amongst themselves on
space-related issues. They have been proactively coordinating through
conferences and symposia. Asia-Pacific Space Cooperation Organisation has
set up such precedence for other regional organisations.

Asia-Pacific Space Cooperation Organisation (APSCO)

The Asia-Pacific Space Cooperation Organisation is an intergovernmental
organisation to promote peaceful use of Outer Space in the Asia-Pacific
Region. It leads cooperation in space science, space technology and
applications such as Earth observation, disaster management and satellite
communication, navigation and positioning. APSCO became operational in
December 2008 and has been granted permanent observer status by UN-
COPUOS since 2009.25
The idea of APSCO was born at the workshop on Multilateral
Cooperation in Space Technology and its Applications (AP-MCSTA), which
was held in November 1992 in Beijing. During the workshop, the initiative
and institutionalisation of the mechanism was agreed upon by participants
from sixteen Asia-Pacific countries. Since 1994, seven conferences on AP-
MCSTA had been organised consecutively in Thailand, Pakistan, Republic
of Korea, Bahrain, Iran and China. The text of the convention of APSCO
was finalised in November 2003 and the convention was signed in October
2005 by eight countries in the Asia-Pacific Region, which included
Bangladesh, China, Indonesia, Iran, Mongolia, Pakistan, Peru and Thailand.26

Centre for Space Science and Technology Education in Asia and the
Pacific (CSSTEAP)
The Centre for Space Science and Technology Education in Asia and the
Pacific was established in India in 1995, following the recommendations of
a UN General Assembly resolution on establishing Centres for Space Science
and Technology Education in the developing countries. CSSTEAP is hosted
by the Government of India with the Department of Space as the nodal
agency. It has the mission of capacity building in space science and technology
through excellence in education, training and research in the disciplines of
remote sensing and geographic information system, satellite communications,
and space and atmospheric science.27
CSSTEAP’s major objectives are: (a) to develop the skills and knowledge
70 Decoding the International Code of Conduct for Outer Space Activities

of university educators, environmental research scientists and project

personnel in the design, development and application of space science and
technology; (b) to develop skills for satellite communication in the areas of
long distance education, delivery of health services, disaster mitigation, air
and maritime navigation, etc.; and (c) to enhance regional and international
cooperation in space science, technology and applications programmes.28

Asia-Pacific Regional Space Agency Forum (APRSAF)

The Asia-Pacific Regional Space Agency Forum was established in 1993 in
response to the declaration adopted by the Asia-Pacific International Space
Year Conference in 1992, to enhance space activities in the Asia-Pacific region.
The APRSAF has emerged as the largest space-related conference in the Asia-
Pacific region, by bringing space agencies, governmental bodies, international
organisations, companies, universities and research institutes on a single
platform. APRSAF currently organizes four working groups: Earth
Observation (EO), Communication Satellite Applications (CSA), Space
Education and Awareness (SEA), and Space Environment Utilisation (SEU),
to share information about the activities and the future plans of each country
and region in the respective areas. APRSAF also supports the establishment
of international projects as solutions for common issues such as disasters and
environmental protection.29

N OTES
1. ASI (Italy), BNSC (United Kingdom), CNES (France), CNSA (China), CSA (Canada),
CSIRO (Australia), DLR (Germany), ESA (European Space Agency), ISRO (India),
JAXA (Japan), KARI (Republic of Korea), NASA (United States of America), NSAU
(Ukraine), Roscosmos (Russia).
2. About ISECG, http://www.globalspaceexploration.org/about-isecg;jsessionid=69BAB78
BFA4FB3416DC1EB2808A3AFC9.
3. Committee on Space Research, http://cosparhq.cnes.fr/About/about.htm.
4. Introduction, http://www.iislweb.org/introduction.html.
5. Unidroit: An Overview, http://www.unidroit.org/dynasite.cfm?dsmid=103284.
6. UNIDROIT Work Programme 2011-2013, http://www.unidroit.org/english/
workprogramme/main.htm.
7. Basic Information, http://www.epa.gov/geoss/basic.htm.
8. The Global Earth Observation System of Systems, http://www.earthobservations.org/
geoss.shtml.
9. http://www.ceos.org/index.php?option=com_content&view=featured&Itemid=417.
10. Ken McDonald, Committee on Earth Observation Satellites: Contribution to GEO,
see http://www.ogcnetwork.net/system/files/GEO_XXV_3_3_CEOS_GEO_
McDonald.pdf.
11. History, http://www.iafastro.com/index.html?title=History.
12. About us, http://www.iafastro.com/index.html?title=About_us.
 Outer Space: Multilateral Mechanisms 71

13. Partner Organisations, http://www.iafastro.com/index.html?title=Partners.

14. IAA in Brief, http://iaaweb.org/content/view/134/232/
15. WMO in brief, http://www.wmo.int/pages/about/index_en.html.
16. Vision and mission, http://www.wmo.int/pages/about/mission_en.html.
17. About CGMS, http://www.cgms-info.org/cgms/about-us.
18. International Charter “Space and Major Disasters”, http://prezi.com/-qq9mtzf-wik/
international-charter-space-and-major-disasters-official/
19. Disasters such as cyclones, earthquakes, fires, floods, ice, landslide, ocean wave, oil-spills,
volcanoes.
20. http://www.disasterscharter.org/web/charter/home.
21. Article II – Purpose of Charter, http://www.disasterscharter.org/web/charter/charter.
22. http://www.insarag.org/
23. Background, http://www.insarag.org/en/about/background.html.
24. Mandate of INSARAG, http://www.insarag.org/en/about/mandate-of-insarag-
leftmenu.html.
25. About APSCO: Secretariat, http://www.apsco.int/secretariat.aspx.
26. About APSCO: History, http://www.apsco.int/history.aspx.
27. Background, http://www.cssteap.org/background.html.
28. Objectives, http://www.cssteap.org/objectives.html.
29. About APRSAF, http://www.aprsaf.org/about.
PART III
GLOBAL OPINION
 Chapter 10
Is There a Need for a Code of Conduct for
Outer Space Activities?
Bhupendra Jasani

Introduction
On 23 March 2012, for the third time in the history of the International
Space Station (ISS), astronauts aboard scrambled to their lifeboat capsules to
brace for a possible collision with a flying orbital junk. The threat to spacecraft,
astronauts and people back on the ground from orbiting debris has increased
alarmingly in the decades since space exploration began. While there have
not been any serious accidents with the ISS, on 12 February 2009, the US
Iridium 33 and Russian Cosmos 2251 communications satellites collided at
a relative speed of between 7 and 9 km/sec at approximately 788 km above
the Earth’s surface, generating additional debris. But the worst case of orbital
junk was deliberate: on 11 January 2007, China purposely slammed a missile
into its own Fengyun 1C weather satellite, adding, by the end of the year,
some 2500 pieces of debris. Partly, this rapid growth in the population of
space junk has been the rationale behind the proposal made by the European
Union on 5 June 2012 for an International Code of Conduct for Outer Space
Activities (The Code).1

The Code
The purpose of the Code is “to enhance the security, safety and sustainability
of all outer space activities” by a voluntary commitment to refrain from
intentionally harming space objects, measures to control and mitigate space
78 Decoding the International Code of Conduct for Outer Space Activities

debris, and mechanisms for cooperation and consultation. Many of its

suggestions have already been proposed or exist under the United Nations
charter. For example, the 1967 Outer Space Treaty (OST) mentions that
activities in Outer Space conducted by the states parties to the treaty will be
carried out in the interest of maintaining international peace and security
and promoting international cooperation and understanding (Article III).
This is legally binding on over a hundred states, unlike the Code. As for
confidence-building measures, states parties to the OST agree to inform the
Secretary General of the UN as well as the public and the international
community of their activities in Outer Space (Article XI).
In addition, the 1976 UN Convention on Registration of Objects
Launched into Outer Space requires that
... the launching State shall register the space object by means of an
entry into an appropriate registry which it shall maintain. Each
launching State shall inform the Secretary-General of the United
Nations of the establishment of such a registry. (Article II.1)
Under Article IV.1,
Each State of registry shall furnish to the Secretary-General of the
United Nations, as soon as practicable, the following information
concerning each space object carried on its registry: (a) Name of
launching State or States; (b) An appropriate designator of the space
object or its registration number; (c) Date and territory or location of
launch; (d) Basic orbital parameters, including: (i) Nodal period,
(ii) Inclination, (iii) Apogee, and (iv) Perigee; (e) General function of
the space object.
These obligations are mandatory, but by and large, provision (e) has not been
fulfilled, since nearly three-quarters of the satellites launched serve military
purposes and hardly any of them have been described to the UN Secretary-
General as having a military use. Therefore, the Registration Convention has
to be strengthened first by finding a way to determine how the international
community is using Outer Space rather than creating a new Code. This is
important, since according to the OST,
A State Party to the Treaty which has reason to believe that an activity
or experiment planned by another State Party in outer space ..., would
cause potentially harmful interference with activities in the peaceful
exploration and use of outer space ..., may request consultation
concerning the activity or experiment. (Article IX)
 Is There a Need for a Code of Conduct for Outer Space Activities? 79

To the knowledge of the author, such requests have never been made
although it is possible to learn, with some degree of accuracy, about the
missions of various satellites by studying their orbital characteristics and by
scanning numerous technical and military journals.
As for the non-interference, security, safety and integrity of space objects,
a number of bilateral arms control treaties offer protection to certain types
of satellites. For example, the SALT and START treaties contain pledges not
to interfere with the national technical means (NTM) of verification. This
means in effect that photographic, electronic and early warning satellites as
well as some ocean-surveillance spacecraft are protected. The International
Telecommunication Constitution and Convention (as revised in 2010)
obligate parties to the Convention to avoid harmful interference with the
radio services or communications of other parties providing protection to
their satellite systems, though in reality unintentional and intentional
(jamming) interference continue to increase. In effect, only military
navigation, geodetic and meteorological satellites seem to be without any
protection. But when devices to detect nuclear explosions are deployed on
board navigation satellites, these might be classified under the category of
NTM of verification and so be protected by some of the above mentioned
treaties. Recently, even a multilateral treaty such as the 1970 Treaty on the
Non-Proliferation of Nuclear Weapons (the NPT) has incorporated in its
Additional Protocol to the safeguards procedures the use of commercial
satellites; thus, effectively, a multilateral technical means (MTM) of
verification tool has been created. In the Comprehensive Nuclear Test Ban
Treaty (CTBT) of 1996, not yet formally entered into force, satellite
observation as a verification tool has been recognised (Article IV.11). It is
envisaged that civil remote sensing satellites will be used, thus, potentially
providing protection to such satellites.
Two other issues are: (i) improved space traffic control, and (ii) orbital
debris mitigation.

Improvement of Space Traffic Control

The current openly available catalogues are not very accurate for effective
traffic control. It is not always easy to know with certainty the location of an
object in orbit. Often, relevant agencies do not monitor activities in space
continuously but use prediction techniques to know where various objects
are. The actual locations are only determined occasionally to check the
predictions. Clearly, this is not very satisfactory. A working group convened
80 Decoding the International Code of Conduct for Outer Space Activities

by the four leading non-governmental organisations dealing with space

issues—the American Institute of Aeronautics and Astronautics, the UN
Office on Outer Space Affairs, the Confederation of European Aerospace
Societies, and the International Academy of Astronautics—has suggested more
extensive efforts to improve space traffic control procedures.
As a first step, an International Data Centre (IDC) could be established,
for example, in Vienna, where data provided by participating countries on
space objects in orbit would be collated and compiled. These data could be,
for example, the telemetry emitted by satellites, their shape, size, designation,
orbit and the launching countries. The data centres could also conduct routine
analysis according to strictly defined procedures. The second step would be
that the IDC could establish some equipment necessary to track objects in
space. This would be to verify the Registration Convention and also data
that might be available from various states on orbital debris. The latter
information would be to check measures that may be used for orbital debris
mitigation.

Orbital Debris Mitigation

To control the production of debris, the Inter-Agency Debris Coordinating
Committee (IADC) consisting of space agencies from China, France,
Germany, India, Italy, Japan, Russia, Ukraine, the United Kingdom and the
United States, as well as the European Space Agency, has drawn up a set of
guidelines. In addition, based on the Inter-Agency Standing Committee
(IASC) Guidelines, the UN Committee on the Peaceful Uses of Outer Space
(COPUOS) has adopted its own guidelines on space debris mitigation in
2007. However, none of these is legally binding. As a next step, the concerns
of these two states should be seriously discussed in order to achieve their
support. It might be suggested here that COPUOS adopts a possible
“Convention on Limiting and Removal of Debris in Orbits (CLER)”. The
verification of such a convention could be carried out by the IDC, proposed
above.

Some Conclusions
The foregoing observations may seem idealistic: some may feel that in practice
additional measures such as the Code are necessary, since working through
the UN can be too cumbersome and time consuming. Be that as it may, as
the proposals in the Code, by and large, are not very different from those
existing in the UN, it is difficult to see how states may sign up to the Code
and not adhere to their legally binding obligations under the existing treaties
 Is There a Need for a Code of Conduct for Outer Space Activities? 81

and respect other instruments adopted though various UN efforts. Moreover,

the Code has no verification measure like some of the UN measures. It might
be cost effective to strengthen the existing negotiated treaties and conventions
with meaningful verification measures rather than propose new ones.

N OTE
1. International Code of Conduct for Outer Space Activities, Working document, Revised
Draft, European Union, 5 June 2012.
82 Decoding the International Code of Conduct for Outer Space Activities

Chapter 11
Space Code of Conduct: What is at Stake?
Isabelle Sourbès-Verger

National interest is the key phrase to understand the main features of any
space policy, especially where security issues are concerned. The current debate
about the European Union proposal of an international code of conduct for
Outer Space (CoC) has to be considered from this perspective.
The concept of space control has appeared to be crucial for the United
States as soon as a powerful satellites network became the infrastructure of
its military superiority. This viewpoint is easy to understand and, to some
extent, it can be shared by any state having significant space-faring activities.
However, the fact is that only the US has such capabilities due to an
outstanding financial investment leading to the development of matchless
technological and industrial competences.
The United States must therefore develop all means to protect its space
assets as far as they are tempting targets, whose destruction will entail a
significant vulnerability. To be dependent on a trust mechanism represents
an unacceptable risk; so also would be any attempt at restrictive factors that
would not include ground systems and could not be monitored continuously.
No current proposal is able to meet these US requirements, and hence the
reservations in the Pentagon and Congress on the merits of joining a code
of conduct.
The stakes are different for the other states whose vulnerability in space
is not of the utmost importance. The 2008 PPWT proposal (Prevention of
the Placement of Weapons in Outer Space Treaty) made by China and Russia
to ban weaponisation of space has to be referred to the context of missile
 Space Code of Conduct: What is at Stake? 83

defence and to the American initiative in that field. For its authors, its
main objective is to constrain the US development: the initiative aims at
postponing the need for them to engage in an expensive and inadequate race
in order to restore a kind of strategic balance with the US.
Independently of the geopolitical issues, this proposal cannot be supported
by many states, because it does not take into account the ground systems,
which represent a significant potential threat to space assets.
From this point of view, the national situations are quite different. The
2007 ASAT test has demonstrated China’s willpower to master such a
capability; otherwise it is difficult to understand it fully. The Chinese decision
was fraught with consequences. It has opened the way to other states for
similar experiments, and even the United States took advantage of it. For
their part, Europe, Japan and India have decided not to test their potential
ASAT competence, but the temptation may exist and newcomers could have
a different position. Even if the dramatic effect of the Chinese experience
may have made possible candidates aware of the threats associated with the
production of space debris, ASAT tests still apply to this broader issue, which
corresponds to the second part of the space security dimension.
From this perspective, the European position is quite understandable. The
European space systems are mainly civilian, even if dual use is growing, but
the increasing risk of collision is a true preoccupation for public and private
actors since the space situation awareness ability remains incomplete. The
desire to promote a multilateral approach and to play a role in the
international arena contributes to the involvement of the European Union
in this tricky topic. Some internal reasons, including the ambition to be
recognised as a political actor, have also had an effect. The result is that the
European proposal looks like a lowest common denominator by affirming a
few general principles. These may not threaten American freedom, but make
it sensitive to the concrete disadvantages of testing, of which benefits remain
to be demonstrated.
More than illustrating an idealist philosophy, as one can say with reference
to the principle of voluntarism, the European proposal must also be seen as
a manifestation of realism. These are a couple of principles, good in themselves
and for all, which allow going beyond the current deadlock. The EU code
proposal solves basically nothing since it has no binding provision, but it
would seek a soft consensus. It is less obvious to interpret it as a tool of
discrimination that would protect states already having, at least potentially,
deterrent ASAT capabilities, and limit access to new skills for others. If such
an intention exists, justified by a desire to limit international instability factors,
84 Decoding the International Code of Conduct for Outer Space Activities

it will be done more through the control of technology transfers and the use
of the MTCR or any other way of pressure.
Are there alternatives? The question is worth asking, especially for
countries that do not really fit into the logics at the origin of the current
proposals. It is true that support for the EU code may freeze any other
initiative. To some extent, it is a positive point for the United States and its
allies, but it is a worrying one for the participants in quest of a safe
environment. It is also true that the proposal of PPWT cannot really be
sustained since its shortcomings cannot be mitigated. The third option is
straight and narrow. It should not pose a threat to US national security—
this limits its binding provisions—but at the same time it should prevent
reinforcing the current gap. In parallel, it should provide real guarantees to
all direct and indirect users of space resources.
Promoting greater transparency is efficient only if the system guarantees
real interdependence and thus promotes everyone’s interest to participate. The
establishment of a global space surveillance network, combining different
sources of information on a regional scale, is feasible if sensitive data may be
secured. This raises the issue of verification of the data made available. But
even if we assume a possible non-declaration, comparison of the results
acquired by the different systems in case of problems could have a deterrent
effect on potential violators. A first step might well include the provision of
information on special requests; or where there are threats automatically
detected, according to clear principles and procedures accepted by all
participants. This will respect the secret of orbitography for military satellites
but will help to develop confidence-building measures.
This proposal involves the acquisition of a range of space systems
awareness, even incomplete but complementary, and has the advantage of
ensuring public and private uses of space. It could be a basic condition for
negotiation of the CoC by third states.
 Space Code of Conduct: What is at Stake? 85

Chapter 12
Treaty vs Resolution
Armel Kerrest

It is an open secret that in the field of Outer Space, despite the necessity of
cooperation, it is quite difficult to get states to accept some clear and precise
obligations. The debate will continue whether it is better to try to propose a
treaty—which is difficult to get ratified—or a resolution.

Necessity of Regulation
The current development of space activities makes regulation absolutely
necessary. Regulation would involve space traffic management, mitigation of
space debris, regulation of military activities and weaponisation of Outer Space.
Most or even all space-faring states are very reluctant to accept any
limitation to their freedom of using Outer Space. But it is not possible to
go on without some rules: it is necessary to set efficient and practical
regulations. In the field of space debris, a Code of Conduct has been accepted
and recognised by the UN General Assembly. The result seems rather limited,
not only because it is presented as non-binding, as shown by the fact that
the text was not discussed within the COPUOS legal subcommittee but also
because the rules themselves are not precise enough and lack “normativity”.
In the fields of disarmament and weaponisation, cooperation and some
effective and controlled rules such as at least prohibition of some weapons
are very much needed.

Source of Law to be Used

The point here is, whether a treaty is preferable for use between states or a
86 Decoding the International Code of Conduct for Outer Space Activities

code of conduct. A treaty has the great advantage of being written and being
compulsory for the states that have accepted it. The shortcoming is that states
must ratify it. The ratification process is most of the time long and usually
subject to authorisation by Parliament. A state that does not ratify a treaty
has no obligation towards it.
If a UN resolution is used, it may, in certain conditions, be transformed
as a customary rule by a practice accepted as being law. In that case, the rule
is compulsory for all states. The fact that the resolution is accepted by
consensus is one of the conditions which helps the normative mechanism.
There is no ratification process and no submission to parliaments.
In some cases, it may be more efficient to use a UN General Assembly
resolution instead of a treaty. Let us take the Moon agreement as an example.
This agreement was drafted under the leadership of the US delegation within
the UN COPUOS legal subcommittee and Committee. With some
modifications, it was accepted by consensus within the UN General Assembly.
It was then open to signature and ratification by states. In the end, it failed
because of political reasons (election of President Reagan and action of
lobbies). If, instead of a draft treaty, we had a UN resolution adopted by
consensus, most of the proposed rules and principles would have currently
been accepted and compulsory as customary law. Consequently, discussions
about the possibility of appropriating the resources of the Moon would have
been clearly unacceptable.
This example may be a one off affair, but it may be remarked that in
this field, despite the necessity of cooperation, it is quite difficult to get states
to accept some clear and precise obligations.
Another example of interest of a resolution compared with a treaty is in
remote sensing from Outer Space. We have currently a UN General Assembly
resolution of limited scope on remote sensing. For some years, the learned
delegation of Brazil to COPUOS has proposed to transform it into a treaty
in order to improve the legal framework of this activity. It has been wisely
argued by others that the solution is not to change the legal nature of the
rule to compulsory treaty but to extend the scope of application of the
resolution and to consider its implementation. A treaty is applicable only to
states that have ratified it. A change from a largely accepted UN resolution
to a non-ratified treaty is not a step forward: instead it might diminish the
efficiency of the current legal framework.
Instead of focusing on the legal value of the text it may be more efficient
to try to build a cooperation mechanism, for instance to create an
International Space Organisation which could work on these subjects, as
 Treaty vs Resolution 87

ICAO does in air activities. An international organisation, because it creates

a cooperation mechanism, is often a good way to influence the creation of a
legal framework when it is needed because of the international character of
an activity. Examples are: aircraft and ICAO; ships and other maritime
activities and IMO; radio frequencies and ITU; international trade and
WTO; etc.

Possible Indirect Legal Effect of a Code of Conduct:

The Example of a Code of Conduct for Space Debris
If damage occurs on Earth, the absolute liability of the liability convention
applies, but space debris damages are more likely to occur in Outer Space.
There, a fault must be proven to get compensation. What is a fault? It is not
the creation of debris by itself: it is the behaviour which led to the creation
of the debris. The consideration of a behaviour is much more difficult than
the proof of a fact.
The nineteenth-century “civil code”, when considering liability uses the
notion of “bon père de famille”, “bonus paterfamilias” or “good father of a
family”. If damage occurs, the judge will consider the actual behaviour in
comparison with the theoretical behaviour of this theoretical model of “bonus
paterfamilias”. If damage occurs in Outer Space, for a fault to be proven,
the judge will have to compare the actual behaviour of the space actor which
has caused damage and “normal” good behaviour of a “good launching state”.
He needs to know what is the behaviour of a good launching state. In my
view, the code of conduct may be used for that purpose.
Even if the code of conduct is not compulsory and the operator cannot
be sued for any violation, if damage occurs, the code may be considered as
the standard of behaviour of a “good launching state” and put the operator
at fault in case of a violation.
There are some conditions to that effect: in particular the code must be
precise and clear enough to characterize the action of the operator as good
or faulty.
To conclude, it is necessary to have some efficient and well-implemented
rules to organize the use of Outer Space. A treaty would be a good solution
if it is ratified by every space-faring state. If, as it seems to be, this is not
foreseeable, an agreement on a code of conduct may be a useful first step:
the creation of an International/World Space Organisation may greatly help.
88 Decoding the International Code of Conduct for Outer Space Activities

Chapter 13
Why States should Sign the Code of Conduct
for Outer Space Activities?
Stefan A. Kaiser

The Council of the European Union has submitted a revised Code of Conduct
for Outer Space Activities1 for consideration and adoption by all UN member
states. A Multilateral Experts Meeting is scheduled for October 2012 in New
York. This comment highlights three areas which are crucial for the
understanding of this code: its non-binding nature, its content and purpose,
and its implications, given the current political and diplomatic situation.

