At outer space code of conduct talks in July, the Canadians tried
to walk the narrow line between the BRICS and American positions.
The launch of Minotaur IV with a
Space-Based Space Surveillance satellite,
used by the US Department of Defense to track objects in orbit.
There were many nicer places to spend the last week of July
than a windowless conference room at the UN HQ in New York, but
that was the venue for a gathering of over 100 states (including a
Canadian delegation headed by Heidi Hulan of DFATD) to consider a
proposed
International Code of Conduct for Outer Space Activities.
This initiative of the European Union has been under
development since 2008 and consists of a series of voluntary
measures which its drafters hope would help “safeguard the
continued peaceful and sustainable use of outer space.”
The EU has taken its time with consultations with leading
spacefaring nations including three rounds of open-ended
consultations in 2013 and 2014 and several revisions to the text.
The EU had billed the New York meeting as “multilateral
negotiations” and had hoped that the assembled states would now be
ready to engage in the negotiations that would bring this draft to
its final form and set the stage for its adoption.
Canada figured among the strong supporters of the Code of
Conduct and signaled that after three rounds of consultations
it was time to finalize the text and adopt what it characterized
as valuable ‘rules of the road’ for space activities.
Alas a quick consummation was not to be. In multilateral
diplomacy, process is at least as important as substance. The EU’s
earlier efforts to shape the development of the text and retain
exclusive control over which suggestions emerging from
consultations were reflected in the revisions and which were not
had soured some influential states on the entire process.
In particular the so-called BRICS grouping of Brazil, Russia,
India, China and South Africa voiced their opposition to the EU
approach. In a joint statement delivered at the opening of the New
York meeting the BRICS “reaffirm their position that the
elaboration of such an instrument should be held in the format of
inclusive and consensus-based multilateral negotiations within the
framework of the UN.”
Furthermore, the BRICS stressed that while they were onside
with the transparency and confidence building measures contained
in the Code of Conduct, work on this “should not
prejudice or delay the elaboration of legally-binding instruments
to strengthen the existing legal framework for outer space.” In
other words, voluntary measures are no substitute for legally
binding agreements when it comes to reinforcing outer space
security.
For the American delegation voluntary measures were just fine
and U.S. representatives stressed in their interventions the
non-legally binding nature of the Code of Conduct. This
stance by the Administration reflects the antipathy that Congress
has shown to any international agreements that might constrain
American freedom of action in outer space.
The Canadian delegation tried to walk the narrow line between
the BRICS and American positions by expressing support for the
voluntary measures as a short-term step that would build momentum
for space security diplomacy and facilitate longer term
negotiation of legally binding instruments. Canada has espoused
the goal of an agreement on the non-weaponization of outer space
for decades, but in light of the opposition from the U.S. and
other quarters to such a treaty has advocated more recently for
politically binding measures like the Code of Conduct.
Whatever the status of the measures finally agreed on, the
Canadian delegation called for states “to refrain from
destabilizing activities, make their intentions in space clear,
and act responsibly.”
These would all seem to be non-controversial sentiments, but
what constitutes responsible action is interpreted in different
ways by different states. A central focus of the Code of
Conduct is the desire to reduce harmful space debris,
although exceptions are made in the draft for “imperative safety
considerations” and “the inherent right of individual or
collective self-defence.”
Some states fear that these exemptions could prove to be
loopholes for states engaging in destructive actions in space and
should be eliminated from the text. As one Brazilian diplomat put
it “I cannot see how this reference to self-defence, that hangs
like a sword over a person’s head can contribute to an atmosphere
of understanding.” He went on to argue that by including the
self-defence proviso “we are in fact referring to an attack that
should never be allowed to happen. What we must do is to prevent
the use of force in the first place.”
Such major differences in perspective are not overcome lightly
even when states are ready to engage in active negotiations, which
they clearly were not at the New York meeting. In the face of
opposition from the BRICS and others, the EU had to settle for an
outcome that fell far short of an endorsement of their draft text.
The Chairman’s
summary issued at the meeting’s conclusion noted the range of
diplomatic options for negotiation of the Code of Conduct.
In his assessment however “the most supported way forward
would be the pursuit of negotiations within the framework of the
United Nations through a mandate of the General Assembly.”
Such a transition to a multilateral negotiation under a UN
General Assembly mandate would put all concerned states on an
equal footing. It would also mean an end to