Non-Binding Nature
Treaty law is an archetypal source of international law. In the world of idealists,
states sign up to binding treaties, which clearly and comprehensively detail
the signatories’ rights and obligations.
In the real world, states sign up to binding treaties only if there is a
compelling need to do so. States weigh their national interests and sovereign
powers against possible treaty obligations. Often, treaties are not
comprehensive and their wording consists of intentional and creative
ambiguity. Often, states do not sign treaties at all, because no consensus can
be found that leaves enough room for national interests.
However, also in situations of apparent non-regulation, practices evolve
in one way or another. Practices, custom and general principles of law fill
the vacuum not covered by international treaty law.
In today’s highly technical world, technical standards and practices emerge
quickly. Technical standards are reduced to writing by non-governmental
 Why States should Sign the Code of Conduct for Outer Space Activities? 89

bodies. Typically, they are drafted by technicians. They do not have the force
of national or international law. Yet, they have a huge impact on worldwide
industrial practices and form an important ingredient of international
commerce.
In space law, the great era of treaty law was the 1960s and 1970s. The
five space treaties, most notably the Outer Space Treaty of 1967, were
negotiated and signed during the cold war and the space race. The USA and
the Soviet Union were the dominating space powers. At that time two sets
of interests stimulated states, which fell into two categories, to conclude the
space treaties: (i) The two dominating space-faring nations wanted to ensure
they did not lose legally and politically, in case they did not win the space
and Moon race. (ii) The other states wanted to ensure their (future) access
to space, their participation in space benefits, and they wanted to be protected
against the detrimental effects resulting from others’ space activities.
Once their space race was over, the USA and the Soviet Union had no
interest in concluding other space law treaties. The increasing number of
space-faring nations and those interested in space activities did not facilitate
consensus building either. Since then, no legally binding international space
law instrument has evolved.
But this does not diminish the importance of non-binding space law
instruments like the principles and declarations adopted by the United
Nations General Assembly.2 Non-binding instruments pave the way for
coherent international practice. Sometimes they restate existing practice. And
they have the potential of becoming the crystallisation points for emerging
customary law. No doubt, non-binding legal instruments leave a broader
margin for their acceptance than hard law instruments and they take longer
to solidify. But they have a political meaning, which can unfold with legal
effect at a later point of time. The significance of non-binding instruments
is neither muted by the lack of their enforcement, just as the significance of
international law is not diminished by the absence of enforcement
mechanisms.
A non-binding Code of Conduct for Outer Space Activities is not
meaningless. Although it does not impose new rules and mechanisms, it
emphasizes the importance of best practices, transparency and confidence-
building measures, national procedures, information exchange and
cooperation. The principal space actors do not wish to commit to new legally
binding instruments. Their space race is over and they do not see a compelling
need to commit beyond what is determined by the existing space treaties. A
code of conduct is a tool to determine among states what was left out in the
90 Decoding the International Code of Conduct for Outer Space Activities

space treaties and how they can perceive to go ahead. Time will tell the rest
of the story.
However, there is one crucial prerequisite for the success of the code of
conduct. It needs to reflect a broad consensus among the space-faring nations.
All major space-faring nations need to sign. Therefore effort needs to be
undertaken that the code is acceptable for such space heavyweights as the
USA, Russia and China.

Content and Purpose

The purpose of the code is to ensure security, safety and sustainability of space
activities (sec. 1.1). What are the intentions behind these concepts? In short,
the main concerns are space debris and the use of weapons in and from space,
especially anti-satellite (ASAT) tests.

Space Debris
The problem of space debris becomes increasingly pressing. The debris
population is rising and appears to have reached a point where it continues
to rise because of collisions alone, even without any additional launches
(Kessler Syndrome). The problem of space debris is not reflected in the five
existing space treaties. All space-faring nations are similarly concerned. In
addition, two incidents have elevated the awareness about space debris: the
debris clouds caused by the Chinese ASAT test in 2007 and the Iridium-
Cosmos collision in 2009.
The issue of space debris is a cornerstone of the code of conduct. In
general terms, space debris prevention and mitigation is covered by the general
concept of the prevention and minimising the risk of harmful interference
with space objects (secs. 2. Third hyphen, 4.1). More specifically, the
minimising of accidents and collision risks (including the damage and
destruction of space objects) is addressed (secs. 4.1, 4.2, 4.3). In even more
detail the code spells out measures on space debris control and mitigation
(sec. 5.). But that is not all. In combination, the sections on notification (sec.
6.) and consultation (sec. 9) pave a regulatory path for future cooperative
mechanisms like space situational awareness and space traffic management.
With these measures and procedures relating to space debris, the code is
an important step forward.

Use of Weapons in and from Outer Space

Military uses of Outer Space are a traditional issue of space activities. The
 Why States should Sign the Code of Conduct for Outer Space Activities? 91

underlying legal issue concerns the concept of peaceful purposes, which has
remained vague.
Admittedly, the code does not refine the concept of peaceful purposes. This
is an intentional ambiguity and seems to be the price the drafters are willing
to pay for the code to gain broad acceptance. In broad terms, the code uses
the term (prevention of ) harmful interference (sec. 2, third hyphen). Harmful
interference is not only a term of space safety, as in the context of space debris,
but also of space security. In terms of space security, it warrants the (physical
and operational) integrity of space objects against politically motivated
interference by other states. In addition, the code picks up concepts used in
the UN Conference of Disarmament, namely the Prevention of an Arms Race
in Outer Space (PAROS) and preventing Outer Space from becoming an
area of conflict (secs. 4.5, 2. fourth hyphen).
However, key to the understanding of peaceful purposes in the context of
the code is the restatement of the inherent right of individual or collective self-
defence (secs. 2, second hyphen, 4.2). It underscores the interpretation that
the concept of peaceful purposes, as mentioned in Art. IV of the Outer Space
Treaty, means non-aggressive acts. Thus the code does not reach as far as the
draft treaty submitted in 2008 by Russia and China on the Prevention of
the Placement of Weapons in Outer Space and of the Threat or Use of Force
Against Outer Space Objects (PPWT). It also remains silent on ASAT tests.

ASAT Tests Causing Space Debris

A crucial point is kinetic ASAT tests. The Chinese test of January 2007, by
which a defunct Chinese satellite was destroyed by a Chinese kinetic kill
vehicle, produced a large debris cloud in Low Earth Orbit (LEO). This case
was a clear demonstration how security interests, like weapon tests, are
interlinked with space safety—the safe use of LEO by the international
community.
The code does not strive to prohibit or limit kinetic ASAT tests. It rather
aims at limiting the effects of such ASAT tests. This is a result of the concept
of the prevention of harmful interference (sec. 2, third hyphen), and the
qualifier of sec. 5, first hyphen, that the intentional destruction of any in-
orbit space object or other activities is to be refrained from, when it generates
long-lived space debris.
This reflects the US understanding of its intentional destruction of the
satellite USA 193 in LEO in 2008. The US government claims that this act
did not cause any long-lasting space debris, although for a period of at least
nine months there was an increased collision risk in LEO that affected also
92 Decoding the International Code of Conduct for Outer Space Activities

the International Space Station.3 The USA will likely interpret the code of
conduct to allow the intentional destructions or kinetic ASAT tests, as long
as no long-lasting space debris is generated, the international community is
appropriately notified (see also sec. 6), and any other necessary steps are taken
to prevent harmful interference (for example danger areas are established over
affected portions of the high sea).

The Current Political and Diplomatic Situation

The code has the potential of becoming a leading instrument on space security,
safety and sustainability, but only if all major space-faring nations adopt it.
At the moment, it appears that the vast majority would be inclined to do so.
As proponents of the code, the states of the European Union will sign it.
Also Australia, Canada and Japan are positive about it. The situation is more
complex with the USA, China and Russia, who all have tested kinetic ASAT
weapons in Outer Space and are engaged in manned space flight.

USA
The Obama administration is willing to cooperate in space affairs (see also
the National Space Policy of the United States of America, 28 June 2010), as
opposed to the so-called Bush doctrine of the former President, who preferred
unilateral acts instead of international coordination and cooperation. The USA
is concerned about space debris and wishes to bind others, if possible, to avoid
and mitigate debris. The code is a welcome tool for that purpose.
However, the US government is not willing to give up the possibility of
undertaking kinetic ASAT tests or using weapons against space targets as a
measure of self-defence. The Soviet Union and the USA were the two states
which extensively tested ASAT weapons in the 1980s. A voluntary
moratorium of these tests was broken after more than twenty years by the
Chinese ASAT test in 2007. The USA reacted one year later with the
intentional destruction of satellite USA 193.
The embedded self-defence concept is a conditio sine qua non for the
USA’s acceptance of the code. As long as the current Presidential Space Policy
prevails, there is a window of opportunity that the USA will sign it. But two
conditions need to be met: a methodology for internationally tackling the
space debris problem, and maintaining the freedom of action for self-defence
and ASAT tests with limited generation of space debris.

China
There can be no doubt about China’s interest in avoiding and mitigating
 Why States should Sign the Code of Conduct for Outer Space Activities? 93

space debris. China has an ambitious national space programme, including

manned space missions in LEO. Together with Russia, China was one of the
proponents of the PPWT. The Chinese ASAT test contradicted the intentions
of this draft treaty and puzzled the international community. The code could
be an opportunity for China to emphasize its ambitions to limit the generation
of space debris and to realign its international position after the irritations
caused by its ASAT test.

Russia
Like other space-faring nations, debris avoidance and mitigation is an essential
concern for Russia. But in regard to the use of weapons in space, the code
falls short of the intentions of the PPWT as proposed by Russia. This could
be the greatest stumbling block for Russia to support the code. Russia needs
to balance its interests as put forward in the draft PPWT with the trimmed
down version of the achievable. The international support of the code seems
broad. If Russia does not sign, it isolates itself. This is not an attractive option
either.
Despite its non-binding nature and the limited clarification of the concept
of peaceful purposes, the code is an opportunity for further developing the
regulatory regime on Outer Space. It appears possible that a broad consensus
will be reached among many states, including the principal space actors. The
prospect of such a consensus is a rare chance of international diplomacy, given
the steadily increasing number of UN member states. Therefore it can only
be recommended that as many states as possible sign this code.

NOTES
1. Council of the European Union, Brussels, 11 October 2010, 14455/10.
2. See e.g. UNGA Res. 1962 (XVIII), (1963), UNGA Res. 47/68 (1992), UNGA Res.
51/122 (1996), UNGA Res. 62/101(2007).
3. See European Space Agency, Space Debris, http://www.esa.int/esaMI/Space_Debris/
S E M 2 D 7 W X 3 R F _ 0 . h t m l h t t p : / / w w w. e s a . i n t / e s a M I / S p a c e _ D e b r i s /
SEM2D7WX3RF_0.html
94 Decoding the International Code of Conduct for Outer Space Activities

Chapter 14
Japan, Space Security and Code of Conduct
Kazuto Suzuki

Japanese space policy is undergoing dynamic change. The Diet has enacted
a law to establish a Cabinet Office to set up a new Space Strategy Office
(SSO) and JAXA (Japan Aerospace Exploration Agency). As a result, space
will no longer be dealt with by the Ministry of Education, Science and
Technology (MEXT) but will be directly controlled by the Prime Minister.
The Ministry of Foreign Affairs (MoFA) has created an Office on Space as
contact point for international partners and to develop Japanese strategy for
taking leadership in Asian space activities.
For Japan, this is a remarkable initiative in the sphere of space
development. For a long time, Japanese space policy focused heavily on
technological development, without investment in military and security issues.
The Diet resolution of 1969 prevented the Japanese Self-Defense Forces from
owning, developing, operating, and using space assets. The Accord of 1990
with the United States, which forces public procurement of non-R&D
satellites to be open to international competition, also made the Japanese space
programme more R&D oriented.
Since most of the Japanese spacecraft were R&D-oriented and not
operational, little attention was paid to the orbital environment. Because
Japanese spacecraft were not in military or public operations, the risks of
colliding with space debris or being targeted by hostile parties were considered
minimum. In other words, the damage resulting from losing these satellites
was not considered significantly important since the objective of developing
them was to test and demonstrate Japanese engineering capability.
 Japan, Space Security and Code of Conduct 95

But the situation is changing. JAXA, which has strongly emphasised

technical development, has begun to recognize the increasing risks of space
debris. Also, the launch of information-gathering satellites (IGS) in 2002
made the government aware of the importance and effectiveness of space
utilisation. The mission of IGS, operationally first launched in 1990, was
surveillance of the potential threat to Japan, namely North Korean missile
sites. It is easy to gauge that maintaining a safe space environment to secure
IGS operations is important for the government.
The Basic Space Law, passed in 2008, encouraged the government to
enhance the scope of space activities from R&D orientation to utilisation
orientation, including space use for security purposes. This new legal
framework allows the government to participate in negotiations on space
security issues, marking a changeover from the Diet resolution of 1969, which
disallowed the government from such activity.
On the Code of Conduct proposed by the European Union, Japan has
not taken an explicit stance since the United States, Japan’s major ally, has
not expressed its position on it. The US national space policy, published in
2006 during the Bush Jr. administration, explicitly rejected any international
agreement that limited the freedom of American space activities. Although
the Code assumed voluntary participation, commitment to it would constrain
US space policy.
Nevertheless, Japan views the Code as very suitable for the world after
the 2007 ASAT test by China. Its voluntary nature is designed to increase
membership. The Code would not be ideal if it created a dividing line among
space-faring nations, China and Russia in particular, and it should be accepted
as an international norm. Of course, the Code would be much more effective
if it is legally binding; but in order to include countries such as China and
Russia, it needs to be based on voluntary participation, at least in the
beginning.
The reminder of the right of individual and collective self-defence is not
a big issue in Japan, primarily because the issue is stated in the Charter of
the United Nations, and also because it would deter future potential
aggression against space assets.
For a long time, Japan has developed technologies to use space environ-
ment responsibly, such as controlled re-entry of upper stages and fairings of
Japanese rockets. So, it welcomes the explicit statement that “the responsibility
of States … to take all appropriate measures to prevent outer space from
becoming an area of conflict” and the necessity to comply with the Space
Debris Mitigation Guidelines.
96 Decoding the International Code of Conduct for Outer Space Activities

The most important clause from the Japanese point of view is Clause
4.3, which states that “when executing manoeuvres of space objects in outer
space, for example to supply space stations, repair space objects, mitigate
debris, or reposition space objects, the Subscribing States confirm their
intention to take all reasonable measures to minimize the risks of collision”.
This allows Japan to invest in the development of technologies to remove
space debris. JAXA in particular is very interested in developing debris
mitigation and removal technology, but it is well known that this technology
can be used as space weapons. Hence, it is extremely important that the Code
explicitly allows debris removal activities with good intention.
When the Obama administration decided to launch a negotiation on the
EU-proposed International Code of Conduct, the Japanese government
immediately responded to the call by the United States to join the
international framework together with Australia. For Japan, the US initiative
was a welcome one because US objection was the only obstacle for Japan to
participate in the Code.
Participation in the negotiation on the International Code of Conduct
will be the first task that the new administrative body in the Cabinet Office,
SSO, and the Space Office in MoFA have to deal with. It is not yet clear
how much Japan can contribute to the International Code, but it is certain
that Japan is strongly committed.
 EU Code of Conduct on Activities in Outer Space 97

Chapter 15
EU Code of Conduct on Activities in Outer
Space: Issues that Matter
Jessica Los Banos

The successful landing of the $2.5 billion worth Mars Science Laboratory
and Curiosity rover by the United States on Mars on 5 August 2012 is the
latest testament of the exponential growth and progress of humankind’s
continuing foray into Outer Space. The domain of space is widely accepted
as a global commons. There is also general consensus that the inherent freedom
of exploration of space and its use should not only redound to the benefit of
powerful space-faring nations and those with resources to undertake them,
and that to guarantee such freedom, a new and enhanced global system to
equitably govern the conduct of Outer Space activities is imperative. In this
regard, the initiative of the European Union to introduce an International
Code of Conduct for Outer Space Activities (CoC) is a timely opportunity
for both space-faring and non-space-faring nations to renew their commitment
to promote the free use of Outer Space for peaceful purposes while fully
respecting the security, safety and integrity of space objects in orbit. This is
a shared paradigm that aims to sustain humankind’s ability to harness the
infinite potential of Outer Space for the common benefit and preservation
of humankind well into the future.
The forthcoming negotiations at the UN Multilateral Experts Meeting
in New York in October 2012 are expected to intensify and underscore
conflicting self-interests and positions of states on the scope and limitations
on the conduct of Outer Space activities. There is therefore a need to focus
the ensuing debates on what really matters. Deliberations must not be
overshadowed by highly contentious geopolitical issues such as those arising
98 Decoding the International Code of Conduct for Outer Space Activities

from defence and military uses of Outer Space. More important and pressing
are the economic, socio-cultural, developmental, and environmental concerns
affecting ordinary people whose lives are inestimably impacted on a daily basis
by the conduct of activities in Outer Space. Therefore, any discussion on
the adoption of a code of conduct on Outer Space must centre on three
relevant issues: (a) subscription vis-à-vis adequacy of the code; (b) Outer Space
environment protection; and (c) conformity and compliance.

Subscribing to the Code

It has long been recognised in international relations and practice that
governments enter into legally non-binding agreements to communicate state
policies or intentions. The CoC is one such instrument. As a non-binding
instrument, there is nothing pioneering or ground-breaking in it that cannot
be found in the existing framework regulating Outer Space activities. This
minimizes the scope for any controversy regarding the CoC proposal and
the possibility that states are discouraged from subscribing to it.
First, the code is pragmatic. It aims to enhance the safety, security and
predictability of the use of Outer Space, to contribute to transparency and
confidence-building measures, and to complement the existing regulatory
framework. Second, it bypasses controversial issues such as weaponisation or
nuclear use of space. Third, it acknowledges clearly the legitimate defence
interests of states, recognising the right to use Outer Space for military
purposes subject only to limitations imposed by international law and to
prevent Outer Space from becoming an area of conflict. Fourth, measures
are designed to protect the physical space environment by minimising the
possibility of accidents, collisions, or any form of harmful interference in the
right to the peaceful exploration and use of Outer Space and to limit the
creation and reduce the impact of space debris in Outer Space. Finally,
cooperation and organisational mechanisms such as the use of orbital
parameters, registration of space objects, and notification and consultations
are subject to the standards of good faith and equitable balance of interests.
Some states may argue that the CoC is therefore redundant, unnecessary,
weak, open to interpretation, or even abuse. The consultations are an
appropriate venue to refine the wording of the text to enhance its adequacy.
Be that as it may, since it is legally non-binding, the code should be valued
for itself, particularly for its simplicity as a practicable roadmap for action
and change. It encourages voluntary positive behaviour and sends the message
that states are not politically or even morally free to act as if no obligations
exist for them under international law. The code is not contrary to the
 EU Code of Conduct on Activities in Outer Space 99

freedom of use of Outer Space; hence it is for the best interest of humankind
that it is now enacted and adhered to by states.

Protecting the Viability of the Outer Space Environment

The reluctance of some states to subscribe to the code generally stems from
a fear of possible operational implications and impact on activities, particularly
in delimiting and constraining military uses of Outer Space. However, this
mindset is counter-intuitive. The code does not prohibit the use of Outer
Space for military purposes and even leaves open the possibility of
weaponisation of space and nuclear use. The disinclination of states against
the code is rooted in their rational self-interested behaviour regarding the
concept of global commons and use of resources. One way to address this
dilemma is through collective action by way of the proposed code of conduct.
To appreciate the necessity of enacting the code, one must be familiar with
the environmental context of Outer Space.
At present, the increased exploration and use of Outer Space has made
the space environment hazardous. Space-situational-awareness technologies
and systems currently track more than 20,000 items in space from satellite
and mission launches, including components of launch vehicles, disabled
satellites, dead batteries, and even refuse from human missions. As travel in
space is significantly magnified, even flecks of paint could potentially damage
manned or unmanned spacecraft. Space debris creation is exponential as per
the Kessler effect syndrome. If the escalating growth of space debris is not
halted, Outer Space might needlessly become a high-risk environment.
From a functional perspective, satellites and missions play a significant
role in ensuring protection and sustainability of the Earth’s environment and
sustainable development. They relay information on climate change, extreme
weather events, rising sea levels, retreating glaciers, loss of biodiversity,
population growth, human migration, and disaster monitoring, emergency,
and assessment services, among others. The remote sensing capabilities of
satellites are also increasingly being used in commercial activities including
media, farming, shipping, real estate management, urban and regional
planning, retail marketing, resource assessment, and tourism and recreation.
Therefore, the debates must focus attention on balancing scientific,
military and commercial uses of Outer Space. Geopolitical issues must take
a back seat to common global concerns such as sustainable development and
environmental protection, which can only be guaranteed if the environment
of Outer Space is regulated.
100 Decoding the International Code of Conduct for Outer Space Activities

Conformity and Compliance

States are also reluctant to enact a code of conduct on account of the lack of
accountability and enforcement mechanisms inherent in a non-legally binding
agreement. Adherence to it being voluntary, the code will not necessarily
enunciate rules to force compliance of commitments by states. However, as
we are embarking on new and uncharted frontiers of exploration, travel and
even human habitation in space, the absence of conformity and compliance
provisos in the present text should not be a deterrent for avant-garde states
to subscribe to the code. Moreover, as it contains a section on organisational
aspects, the conduct of regular meetings and consensus decision-making will
increase the likelihood that such a mechanism may be established in the future.
In any case, the forthcoming consultations are again the appropriate venue
to revisit the issue whether or not subscribing states should in fact provide
for such a mechanism and incorporate it in the code accordingly.

Conclusion
The proposed EU code of conduct is one way to challenge the existing law
of Outer Space without necessarily requiring states to enter into legally binding
commitments. It is a viable means of marshalling common positions on both
contentious and practical policy issues and intended courses of action on
mutual concerns. It is also an opportunity for facilitating political
commitments on the conduct of activities in Outer Space, which would be
difficult in a multilateral or even a bilateral treaty arrangement setting.
Admittedly, the present code of conduct is an insufficient vehicle to enforce
compliance of obligations, but it is an essential normative instrument to
harmonize the interests of space-faring and non-space-faring countries. While
shaping and promoting sustainable conduct of Outer Space activities, it will
lay the groundwork to transform commitments into legally binding
obligations either through the enactment of a treaty or their crystallisation
into customary law in the future. Negotiations on the CoC will of course
require time and patience; but it may be the best strategy and option currently
acceptable to most states involved in the conduct of Outer Space activities.
 Right Step Forward Although not Perfect 101

Chapter 16
Space Code of Conduct: Right Step Forward
Although not Perfect
Park Won-hwa

Certainly, sovereign states are not willing to see their inherent rights of
sovereignty infringed in the least. Nevertheless, all states strive for international
cooperation, a euphemism for selective cooperation whereby the national
interest is promoted or least impaired. The seemingly paranoid approach of
some states in certain cases is often real in the domain of national security,
perhaps due to the strong power exercised by the military people in the history
of humanity rather than to its proper primordial importance.
The Code of Conduct is not binding and is open to all states. However,
it introduces a consultation mechanism with options of creating ad hoc fact-
finding missions. Besides, a Central Point of Contact is foreseen as the
permanent structure to receive information, maintain electronic database,
serve the secretariat role, and carry out other tasks. I shall explore each of
them briefly.
It is certainly desirable that we have a solid and legally binding instrument
to fill the gap of a certain legal order of Outer Space. We failed to do so
after the conclusion of the Moon Treaty in 1979, about whose significance I
am very doubtful. Because of different views of space powers even a soft touch
to deal with matters in Outer Space has been hard to come by in recent years.
There are many organisations, including the OECD (Organisation for
Economic Cooperation and Development), where peer reviews play a
substantial role of pushing and restraining member states to be on the right
102 Decoding the International Code of Conduct for Outer Space Activities

track, despite lack of any document of a binding character. Even in the United
Nations, where numerous treaties have been adopted, adopting important
guidelines in the form of resolutions has been the norm. The resolutions
represented the values of the time, although some of them can eventually be
reformulated into hard law according to the necessity of the time. One such
case is the UN General Assembly Resolution 1962 on the Declaration of
Legal Principles Governing the Activities of States in the Exploration and
Use of Outer Space, adopted in 1963, later being transformed into a few
different treaties of Outer Space.
Even though the soft law type of document, i.e. UN resolution, is not
the same as the hard law treaty, it does not lose its value. This is exemplified
in the UN resolution on the Universal Declaration on Human Rights adopted
in 1948. That is why we need not overemphasize binding character, but rather
accept it as the reality of the current time with possible change of legal
character in future.
Consultation is a wise and practical approach whenever there are concerns
of states regarding the activities of other states in an area subject to no one’s
jurisdiction. The Outer Space Treaty of 1967 and Antarctic Treaty of 1959
are examples where state parties can resort to consultation. UN General
Assembly Resolution 41/65 on the Principles Relating to Remote Sensing of
the Earth from Outer Space, adopted in 1986, is another such instrument
where, through consultation, potential conflicts are discouraged from
escalating. Having the effect of peer pressure, it plays a useful role in keeping
the peaceful order of the world.
An accident or incident is much easier to resolve if the real facts of the
case are known. In most cases, this does not happen; all the more so when
the case has international implications. Establishing a fact-finding mission
is an effective way of dealing with disputes arising from an accident or
incident as long as the states involved agree to it. As regards the Central
Contact Point (CCP), many states will possibly voice their opposition when
the occasion arises in an advanced stage of discussion because it requires new
funds and staff. A solution can be found by adopting the Code as the UN
Resolution to entrust the role of CCP to the COPUOS (Committee on
Peaceful Uses of Outer Space), which may need only one or two more staff
members in addition to the current structure to conduct the mission. With
the adoption of UN General Assembly Resolution 1721 B in 1961, the
COPUOS is keeping a record of launching objects separate from the one in
accordance with the Registration Convention of 1975.
As regards a more critical aspect of the fate of the Space Code of Conduct,
 Right Step Forward Although not Perfect 103

although the preliminary positive reaction of the USA was sounded out, it
is not clear whether America will be accommodating to the Code with certain
amendments to suit its unique interests without impairing the fundamental
character of the Code. We are aware of its strong concerns for freedom in
Outer Space, where it believes it has strategic security advantages over other
states. Its longstanding concerns have been clearly manifested in its lonely
and eye-catching opposition to adopting resolutions on PAROS (Prevention
of Arms Race in Outer Space) every year in the UN General Assembly. The
same holds for the definition and delimitation of Outer Space and the
discussion of a comprehensive treaty on Outer Space that Russia and China
proposed and refreshed with another name, PPWT (Prevention of the
Placement of Weapons in Outer Space), in 2008.
It remains to be seen whether both EU and America can agree to the
Code with certain amendments acceptable to both sides, but keeping it
meaningful without losing its substance and universality. If America puts the
spirit of cooperation before its security-beholden perception, unique in current
international relations, there is a great chance of having a new instrument
useful to govern Outer Space, which is ever more likely to be congested and
riskier unless a certain order is in place. What if America adamantly holds
on to its paranoid concept of security? At this juncture, I recall the history
of the Convention on Climate Change adopted in 1992 to save the Earth
from global warming from emissions of gases like carbon dioxide (CO2) and
thus rendering the Earth unfit for animals and humans to live on. To
implement the Convention, the world community adopted the Kyoto
Protocol in 1997, whereby the rich states committed themselves to reduce
their global warming gases in the five-year period that ends in 2012; but
America soon opted out on the pretext of protecting its enterprises.
I think it will be another contribution on the part of Europe, following
its leading role in the Kyoto Protocol, to propose a Space Code of Conduct
because there has been no significant movement of norms-making to govern
space activities in recent years. There are great chances for it to be successfully
accepted by all the space-faring states. Since it would be such a meaningful
instrument, even if a strong space power rejects it betraying the expectation
of the rest of the world, we had better proceed along it as another positive
milestone for humankind.
104 Decoding the International Code of Conduct for Outer Space Activities

Chapter 17
EU Draft Code of Conduct for Outer Space
Activities: Space Debris and Liability
Convention
Doo Hwan Kim

The Context
In December 2008 the EU adopted a Draft Code of Conduct (EU Draft
CoC) for Outer Space activities. In September 2010 the EU came out with
a revised version of it. The Code, a politically and not legally binding
document, aims to establish some rules of good conduct for Outer Space
activities. Now the European Union will have to try to muster enough
adoption of the Code, at the international level, to make it an effective “soft
law” tool for space governance.1
Some experts look at the Hague Code of Conduct against Ballistic
Missiles Proliferation (HCoC) as a successful example of how “soft law” can
be implemented and play a concrete role in an international security context.
HCoC has reached in less than six years an important number of adhesions:
130 countries including the United States and Russia, which are the most
active actors in terms of the development and launch of ballistic missiles and
space launch vehicles. Significant countries are, however, still absent from
the HCoC, such as active actors like DPRK (North Korea), Iran, China and
emerging actors in the space sector like Brazil, Mexico and Saudi Arabia. Most
of the countries located in the region extending from the North of Africa to
Eastern Asia do not participate in the HCoC.2
The main aspects considered here include the universalisation of the EU
 EU Draft Code of Conduct for Outer Space Activities 105

Draft CoC and its chances to motivate a larger participation in it, its effective
implementation by adhering states and the scope of the Code. In many
respects, the Code provisions are hardly controversial, and reflect
commonsense practices for operating in orbit. This aspect stands out
particularly when compared with a more restrictive proposed space arms
control treaty, known by the acronym PPWT (Prevention of the Placement
of Weapons in Outer Space), supported by China and Russia.
At present, various activities in Outer Space are governed by a few globally
acknowledged treaty mechanisms like the Outer Space Treaty (OST, 1967)
and the Moon Treaty (1979). Other important treaties in this regard include
the Agreement on the Rescue of Astronauts, the Return of Astronauts and
the Return of Objects Launched into Outer Space (Rescue Agreement, 1968)
and the Convention on International Liability for Damage Caused by Space
Objects (Space Liability Convention, 1972).
The UN has also undertaken various initiatives like the Committee on
the Peaceful Uses of Outer Space (COPUOS, 1959) and Prevention of an
Arms Race in Outer Space (PAROS, 1982). The UN has produced various
General Assembly Resolutions, Meetings, Conference on Disarmament (CD)
working papers, etc., on the issue.
The measures on space debris control and mitigation adopted by the EU
Draft CoC are as follows:
5. Measures on space debris control and mitigation. In order to limit the
creation of space debris and reduce its impact in outer space, the
Subscribing States commit to:
– refrain from the intentional destruction of any on-orbit space
object or other activities which may generate long-lived space
debris;
– adopt and implement, in accordance with their own internal
processes, the appropriate policies and procedures or other
effective measures in order to implement the Space Debris
Mitigation Guidelines of the United Nations Committee for the
Peaceful Uses of Outer Space as endorsed by UNGA Resolution
62/217.3

Space Debris and Liability Convention

Concerns about the harm caused by intentional or accidental events to
orbiting space objects have increased in recent years, following two episodes
that caused damage to satellites and an impressive amount of debris (Chinese
anti-satellite missile test, held on January 2007 and the collision between
106 Decoding the International Code of Conduct for Outer Space Activities

Iridium 33 satellite (US) and Cosmos 2251 satellite (Russia) in February

2009). This document is intended as a proposal for a non-legally binding
consensus ranging from security of space assets to the mitigation of space
debris. It calls upon countries to refrain from actions that would damage or
destroy other satellites or interfere with their communications, and to
minimize the risk of collisions, as well as limit the creation of orbital debris,
among other measures. Space debris has become an official enemy of
humankind. Space debris has also brought grave potential threats for human
activities in Outer Space.
The 1972 Liability Convention has not regulated the scope and limits
of compensation for damage caused by space debris. A new framework is
required for innovation on the damage caused by space debris as well as
amendment of the Liability Convention. The space debris problem can only
be effectively solved by international cooperation.
Consultations between space agencies are taking place with increasing
frequency. Meanwhile, states have to keep in mind that the exploration and
use of Outer Space is for the benefit and in the interest of all countries. We
should try to reach an international agreement, binding on all space-using
nations, which encompasses the need to protect space and the Earth
environment.
The Space Law Committee of ILA sent its recommendation to the UN
COPUOS for further action. After the committee of space-faring nations
has reached consensus on the basic steps to be taken, and has presented its
findings to the Scientific and Technical Subcommittee of the COPUOS, it
may be appropriate for the Legal Subcommittee of COPUOS to take up the
matter, in order to debate and resolve the definition, jurisdiction and control,
liability, and other legal issues that many legal experts consider need
addressing in the preparation of an international agreement.
It is necessary for us to exchange information and views among the
countries on the damage caused by space debris and to establish an integrated
monitoring system for preventing and mitigating the damage caused by space
debris as a special and affiliated organisation under the United Nations. First
of all, I would propose the establishment of a new Asia-Pacific International
and Environmental Monitoring Organisation. It is also necessary for us to
enact independently a new Draft for the International Instrument on the
Protection of the Earth Environment from Damage Caused by Space Debris
as well as to amend some articles of the 1972 Liability Convention in order
to protect victims in the case of accidents caused by space debris.
 EU Draft Code of Conduct for Outer Space Activities 107

NOTES
1. Valerio Briani, The EU as a force for stability in space – The EU Code of Conduct for
Outer Space Activities, European Security and Defence Forum Workshop, 11 November
2010, http://www.chathamhouse.org.uk
2. Lucia Marta, The Hague Code of Conduct Against Ballistic Missile Proliferation: “Lessons
Learned” for the European Union Draft Code of Conduct for Outer Space Activities, ESPI
(European Space Policy Institute) No. 34, Perspectives, June 2010, p. 3.
3. UN General Assembly, Sixty-second session Agenda item 31, 62/217 International
cooperation in the peaceful uses of outer space, 1 February 2008.
108 Decoding the International Code of Conduct for Outer Space Activities

Chapter 18
Securing Space: Will Code of
Conduct Discussions Help?
A Perspective from Australia
Brett Biddington

Since 1957 the objects of human origin orbiting Earth have grown from one
to a very large, unknown number. The US Air Force has characterised and
routinely tracks in the order of 20,000 or so of these objects, many of which
are in highly inclined Low Earth Orbits (LEO). Most of these objects are
space junk—satellites that are no longer working, rocket casings, some intact
and some in pieces, and a miscellany of other items. They all represent a
collision risk to the operational satellites in the LEO domain.
Space-faring nations and the international community more broadly, have
come to understand that some parts of LEO space in particular have become
increasingly congested to the point that new approaches are needed to preserve
the LEO space environment as a safe and secure domain in which satellites
may operate as intended, performing a range of missions including Earth
observation, communications, astronomy and space weather monitoring and
research.
In the past decade there have been growing calls for “rules of the road”
and “codes of conduct” to be developed, which space-faring nations will agree
to embrace or abide by in future, to ensure that LEO space remains open,
accessible and safe to all potential users. These calls conform to the aspirations
of the Outer Space Treaty and associated documents, which state the principle
of space being part of the “common heritage of humans” and “a global
 Securing Space: Will Code of Conduct Discussions Help? 109

commons”. Such idealism and aspiration may be a useful place to start;

however, the reality tells a different story.
National security and military advantage, in the past, today and into the
future, are the fundamental drivers for human investment in space activities.
Space remains the high ground for diplomacy and war and the almost
exclusive preserve of the world’s most powerful nations. In the view of this
writer, this situation is unlikely to change until ways of reaching space and
returning from it cheaply, reliably and repeatedly are developed. Some
governments will tolerate limited entrepreneurial activity in the margins but
only to the extent that core security values and requirements are not
compromised.
Certainly, the national security landscape has become much more
complex as an increasingly tightly coupled global economy has emerged,
largely as a consequence of the internet and associated technologies which,
coupled with cheap and reliable air transportation, have brought almost all
nations on Earth only milliseconds away from each other electronically, and
only a day away at most, to the traveller. Almost six decades of Earth
observation from space has provided scientists, policymakers and broader
audiences a holistic view of Earth as a single ecosystem which needs careful
stewardship if life on Earth is to be sustained ad infinitum. The ecosystem
does not respect national borders; and the health of the atmosphere and the
oceans, irrespective of how nations enforce their sovereign rights to airspace
and territorial seas, is of concern to all. Satellites provide a unique view of
the Earth’s environment and the changes that would seem to be occurring
to it, perhaps at an accelerating pace in response to human impact.
The Australian government has known from the beginning of the Space
Age that national security is the critical driver for space investment and space
activity. Australia’s approach to space has always proceeded from this starting
point. It explains why, in the 1950s, Australia permitted the United Kingdom
to develop and test rockets at Woomera as the means to deliver atomic
weapons, also developed and tested in Australia, until the British realised that
they could not afford to build and maintain such expensive capabilities on
their own. Since the 1960s, Australia has hosted facilities such as the satellite
ground station at Pine Gap near Alice Springs which supports US intelligence-
gathering satellites that also perform critical Nuclear Non-Proliferation Treaty
(NPT) monitoring and verification missions.
To summarize, since the beginning of the Space Age, Australia’s vital
national interests in space have been met as a direct consequence of the
nation’s most important alliance relationship—initially with the United
110 Decoding the International Code of Conduct for Outer Space Activities

Kingdom and later, and more fundamentally, with the United States. More
importantly, for a nation with a small population and modest tax base, this
has been provided at virtually no direct dollar cost to successive Australian
governments. Space security has come as a free good which has been shrouded
in secrecy.
None of the above has been explained clearly or carefully to the broader
Australian community, which has led to confusion, disappointment and even
anger amongst investors, researchers and enthusiasts who puzzle why a
seemingly wealthy nation, the geography of which, prima facie, lends itself
to all sorts of clever uses of space, seems to be so uninterested in a public
space programme. This is beginning to change and the Australian government
is working towards agreeing upon and releasing a national space policy by
the end of 2012.
The government, through its own research and experience and the efforts
of progressively well-informed, reasoned and persistent public advocacy has
come to understand just how dependent are so many sectors of the economy
and broader social activities on assured and secure access to the three space-
based utilities—communications, precision timing and navigation and Earth
observation. The security of the space environment, in order that these space-
based services may be delivered with high levels of assurance, is expected to
be the key tenet of the forthcoming national space policy, which is anticipated
to indicate measures open to the government to positively influence the debate
and the desired outcome.
The Australian response to improving the security of the future space
environment, with particular reference to the physical domain of LEO space,
is likely to contain four elements.
• Diplomacy. Australia will participate actively in the international
diplomatic efforts to recast the laws, policies and norms that regulate
space activities. Australia is likely to take the view that any discussion
is better than none and, having already committed to support in
principle the international code of conduct being promoted by the
European Union, will seek to use such leverage as it has to bring the
divergent views of the space-faring nations closer together. A safe and
secure space environment is intimately and inextricably tied to questions
about reducing the likelihood of weapons of mass destruction (WMD)
being used in any future conflict. International law in the space domain,
as in any other, is ultimately limited by the extent to which nation
states agree to be bound by treaties, conventions and similar
instruments and by the behavioural norms and consultative and
 Securing Space: Will Code of Conduct Discussions Help? 111

cooperative processes that develop around such documents.

Australia is well placed to become an advocate in the international
councils of the world for the space dispossessed nations and peoples—
those which have no capacity or ambition to operate satellites of their
own but which have a direct and immediate interest in making sure
that they have access to the space-based utilities operated by others.
• Investment in Space Situational Awareness (SSA). Since 2009 Australia
has made a succession of public announcements about the importance
of space security and has committed itself to working with the United
States and the United Kingdom to strengthen global SSA by developing
national capability and capacity and by hosting ground-based SSA
sensors in Australia. The 2009 Defence White Paper made a series of
declaratory statements about the importance of space security overall
and placed particular emphasis on SSA. The government having
acknowledged that the recommendations of this White Paper are
unaffordable, a new white paper, to be released in 2013, is now being
prepared. Space security is likely to figure prominently in this
document.
• Support for Research. The Australian government funds long-term
collaborative research between universities, other research organisations
and industry through the Cooperative Research Centre (CRC)
Program. In the round to be funded from July 2013, for which
applications closed in June 2012, one of the nine applications submitted
is for a Space Environment Management CRC. If this application
succeeds, there will be a funded research and development programme
that builds on existing industry and research capabilities to develop
technologies and processes by which the rate at which space debris
proliferates may be reduced and, in time, the overall volume of debris
may be reduced as well. If the application fails, the research is likely to
proceed but at a slower pace.
• Alliance Management. Much of what Australia does is likely to be
framed, initially at least, by its alliance relationship with the United
States, which is likely to remain the most space-capable nation in the
world for the next twenty to thirty years at least. China and India are
making enormous strides and they, together with the United States,
Russia, Europe and Japan, stand to dwarf the efforts of others with
the ability to build, launch and operate their own satellites. Somewhat
in anticipation of the broader changes and challenges that the shifting
global power balance means for Australia, the government is understood
to be reviewing the policy by which other nations and commercial
entities may locate and operate ground stations in Australia. The
112 Decoding the International Code of Conduct for Outer Space Activities

principle of “full knowledge and concurrence” is currently applied and

is likely to remain. Implementation is the tricky piece because it can
involve a requirement to place Australian officials in control centres
in other countries.
Looking ahead, this writer concludes that the mature space-faring nations
will, at some point, agree amongst themselves to restrict new entrants to the
global space club to reduce the pressure on the Low Earth Orbits in particular.
They will learn to work in a domain that might be described as a complex
Mexican stand-off, in which each has a gun at the head of the others. The
regime will be a multilateral version of the mutually assured destruction
(MAD) logic that tempered the behaviour of both the United States and the
USSR during the cold war. In such a regime, new entrants will be actively
discouraged by a mixture of inducements and sanctions which the space-faring
nations will enforce in their own mutual interest.
Discussion about a code of conduct provides a framework for nations to
decide what can be done quickly and cooperatively to mitigate the
proliferation of space debris. It also permits empirical data to be gathered
and valued and for models to be developed and tested. Such negotiations
are likely to expose areas that are contentious and that will need more time
and effort before acceptable solutions can be reached. This is a vexed area
where national interests and global imperatives intersect and where no simple
way forward is apparent. The overwhelmingly important point is that dialogue
has begun.
 International Code of Conduct for Outer Space Activities 113

Chapter 19
International Code of Conduct for Outer Space
Activities: An Important Stepping Stone

Cesar Jaramillo

Recent debate about the prospect of a multilateral governance mechanism

for Outer Space activities tends to blur the distinction between the need for
a code of conduct for Outer Space activities and the merits and shortcomings
of the draft International Code of Conduct for Outer Space Activities (CoC)
put forth by the European Union. Likewise, the real or perceived limitations
of the proposed ban on space weapons put forth by Russia and China—known
as the PPWT—have to some extent overshadowed legitimate discussions
regarding the necessity of an arms control regime for Outer Space more
generally.
It is thus important to first assess whether the existing normative
framework for space does in fact require complementary policy instruments
that reflect the current and foreseeable dynamics of Outer Space activities.
If so, one can then evaluate the value, problem areas, and likelihood of
widespread adoption of the specific proposals currently on the table for the
consideration of space-faring actors.
The need to update the valuable, yet insufficient, multilateral governance
regime for Outer Space activities—epitomized by the 1967 Outer Space
Treaty—has become increasingly apparent. Despite the rapid advancement
and expansion of space activities, or precisely because of it, the normative
architecture for Outer Space has become inadequate to address current trends
of access to and use of space.
114 Decoding the International Code of Conduct for Outer Space Activities

In this context, the EU’s CoC proposal constitutes a welcome

development, irrespective of the outcome of the ongoing international
consultation process. Essentially a mechanism to codify a set of transparency
and confidence-building measures for Outer Space activities, the code aims
to reduce misperceptions and miscommunications among space actors and
to spell out the sort of behaviour that will contribute to a sustainable
space environment—such as that which limits the further creation of
space debris.
In 2011 it seemed probable that the US might support the code with
only minor amendments to the draft text, but it was later clarified that the
country would instead join the EU and other space actors to jointly develop
an International Code of Conduct. And although it was always the intent
of the drafters of the code to galvanize wide international support for this
initiative, the adequacy of the process to draft the document and seek
feedback from space-faring nations has been called into question by various
space stakeholders. It remains to be seen whether the latest stage of
consultations, launched on the margins of the 55th COPUOS plenary in
2012 with a renewed emphasis on the code’s international scope, will allay
such misgivings.
Various concerns have been raised about the effectiveness of a voluntary
policy instrument which is not legally binding. While valid, however, these
can easily be overstated. The adoption of any multilateral arrangement that
sets norms of acceptable behaviour—whether legally or politically binding—
is always a voluntary undertaking. Further, politically binding may be a more
accurate description of the code than non-binding. Even if it is not officially
a treaty, the adoption of the code would no doubt entail a well-publicized
international commitment by its signatories to adhere to its precepts. Space-
faring nations will likely sign up to the code only if they determine that they
are prepared to comply with its provisions.
The lack of enforcement mechanisms to make sure the signatories live
up to their obligations has also triggered criticisms of the code. Since it is
not legally binding, goes the argument, it contains no provisions to ensure
compliance. But even full-fledged international treaties with legally binding
provisions often lack enforcement mechanisms. In the event of non-
compliance, it is up to other states parties to the treaty in question to
formulate adequate responses that are not necessarily specified in the letter
of the treaty, as has been the case, for example, with the Nuclear Non-
Proliferation Treaty (NPT). So while it may be true that the proposed code
is neither legally binding nor readily enforceable, these conditions do not
 International Code of Conduct for Outer Space Activities 115

necessarily strip it of its value as an important step toward enhanced Outer

Space governance.
Another notably contentious aspect of the code has to do not with what
it covers, but rather what it leaves out. Addressing the issue of space weapons
and the concomitant prevention of an arms race in Outer Space was not the
intent of the drafters, and it is so reflected in the focus given to issues such
as debris mitigation, collision avoidance and data sharing—all of which are
important in their own right.
However, in the space domain, not every space actor has the same
priorities and concerns. Given the disparity among space-faring nations in
their extant capabilities, their reliance on space-based applications, the type
of information they would not want to disclose, and the extent to which
their space assets are vulnerable to deliberate or accidental harmful
interference, there are different areas that space-faring nations want to see
addressed by, or excluded from, such a code.
For some space actors, it is orbital debris that should command the most
urgent attention due to the indiscriminate nature and immediacy of the
threat. Others continue to see the prevention of an arms race in Outer Space
as the most important issue to tackle, given the destabilising effect that space
weapons would have for all space-faring actors. Space stakeholders would do
well to dismiss neither out of hand.
While the importance of orbital debris mitigation has been for the most
part undisputed, the real or perceived need for arms control has been a far
more contentious matter. In certain quarters the mantra has recently been
that space sustainability discussions should shift away from arms control to
focus on matters such as debris mitigation, data sharing and avoidance of
harmful interference. But it is also important to acknowledge that this view
is not universally held and there are those, including major space actors, who
believe that their concerns regarding space weapons remain valid and should
be addressed by the international community.
At this point it seems unlikely that the PPWT will galvanize the necessary
support, notably from the US, to become a widely adopted arms control
measure—at least not in its current form. But the potential problem areas
that several states and observers have identified in it should not be taken as
an indication that arms control in space is an illusory or misguided
proposition. The PPWT should at the very least encourage a conscientious
debate on the likelihood and implications of an arms race in Outer Space,
and the consequences of inaction.
116 Decoding the International Code of Conduct for Outer Space Activities

Space actors should acknowledge that the code can stand on its own
merits and still make an important contribution to Outer Space governance,
even if its provisions are not legally binding and it skirts the issue of space
weaponisation. The challenges facing the space domain are multifaceted, and
there need not be an expectation that they all be covered by a single initiative.
The relative worth of a space policy proposal should not be a function of its
capacity to effectively address all challenges to the sustainability of Outer
Space—from environmental, to commercial, military. The code, despite its
limitations, can make a concrete contribution to space governance. One hopes
that its adoption is not taken as an end goal that would jeopardize the pursuit
of further complementary initiatives.
 International Code of Conduct for Outer Space Activities 117

Chapter 20
Russian Approaches Towards Ensuring
Security in Space*

Russia’s foreign policy priority in ensuring security in space is the prevention

of an arms race in outer space (PAROS) and the adoption of a legally binding
Treaty on Prevention of the Placement of Weapons in Outer Space (PPWT).
The time that has passed since Russia and China presented the draft
PPWT at the Conference on Disarmament (CD) in February 2008 proved
the topicality and importance of our efforts. The international community
now more clearly realizes possible negative consequences of placement of
weapons in outer space. Several states, including India, have made remarks
and suggestions to the draft PPWT and now stand for an early start of the
respective negotiations at the CD in Geneva. Today the main practical
objective is to unblock the negotiation process at the Conference and to adopt
its balanced programme of work.
We consider interesting the long-standing Indian proposal to impose a
moratorium on the placement of weapons in space. Russian and Indian
approaches to the issue coincide. As early as 2004 Russia committed itself
not to place weapons in outer space first and now calls upon other states to
follow suit.
Developing the Outer Space Transparency and Confidence-Building
Measures (TCBMs) is an integral part of Russia’s PPW approach. Given the

*This article is presented by the Department for Security Affairs and Disarmament, Ministry
of Foreign Affairs of the Russian Federation.
118 Decoding the International Code of Conduct for Outer Space Activities

constantly growing dependence of all countries on the results of space

activities, it becomes even more critical to ensure the predictable strategic
situation in outer space, security in space and safety of space property. TCBMs
are directly related to developing common rules of conduct in outer space.
Since 2005, following the Russia-China initiative, the UNGA has been
annually adopting resolutions on TCBMs that have always enjoyed India’s
support. On the basis of the UNGA Resolution, adopted during the 65th
Session of the UNGA, the Group of Governmental Experts (GGE) was
formed and commenced its work on TCBMs (three working sessions have
been scheduled for 2012-13). Russia intends to interact closely with India
on the GGE issues. In Russia’s opinion, a coordinated «package» of TCBMs
and recommendations on their introduction into the international practice
can become an outcome of the GGE work.
On a parallel track work is being done on the draft Code of Conduct
for Outer Space Activities (CoC). This draft emerged as an EU answer to
the 61st Session of the UNGA Resolution on TCBMs. Originally, along with
other provisions it outlined PAROS as the most important factor of
strengthening strategic stability and developing international cooperation.
Later the EU significantly reviewed its CoC concept and departed from direct
connection with TCBMs. In this respect, at the Russia-EU expert
consultations the Sides agreed to differentiate between the subject and the
legal basis of the drafts PPWT and CoC. Russia insists that this should be
clearly stated in the preamble of the draft CoC. The draft CoC is viewed as
an eventual code of norms of voluntary implementation, targeted at ensuring
the security of all types of outer space activities. However, it does not touch
upon the issues of PAROS (the subject of the legally binding PPWT). The
Russian Federation believes that the only way to work out a truly feasible
Code is the transparent international discussion of the draft CoC and taking
into account the positions of all spacefaring nations. An important point—
the CoC drafting must not undermine our efforts aimed at elaborating the
PPWT.
Russia and India traditionally share common interests in keeping the
space free of arms. Russia highly values the position of India, which together
with us opposes the arms race in space and promotes liable and transparent
conduct in space. Russia is ready to expand such cooperation in all
dimensions, including the BRICS framework.
 The Future of the International Code of Conduct for Outer Space Activities 119

Chapter 21
The Future of the International Code of
Conduct for Outer Space Activities: From
Mission Impossible to Mission Sustainable?
Li Juqian

In less than four years, the EU has made three major efforts to promote its
document on Outer Space activities. The newest version was released on 5
June 2012, after the updated version of 2010 based on the 2008 draft. As a
document with general rules regulating space activities, the International Code
of Conduct for Outer Space Activities (the CoC) looks like providing some
base for a future treaty on the sustainability of space activities. But on closer
scrutiny, a treaty in this area is a mission impossible, and the international
society needs to do more to facilitate the sustainability of space activities.
This is an issue that cannot be ignored by humankind when we enjoy
the advantage and convenience brought by the development of space
technology and space activity. As consumers of GPS and mobile phones,
people may not know that there are more than 20,000 pieces of space debris
each bigger than a baseball; but people must know that the vast sky is so
crowded that a Russian and an American satellite collided in the sky. We
have to face this inconvenient truth if we are to protect the Earth from the
land, the sea, and now the sky.
Confronting this truth, the UN put the sustainability of space activity
on COPUOS’s agenda, and it has been a topic discussed frequently both in
international and domestic fora. The legal framework regulating space activity
has been established for more than thirty years, if we calculate from the Moon
120 Decoding the International Code of Conduct for Outer Space Activities

Treaty of 1979. The first UN treaty on Outer Space can be traced back to
1967, when even satellite mobile phones did not exist.
The rapid development of space technology and space activity in recent
decades has inevitably enlarged the discrepancy between the rules and the
reality. The leading space-faring countries have sent all kinds of satellites into
the sky. The USA alone has more than four hundred satellites in orbit.
Though international cooperation is a legal principle clearly provided in the
Outer Space Treaty of 1967, no mechanism exists for information exchange
relating to mitigation of space debris.
The CoC is a useful attempt against the background that both legal rules
and international cooperation are inadequate. The 2012 version of the CoC
has progressed at least on three aspects:
1. It recognizes the sustainability of space activity, which means that it takes
notice of the discussions in the UN on this issue.
2. The cooperation mechanisms and mitigation of space debris are stressed
more clearly. The principles of international cooperation must be
described in detail as rules so that they can be followed with a clear
understanding. Mitigation of space debris is a smaller issue compared
to the sustainability of space activity, but it is an important issue for the
sustainability.
3. The CoC recognizes and reaffirms the existing legal framework and
internationally accepted practices in space activity. This gives it a wide
base for acceptance or adoption.
Confident of the strengths of the CoC, the European Council has allocated
1.49 million Euros for its promotion and discussion. The CoC would be
discussed in October in New York, with expectations of its being implemented
next year.
There are, however, two big obstacles for the CoC being universally
accepted:
1. It is not a treaty and has no legal binding force. As the European Council
has no power to pass laws, the CoC has no legal binding force even in
the EU.
2. As such, if the CoC is to have any effect, it has to get a favourable
consensus from the key space-faring nations. After all, the efficiency of
rules is measured basically by the actions of the key actors. For example,
the USA does not support it, and Russia and China have been lukewarm
to it. How can the CoC be easily agreed to in domestic law-making
procedure while the USA still emphasizes its right to free access to space
and keep testing space weapons?
 The Future of the International Code of Conduct for Outer Space Activities 121

Under above circumstance the future implementations and effectiveness of

CoC appears to be a mission impossible.
The future of the CoC is not, however, entirely pessimistic. In
international law, soft law such as the CoC may not compare with a treaty
in terms of legal binding force, but it may stand for the common practices
accepted internationally, and has a major influence on state actors. When a
state acts contrary to a good practice widely accepted in the international
society, it faces pressure to justify its act.
States generally adopt good practices developed or accepted in the
international society. For example, China has an industrial standard for
mitigation of space debris, which is adapted to the international principles
in the UN document with the same purpose.
To sum up, the future of the CoC as a soft law is positive, and is more
feasible than a treaty. It has the potential to stimulate the international society
to develop the relevant rules, and gives a reason for states to make their own
relevant rules. All in all, the future of the CoC is a mission sustainable, and
not mission impossible.
122 Decoding the International Code of Conduct for Outer Space Activities

Chapter 22
CoC: Need for a Holistic Approach
Ciro Arévalo Yepes

A draft International Code of Conduct on Outer Space (CoC) for devising

a voluntary international agreement to enhance space security is currently
being structured outside of United Nations arrangements. As a former
Chairman of the Committee on the Peaceful Uses of Outer Space (COPUOS,
2008-9) I feel it necessary to offer some broad comments about how best the
United Nations system could be used to address issues related to space security.
My views expressed in the following paragraphs are based on my working
paper presented to COPUOS during its fifty-third session at Vienna (June
2010). A modified version of this paper is available as conference room paper
A/AC.105/2009/CRP.12.
The space environment is changing rapidly, with a growing number of
states seeking to develop or extend their space capabilities. A variety of non-
state actors are also extending their involvement in space activities. A private
company successfully launching a robotic spacecraft is an example of this.
All this indicates the need to have a better management of activities in Outer
Space. For four to five decades the United Nations has made various efforts
in this direction. The COPUOS was established by the General Assembly
in 1959 to review the scope of international cooperation in peaceful uses of
Outer Space, to devise programmes in this field to be undertaken under
United Nations auspices, to encourage continued research and the
dissemination of information on Outer Space matters, and to study legal
problems arising from the exploration of Outer Space. Five multilateral
treaties have been devised under the United Nations authority which address
specific issues related to space administration.
 CoC: Need for a Holistic Approach 123

Even today, the United Nations remains a principal intergovernmental

forum to deal with various space-related issues. The United Nations system
itself has become increasingly reliant on space systems for its day-to-day
operations. In order for the United Nations to play its necessary role in the
space arena, it will need to be supported by a space policy. A United Nations
space policy could provide overarching guidance on space activities for United
Nations stakeholders, inform United Nations participation in space activities,
and promote improved coordination and cooperative governance of Outer
Space activities. A world without a common United Nations space policy
will not be able to respond to the rapidly evolving Outer Space challenges.
Basically, a holistic approach is necessary to promote and strengthen the use
of space technology and its applications in the United Nations system.
In view of the current evolution of the space arena in terms of
diversification and multiplication of actors, threats and challenges, there is a
growing need for the United Nations to take actions providing overall
stewardship of space activities for the following reasons.
(a) Stable order in orbit
(b) Integrated approach to the use of space
(c) Need to establish a supportive environment for new space users and
space-faring countries
(d) Utilisation of space for the benefit of all humankind
The principles and practices of a United Nations space policy cannot be
realised without appropriate and adequate means. At the moment, neither
COPUOS nor other international organisations have sufficient budgets or
institutions to implement a United Nations space policy. These means could
be achieved if the United Nations were to:
(a) Encourage member states to cooperate in the establishment of regional
space cooperation forums and agencies for developing regional space
programmes.
(b) Strengthen the function of regulating the orbital environment for the
fair and responsible use of space.
(c) Promote dialogue between space-faring states, space-user states and other
organisations.
(d) Develop a forum of space-faring states and a forum of space-user states.
In the new space era that is unfolding, the United Nations cannot afford to
miss the opportunity to develop its own long-overdue space policy. A world
without a United Nations space policy would be lacking a key element to
face the future with confidence, to improve current mechanisms for the
exploration and uses of Outer Space and to ensure the long-term sustainability
124 Decoding the International Code of Conduct for Outer Space Activities

of space activities. Moreover, the United Nations needs to find a new way of
thinking about its role in the world, and space is a crucial element in this
context.
Over the years much effort has been spent at different fora in the United
Nations to address the issues related to space security. Suggestions like
developing a CoC that is non-binding and voluntary in nature have been
discussed. This may not be a perfect solution, but it is still an important
step in the correct direction. There is therefore a need to have a detailed
debate on this issue. The various points mentioned above do have direct or
indirect bearing on the proposed draft CoC. Specifically, in regard to CoC
the following points need to be taken into account:
• Global space governance should avoid top-down approaches that risk
making the proposal inadequate.
• In the perception of developing countries, CoC preliminary
negotiations were extremely “selective” and lacked sufficient
transparency.
• Access to GEO, space application sustainable approaches and
interrelation with main global agenda issues needs to be restructured
within the CoC.
• Experience has demonstrated that regional initiatives need to be
validated by multilateral UN fora such as COPUOS if the intention
is to be successful. CoC came in an already “mature” stage of
consultations, creating confusion with the proposal of space
sustainability.
• The superposition of issues in the Legal Subcommittee risks the debate
becoming extremely complicated.
• Formal interrelation with PPWT is to be reinforced.
• A High Level Panel of Experts (such as G15 in COPUOS) under the
UN framework has to deal with the compatibility of this main proposal.
• A holistic approach is needed.
 CoC: Need for a Holistic Approach 125

Chapter 23
The International Normative System and a
Code of Conduct for Outer Space Activities
Tare Brisibe

Maintaining Peace and Security

To commemorate several milestones during the year 2011, including the
fiftieth anniversary of human space flight, the fiftieth anniversary of the United
Nations Committee on the Peaceful Uses of Outer Space (COPUOS), and
the fiftieth session of its Legal Subcommittee, the UN General Assembly
adopted the 50th Anniversary Declaration. In this declaration, annexed to
Resolution 66/71, the Assembly recalls the first meeting of the Permanent
COPUOS, convened on 27 November 1961, which facilitated the adoption
of Resolution 1721 (XVI), “International Cooperation in the Peaceful Uses
of Outer Space”. By Resolution 1721 A, the following principles were
commended to states for their guidance in space activities: that international
law, including the Charter of the United Nations, applies to Outer Space
and celestial bodies; and that Outer Space and celestial bodies are free for
exploration and use by all states in conformity with international law and
are not subject to national appropriation. In Resolution 1721 B the Assembly,
amongst other things, expressed its belief that the United Nations should
provide a focal point for international cooperation in the peaceful uses of
Outer Space, and stipulated the first mandate for the registration of objects
launched into Outer Space.
These principles found further expression in Resolution 1962 (XVIII),
“Declaration of Legal Principles Governing the Activities of States in the
Exploration and Uses of Outer Space”, adopted at the same time as Resolution
126 Decoding the International Code of Conduct for Outer Space Activities

1884 (XVIII), “Question of General and Complete Disarmament”.

Resolution 1962 (XVIII) details nine principles, arguably universally accepted
and obligatory, stipulating that: Outer Space should be explored and used
for the benefit and in the interests of all humankind; Outer Space is free for
exploration and use by all states; Outer Space is not subject to national
appropriation; activities in Outer Space should be carried out in accordance
with international law; states bear responsibility for national activities in Outer
Space; in the exploration and use of Outer Space, states should be guided
by the principle of cooperation and mutual assistance; states should retain
jurisdiction and control over space objects which they have registered; states
should be internationally liable for damage caused by their space objects; and
states should regard astronauts as envoys of humankind in Outer Space, and
should render them all possible assistance. Resolution 1884 (XVIII) called
upon all states to, amongst other things, refrain from placing in orbit around
the Earth any objects carrying nuclear weapons or any other kinds of weapons
of mass destruction, installing such weapons on celestial bodies, or stationing
such weapons in Outer Space in any other manner.
The principles established in these resolutions remain highly relevant fifty
years after their adoption, and amongst numerous truly impressive
achievements, it can be said that the Committee and the Legal Subcommittee
have been instrumental in developing the international legal regime governing
the activities of states in the exploration and use of Outer Space, consisting
of treaties,1 declarations2 and principles3 on Outer Space activities being the
legal foundation for space activities today. It is not surprising that in the 50th
Anniversary Declaration, the Assembly whilst reaffirming the importance of
international cooperation towards developing the rule of law, including the
relevant norms of space law, and of the widest possible adherence to the
international treaties that promote peaceful uses of Outer Space, recalls the
entry into force of the 1967 Outer Space Treaty that codified the fundamental
principles of international space law. In the context of this paper, two
observations should be highlighted.
First, it is expected that activities in Outer Space shall be conducted for
“peaceful purposes”; but though certain specific prohibitions apply to the
Moon and celestial bodies, a universally accepted definition of the phrase
“peaceful purposes” does not currently exist, given that it could be construed
to mean non-aggressive or even non-military. Although this phrase can be
found in various multilateral instruments,4 an appraisal reveals that it is
interpreted or construed separately and uniquely, distinct from one instrument
to another. It would seem that this phrase, which features in the Outer Space
Treaty, the Moon Agreement, as well as in the preambular provisions of both
 The International Normative System and a CoC for Outer Space Activities 127

the Liability and Registration Conventions, constitutes a convenient

alternative to the more familiar use of the terms “demilitarisation” and
“neutralisation” as is traditional in arms and armament affairs.
Secondly, Outer Space activities are never undertaken in a legal vacuum:
it has been firmly established that international law, including the Charter
of the United Nations, is applicable to activities in Outer Space. Accordingly,
states are expected to carry out activities in the exploration and use of Outer
Space in the interest of maintaining international peace and security and
promoting international cooperation and understanding. There is unanimity
regarding the applicability of certain Charter provisions; but disagreement
regarding the right to self-defence in Outer Space and regarding other
obligations of international law, some of which could be deemed applicable
to activities in Outer Space; such as, in the context of this paper, the general
principles of international law concerning the regulation of the use of force
by states, the jus ad bellum.

Evolving Structure and Content of Outer Space Endeavours

In its 50th Anniversary Declaration, the UN General Assembly acknowledges
that significant changes have occurred in the structure and content of space
endeavour, reflected in the emergence of new technologies and the increasing
number of actors at all levels. It is necessary to elaborate on some of these
occurrences. For instance, recent reports indicate evidence of growing and
systematic jamming, by deliberate and repeated harmful interference, being
caused to uplink signals of some satellite television and radio networks.
Amongst various methods of settling international disputes (including inquiry,
mediation, conciliation, arbitration, judicial settlement, and resort to regional
arrangements or agencies or other peaceful means of the parties’ own choice),
negotiations and consultations are usually the first, and appear to constitute
the principal technique. But dispute settlement plays an even greater role for
non-governmental entities, which have no direct recourse to diplomatic and
political means, and seek binding judgments based on commercial contracts
rather than treaty obligations. There are of course longstanding issues
applicable to Outer Space activities to which universally acceptable solutions
have not been found. The definition of political and territorial limits in Outer
Space vis-à-vis jurisdiction applicable thereto is one of several.
Testing conventional weapons and/or missiles remains lawful in Outer
Space, just as it is lawful on the high seas and in the superjacent airspace.
Added to the longstanding recognition of space technology either in the form
of weapons, surveillance, or support systems being possible catalysts for an
128 Decoding the International Code of Conduct for Outer Space Activities

arms race, is the growing realisation that long-term threats to global security
will also come from natural or artificial changes to the space environment.
Recent events, intentional and accidental, have resulted in massive debris
fallout, giving impetus to proposals for debris removal procedures. Related
legal questions border on issues of registration, jurisdiction and control of
space objects on the one hand, to rules of delict and tort for harmful
consequences arising from extra-hazardous activities. Just as space science and
technology applications, including Earth observation systems have become
most relevant to critical areas of global concern, such as climate change, food
security, global health, sustainable use of natural resources, economic
development, and natural disasters, one is hard pressed to enquire whether
certain principles, pertaining to remote sensing of the Earth from Outer
Space, intended to promote protection of the Earth’s natural environment
and humankind from natural disaster, have not already become universally
binding.

Enhancing Peace and Security

Commencing in the late 1970s through the early ’80s and more recently in
the year 2008, various initiatives have been put forward proposing means
and modalities for addressing the question of arms and armament in Outer
Space, including the threat or use of force. Some proposals have even
recommended a Protocol, amending demilitarisation provisions of the Outer
Space Treaty that will include reference to conventional weapons and missiles
along with reciprocal rights to inspection whilst extending peaceful purposes
to Outer Space. Others have proposed amending the definition of the crime
of Aggression to include reference to space forces quite like the armed land,
naval and air forces of states. What seem to be at the heart of an inability to
reach consensus are, amongst others, the technologies of ballistic missile
defence and anti-satellite weapons, and it can thus be argued that the real
questions lie beyond the law and in fact concern scientific progress, military
strategy and national policy. But in the interest of maintaining peace and
security, alongside the Registration Convention, are currently existing
procedures providing guidance for registration 5 of space objects with
possibilities for notification and/or provision of information regarding ballistic
missile and space launch vehicle programmes.
There are laws and practices from which immediate and reliable analogies
can be drawn, such as those concerning the civil responsibility of states for
breaches of international law and appropriate remedies, noting that an aspect
of the liability regime applicable to Outer Space activities is an exception to
the general reluctance of states towards rules imposing strict liability, whilst
 The International Normative System and a CoC for Outer Space Activities 129

other aspects of liability and responsibility for injurious consequences of Outer

Space activities depend on the establishment of fault. As a consequence of
which, regimes on liability deriving from other environmental agreements6
and international law principles7 are instructive, given that they inspire and
illustrate the benefits of adopting binding rules of conduct8 concerning Outer
Space activities, against which legal obligations can be established to take
appropriate measures preventing harm, perhaps by reference or inclusion of
such binding rules of conduct in national legislation.
With respect to principles and modalities governing the peaceful
settlement of disputes, the aforementioned framework on international space
law provides states with various mechanisms within the framework of the
United Nations and in accordance with the Charter, to resolve, by peaceful
means, problems which may arise in relation to the objective of, or in the
application of, the provisions of the agreements and principles. In response
to a perceived need for specialised dispute resolution mechanisms in the
rapidly evolving field of Outer Space activities, it is noteworthy that on 6
December 2011 the Administrative Council of the Permanent Court of
Arbitration (the “PCA”) adopted the “PCA Optional Rules for the Arbitration
of Disputes Relating to Outer Space Activities”, based on text developed by
the International Bureau of the PCA, in conjunction with an Advisory
Group9 of leading experts in air and space law. These Optional Rules, which
are voluntary and applicable only with the consent of parties, are open to
states, intergovernmental organisations and non-governmental entities. Along
with provisions on confidentiality, amongst others, the Optional Rules can
be modified by parties, and offer the choice of appointing Arbitrators, in
order to secure final and binding decisions leading to internationally
recognised and enforceable awards.
It is also noteworthy that the Legal Subcommittee at its fifty-first session
in 2012 agreed to include on its agenda “Review of the international
mechanisms for cooperation in the peaceful exploration and use of outer
space”, proposed by China, Ecuador, Japan, Peru, Saudi Arabia and the
United States, as an item under a five-year work plan. The results of this
effort, based on the Committee and its Legal Subcommittee’s tradition of
decision-making by consensus, shall identify legal issues commonly addressed
in existing agreements relevant to international space cooperation, based upon
submissions by member states, additional research and consultation with
member states.
130 Decoding the International Code of Conduct for Outer Space Activities

Concluding Remarks
In regulating Outer Space activities, draftsmen of the corpus of international
space law recognised the relationship between military and non-military
aspects. Inasmuch as the ultimate test of any activity in Outer Space turns
on whether it is consistent with the United Nations Charter and other
obligations of international law, states are equally obliged and expected to
carry out activities in the exploration and use of Outer Space in the interest
of maintaining international peace and security and promoting international
cooperation and understanding. It is especially to the latter obligations of
international law that efforts of the international community should ideally
be focused, in order to reinforce the notion that the main object and purpose
of the basic principles of contemporary international law is to maintain peace
and security by pacific means. Rules exist which apply to activities in Outer
Space, although the precise manner of their application could be debated,
given that one is dealing with the progressive development of law and not
merely refining existing rules. More so, because instruments and mechanisms
devised to control arms or enable disarmament are intrinsically political by
nature and driven by security policy as to whether the testing, production,
possession, or stationing of certain armaments should be limited or even
prohibited in order to achieve the desired military-technical balance of power.
A holistic and comprehensive approach to maintaining peace and security
regarding Outer Space activities should envisage, at the barest minimum, a
clear and predictable regime10 of responsibility and liability for intentional
and/or accidental harm, including uniform indemnification policies applicable
to injurious consequences arising from acts not prohibited by international
law in Outer Space; binding rules of conduct; an enabling mechanism with
procedures for broad-based international cooperation in space situational
awareness; and effective disarmament and arms control measures.
Without prejudice to the sanctity and preservation of United Nations
treaties, declarations and principles forming the corpus of international space
law, after fifty years of constant and uniform practice of states, there are strong
arguments in favour of the proposal that an examination and review of the
nine international legal principles declared in Resolution 1962 (XVIII) has
become necessary, as humankind enters the next semi-centennial period of
conducting activities in Outer Space. One should certainly take into account
the critical role of custom in the progressive development of international
law. This author has argued, for instance, that a customary international rule
prohibiting changes to the Outer Space environment which are manifestly
superfluous, over and beyond what is militarily necessary, needs to be added
to the principles enshrined in Resolution 1962 (XVIII). Based on what ought
 The International Normative System and a CoC for Outer Space Activities 131

to be a holistic and comprehensive approach at maintaining peace and

security, an appropriately drafted Code of Conduct should aspire to
strengthen, and add demonstrable value to the law as it is, by constituting
an enduring platform for the law as it should be. The Code of Conduct as
currently worded can only constitute a pragmatic part of comprehensive
arrangements which should involve treaties, custom, and general principles
of law, fostering international cooperation, as the foundation and catalyst
towards guaranteeing continued use of Outer Space for peaceful purposes.
In meeting these considerations, the initiative for an effective international
Code of Conduct should attract the support it deserves in order to achieve
its stated objective of enhancing the security, safety and sustainability of all
Outer Space activities. The Committee and its Legal Subcommittee should
play a key role in this initiative, given their pioneering and longstanding
efforts at furthering international cooperation in the peaceful exploration and
use of Outer Space by consensus.

NOTES
1. “Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies”, 610 UNTS 205;
“Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of
Objects Launched into Outer Space”, 672 UNTS 119; “Convention on International
Liability for Damage Caused by Space Objects”, 961 UNTS, 187; “Convention on
Registration of Objects Launched into Outer Space”, 1023 UNTS, 15 and “Agreement
Governing the Activities of States on the Moon and Other Celestial Bodies”, 1363 UNTS
21.
2. UNGA Res. 51/122, “Declaration on International Cooperation in the Exploration and
Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular
Account the Needs of Developing Countries”.
3. UNGA Res. 37/92, “Principles Governing the Use by States of Artificial Earth Satellites
for International Direct Television Broadcasting”; UNGA Res. 41/65, “Principles Relating
to Remote Sensing of the Earth from Outer Space”; UNGA Res. 47/68, “Principles
Relevant to the Use of Nuclear Power Sources in Outer Space”.
4. Antarctic Treaty, 402 UNTS 71; “Treaty for the Prohibition of Nuclear Weapons in
Latin America and the Caribbean”, 634 UNTS 326; “Treaty on the Non-Proliferation
of Nuclear Weapons”, 729 UNTS 161; “Treaty on the Prohibition of the Emplacement
of Nuclear Weapons and other Weapons of Mass Destruction on the Seabed and the
Ocean Floor”, 955 UNTS 115; “Convention on the Prohibition of the Development,
Production and Stockpiling of Bacteriological and Toxic Weapons and Their Destruction”,
1015 UNTS 163; “Convention on the Prohibition of Military or any other Hostile Use
of Environmental Modification Techniques”, 16 ILM 90; “United Nations Convention
on the Law of the Sea”, 1833 UNTS 3; “South Pacific Nuclear Free Zone Treaty”, 1445
UNTS 177; “Protocol on Environmental Protection to the Antarctic Treaty”, 30 ILM
145; “Convention on the Prohibition of the Development, Production, Stockpiling and
Use of Chemical Weapons and on Their Destruction”, 1974 UNTS 45.
5. See UNGA Res. 59/91, “Hague Code of Conduct against Ballistic Missile Proliferation”,
132 Decoding the International Code of Conduct for Outer Space Activities

and UN Doc A/57/724; See also UNGA Res. 62/101, “Recommendations on enhancing
the practice of States and international intergovernmental organisations in registering
space objects”.
6. See, for instance, Annex VI, “Liability arising from Environmental Emergencies”,
“Protocol on Environmental Protection to the Antarctic Treaty”, 30 ILM 145.
7. See Draft Report of the International Law Commission on the Work of its Fifty-Eighth
Session, Chapter V: “International Liability for Injurious Consequences Arising out of
Acts not Prohibited by International Law” (International Liability in Case of Loss from
Transboundary Harm Arising out of Hazardous Activities), UN Doc. A/CN.4/L.693/
Add.1, 9 June 2006.
8. See, for instance, “Space Debris Mitigation Guidelines of the Committee on the Peaceful
Uses of Outer Space”, endorsed by UNGA Res. 62/217, “International cooperation in
the peaceful uses of outer space”.
9. This author is a member of the Permanent Court of Arbitration – Advisory Group on
Optional Rules for Arbitration of Disputes Relating to Outer Space Activities.
10. Comparable to hazardous activities such as Nuclear Liability and Marine Pollution.
 Space Code of Conduct: Need to Re-analyse 133

Chapter 24
Space Code of Conduct: Need to Re-analyse
Zahid Imroz

The revised version of the apparently comprehensive International Outer

Space Code of Conduct seems more an EU effort than international. It does
not satisfy all space-faring nations. Its text demands a commitment to previous
Outer Space treaties and regulations like OST (1967), Moon Treaty (1979),
Space Liability Convention (1972), COPUOS (1959), PAROS (1982), Treaty
Banning Nuclear Weapon Tests in the Atmosphere in Outer Space and under
Water (1963), and Comprehensive Nuclear Test Ban Treaty (1996). It also
proposes some new points to be followed by subscribing nations behaving as
ethical actors. Subscribing states should adopt the policies voluntarily to
implement transparency and confidence-building measures (TCBMs), space
debris control and its mitigation, etc. It expects subscribing nations to refrain
from any kind of harmful actions like destruction of in-orbit space objects
which may create long-lived space debris. Subscribing states should commit
to notify:
• scheduled manoeuvres which may result in dangerous proximity to
space objects;
• orbital changes and re-entries, as well as other relevant orbital
parameters;
• collisions or accidents that have taken place;
• the malfunctioning of orbiting space objects with significant risk of
re-entry into the atmosphere or of orbital collision.
There are many useful proposals in the CoC which can help avoid
catastrophes and ensure safety in Outer Space, but many dimensions still need
134 Decoding the International Code of Conduct for Outer Space Activities

to be debated. US officials have said that the Obama administration would

not subscribe to the CoC if it constrains the right of individual or collective
self-defence systems and capabilities, although the US will work together with
the EU to make a better international code of conduct that will ensure the
safety, security and interests of the United States and its allies.
In February 2008, China and Russia proposed a treaty, “Prevention of
the Placement of Weapons in Outer Space” (PPWT), in the Conference on
Disarmament (CD), which faced strong criticism from the US and its allies.
PPTW has serious flaws, such as that it is unverifiable and does not include
ground-based weapons that are capable of damaging satellites in space.
Annoyed by such criticism, the Chinese Council on Foreign Relations has
officially stated that China will be absent from CoC negotiations in October.
The Chinese stance is understandable because PPTW is based on a top-down
approach and China is unlikely to move from it.
The CoC, on the other hand, is based on a bottom-up approach. US
efforts to address Outer Space issues via TCBMs are counter to China’s
approach. They can derail PPWT and the position in the UN that China is
currently enjoying because of its proposed treaty. Russia is not opposed to
TCBMs: it has been practising them in the past and has sometimes
unilaterally followed them, but as far as CoC is concerned, it seems that it
will also have the same position as China because of the responses it received
from the US on PPWT.
India has concerns with the non-binding status of the CoC. A common
concern of Brazil and India is that they were not invited to participate in
drafting the CoC. Several other emerging powers have also expressed their
reservations about not being involved in the process. They also have a few
issues with the text of the code.
Though the CoC has several useful points and workable proposals, it
suffers from vague terminology and lack of definitions. There are some
concerns regarding its legal and political binding nature. It seems that the
CoC would limit the freedom of action in space for military and intelligence
activities.
States have shown an interest in and guarded support to the CoC. They
appreciate the effort to protect Outer Space from irresponsible action by
space-faring nations. But they are not ready to sign the present CoC draft.
The history of treaties tells us that states abide by rules and regulations as
long as they provide some political and strategic benefits. States do not refrain
from destructive acts when they consider these necessary for their security
 Space Code of Conduct: Need to Re-analyse 135

and stability. Acceptance of codes such as the CoC by states that have no
nuclear, missile or space capability does not make a big difference until the
major space powers accept the limitations and adopt the measures. States do
not take seriously codes that have no binding mechanism and verification
protocols. So there is a need to review this CoC in detail by involving all
countries concerned to get the maximum benefit from it.
136 Decoding the International Code of Conduct for Outer Space Activities

Chapter 25
ICoC: Need of the Hour
Victoria Samson

The draft International Code of Conduct for Outer Space Activities (ICoC)
is a non-legally binding and voluntary set of guidelines intended to highlight
what the international community generally agrees to be responsible behaviour
in space. No matter what is the outcome from negotiations surrounding the
ICoC, the mere fact of discussing what the international community perceives
to be responsible space behaviour can only enhance the security and
sustainability of the space environment.
The main purposes of the ICoC as listed in the document are the
enhancement of the security, safety, and sustainability of Outer Space
activities; endorsement of best practices; and reaffirmation of existing
international law, like the 1967 Outer Space Treaty. Its guiding principles
include: freedom of access to space for peaceful purposes; preservation of the
security and integrity of objects in space orbit, and the responsibility of
countries to refrain from harmful interference with each other’s assets; and
the inherent right of all states to individual and collective self-defence.
There has been a lot of criticism of the ICoC, both of its content (which
is largely unwarranted) and even more so on its process (which unfortunately
does have some merit). In terms of how the ICoC was presented to the non-
Western world, there have definitely been missteps. While the European
Union consulted the United States and a few other countries as it drafted its
first version of the ICoC, it failed to consult other space-faring nations until
the Code had taken on a much more concrete shape, making those states
feel that they were being left out of the process. While it makes a certain
amount of sense that the United States would have been consulted in the
 ICoC: Need of the Hour 137

early stages by its close allies on the issue of responsible space behaviour, the
fact of the matter is that other major space-faring nations should have been
brought into the process earlier than they were. It is hoped that as negotiations
move forward on the ICoC, this oversight will be rectified and that all major
space stakeholders will feel that they are crucial parts of the discussion, which
they truly are.
Internationally, there is also a concern that the Code will follow the model
of the 1968 Nuclear Non-Proliferation Treaty (NPT) in terms of preserving
the status quo at a snapshot in time, arbitrarily dividing countries into haves
and have-nots. This would not be the case for the ICoC, in any of its current
iterations, as it does not attempt to prevent anyone from utilizing space for
peaceful purposes; rather, it focuses on making sure that this is done in a
responsible and sustainable manner.
Another criticism of the ICoC is that it is toothless because it is not a
legally binding treaty and lacks verification mechanisms. The 2002 Hague
Code of Conduct Against Ballistic Missile Proliferation (HCoC) is often cited
as another international agreement that lacked power because of its non-
binding status, while the 1972 Biological Weapons Convention (BWC) is
used as an example of a treaty that could not accomplish much because it
did not have a verification mechanism in its by-laws. However, an ICoC
without a verification mechanism is not automatically a liability nor an
ineffectual document. There is value in putting an international stamp of
approval behind certain best practices. In fact, it can be argued that an ICoC
is not the place to start treading new ground, as it should be a collection of
internationally agreed upon norms, or at the least, the very minimum as to
what should be perceived as responsible space behaviour. The United States
stepped up its HCoC commitments when it announced in May 2011 that
it would start pre-launch notifications of its ballistic missile tests and space
launches as prescribed by the HCoC; it could be argued that much of this
decision could be traced to internal discussions within the US government
about the space ICoC, which does call for pre-notification when possible of
space object launches.
The BWC merits further discussion, as it has been repeatedly highlighted
as a treaty that failed primarily because of an absent verification mechanism.
True, it does not have one, but most of its signatories have still complied
with the dictates of the treaty. The BWC established a norm against biological
weapons, one that is almost universally hewed to today at the state level.
During the review conferences held every five years after the treaty was signed,
negotiators did try to add on a verification process, but failed to agree on
one. Instead, in recent years, the focus has shifted to improving coordination
138 Decoding the International Code of Conduct for Outer Space Activities

on national implementation of the BWC, efforts which have been much more
successful. Domesticating international agreements—incorporating them into
effective national legislation and regulation—has always been a challenge,
perhaps even more so than getting an international agreement signed in the
first place. However, how participating countries carry out the terms of an
agreement is really how that agreement’s legacy lives on and determines
whether or not it accomplishes the goals set out by its negotiators.
A legally binding treaty does have more standing in the international
system. However, at times, it is more convenient to have a non-legally binding
document that still establishes expectations of the international political
community on a certain issue. Furthermore, we should not let the lure of
perfection stand in the way of good enough. In this case, this means that
major space stakeholders can lay out expectations of behaviour, which can
then be used as a foundation for more sophisticated confidence-building
measures and even create the possibility for future cooperative agreements.
It is important to identify progress in how the international community
handles this issue, because otherwise it is far too easy to become bogged down
in discussions and feel that little can be done to enhance space sustainability
and security. Moreover, going through the process of negotiating the ICoC
is helpful, no matter the outcome.
The US position is that a treaty is not needed if responsible space
behaviour can be created through another mechanism. Much of its wariness
about new space treaties has to do with concerns about limiting freedom of
action for future US space capabilities. However, the United States is not
alone in resisting potential restraints: several major space powers have not
even developed official national space policies because they do not want limits
placed on how they utilize space in the future.
A non-binding ICoC is emblematic of how the international community
has changed the way it intends to manage potential security threats to the
space environment. Traditionally, security threats were identified and then
banned in legally binding treaties. However, because of the dual nature of
space assets, this method cannot be applied to space, as it would mean that
either everything would be deemed a space security threat, or nothing would
be. Instead, policymakers are focusing on behaviour and trying to minimize
the amount of damage that irresponsible activities in space could cause.
Looking at it through that context, an ICoC fits in nicely with how the
international community is increasingly deciding to handle space security
threats.
For an ICoC to be successful, some have said that there must be universal
 ICoC: Need of the Hour 139

compliance. While that would be ideal, it is not necessary; instead, what is

needed is the agreement of key space stakeholders that the guidelines set down
in a code of conduct are for the best. It comes down to identifying the goal
of international negotiations on the issue of space security and sustainability—
is it to have a treaty at any cost? Not every treaty has universal compliance
or even credibility. Or is the goal a stable, reliable, and sustainable space
environment? Once the international community has decided what it wants
to achieve, the method in how to go about doing so may become more
apparent and perhaps less controversial.
140 Decoding the International Code of Conduct for Outer Space Activities

Chapter 26
Supporting an International Code of
Conduct for Space
Joan Johnson-Freese

At a recent workshop pertaining to sustaining the space environment, I found

myself arguing against a colleague who felt that an International Code of
Conduct (COC) for Space should not be supported, because only a treaty
would fend off threats to sustainability. When he animatedly asked me “why
not” a treaty rather than a COC—two adages came to mind as relevant:
“Politics is the art of the possible”, and “The perfect is the enemy of the
good”. Perhaps a treaty would be the best option, but it is not a politically
viable option, and in the meantime, it is in the national interest of all countries
to assure the protection of space assets and the sustainability of the
environment. If a COC is even a step forward in that direction, then it should
be supported.
States act in their own interests. While it is laudable—and true—to say
that space is the heritage of all humankind, or that space is a global commons,
that is not what will motivate countries to act. The Global Positioning System
(GPS) is, with the Internet, a global utility. All countries rely on it for tasks
ranging from guiding international civilian airliners to their destinations, to
guiding local ambulances in emergencies, and facilitating a wide range of
communications functions. It is in the interest of all countries to make sure
that it is not incapacitated by an accident, or intent. In a globalised world,
satellites facilitating financial transactions, voice communications, or any kind
of large data streams are critical to national security in its broadest sense.
Hence it is in the national interest of countries individually and collectively
to protect their national security.
 Supporting an International Code of Conduct for Space 141

The United States, China and Russia are the three countries with the
most space assets in orbit, and thereby at risk. Therefore, what is politically
possible for them matters to the success of any effort to minimize risk, and
promote sustainability. The United States has not, for many years, been
amendable to multilateral treaties in general. It signed but did not ratify either
the 1982 Law of the Sea Treaty and the 1997 Kyoto Protocol on Climate
Change, and did not even sign the 1997 Ottawa Treaty or Land Mine Treaty.
Whether a function of the political partisanship that has gripped Washington
since the 1980s or a general disdain for multilateralism being the only post-
cold war superpower, the result is the same; a space treaty is not a viable
political option if US participation is critical—and it is.
In fact, the political feasibility of a space-related treaty is perhaps even
less than usual because of verifiability issues. It is important to remember
that the vast majority (>90%) of space technology is dual-use; space hardware
has value to both civil and military communities, and for military purposes
it is difficult to distinguish whether for offensive or defensive purposes. While
there have been efforts1 to set forth parameters for verification in space, those
efforts have largely not satisfied US government officials, with little indication
that given the nature of dual-use technology it would ever be possible to do
so. Nevertheless, issues remain that must be addressed.
Recent history has shown that space is becoming an increasingly crowded
environment. There are almost one thousand operational satellites in orbit
as of 2012. Collisions thought statistically improbable, if not impossible, have
already occurred; in 2009 a defunct Kosmos satellite collided with an
operational Iridium satellite, resulting in the creation of an estimated 1000
pieces of debris 10 cm or larger, as well as numerous smaller ones. A 2007
Chinese test of an anti-satellite (ASAT) weapon created 2317 debris pieces
over 10 cm and an estimated additional 35,000 pieces larger than 1 cm,
making it the largest single debris-creating event on record. That means that
there are more than 21,000 pieces of orbital debris larger than 10 cm known
to exist and an estimated population of 500,000 particles between 1 and 10
cm in diameter. Spacecraft owners are now almost routinely warned about
possible collisions with debris so that they might manoeuvre out of the way.
Debris is a practical, near-term issue where mitigation and management must
include both clean-up efforts and avoiding the creation of more debris.
While the COC will not deal with specifics in many areas, including
space debris mitigation and management, what it will do is set out voluntary
best practices for all countries to follow—practices that are in their best
interests. It will also inherently require and facilitate dialogue between
142 Decoding the International Code of Conduct for Outer Space Activities

countries on space-related issues that for too long have been held hostage to
other security-related issues. A COC would be a first step forward in what
is perhaps one of the greatest drawbacks to breaking space-related security
dilemmas, giving a better understanding of not just what countries are doing
in space, but why and how decisions are made.
While some space-faring nations (particularly the United States) have
been concerned that they do not want their actions in space restricted, and
others do not want to have to reveal what they feel is sensitive national-
security-related information about space assets (particularly China), both
realize that a Wild West free-for-all in space benefits no one. A COC provides
the opportunity for all countries to show their good intentions, and for
countries and regions that have aspired for a more prominent role in space
relations—India, Europe, Russia, and developing countries which will be
increasingly dependent on space technology to link to the global system—
to show their good intentions and lead or at least encourage the facilitation
of an effective, useful and voluntary document that could lead to codification
in the future.
A COC will not inherently solve all space-related issues between and
among countries. But it will indicate recognition of the importance of the
topic, and a need to proactively address issues rather than simply wait until
something really bad happens and then do so in a far less favourable
environment. Countries should want to endorse a COC for Space because
it is the right thing to do for everyone—but they must endorse it because it
is the right thing to do for themselves.

N OTES
1. The Eisenhower Center for Space & Defense issued a two-volume report in 2010, http:/
/swfound.org/media/37101/Space%20and%20Verification%20Vol%201%20-
%20Policy%20Implications.pdf; The Secure World Foundation held a Verification
Workshop in Brussels in 2011: swfound.org/events/2011/space-verification-building-
common-understanding
 The Code of Conduct: A Useful First Step 143

Chapter 27
The Code of Conduct: A Useful First Step

James Clay Moltz

Space in the twenty-first century is an increasingly important environment

for advancing science, commerce, and military support activities. But it is
governed by a set of treaties and other agreements crafted almost exclusively
during the cold war, an era when just two countries conducted almost all
space activity. Today, the context of space activity is changing, as more and
more countries and private companies become involved. As a result, various
popular orbits are becoming crowded and there is a higher demand for
coordination in areas that include the allocation of the radio frequency
spectrum, space traffic control, and military systems testing.
Unfortunately, within the current regulatory framework for space,
numerous types of harmful activities are still allowed in orbit. This includes
kinetic weapon tests, even though they can affect the ability of others to
operate safely in space and can pose a lethal risk to humans in orbit. For
these reasons, all nations share an interest in strengthening dialogue regarding
space security, identifying mutually beneficial norms of safe behaviour, and
improving transparency to prevent collisions and identify harmful debris. The
logical venue to conduct discussions on space security should be the UN
Conference on Disarmament (CD) in Geneva. But dysfunctional consensus
rules at the CD have allowed individual countries to block discussions since
1995. This deafening silence has prevented much-needed space negotiations
at a time of dynamic change.
The proposed international Code of Conduct is one means of facilitating
144 Decoding the International Code of Conduct for Outer Space Activities

such talks. It is not a panacea, but it is a start. What exactly are the major
benefits of the code? First, the code would be helpful in starting a process for
bringing countries together to identify areas of common concern and to
suggest possible remedies. Second, if enacted, it would build a basis of shared
information about space situational awareness that would promote greater
safety in space operations, establish national points of contact, and strengthen
preventive mechanisms in case of possible conflicts. Third, it would encourage
countries to refrain from dangerous activities in space through explicit
guidelines within the code itself and via principles that might be established
during consultative meetings among the states parties that will take place every
two years. In many ways, the code would begin to implement the important
goals of Article IX of the Outer Space Treaty, which calls upon countries to
engage in discussions prior to the conduct of any harmful activities.
Does the code have drawbacks and limitations? Yes, it does. Given its
voluntary nature, the code will rely largely on political and moral suasion to
accomplish its objectives of safer and more predictable space behaviour. But,
in the words of US Ambassador to the CD Laura Kennedy, it will be
“politically binding” on the signatories (see her speech at the CD on 5 June
2012). This means that while it will not prohibit harmful behaviour, it will
impose costs related to national reputation, perhaps leading to other sanctions.
These costs could be significant in an increasingly globalised world.
Critics of the code in the United States typically argue that it is too much
like a treaty and could limit US freedom of action in space. Critics outside
of the United States complain that it is not enough like a treaty, because it
will not be legally binding on its members. Both criticisms are off target.
First, critics who argue that the code is too strong fail to understand that
the absence of rules in space poses a greater problem than creating a strong
set of expectations for good behaviour. Lacking any international guidelines,
countries are more likely to behave badly, harming the interests of especially
the more established space powers.
Second, critics who argue that the code is too weak fail to consider that
the code is not standing in the way of some “perfect” treaty for space. Indeed,
no such proposal exists at present (or is even on the horizon) and the code
could help facilitate stronger, consensual measures in the future, possibly
including treaties. What the code would do would be to begin a process of
consultations, thereby helping countries identify issues that might require
future, legally binding regulations.
Regretfully, there is a deficit of international trust and transparency in
regard to national space policies. This gap needs to be addressed if there is
 The Code of Conduct: A Useful First Step 145

ever to be an adequate foundation for a new multilateral space treaty that

might close certain dangerous loopholes in existing agreements. For this
reason, the code is a useful and much-needed first step. However, it should
not be the last one taken by the international space community.
Follow-on steps might include efforts to protect position, navigation, and
timing systems as global utilities, prohibit testing of kinetic ASAT systems
against space objects (particularly those in altitudes that would create long-
lasting debris, such as any tests above 200 miles), and forbidding interference
with military early warning and treaty verification satellites, which could be
misunderstood as a precursor attack to nuclear war.
In the end, countries need to recognize that the road to conflict is paved
by international mistrust, secrecy, and a failure to understand the perspectives
of others. These conditions largely characterize space relations today. Through
positive engagement and discussion, we are more likely to successfully avoid
space conflicts.
Like all institutions in human affairs, the code of conduct is imperfect.
But we would be far better off with it as a foundation for more stable and
informed space relations, than we would be by rejecting what it has to offer
in hopes of some perfect agreement—which is today unattainable.
146 Decoding the International Code of Conduct for Outer Space Activities

Chapter 28
International Code of Conduct for Outer
Space: An Industry Perspective
K.R. Sridhara Murthi

Since the end of the cold war, there has been a sea-change in the global
landscape of exploration and uses of Outer Space. Of particular interest is
the increasing role played by the private sector, whose combined revenues
from activities on space infrastructure and services have far exceeded
government expenditures globally for several years. Outer Space activities
demand high investments. They are also highly risky. In view of the principle
of state responsibility and the need for continuous supervision by the state
under international law, collaborative arrangements by industry in the field
of Outer Space at the international level are complex and are subject to
uncertainties. Apart from issues of heavy interventions by governments and
the existing diversity of national legislation on space matters, space industry
has been commonly exposed to increasing level of risks from orbital debris
and has need for assured international measures to enhance the safety, security
and sustainability of its space activities. While consolidation and integration
are imperatives of the space industry, they often conflict with the goals of
building local capacities and equitable access to space, even as nation actors
in space have vastly increased. Finally, military space activities have been the
growth engines of space industry and a balanced policy and regulatory
environment recognizing legitimate military activities in space have been long
overdue.
On the other side, since the conclusion of the Moon Treaty, international
law-making in the field of exploration and peaceful uses of Outer Space has
been tardy. No further international treaty has evolved since the establishment
 International Code of Conduct for Outer Space: An industry Perspective 147

of the UN Committee on Peaceful Uses of Outer Space (UNCOPUOS),

the body responsible for evolving the legal instruments in the field of
exploration and peaceful uses of Outer Space, through its legal subcommittee.
On many outstanding questions such as exploitation of resources in Outer
Space, no clarity could emerge regarding the legal aspects. Many legal hurdles
are still present in finding effective risk mitigation measures by and improving
the competitive environment or transfer of knowledge.
Against this backdrop, the proposal for adopting a common code of
conduct as complementary to the existing body of international law relating
to Outer Space deserves to be welcomed and the initiative taken by the
European Union in this direction is to be lauded.
To emerge as a progressive further step to aid international law relating
to Outer Space, the code should satisfy the following principles:
1. It should strongly and consistently reinforce the principle of freedom
of activities in Outer Space, as enshrined in relevant UN treaties.
2. Wherever natural resources relating to Outer Space are limited and
commonly accessed and used (like orbit spectrum), it should promote
rules of the road approach to avoid mutual interference and conflicts
and respect institutions serving such purposes and sustain them, for
example, ITU. The principles of justice or equity as per international
law should be integral to such rules of the road.
3. Wherever space activities cause damage to the environment (like space
debris), there should be limits and negative consequences to the actors.
There could even be a ban where the consequences are severe.
Although the code is voluntary, these three principles should be well integrated
into it. From the perspective of these principles and criteria, there are still
gaps in the code evolved so far.

A Few Other Observations

The code explicitly recognizes the principle of state responsibility. This should
be welcome to industry. Though voluntary, the code will serve to promote
best practices. However, in matters that seriously affect common interests and
the concerns of all, like testing of ASAT weapons, the code should spell out
consequences: there could be prescriptive norms universally applicable. Over
a period, state practice of voluntary compliance can help. For example,
although the Space Debris guidelines worked out by IADC and subsequently
debated and adopted in UNCOPUOS are voluntary, they are widely practised
by space agencies perhaps because of their engagement in their formulation
and also because of the consequences common to all.
148 Decoding the International Code of Conduct for Outer Space Activities

The code recognizes scientific, commercial and military activities that

states can undertake in a responsible manner (to promote the peaceful
exploration and use of Outer Space) under the freedom of access to space.
However, it is necessary to define “military” activities and “peaceful
exploration and use” to avoid conflicting interpretations. Can testing a
weapon in space be construed as legitimate military activity? It is also
necessary to specify that wherever there is conflict between existing treaties
and the code, the treaties will have to take precedence. Under the general
principles, the code also stipulates that states will assume responsibility to
take all the appropriate measures and cooperate in good faith to prevent
harmful interference in Outer Space activities. It will augur well to stress that
the measures taken by states and their cooperation will be as per international
law in addition to good faith.
The code legitimately forbids states from any action which may bring
about, directly or indirectly, damage or destruction of Outer Space objects.
Exceptions, if any, should be well defined, especially terms like imperative
safety consideration. The code also elaborates well the conditions under which
states should notify the potentially affected states. Here too it will be fitting
to define precisely, in specific terms, terms like dangerous proximity.
One important aspect that the code should consider in the context of
sharing information about space activities is addressing whether the
information provided can serve the intended purpose and how right
information can be enabled.
Apart from such specific issues and broader principles, the multilateral
process initiated has been a step in the right direction, and it may be hoped
that the impasse that has ruled the field of development of further regulations
relating to Outer Space will find new pathways to progress.
 International Code of Conduct for Outer Space: An industry Perspective 149

Chapter 29
International Code of Conduct for
Outer Space Activities
Ranjana Kaul and V. Siddhartha

The US-supported International Code of Conduct for Outer Space Activities

(CoC) is likely to set an international “norm” for how activities in Outer
Space will, or can, be conducted in the future. For the first time, the matter
of preventing or mitigating further addition of space debris into Earth orbits
is sought to be coalesced with a restriction/prohibition on development of
an ASAT capability. Clearly, the impact of space debris on the safety and
security of existing space assets and its challenge to the sustainability of space
activities is a serious and legitimate concern which requires urgent
international cooperation. Clear too is the fact that the CoC will, by
implication, prohibit or restrict the sovereign right of countries to develop or
use means that are designed to incapacitate or destroy satellites that, in their
sovereign assessment, threaten their national security.
Arguably, the urgency to discuss ways to curtail or minimize the threat
of debris to human space activities was triggered as a consequence of the 2007
Chinese ASAT test which added over 2000 trackable pieces of long-persistence
debris through the destruction of China’s own satellite. This test, conducted
at a height of about 850 km, has ensured that the debris it created will
continue to threaten for several hundred years the safe operation of space
assets of countries engaged in benign activities in Outer Space. China is now
the third country, after the US and Russia (former USSR), to possess
demonstrated ASAT capability. Needless to reiterate, China was member of
UNCOPUOS and IADC at the relevant time, as it is also at the present
time.
150 Decoding the International Code of Conduct for Outer Space Activities

It is clear from the reaction and response of UN members to the matter

of “space debris mitigation” that the issue has brought both convergence and
conflict to the negotiating table. Convergence in international acceptance that
without adoption of realistic collective space debris mitigation measures, the
survival is threatened of the right assured by the 1967 Outer Space Treaty to
the “safe, assured and sustainable use and exploitation” of Outer Space and
of the “global commons”. Conflict because every country has the sovereign
right to protect its national security and also that of its friends and allies.
What should be India’s stance on the CoC? The answer can be found in
the US condition for support to the European Code of Conduct for Activities
in Outer Space. US support was hinged on whether EU would agree to a
metamorphosis of the EU Code into a list of “best practices” to be adopted
internationally to minimize the creation of further space debris and the
acceptance that the US would retain its sovereign right to carry out such
actions as it considers necessary to secure its national security and that of its
allies and friends. A caveat may also derive from the use by the US Navy on
14 February 2008 of the ship-based missile launched from a group of three
ships in the Northern Pacific to destroy the failed American satellite USA
193 in LEO at an altitude of about 240 km, shortly before its re-entry into
the atmosphere, stating that the intention was to “reduce the danger to human
beings” due to the release of toxic hydrazine fuel carried onboard the satellite.
Is there any way to configure a CoC—even adding the prefix “Interim”
if necessary to achieve consensus—that preserves the Space Commons for
benign use by all space-faring nations, without infringing on the right of states
to protect their national security?
Two treaties on the testing of nuclear weapons provide precedents and
pointers towards how such a Code, or “Interim Treaty on Mitigation of Space
Debris”, may be configured: The first is the Limited Test Ban Treaty of 1963,
which recognised and addressed the incapacity of the commons of the
Atmosphere, Outer Space and the Oceans to bear repeated nuclear insult,
by banning nuclear weapon tests in those commons. All states, including
India, which are capable of conducting nuclear tests in those environments,
have signed that treaty. The second is the Threshold Test Ban Treaty (TTBT)
of 1974 and its elaborate protocol signed between the United States and the
former USSR that placed a limit of 150 kilotons on underground nuclear
tests.
If a consensus could be reached on a “threshold” altitude above which
no ASAT tests may be conducted, then—following the precedents set by the
above mentioned treaties—perhaps an “Interim Treaty on Mitigation of Space
 International Code of Conduct for Outer Space Activities 151

Debris” can be negotiated to provide an achievable set of “best practices”

acceptable to all countries, the active space-faring nations in particular. To
establish such a “threshold” altitude, the space-faring nations could jointly
conduct confirmatory experiments, following on from the Japanese HITEN
Spacecraft Aerobrake Experiment of March 1991, which provided substantial
experimental evidence to sustain a threshold altitude of “not more than 100
km”.1

N OTE
1. For further details see Forden, Geoffrey, After China’s Test: Time for a Limited Ban on
Anti-Satellite Weapons, Arms Control Today, April, 2007.
152 Decoding the International Code of Conduct for Outer Space Activities

Chapter 30
Space Code of Conduct:
An Indian Perspective
Rajeswari Pillai Rajagopalan

The idea of establishing a set of rules on space that will guide the behaviour
of states has been gaining momentum in recent years. This has gained
particular relevance in the backdrop of the European Union (EU) making
last-minute efforts to muster support for the code of conduct on space initiated
by it. The EU decision of 29 May 2012 to sign the document officially and
strengthen bilateral and multilateral negotiations will bring pressure on India
and other space-faring nations to sign it also.
In this regard, the EU has set out three specific initiatives: outreach
activities in order to promote the proposal for an international code of
conduct; holding up to three multilateral experts meetings to discuss the
proposal; and the coordination of a consortium of non-governmental experts.
Technical implementation of the three initiatives will be undertaken by the
United Nations Institute for Disarmament Research (UNIDIR).
The EU’s decision to bring UNIDIR into the picture seeks to give the
EU initiative a larger support base beyond Europe. This does not, however,
yet ensure support from a majority of the space-faring powers, who have
already raised serious objections, particularly about the code-formulating
procedure.
India is all for institutionalizing a set of norms on space. But it also has
interests in being acknowledged as one of the major space-faring powers, with
an important voice in their formation. India has a particular interest in this
normative exercise if it will put certain restraints on China’s otherwise
 Space Code of Conduct: An Indian Perspective 153

unrestrained space activities. India’s interests have also to do with the fact
that it has made significant investment in a predominantly civilian space
programme that now seems to be under threat due to issues such as space
debris and potential weaponisation in space. Given the expanding nature of
space utilities, India’s interests would also be to curb some of the potential
norms that may become counterproductive to its objectives in exploiting
Outer Space.
India has been debating this issue at Track II levels with several objectives.
Such engagement can generate an internal debate on these issues, both about
the utility of a code and to help identify the principles that should guide the
new rules. India could then become a full partner rather than coming to the
international negotiations with reactive positions to others’ proposals. India
clearly does not want to free-ride on its major-space-faring-nation status
without taking on the additional responsibilities that come along with the
status. The internal debates and the objections raised in this debate to others’
proposals should not be seen as a spoiler but of an engaged nation that wants
to frame rules that are comprehensive, inclusive and durable. As India’s
geopolitical weight increases and its reach goes beyond Asia, it cannot afford
to be simply a naysayer. It wants to play the role of a constructive actor in
the international norm creation exercises.
Having discussed the Indian interests in a code, it is also important to
understand the importance of the politics of international norm creation.
India sees a huge geopolitical mileage in this exercise. While a code goes
through several stages, including technical, legal and political clearances before
it gets institutionalized, the political exercise is critical for several reasons.
An ideal instrument should be as broad-based as possible to include issues
of concern to multiple parties and stakeholders, including space debris, arms
race in space and space weaponisation. The political support that such an
instrument musters will have a huge impact on the longevity and effectiveness
of the instrument.
As in other arenas such as nuclear, the biggest challenge in the space
domain is the crisis of decision-making among the major powers. Even while
they understand and acknowledge, to some extent, the current and potential
challenges, the failure to reach a consensus is a big handicap. Therefore, it is
of utmost importance for the EU to adopt a more flexible and inclusive
approach if it seeks a universally acceptable code. In the absence of such an
approach, one could potentially see a repeat of the H-COC experience, which
has 128 countries as signatories, but these do not include some of the critical
players in Asia such as China, Pakistan, Iran and North Korea. It is not only
154 Decoding the International Code of Conduct for Outer Space Activities

important to have numerous countries as signatories, but equally important

to have the critical actors on board. In sum, the new instrument should look
for both “critical mass and critical actors”.
If India were to formulate a code of conduct, it may not be significantly
different in its content from the EU initiative. But India attaches importance
to laying out concrete action plans, including a verification mechanism and
legal obligations. While the current EU code is voluntary, states that become
party to it are expected to institute certain measures at the domestic level,
which in a sense binds them to the global rules. In other words, under the
EU code, one is talking about a loose set of rules at the global level with
stringent legislation at the country level. This approach may run into
problems, given that there exists no mechanism to verify adherence to the
rules laid out in the code. Lack of clarity as to who would administer these
rules creates both ambiguity and wariness. The question whether Europe has
the ability to push such measures, given the new geopolitical realities, also
needs to be considered. However, if the EU were to institute consultative
mechanisms in the coming months, particularly with the major space-faring
countries, it might be in a position to fix some of the gaps that exist in its
current approach.
In conclusion, the EU should address some of these issues, including the
need for an inclusive approach and the need for a legally binding verification
mechanism. It might also be important for the EU to consider a grouping
of major space-faring countries similar to the P5 nuclear weapon countries,
such as that recognised by the Nuclear Non-Proliferation Treaty (NPT) as
nuclear weapon states. Such a group of countries may actually be keen on
addressing these issues and pushing for an actionable agenda, given the
vulnerabilities that they face. Lastly, if space traffic management is a critical
issue, one could consider newer initiatives and organisations along the lines
of the International Civil Aviation Organisation (ICAO). Also, establishing
a panel of experts on the model of the IPCC (Intergovernmental Panel on
Climate Change), given that space debris and arms race in space are problems
that are global in nature, might be worth the effort.
 Space Code of Conduct: An Indian Perspective 155

Chapter 31
Should India Conduct an ASAT Test Now?*
Ajey Lele

India’s successful test of the Agni V missile two months ago also indirectly
demonstrated the theoretical capacity to undertake an ASAT (anti-satellite)
test, if required. However, possessing technological ability should not be the
only reason for undertaking such a test; it is more important to analyses the
political necessity of carrying it out. Presently, only three countries, namely
the US, Russia and China, have demonstrated this capability. Is the time ripe
for India to undertake an ASAT test?
Is debating an ASAT test without any major provocation (assuming that
the 2007 Chinese ASAT test was not a provocation) justifiable? Here, it is
important to note that the security policy of a state is not only about
responding to the prevailing geopolitical situation but also to cater for its
long-term interests. It is not only about reacting to a major event but also
about influencing global events to favour the state’s agenda either through
diplomacy or through actions that would force others to take notice of its
concerns.
For the last few years the European Union (EU) has initiated a debate
on the need to introduce transparency and confidence-building measures in
outer space activities (TCBMs). In this regard, it has also prepared a draft
code of conduct (CoC) for others to consider. In October 2012 global
negotiations for an International Code of Conduct (CoC) for Outer Space
would commence in New York. There is a possibility that a CoC mechanism

*First published at http://idsa.in/idsacomments/ShouldIndiaConductanASATTestNow_

alele_110712 on July 11, 2012
156 Decoding the International Code of Conduct for Outer Space Activities

would be in place by 2013. This multilateral diplomatic process to discuss

and negotiate an International CoC for Outer Space is the first serious step
towards negotiating on outer space issues after the launch of the first satellite
Sputnik in 1957.
Against this backdrop, it is important to discuss various issues concerning
space security, and ASAT is one of them. There is a need to undertake a
detailed appreciation of this issue by assessing various geostrategic, geopolitical
and technological factors.
The first question which India needs to ask itself is: would the states with
proven ASAT capability be in a position of strength to undertake the CoC
negotiations than other powers? And, if so, should India undertake such
potency demonstrations before setting out for negotiations?
The second question that India must ask itself is: what is the history of
non-proliferation negotiations with regard to states having an advantage if
they have proven technological superiority over others? The experience in
global negotiations on nuclear weapons shows that the Nuclear Non-
proliferation Treaty (NPT) is essentially about a group of five nuclear weapons
states coming together and deciding the policies for the rest of the world. A
hypothetical scenario exists that in future states with ASAT capability could
come together and device a treaty mechanism which could prove biased like
the NPT. If India does not become an ASAT power by that time, then it
could be part of a discriminated group of nations once again. In the field of
chemical weapons as well, it has been seen that only the US and Russia are
missing the deadline for destruction of their weapon stockpile and that too,
as per the current estimates, by around 10 years. The reasons given for such
lapses are technological and economic limitations and the rest of the world
has meekly accepted this.
The third question for India in this regard is: would India’s ASAT start
the process of space weaponisation and arms race in the region? The regional
geopolitical landscape does indicate the possibility of a knee-jerk reaction from
Pakistan or China. However, China has already demonstrated its ASAT
capabilities and its investments and achievements in the space arena supersede
those of India. Pakistan being a non-space-faring nation does not belong to
the same category as that of India and China. However, it is important to
note that a non-space-faring nation too can develop an ASAT capability if it
is a missile power. Also, knowledge of rocket science is not essential to develop
jamming capabilities.
The fourth question for India is: what is the nature of the threat to India’s
space assets and which actors pose a probable threat? For any adversary, India’s
 Should India Conduct an ASAT Test Now? 157

remote sensing satellites like Cartographic satellites or Radar satellites could

become prime targets. China has proven capability to undertake such attacks.
The fifth question is: if India were to decide to demonstrate its ASAT
capabilities, then which technology trajectory should it follow? Broadly, there
are two technological routes in this regard. One, the Kinetic Kill Vehicle
(KKV) method, where a missile with a metal warhead (without any
munitions) is fired from the ground towards the target and the target gets
disintegrated by the impact. The other option is to use jamming technologies
(“softer” methods). However, jamming may not be an ‘impact’ weapon’. With
regard to KKV, it is important to note that accurate engagement of the target
is critical for success. China had used a similar technology to demonstrate
its ASAT potential in January 2007 and various reports suggest that China
succeeded only in its third or fourth attempt.
The sixth question is: should India behave as an irresponsible nation and
increase space debris by undertaking an ASAT test the way China did? The
obvious answer to this is no. Is it possible to demonstrate ASAT capability
without creating debris? For this purpose India could conduct a test in the
lower part of atmosphere (say in the range of 150 to 250 km altitude) where
the created debris would enter the earth’s atmosphere and burn off. For such
a demonstration, India first would have to launch a dummy satellite as a
target.
The seventh question is: “what could be the global reaction to such a
demonstrative test by India? Globally, two major tests have been conducted
(by China and the US) during the last five years. The Chinese test has been
criticized vociferously mainly because it ended up creating massive debris,
while the US test was conducted under the garb of ‘transparency’ and was
announced beforehand. The US test was done in lower altitudes thus avoiding
any major injection of debris in space. It appears that the hidden motive
behind both these states was successfully achieved. Since no proper legal
regime exists in the space arena, technically neither test violated any global
norm. Hypothetically, if India were to conduct such a test (without creating
any debris) then it should be viewed as a technology demonstrator.
These are some basic questions that India needs to ask itself. A decision
to conduct an ASAT test has to be a nuanced one considering the strategic
advantages such a test could offer and the diplomatic elbow room that it
would give during negotiations on a space arms control mechanism.
158 Decoding the International Code of Conduct for Outer Space Activities

Conclusion

This book has presented a wide range of views on the proposed International
Space Code of Conduct (ICoC) for Outer Space as proposed by the European
Union. The views have come from a vast range of experts from various
countries, including Australia, Canada, China, Colombia, France, Germany,
Japan, India, Pakistan, Nigeria, Philippines, Russia, South Korea, United
Kingdom and United States. They are personal and non-official opinions.
This book is simply about a sense about what various individuals from
different states think about ICoC, and to highlight the recent thinking on
this issue. While seeking contributions, no formal questionnaire was provided,
except to highlight a broad idea about the central purpose, which was to
generate a wider debate on this subject.
On the whole, many contributors are in agreement to the idea of devising
an ICoC; that this may not be a perfect solution, but it is still an important
step in the right direction. The need for ICoC arises because despite the rapid
advances in space technologies no corresponding normative architecture has
been put in place till date.
Alternatively, it has been suggested that the existing UN efforts need to
be strengthened. This is because the UN system offers a provision for legally
binding obligations and it could be incorrect to try finding a solution outside
the UN mandate. Also, a need for meaningful verification measures has been
emphasised.
Interesting views on treaty versus ICoC issues have been set forth. It has
been argued that the ICoC proposal could find more acceptability than the
treaty mechanism, the former being a soft law. Also, a treaty is successful
only when it gets ratified by the political setup in the respective states.
Experience in the arms control and disarmament area shows that this entire
process from treaty formation to ratification is extremely time-consuming.
 Conclusion 159

The challenges in Outer Space, particularly the issues related to space debris,
demand immediate attention. Hence it could be prudent to opt for a code
of conduct as the first step. Support for designing a separate treaty for Outer
Space issues at this point in time is limited.
The issue about lack of transparency in designing the present and previous
ICoC drafts and various procedural inadequacies has been highlighted mainly
by developing countries. They believe that the CoC’s preliminary negotiations
were extremely selective. They want the future negotiations to be transparent.
A concern has been expressed about the present draft of ICoC which gives
an impression of a mechanism consisting of a loose set of rules at the global
level with expectations of stringent legislation at the state level. Appreciating
the limitations of achieving consensus during the upcoming negotiations it
has also been suggested that the prefix “Interim” could be used before the
existing mechanism in order to achieve consensus that preserves the Space
Commons for benign use, without infringing the right of states to protect
their national security.
The efficacy of developing an ICoC that is non-binding and voluntary
in nature has been discussed at length. Opposition to the idea is mainly on
two counts. One, the non-binding and voluntary nature of the code makes
it an ineffectual mechanism. The purpose behind ICoC would not be satisfied
since there are no checks and balances in the systems devised. The other
argument is that once a non-binding mechanism becomes a reality, it is little
likely that in future efforts would be made to shape any stronger mechanism.
On the other hand, the supporters are of the opinion that since negotiating
a binding mechanism in all probability is not likely to reach any results, a
more realistic view needs to be taken. It has also been argued by a few that
since the UN Space Debris Mitigation Guidelines, which are also voluntary
in nature, are being followed earnestly by states, the same logic could be
applicable to the ICoC too. However, the declarations for the ICoC also
demand providing information related to the strategic domain: it is unlikely
that states could follow a perfect model of transparency in such cases.
There are suggestions that an inclusive approach and legally binding
verification mechanisms are essential. There is also an argument that a space
policy proposal need not have the capacity to effectively address every issue.
ICoC, despite its limitations, is capable of making a concrete contribution
to space governance. It has also been stated that the ICoC has the potential
to stimulate the international society to develop relevant rules, and gives a
reason for states to make their own relevant rules. By and large it appears
that the non-binding nature of ICoC is more acceptable to the Western world
and their allies in Asia.
160 Decoding the International Code of Conduct for Outer Space Activities

There are differing regional perceptions about space security challenges,

based on the nature of investments made by the individual states. The
European states view space systems mainly as civilian assets, even if their dual
use is growing. For them the main concern is about the increasing risk of
collisions in space due to debris. That may be why they remain satisfied with
the ICoC proposal aiming at achieving the lowest common denominator by
affirming a few general principles. For the other space-faring nations, issues
related to space weaponisation are equally important. For better appreciation
of the existing ICoC text, it is necessary to define “military activities” and
“peaceful exploration and use of Outer Space” clearly to avoid any ambiguity.
Also, a concern has been raised mainly learning from the experiences of
the NPT (Nuclear Non-proliferation Treaty) that the states with proven ASAT
capabilities could “bargain” from a position of strength during ICoC
negotiations. Against this backdrop the possibility of ASAT-capable states
conducting an ASAT test without creating space debris has been discussed.
Diverse points of view have been expressed comparing ICoC with other
arrangements like The Hague Code of Conduct (HCoC) and Biological
Weapons Convention (BWC). There is a view that HCoC lacks power
because of its non-binding status and the BWC treaty could not accomplish
much because it did not have a verification mechanism in its by-laws. On
similar lines, ICoC could emerge as an inadequate arrangement. A counter
view is that even though a legally binding treaty does have more standing in
the international system, at times, it is more convenient to have a non-legally
binding document that still establishes expectations of the international
political community on a certain issue.
There is consensus in regard to the need for establishment of a global
space surveillance network for the purposes of Space Situational Awareness
(SSA), combining different sources of information on a regional scale. There
is a requirement for such global network for the purposes of debris tracing.
At the same time, there is a caveat that such arrangement is sustainable
provided a secure system for handling sensitive data is made available.
Various experts have essentially argued in favour of a mechanism to
address issues related to space sustainability and security. A small section is
of the opinion that it could be prudent to strengthen the existing UN
mechanism instead of negotiating for the ICoC. All supporters of ICoC are
not found on the same plane. There are reservations about the format of the
ICoC document placed for negotiations. The key point of contention is in
regard to the non-binding and voluntary nature of the existing draft.
No article-by-article assessment has been made by the contributors in
 Conclusion 161

respect of the ICoC draft. Such assessment could have helped understand
their acceptance/apprehension of various proposals in greater detail. Since
the debate on this issue is still in primary stages it may have been thought
prudent to first highlight the core argument that it is better to have an
imperfect agreement than no agreement. Hence, the main effort has been
towards popularizing the idea. Two important issues which are not part of
the existing draft but require attention during the negotiations have been
highlighted. They are the need for a policy for the management of natural
resources in Outer Space and the need to consider newer initiatives and
organisations along the lines of the International Civil Aviation Organisation
(ICAO) for space traffic management. Also, it has been suggested that for
challenges like space debris and arms race in space there is a need to establish
a panel of experts on the model of the IPCC (Intergovernmental Panel on
Climate Change).
The essence of various arguments and counterarguments leads to a
reflection that the Code of Conduct as currently worded can only constitute
a pragmatic part of comprehensive arrangements which should involve
treaties, custom, and general principles of law, fostering international
cooperation, as the foundation and catalyst towards guaranteeing continued
use of Outer Space for peaceful purposes. The need of the hour is to get all
the parties having stakes in space arena together and formulate a commonly
agreeable ICoC to make the mission sustainable.
 APPENDIX 1
Text of International Code of Conduct for
Outer Space Activities (2010)

COUNCIL OF THE EUROPEAN UNION

Delegations will find attached the Conclusions adopted by the Council on
27 September 2010, together with the revised draft for a Code of Conduct
for Outer Space Activities, which has been endorsed as a basis for consultations
with third countries.
The Council recalls that the European Union is aiming at strengthening
the security of activities in outer space in the context of expanding space
activities that contribute to the development and security of states. The
European Union’s space policy can contribute towards this objective.
The Council invites the High Representative to pursue consultations with
third countries on the basis of the annexed revised draft for a Code of
Conduct for Outer Space Activities, which has been established in the light
of wide consultations with space faring nations. All States will be invited to
adhere on a voluntary basis to the Code, which includes transparency and
confidence-building measures.
In the upcoming consultations, the High Representative will engage with
third countries that have an interest in outer space activities, with the aim
of establishing a text that is acceptable to the greatest number of countries
and of adopting the Code of Conduct at an ad-hoc diplomatic conference.

Preamble
The Subscribing States
Noting that all States should actively contribute to the promotion and
strengthening of international cooperation relating to the activities in the
exploration and use of outer space for peaceful purposes;
Considering that these activities play a growing role in economic, social and
cultural development of nations, preservation of the environment, promotion
164 Decoding the International Code of Conduct for Outer Space Activities

of international cooperation, strengthening of national security and sustaining

international peace;
Recognizing the need for the widest possible adherence to relevant existing
international instruments that promote the peaceful uses of outer space in
order to meet emerging new challenges;
Further recognising that space capabilities - including associated ground and
space segments and supporting links - are vital to national security and to
the maintenance of international peace and security;
Recalling the initiatives aiming at promoting a peaceful, safe and secure outer
space environment, through international cooperation;
Recalling the importance of developing transparency and confidence-building
measures for activities in outer space;
Taking into account that space debris constitutes a threat to outer space
activities and potentially limits the effective deployment and exploitation of
associated space capabilities;
Stressing that the growing use of outer space increases the need for greater
transparency and better information exchange among all actors conducting
outer space activities ;
Convinced that the formation of a set of best practices aimed at ensuring
security in outer space could become a useful complement to international
space law;
Noting that such best practices could apply to all types of outer space activities;
Reaffirming their commitment to resolve any conflict concerning actions in
space by peaceful means;
Recognising that a comprehensive approach to safety and security in outer
space should be guided by the following principles: (i) freedom of access to
space for peaceful purposes, (ii) preservation of the security and integrity of
space objects in orbit, (iii) due consideration for the legitimate defence interests
of States;
Conscious that a comprehensive code, including transparency and confidence-
building measures could contribute to promoting common and precise
understandings;
Adopt the following Code of conduct for outer space activities (hereinafter
referred to as “the Code”).
 Appendix 1: Text of International Code of Conduct for Outer Space Activities 165

I. PURPOSE, SCOPE AND CORE PRINCIPLES

1. Purpose and Scope

1.1. The purpose of this Code is to enhance the security, safety and
sustainability of all outer space activities.
1.2. The present Code is applicable to all outer space activities conducted
by a Subscribing States or jointly with other States(s) or by non-
governmental entities under the jurisdiction of a Subscribing State,
including those activities conducted within the framework of
international intergovernmental organisations.
1.3. This Code, in endorsing best practices, contributes to transparency and
confidence-building measures and is complementary to the existing
framework regulating outer space activities.
1.4. Adherence to this Code and to the measures contained in it is voluntary
and open to all States.

2. General Principles
The Subscribing States resolve to abide by the following principles:
- the freedom for all States to access, to explore, and to use outer space
and to exploit space objects for peaceful purposes without interference,
fully respecting the security, safety and integrity of space objects in orbit
consistent with international law and security, safety and integrity
standards;
- the inherent right of individual or collective self-defence in accordance
with the United Nations Charter;
- the responsibility of States to take all the appropriate measures and
cooperate in good faith to prevent harmful interference in outer space
activities; and
- the responsibility of States, in the conduct of scientific, commercial
and military activities, to promote the peaceful exploration and use of
outer space and to take all appropriate measures to prevent outer space
from becoming an area of conflict.
3. Compliance with and Promotion of Treaties, Conventions
and other Commitments Relating to Outer Space Activities
3.1. The Subscribing States reaffirm their commitment to:
- the existing legal framework relating to outer space activities;
- making progress towards adherence to, and implementation of:
(a) the existing framework regulating outer space activities, inter alia:
166 Decoding the International Code of Conduct for Outer Space Activities

• the Treaty on Principles Governing the Activities of States in

the Exploration and Use of Outer Space, including the Moon
and Other Celestial Bodies (1967);
• the Agreement on the Rescue of Astronauts, the Return of
Astronauts and the Return of Objects Launched into Outer
Space (1968);
• the Convention on International Liability for Damage Caused
by Space Objects (1972);
• the Convention on Registration of Objects Launched into Outer
Space (1975);
• the Constitution and Convention of the International
Telecommunications Union and its Radio Regulations (1995),
as amended;
• the Treaty banning Nuclear Weapon Tests in the Atmosphere,
in Outer Space and under Water (1963) and the Comprehensive
Nuclear Test Ban Treaty (1996); and
• the International Code of Conduct against Ballistic Missile
Proliferation (2002).
(b) Declarations and Principles, inter alia:
• the Declaration of Legal Principles Governing the Activities of
States in the Exploration and Use of Outer Space as adopted
by UNGA Resolution 1962 (XVIII), (1963);
• the Principles Relevant to the Use of Nuclear Power Sources in
Outer Space as adopted by UNGA Resolution 47/68 (1992);
• the Declaration on International Cooperation in the Exploration
and Use of Outer Space for the Benefit and in the Interest of All
States, Taking into Particular Account the Needs of Developing
Countries as adopted by UNGA Resolution 51/122 (1996); and
• the Recommendations on the Practice of States and
International Organisations in Registering Space Objects as
stated in UNGA Resolution 62/101 (2007);
3.2. The Subscribing States also reiterate their support to encouraging
coordinated efforts in order to promote universal adoption of, and full
adherence to, the above mentioned instruments.

II. GENERAL MEASURES

4. Measures on Space Operations

4.1. The Subscribing States are committed to establishing and implementing
their policies and procedures to minimise the possibility of accidents
in space, collisions between space objects or any form of harmful
interference with other States’ right to the peaceful exploration and use
of outer space.
 Appendix 1: Text of International Code of Conduct for Outer Space Activities 167

4.2. The Subscribing States, commit in conducting outer space activities,

to:
- refrain from any action which intends to bring about, directly or
indirectly, damage, or destruction, of outer space objects unless such
action is conducted to reduce the creation of outer space debris and/or
is justified by the inherent right of individual or collective self-defence
in accordance with the United Nations Charter or imperative safety
considerations;
- take appropriate measures to minimize the risk of collision; and
- abide by and implement all International Telecommunications Union
recommendations and regulations on allocation of radio spectra and
orbital assignments.
4.3. When executing manoeuvres of space objects in outer space, for example
to supply space stations, repair space objects, mitigate debris, or
reposition space objects, the Subscribing States confirm their intention
to take all reasonable measures to minimise the risks of collision.
4.4. The Subscribing States resolve to promote the development of guidelines
for space operations within the appropriate fora for the purpose of
protecting the safety of space operations and the long-term sustainability
of outer space activities.
4.5. The Subscribing States resolve to promote 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.
5. Measures on Space Debris Control and Mitigation
In order to limit the creation of space debris and reduce its impact in outer
space, the Subscribing States commit to:
- refrain from the intentional destruction of any on-orbit space object or
other activities which may generate long-lived space debris;
- adopt and implement, in accordance with their own internal processes,
the appropriate policies and procedures or other effective measures in
order to implement the Space Debris Mitigation Guidelines of the
United Nations Committee for the Peaceful Uses of Outer Space as
endorsed by UNGA Resolution 62/217.

III. COOPERATION MECHANISMS

6. Notification of Outer Space Activities

6.1. The Subscribing States commit to notify, in a timely manner, to the
greatest extent feasible and practicable, all potentially affected
168 Decoding the International Code of Conduct for Outer Space Activities

Subscribing States on the outer space activities conducted which are

relevant for the purposes of this Code, inter alia:
• scheduled manoeuvres which may result in dangerous proximity to the
space objects of both Subscribing and non-Subscribing States;
• pre-notification of launch of space objects;
• collisions, break-ups in orbit, and any other destruction of space objects
generating measurable orbital debris which have taken place;
• predicted high-risk re-entry events in which the re-entering object or
residual material from the re-entering object either likely would survive
to cause potential significant damage, or might cause radioactive
contamination; and
• malfunctioning of orbiting space objects which could result in a
significantly increased probability of a high risk re-entry event or a
collision between space objects in orbit.
6.2. The Subscribing States commit to provide the notifications described
above through diplomatic channels, or by any other method as may be
mutually agreed.

7. Registration of Space Objects

The Subscribing States commit to register space objects in accordance with
the Convention on Registration of Objects launched to Outer Space and to
provide the United Nations Secretary-General with the relevant data as set
forth in this Convention and in the Recommendations on the Practice of
States and International Organisations in Registering Space Objects, as
adopted by UNGA Resolution 62/101.

8. Information on Outer Space Activities

8.1. The Subscribing States resolve to share, on an annual basis, where
available and appropriate information on:
- their space policies and strategies, including basic objectives for security
and defence related activities in outer space;
- their space policies and procedures to prevent and minimise the
possibility of accidents, collisions or other forms of harmful interference;
- their space policies and procedures to minimise the creation of space
debris; and
- efforts taken in order to promote universal adherence to legal and
political regulatory instruments concerning outer space activities;
8.2. The Subscribing States may also consider providing timely information
on space environmental conditions and forecasts to the governmental
agencies and the relevant nongovernmental entities of all space faring
nations, collected through their space situational awareness capabilities.
 Appendix 1: Text of International Code of Conduct for Outer Space Activities 169

9. Consultation Mechanism
9.1. Without prejudice to existing consultation mechanisms provided for
in Article IX of the Outer Space Treaty of 1967 and in Article 56 of
the ITU Constitution, the Subscribing States have decided on the
creation of the following consultation mechanism:
- A Subscribing States that may be directly affected by certain outer space
activities conducted by one or more Subscribing State(s) and has reason
to believe that those activities are, or may be contrary to the core purposes
of the Code may request consultations with a view to achieving mutually
acceptable solutions regarding measures to be adopted in order to prevent
or minimise the inherent risks of damage to persons or property, or of
potentially harmful interference to a Subscribing State’s outer space
activities.
- The Subscribing States involved in a consultation process commit to:
• consulting through diplomatic channels or by other methods as may
be mutually determined; and
• working jointly and cooperatively in a timeframe sufficiently urgent
to mitigate or eliminate the identified risk initially triggering the
consultations.
- Any other Subscribing State(s) which has reason to believe that its space
activities would be affected by the identified risk and requests to take
part in the consultations is entitled to take part, with the consent of the
Subscribing State(s) which requested consultations and the Subscribing
State(s) which received the request.
- The Subscribing States participating in the consultations are to seek
mutually acceptable solutions in accordance with international law.
9.2. In addition, the Subscribing States may propose, on a voluntary basis,
to create a mechanism to investigate proven incidents affecting space
objects and to collect reliable and objective information facilitating their
assessment. The mechanism, to be determined at a later stage, should
utilize information provided on a voluntary basis by the Subscribing
States, subject to national laws and regulations, and a roster of
internationally recognised experts to undertake an investigation. The
findings and any recommendations of these experts are to be advisory,
and are not binding upon the Subscribing States involved in the incident
that is the subject of the investigation.

IV. ORGANISATIONAL ASPECTS

10. Biennial meeting of Subscribing [States] [Parties]

10.1. The Subscribing States decide to hold meetings biennially or as
170 Decoding the International Code of Conduct for Outer Space Activities

otherwise agreed by Subscribing States, to define, review and further

develop this Code and ensure its effective implementation. The agenda
for such biennial meetings could include: (i) review of the
implementation of the Code, (ii) evolution of the Code and (iii)
additional measures which appear necessary, including those due to
advances in the development of space technologies and their application.
10.2. The decisions at such meetings will be taken by consensus of the
Subscribing States present.
10.3. The results of the meeting will be brought to the attention of relevant
international fora including the United Nations Committee on Peaceful
Uses of Outer Space (COPUOS) and the Conference on Disarmament
(CD) in an appropriate manner.

11. Central point of contact

A central point of contact should be nominated by Subscribing States to:
- receive and announce the subscription of additional States;
- maintain the electronic information-sharing system;
- serve as secretariat at the meetings of Subscribing States; and
- carry out other tasks as determined by the Subscribing States.
12. Outer Space Activities Database
The Subscribing States commit to creating an electronic database and
communications system, which should be used exclusively for their benefit
in order to:
- collect and disseminate notifications and information submitted in
accordance with the provisions of this Code; and
- serve as a mechanism to channel requests for consultations.
13. Participation by Regional Integration Organisations and
International Intergovernmental Organisations
In this Code, references to Subscribing States shall be deemed to apply to
the following:
- To the European Union in view of its competences over matters covered by
the present code, without prejudice to the competences of its member States.
- With the exception of articles 10 to 12 inclusive: To any regional
integration organisation or international intergovernmental organisation
which conducts outer-space activities if a majority of the States members
of the organisation are Subscribing States to this Code.

Source: http://www.consilium.europa.eu/uedocs/cmsUpload/st14455.en10.pdf
 Appendix 1: Text of International Code of Conduct for Outer Space Activities 171

APPENDIX 2
EU Launches Negotiations on an International Code of
Conduct for Outer Space Activities: Press Note
Brussels, 6 June 2012
The European Union officially launched on Tuesday in Vienna the multilateral
diplomatic process to discuss and negotiate its initiative for an International
Code of Conduct for Outer Space Activities. Under the chairmanship of
Maciej Popowski, Deputy Secretary General of the European External Action
Service, 110 participants from more than 40 countries gathered for this
multilateral meeting, at which the European Union introduced a revised
version of its draft Code, based on comments received in bilateral meetings
with various partners. Substantial negotiations on the basis of this text will
start at the Multilateral Experts Meeting of October 2012 in New York, which
will be open to the participation of all UN Member States, with a view to
adopt the Code in 2013.
Space activities are expanding and their importance is crucial. Space is a
resource for all countries in the world, and those which do not yet have space
activities will have them in the future. Therefore the EU considers necessary
to ensure greater security in outer space and believes a pragmatic and
incremental process can assist in achieving this goal. The EU initiative for
an International Code of Conduct for Outer Space Activities was launched
at the end of 2008 as a means to achieve enhanced safety and security in
outer space through the development and implementation of transparency
and confidence-building measures.
The proposed Code would be applicable to all outer space activities
conducted by States or nongovernmental entities, and would lay down the
basic rules to be observed by space faring nations in both civil and defence
space activities. This initiative is already supported by a number of spacefaring
nations, among them the US, Japan and India.
At the meeting, the UN Institute for Disarmament Research (UNIDIR)
officially launched its project “Facilitating the Process for the Development
of an international Code of Conduct for Outer Space Activities”, which—
in parallel with the diplomatic process—aims to facilitate information
dissemination and exchange of views on the concept of this Code of Conduct.
172 Decoding the International Code of Conduct for Outer Space Activities

APPENDIX 3
Text of the CoC Initiative by Henry L. Stimson Center

MODEL CODE OF CONDUCT

Central Objective of this Code of Conduct

To preserve and advance the peaceful exploration and use of outer space.

Preamble
We the undersigned;
Recognizing the common interest of all humankind in achieving progress in
the exploration and use of outer space for peaceful purposes;
Reaffirming the crucial importance of outer space for global economic
progress, commercial advancement, scientific research, sustainable
development, as well as national, regional and international security;
Desiring to prevent conflict in outer space;
Reaffirming our commitment to the United Nations Charter;
Taking into consideration the salience of Article 2(4) of the Charter, which
obliges all members to refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the purposes of the United
Nations;
Taking special account of Article 42 of the Charter, under which the United
Nations Security Council may mandate action by air, sea, or land forces as
may be necessary to maintain or restore international peace and security;
Recognizing the inherent right of self-defense of all states under Article 51 of
the Charter;
Reinforcing the principles of the Outer Space Treaty of 1967, including:
• the exploration and use of outer space, including the moon and other
celestial bodies, shall be carried out for the benefit and in the interests
of all countries,
 Appendix 3: Text of the CoC Initiative by Henry L. Stimson Center 173

• outer space, including the moon and other celestial bodies, shall be
free for exploration and use by all States without discrimination of any
kind, on a basis of equality and in accordance with international law,
• outer space, including the moon and other celestial bodies, is not
subject to national appropriation by claim of sovereignty, by means of
use or occupation, or by any other means, in the exploration and use
of outer space, States Parties to the Treaty shall be guided by the
principle of co-operation and mutual assistance and shall conduct all
their activities in outer space with due regard to the corresponding
interests of all other States Parties to the Treaty;
• State Parties to the Treaty undertake not to place in orbit around the
Earth any objects carrying weapons of mass destruction;
• the moon and other celestial bodies shall be used by all States Parties
to the Treaty exclusively for peaceful purposes.
Recalling the importance of space assets for non-proliferation, disarmament
and arms control treaties, conventions and regimes;
Recognizing that harmful actions against space objects would have injurious
consequences for international peace, security and stability;
Encouraging signature, ratification, accession, and adherence to all legal
instruments governing outer space, including:
• 1967 Outer Space Treaty
• 1968 Rescue Agreement
• 1972 Liability Convention
• 1976 Registration Convention
• 1984 Moon Agreement
Recognizing the value of mechanisms currently in place related to outer space,
including the 1994 Constitution of International Telecommunications Union;
the 1963 Partial Test Ban Treaty; the 1988 Intermediate-Range Nuclear Forces
Treaty; the 1994 Strategic Arms Reduction Treaty; and the 2003 Treaty on
Strategic Offensive Reductions.
Recognizing the dangers posed by space debris for safe space operations and
recognizing the importance of the 2007 Space Debris Mitigation Guidelines
of the Scientific and Technical Subcommittee of the Committee on the
Peaceful Uses of Outer Space;
Recognizing the importance of a space traffic management system to assist
in the safe and orderly operation of outer space activities;
Believing that universal adherence to this Code of Conduct does not in any
way diminish the need for additional international legal instruments that
174 Decoding the International Code of Conduct for Outer Space Activities

preserve, advance and guarantee the exploration and use of outer space for
peaceful purposes;
Declare the following rights and responsibilities:
Rights of Space-Faring States
1. The right of access to space for exploration or other peaceful purposes.
2. The right of safe and interference-free space operations, including
military support functions.
3. The right of self-defense as enumerated in the Charter of the United
Nations.
4. The right to be informed on matters pertaining to the objectives and
purposes of this Code of Conduct.
5. The right of consultation on matters of concern and the proper
implementation of this Code of Conduct.
Responsibilities of Space-Faring States
1. The responsibility to respect the rights of other space-faring states and
legitimate stakeholders.
2. The responsibility to regulate stakeholders that operate within their
territory or that use their space launch services in conformity with the
objectives and purposes of this Code of Conduct.
3. Each state has the responsibility to regulate the behavior of its nationals
in conformity with the objectives and purposes of this Code of Conduct,
wherever those actions occur.
4. The responsibility to develop and abide by rules of safe space operation
and traffic management.
5. The responsibility to share information related to safe space operations
and traffic management and to enhance cooperation on space situational
awareness.
6. The responsibility to mitigate and minimize space debris in accordance
with the best practices established by the international community in
such agreements as the Inter-Agency Debris Coordination Committee
guidelines and guidelines of the Scientific and Technical Subcommittee
of the United Nations Committee on the Peaceful Uses of Outer Space.
7. The responsibility to refrain from harmful interference against space
objects.
8. The responsibility to consult with other space-faring states regarding
activities of concern in space and to enhance cooperation to advance
the objectives and purposes of this Code of Conduct.
9. The responsibility to establish consultative procedures to address and
resolve questions relating to compliance with this Code of Conduct, and
 Appendix 3: Text of the CoC Initiative by Henry L. Stimson Center 175

to agree upon such additional measures as may be necessary to improve

the viability and effectiveness of this Code of Conduct.
The Model Code of Conduct was completed by experts from NGOs in
Canada, France, Japan, Russia and the United States in October 2007. The
group included Setsuko Aoki of Keio University, Alexei Arbatov of the
Carnegie Moscow Center, Vladimir Dvorkin of the Center for Policy Studies
in Russia, Trevor Findlay of the Canadian Centre for Treaty Compliance,
Katsuhisa Furukawa of the Japan Science and Technology Agency, Scott
Lofquist-Morgan of the Canadian Centre for Treaty Compliance, Laurence
Nardon of the French Institute of International Relations, and Sergei
Oznobistchev of the Institute of Strategic Studies and Analysis. NGO
participants worked on this project in a personal capacity. Their support for
the model Code of Conduct therefore does not reflect endorsements by their
institutions or governments.
Sourece: http://www.stimson.org/research-pages/model-code-of-conduct/
176 Decoding the International Code of Conduct for Outer Space Activities

APPENDIX 4
Canada Working Paper Presented to CD (Jun 5, 2009)
On the Merits of Certain Draft Transparency and
Confidence-Building Measures and
Treaty Proposalsfor Space Security
1. Transparency and confidence-building measures (TCBMs) in the non-
proliferation, arms control and disarmament field are instruments that
are often used to make progress when the international community is
unable to attain consensus that would be necessary for the negotiation
of relevant treaties. Sometimes they serve as a precursor to what will
hopefully follow. The best known example of that is the Declaration of
Legal Principles Governing the Activities of States in the Exploration and
Use of Outer Space, adopted on 13 December 1963 (resolution 1962
(XVIII)). Reading that document again, one is struck by how closely it
predicted the text of the Outer Space Treaty of 1967.1 Looking back,
one must conclude that the authors of these legal principles had in mind
the end result of the Outer Space Treaty when they first set pen to paper.
A relevant question for us today is should we do the same again for space
security and start with a Code of Conduct to address the issues that were
left unresolved in the Outer Space Treaty, or, should we launch directly
into the negotiation of a new relevant treaty?
2. The Outer Space Treaty represents the best that could have been
accomplished for space security during that era of the Cold War. It
successfully banned the placement of weapons of mass destruction in
outer space. It also banned the military use of the Moon and other
celestial bodies, but permitted the military use of outer space for peaceful
purposes. Space objects were granted freedom from harmful interference
for peaceful purposes—a phrase that came to be interpreted as “non-
aggressive.” To deal with the potential for the aggressive behaviour of
space objects, the Outer Space Treaty referenced the United Nations
Charter to ensure that a state’s legitimate right to self-defence would also
apply in relation to its activities in outer space. We must remember that
the Outer Space Treaty was drafted at a time when nuclear weapons were
the only way to successfully attack satellites, following the Limited Test
Ban Treaty of 1963,2 which prohibited the carrying out of nuclear weapon
test explosions or any other nuclear explosion in outer space.
 Appendix 4: Canada Working Paper Presented to CD 177

3. In January 2007, we witnessed a return to anti-satellite weapon testing

based on physical effects kill-mechanisms generated by the continuous
advance of conventional weapons technology. The amount of space debris
produced by this most recent test again demonstrated why in 1985 the
then Soviet and American governments both unilaterally ceased the testing
of such class of weapons. The international community’s continued safe
and sustainable use of outer space cannot endure the production of space
debris through further anti-satellite testing, let alone recover from the
wide scale, debilitating effects of fighting humanity’s first war in outer
space with such destructive and indiscriminate weapons. Indeed, even
collisions among existing space objects could begin to limit our safe and
sustainable use of outer space for peaceful purposes. Causing or leaving
derelicts in outer space could also risk the further production of space
debris when active or inactive satellites subsequently collide. The most
recent Iridium and Cosmos satellite incident is a stark reminder of this
possibility.
4. The continuous march of science and technology has also set several states
on a course to develop ballistic missile defence interceptors to engage the
re-entry vehicles and rocket bodies of ballistic missiles using conventional
hit-to-kill mechanisms. In many ways, the international community’s
struggle to prevent nuclear weapons proliferation and their means of
delivery, and the continued possession of nuclear weapons by a number
of states, is now spilling over into the space security issue.
5. Canada’s goals for space security can be found in the juxtaposition of
the right of safe passage of space objects for peaceful purposes with the
right of self-defence in the Outer Space Treaty and the UN Charter,
informed by the technological prowess that now permits conventional
weapons to successfully engage objects in outer space. Herein lies the
unfinished work of the Outer Space Treaty. These new rules of behaviour
must address space activities in peace as well as when the use of force
consistent with the United Nations Charter occurs. We can argue that
security guarantees should presage safe passage guarantees for space
objects. Don’t believe it? Ask yourself a simple question, “Should the
world’s first space-based weapon3 be granted safe passage or freedom from
harmful interference in outer space?”
6. Consider, for example, Article IPs undertaking in Russia-China’s draft
Treaty on the Prevention of the Placement of Weapons in Outer Space,
the Threat or Use of Force Against Outer Space Objects (PPWT),4 “not
to resort to the threat or use of force against outer space objects.” Notice
how this undertaking follows one that would ban the placement of
weapons in outer space. Some have argued that the no force provision
in this draft treaty would not have prohibited the anti-satellite weapon
test of 2007 on China’s own satellite.
178 Decoding the International Code of Conduct for Outer Space Activities

7. The European Union (EU) has since proposed a draft Code of Conduct
for Outer Space Activities5 outside of this forum but circulated to all CD
members on 12 February, defining what it considers to be acceptable rules
of behaviour to enhance the safety, security and predictability of outer
space activities for all. It undertook these efforts within the context of
the prior US Administration’s reluctance to enter into any legally-binding
instrument that would constrain America’s freedom of action in outer
space. Article 4.2 of the EU’s draft Code of Conduct calls for Subscribing
States to: refrain from any intentional action which will or might bring
about, directly or indirectly, the damage or destruction of outer space
objects unless such action is conducted to minimise outer space debris
and/or justified by imperative safety considerations;
This draft Code of Conduct was made public many months after the
United States successfully modified a ballistic missile defence interceptor
to engage a decaying satellite at a low altitude for the minimization of
the production of space debris, an engagement that was undertaken for
the protection of public safety.
8. Two issues arise from the EU’s proposed safety guarantee. The first is
that a national security prerogative is not an expressly authorised reason
for the production of space debris. Some states might not accept this
restriction on their national security when confronted with the possibility
of a competitor’s deployment of a constellation of a significant number
of space-based weapons. The second issue with the proposal, is that it
allows for a proliferation path for anti-satellite weapons that ought to be
closed when judged against other possible or viable proposals for a more
robust security guarantee.
9. Given that the means to ensure the safe burn-up of satellites during re-
entry of the Earth’s atmosphere can also be designed into the satellite
beforehand, it can be argued that a better security guarantee than both
the EU’s draft Code of Conduct and the Chinese-Russian draft PPWT,
would be for the international community to agree or accede to a ban
or a pledge such as:
10. State [Parties]/[Signatories] to the [Treaty]/[Code of Conduct] [shall]/
[should] not test or use a weapon against any satellite so as to damage
or destroy it.
11. Note that such an undertaking would again need to be done in
conjunction with a prohibition on the placement of weapons in outer
space, lest we inadvertently provide a sanctuary for space-based weapons.
Furthermore, a prohibition on the test or use of any satellite itself as a
weapon capable of inflicting damage or destruction on any other object,
would address the residual threat of a benign dual-use satellite serving
as a weapon. Taken together, these three rules would prohibit armed
conflict in outer space based on the application of physical force.
 Appendix 4: Canada Working Paper Presented to CD 179

12. Interestingly, these rules can be crafted without the need to define a
weapon, a satellite or even outer space, since the effects of the weapon
are included within the proposed prohibitions, a satellite is a object that
orbits round the Earth or other celestial body, and the prohibition on
the placement of any weapon in outer space can be modelled on the
language of Article IV of the Outer Space Treaty. To aid in the verification
of a treaty or the compliance monitoring of a code of conduct, the
definition of test could also be modelled on the following: where “test”
means “to flight or field test in a manner observable to the national or
multinational technical means of [verification]/[compLiance monitoring]
available to a State [Party]/[Signatory].”
13. The above security proposal would also obtain a concomitant safety
guarantee preventing the production of space debris or derelicts that could
result in the production of space debris during subsequent collisions. This
proposed security guarantee therefore helps ensure the sustainability of
outer space for the future, The risk to the international community of
settling for a weaker proposal is that we will endorse a proliferation path
for the test of specially designed or modified devices, to serve as anti-
satellite weapons capable of producing indiscriminate effects through the
production of space debris, or we will close an avenue for needed self-
defence measures against the future prospect of space-based weapons.
14. This intervention should demonstrate how great care must be exercised
when we depart from the familiar foundations of the Outer Space Treaty.
It also speaks to the need for any new rules concerning a state’s activities
in outer space to be negotiated in an appropriate forum. Obtaining
practical safety and sustainability measures for space activities should not
inhibit the collective desire to achieve robust security guarantees for those
activities in outer space currently accepted by the international
community. And yet, most states recognize that going into the future,
new rules of behaviour for outer space activities must be crafted in order
to obtain its secure, safe and sustainable use in full consideration of the
advances that have been made in conventional weapons technology. In
this regard, Canada argues for security guarantees to be considered by
the Conference on Disarmament (CD) and practical safety and
sustainability measures for space activities to be considered in the
Committee on the Peaceful Uses of Outer Space (COPUOS). To ensure
that these forums do not work at odds with one another, increased co-
ordination of the CD and COPUOS ought to be given favourable
consideration by the Member States of both international bodies.
15. Most recently, the new US Administration has announced its intention
to resume its leadership on space issues with a “worldwide ban on
weapons that interfere with military and commercial satellites.”6 We
believe that this advance signal should bode well for our current
180 Decoding the International Code of Conduct for Outer Space Activities

discussions of space security within the Conference on Disarmament. We

also welcome the new US Administration’s pronouncements on
addressing nuclear non-proliferation and nuclear disarmament issues and
hope that these too will help us make progress on the space security file.
A new found policy approach by a significant space actor should also
inform our attempts to collectively define additional acceptable
behaviours for the conduct of activities in outer space within the
Conference on Disarmament.
16. As we move forward on this important matter, let us recall the earlier
collective experience with the Declaration of Legal Principles Governing
the Activities of States in the Exploration and Use of Outer Space and keep
in our minds from the outset, the new legal protections we would all
prefer to govern our activities in outer space. Drafting hard security
guarantees first, as a soft declaration of legal principles, might just provide
the international community with a third answer to the two questions
posited at the beginning of this paper.
Source: http://www.unog.ch/80256EDD006B8954/(httpAssets)/
C40D0B92E5F37A9CC12575FC003BCE37/$file/CD_1865_E.pdf

N OTES
1. Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, Including the Moon and Other Celestial Bodies, 601 U.N.T.S. 206 (1967).
2. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under
Water, 480 U.N.T.S. 43 (1963).
3. For example, a space-based ballistic missile defence interceptor, a space-based anti-satellite
weapon or an orbital bombardment system.
4. Letter dated 12 February 2008 from the Permanent Representative of the Russian
Federation and the Permanent Representative of China to the Conference on
Disarmament addressed to the Secretary General of the Conference transmitting the
Russian and Chinese texts of the draft “Treaty on Prevention of the Placement of
Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects
(PPWT)” introduced by the Russian Federation and China, CD/1839, 29 February
2008.
5 Draft Code of Conduct for Outer Space Activities, as approved by the Council on 8-9
December 2008, Council of the European Union, Brussels, 17 December 2008, No.
17175/08, PESC1697,CODUN61.
6. Available on www.whitehouse. gov under the heading of “Ensure Freedom of Space” as
at 18 February 2009.
 Appendix 4: Canada Working Paper Presented to CD 181

APPENDIX 5

Treaty on the Prevention of the Placement of Weapons in

Outer Space, the Threat or Use of Force Against Outer
Space Objects

The States Parties to this Treaty,

Reaffirming that outer space plays an ever-increasing role in the future
development of humankind,
Emphasizing the rights to explore and use outer space freely for peaceful
purposes,
Interested in keeping outer space from turning into an arena for military
confrontation, in assuring security in outer space and safe functioning of space
objects,
Recognizing that prevention of the placement of weapons and of an arms
race in outer space would avert a grave danger for international peace and
security,
Designing to keep outer space as a sphere where no weapon of any kind
is placed,
Noting that the existing agreements on arms control and disarmament
relevant to outer space, including the bilateral ones, and the existing legal
regimes concerning the use of outer space play a positive role in exploration
of outer space and in regulating outer space activities, and should be strictly
complied with; although they are unable to effectively prevent the placement
of weapons and an arms race in outer space,
Recalling the resolutions of the General Assembly of the United Nations
“Prevention of an arms race in outer space”, where, inter alia, a conviction
was expressed in the need for examination of further measures in the search
for effective and verifiable bilateral and multilateral agreements in order to
prevent an arms race in outer space,
Have agreed on the following:
182 Decoding the International Code of Conduct for Outer Space Activities

Article I
For the purpose of this Treaty:
(a) the term “outer space” means space beyond the elevation of
approximately 100 km above ocean level of the Earth;
(b) the term “outer space object” means any device, designed for
functioning in outer space, being launched into an orbit around any
celestial body, or being in the orbit around any celestial body, or on
any celestial body except the Earth, or leaving the orbit around any
celestial body towards this celestial body, or moving from any celestial
body towards another celestial body, or placed in outer space by any
other means;
(c) the term “weapons in outer space” means any device placed in outer
space, based on any physical principle, specially produced or
converted to eliminate, damage or disrupt normal function of objects
in outer space, on the Earth or in its air, as well as to eliminate
population, components of biosphere critical to human existence or
inflict damage to them;
(d) a weapon will be considered as “placed” in outer space if it orbits
the Earth at least once, or follows a section of such an orbit before
leaving this orbit, or is stationed on a permanent basis somewhere
in outer space;
(e) the “use of force” or “threat of force” mean any hostile actions against
outer space objects including, inter alia, those aimed at their
destruction, damage, temporarily or permanently injuring normal
functioning, deliberate alteration of the parameters of their orbit, or
the threat of these actions.
Article II
States Parties undertake not to place in orbit around the Earth any objects
carrying any kind of weapons, not to install such weapons on celestial bodies,
and not to station such weapons in outer space in any other manner; not to
resort to the threat or use of force against outer space objects; not to assist or
encourage other states, groups of states or international organizations to
participate in activities prohibited by the Treaty.

Article III
Each State Party shall take all necessary measures to prevent any activity
prohibited by the Treaty on its territory or in any other place under its
jurisdiction or control.
 Appendix 5: Text of PPWT to the CD 183

Article IV
Nothing in this Treaty can be interpreted as impeding the rights of the States
Parties to explore and use outer space for peaceful purposes in accordance
with international law, which include but are not limited to the Charter of
the United Nations and the Outer Space Treaty.

Article V
Nothing in this Treaty can be construed as impeding the realization by the
States Parties of the sovereign right for self-defense in accordance with Article
51 of the Charter of the United Nations.

Article VI
With a view to facilitate assurance of compliance with the Treaty provisions
and to promote transparency and confidence-building in outer space activities,
the States Parties shall practice on a voluntary basis, unless agreed otherwise,
agreed confidence-building measures.
Measures of verification of compliance with the Treaty may be the subject
of an additional protocol.

Article VII
When a dispute arises between States Parties concerning the application or
the interpretation of this Treaty, the parties concerned shall first consult
together with a view to settling the dispute by negotiation and cooperation.
When the parties concerned do not come to an agreement after
consultation, the disputed situation that has arisen may be referred to the
Executive organization of the Treaty along with provision of the relevant
argumentation.
Each State Party shall undertake to cooperate in the settlement of the
disputed situation that has arisen with the Executive organization of the
Treaty.

Article VIII
To promote the implementation of the objectives and the provisions of the
Treaty, States Parties shall establish the Executive organization of the Treaty
which shall:
(a) receive for consideration inquiries by any State Party or a group of
States Parties related to the grounds that have arisen to believe that
the violation of the Treaty by any State Party is taking place;
184 Decoding the International Code of Conduct for Outer Space Activities

(b) consider matters concerning the compliance with the obligations

taken by States Parties;
(c) organize and conduct consultations with the State Parties with the
view to settle down the situation that has arisen in connection with
the violation of a State Party of the Treaty;
(d) take measures to put an end to the violation of the Treaty by any
State Party.
The title, status, specific functions and forms of work of the Executive
organization of the Treaty shall be the subject of an additional protocol to
the Treaty.

Article IX
International intergovernmental organizations may take part in the Treaty.
Provisions defining variants and modalities of their participation in the Treaty
shall be the subject of an additional protocol to the Treaty.

Article X
Any State Party may propose amendments to the Treaty. The text of any
proposed amendment shall be submitted to the Depository who shall
promptly circulate it to all States Parties. Upon the request of at least one
third of the States Parties shall be invited to consider the proposed
amendment.
Any amendment to the Treaty shall be approved by a majority of the
votes of the States Parties. The amendment shall enter into force for all the
States Parties in accordance with the procedures of the entry into force of
the Treaty.

Article XI
The Treaty shall be of unlimited duration.
Each State Party shall in exercising its national sovereignty have the right
to withdraw from the Treaty if it decides that extraordinary events, related
to the subject matter of this Treaty, have jeopardized the supreme interests
of its country. It shall notify the Depository in written form of the decision
taken six months in advance of the withdrawal from the Treaty.

Article XII
The Treaty shall be opened for signature by all States at the United Nations
headquarters in New York. Any State which did not sign the Treaty before its
entry into force may accede to it at any time.
 Appendix 5: Text of PPWT to the CD 185

The Treaty shall be subject to ratification by signatory States in accordance

with their constitutional norms. Instruments of ratification or accession shall
be deposited with the Secretary-General of the United Nations, who is hereby
designated the Depository of the Treaty.

Article XIII
The Treaty shall enter into force upon the deposit of instruments of ratification
by twenty States, including all Permanent Member States of the United
Nations Security Council.
For States whose instruments of ratification or accession are deposited
after the entry into force of the Treaty, it shall enter into force on the date of
the deposit of their instruments of ratification or accession.

Article XIV
The Treaty, of which the Arabic, Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited with the Secretary-
General of the United Nations, who shall send duly certified copies thereof
to all signatory and acceding States.
Source: http://www.fmprc.gov.cn/eng/wjb/zzjg/jks/jkxw/t408634.htm
 Index

a global commons, 108 civil code, 87

Agreement on the Rescue of Astronauts, 105 Code is pragmatic, 98
airborne lasers, 18 Code of Conduct (CoC), 5, 6, 19, 43, 100-01,
Anti-Ballistic Missile Treaty (ABM Treaty), 30, 122
32 draft, 13
Anti-satellite (ASAT), Need for a Holistic Approach, 122
China conducted, 16 cold war, 112
power, 156 Committee on the Peaceful Uses of Outer Space
weapon, 144 (COPUOS), 5, 14, 54, 55, 80, 102, 105,
testing of, 27, 30, 90, 91, 147, 150, 155 122, 123, 125, 133
ASAT Tests Causing Space Debris, 91 agenda, 119
Asia-Pacific Region, 69 G15 in, 124
Asia-Pacific Space Cooperation Organisation, legal subcommittee, 85, 106
69 Common Foreign and Security Policy (CFSP),
Astronaut Rescue Agreement, 55 27
Astronautics, 65 common heritage of humans, 108
Australia, 15, 39 Communication Satellite Applications (CSA),
70
Bahrain, 69 Comprehensive Nuclear Test Ban Treaty
Bangladesh, 69 (CTBT), 16, 79, 133
Basic Space Law, 95 Conference on Disarmament (CD), 14, 27, 35,
Belarus, 47 47, 58, 105, 117, 134, 143
binding space agreement, 11 agenda, 59
Biological Weapons Convection (BWC), 7, 10, Convention on Climate Change, 103
137, 160 Convention on Limiting and Removal of
bonus paterfamilias, 87 Debris in Orbits (CLER), 80
Brazil, 28, 34, 39, 104 Cooperative Research Centre (CRC), 111
BRICS framework, 118 Cosmic Studies, 66
Bush, George W., Administration, 30 Council of the European Union, 88
Counter-Space systems, 18
Canada, 15, 28, 33, 39 Current Political and Diplomatic Situation, 92
Canada’s Working Paper, 35
presented to CD, 176 Diet resolution, 95
carbon dioxide, 103 Disaster Management and Rescue, 67
Central Contact Point (CCP), 102
Central Point of Contact, 101 Earth Observation (EO), 70
China, 7, 28, 32, 33, 39, 42, 43, 47, 48, 53, Missions, 66
58, 69, 82, 90, 93, 103, 104, 111, 129, Satellites, 64
134, 142, 143, 153 Summit, 64
Chinese ASAT test, 90, 92, 95, 149 Ecuador, 129
188 Decoding the International Code of Conduct for Outer Space Activities

EU Draft Code of Conduct for Outer Space Supporting, 140

Activities, 104 Need of the Hour, 136
EU Launches Negotiations on an International International Code of Conduct for Outer Space
Code of Conduct for Outer Space Activities, text of, 163
Activities, 171 International Council of Scientific Unions
EU-formulated International CoC for Outer (ICSU), 63
Space, 96, 14 International Data Centre (IDC), 80
Europe’s Space Diplomacy Initiative, 27 International Meteorological Organisation
European proposal, 83 (IMO), 66
European Space Agency (ESA), 27 International Normative System, 125
European Union (EU), 5, 13, 19, 32, 39, International Space Organisation, 86-87
103, 110, 118, 152, 155 Iran, 47, 53, 69, 104, 153
CoC proposal, 6, 100, 114 Israel, 28, 53
Code, 15
member states, 27 Japan Aerospace Exploration Agency (JAXA),
sponsored CoC, 14 94-96
Japan, 6, 15, 33, 39, 53, 95, 129
France, 33, 53 Space Security and Code of Conduct, 94
Japanese HITEN Spacecraft Aerobrake
Global Exploration Strategy (GES), 62 Experiment, 151
Global Positioning System (GPS), 140
good father of a family, 87 Kazakhstan, 47
good launching state, 87 Kennedy, Laura, U.S. Ambassador, 41, 144
Grinius, Marius, Canada’s Ambassador, 35 Kinetic ASAT tests, 92
Group of Governmental Experts (GGE), 40 Kinetic Kill Vehicle (KKV) method, 157
Kinetic-kill ASAT tests, 31
Hague Code of Conduct (HCoC), 6, 17, 19, Kyoto Protocol on Climate Change, 103, 143
104, 137, 160
for Ballistic Missiles, 43 Law of the Sea Treaty, 143
Harmful interference, 91 LEO Liability Convention, 55
Liability Convention, 57
Incidents at Sea (IncSea) Agreement, 32 Long-Term Sustainability of Outer Space
India, 6, 28, 34, 39, 53, 111, 154 Activities, (LTSOSA), 37
Indonesia, 28, 69 Working Groups on, 38
Information-Gathering Satellites (IGS), 95 Low Earth Orbit (LEO), 18, 91, 93, 108, 150
Inter-Agency Debris Coordinating Committee space
(IADC), 80 Alliance Management, 111
Inter-Agency Standing Committee (IASC) physical domain of, 110
Guidelines, 80 Diplomacy, 110
Intergovernmental Panel on Climate Change Investment in Space Situational
(IPCC), 154, 161 Awareness, 111
Interim Treaty on Mitigation of Space Debris, Support for Research, 111
150
International Astronautical Congress (IAC), 63 Mars Science Laboratory and Curiosity, 97
International Astronautical Federation (IAF), 63 Mexico, 104
International Civil Aviation Organisation military activities, 148
(ICAO), 87, 154, 161 Ministry of Education, Science and Technology
International Code of Conduct (ICoC), 11, 13, (MEXT), 94
16, 136, 158 Ministry of Foreign Affairs (MoFA), 94
for Outer Space Activities, 113, 149 Mongolia, 69
Future of the, 119 Moon Agreement, 55, 126
 Index 189

Moon Agreement, 57 Prevention of the Placement of Weapons in

Moon Mission, 18 Outer Space Treaty (PPWT), 6, 8, 14, 16,
Moon Treaty, 5, 14, 16, 105, 119, 133, 146 38, 39, 41, 47, 48, 91, 93, 105, 113, 115,
Multilateral Experts Meeting, 13, 88 117, 118, 124, 134
Multilateral Technical Means (MTM), 79 Chinese-Russian draft, 42
Mutually Assured Destruction (MAD), 112 proposal, 82, 84
to the CD, 181
National Technical Means (NTM), 79
North Korea, 95, 153 Registration Convention, 55, 57
Nuclear Non-Proliferation Treaty (NPT), 10, Republic of Korea, 47, 69
19, 79, 109, 114, 137, 154, 156, 160 Rescue Agreement, 56, 105
Rules of the road, 31, 108
Obama Administration, 34 Rumsfeld, Donald, 30
Orbital Debris Mitigation, 80 Russia, 28, 32, 33, 39, 42, 47, 48, 58, 82, 90,
Organisation for Economic Cooperation and 93, 103, 134, 143
Development (OECD), 101 Russia’s PPW approach, 117
Ottawa Treaty or Land Mine Treaty, 143 Russian and Chinese treaty
Outer Space activities draft, 11
regulating, 130
sharing of information on, 17 Saudi Arabia, 104, 129
Outer Space Endeavours Securing Space
Evolving Structure and Content of, 127 Will Code of Conduct Discussions Help,
Outer Space Environment 108
Protecting the Viability of, 99 Security and Arms Control in Space and the
Outer Space Treaty (OST), 5, 9, 14, 47, 55, 56, Role of the EU, 28
64, 78, 91, 97, 99, 105, 106, 108, 113, Security in Space
120, 126, 133, 136, 144, 146, 150 Russian Approaches Towards Ensuring, 117
Multilateral Mechanisms, 62 soft law, 104
Use of Weapons in and from, 90 South Africa, 28, 39
Outer Space South Korea, 28
activities, 13, 100, 113, 127 Soviet Union, 53, 89
arms race in, 115 Space Age
CoC, 19 beginning of, 109
legal order of, 101 Space and Society Culture and Education, 66
preventing, 91 Space Code of Conduct, 7, 8
safety in, 133 debate on, 18
treaties of, 102 Inadequate Mechanism, 5, 9
Inadequate Mechanism
P5 nuclear weapon countries, 154 Deliberating, 13
Pakistan, 69, 153 Origins of and Rationale for a, 30
peaceful exploration and use, 148 Need to Re-analyse, 133
peaceful purposes, 91, 126 Right Step Forward Although not Perfect,
Permanent Court of Arbitration (PCA), 129 101
Peru, 69, 129 Space Debris Mitigation Guidelines, 95, 147
politically binding, 144 Space Debris, 90, 105
Position Papers, 66 Space Diplomacy
Prevention of an Arms Race in Outer Space Moscow engage in, 34
(PAROS) 5, 14, 35, 48, 58, 59, 91, 103, Space Education and Awareness (SEA), 70
105, 117, 118, 133 Space elevators, 18
resolution, 40 Space Environment Utilisation (SEU), 70
Prevention of Dangerous Military Practices Space Law Committee of ILA, 106
Agreement, 32
190 Decoding the International Code of Conduct for Outer Space Activities

Space Law, 89 Turkey, 47

Formulation of, 63
Space Liability Convention, 105, 133 Ukraine, 28
Space Life Sciences, 66 UN General Assembly Resolution 1962, 69, 86,
Space Pearl Harbor, 30 102
Space Physical Sciences, 66 UN General Assembly, 85
Space Policy Law and Economy, 66 UN Multilateral Experts Meeting in New York,
Space Research and Coordination, 62 97
Space Security UNCOPUOS Space Debris Mitigation
threats to, 42 Guidelines, 37
Space Situational Awareness (SSA), 15, 17, 160 United Kingdom, 53
Space solar power, 18 United Nations (UN), 13
Space Strategy Office (SSO), 94 United Nations Charter, 78
Space Systems Operations and Utilisation, 66 United Nations Committee of Peaceful Uses of
Space Technology and System Development, 66 Outer Space (UN-COPUOS), 28, 37, 38,
Space Traffic Control 65, 147
Improvement of, 79 United Nations General Assembly (UNGA),
Space Treaty Mechanisms, 53 27, 38, 40, 89
Stationing Weapons of Mass Destruction in United Nations Institute for Disarmament
Outer Space, 33 Research (UNIDIR), 152
Stimson draft of a Code of Conduct, 32 United Nations Office for Outer Space Affairs
Stimson, Henry L., 32, 33 (UN-OOSA), 65
Center, 14, 30, 31, 33 United States, 6, 7, 28, 53, 58, 89, 90, 129, 143,
144
Testing conventional weapons, 127 military, 15
Text of the CoC Initiative by Henry L. Stimson Universal Declaration on Human Rights, 102
Center, 172 Urban Search and Rescue (USAR), 68
Thailand, 69 US Ambassador Christina Rocca, 48
Transparency and Confidence-Building US Communication Satellite, 34
Measures (TCBMs), 6, 15, 27, 29, 35, 36,
39, 43, 117, 118, 133, 155 Vienna, 68
form of, 39
importance of, 40 Weapons of Mass Destruction (WMD), 110
Role of, 36 World Meteorological Organisation (WMO),
Initiatives and Proposals, 37 18, 66, 67
Treaty Regimes, 60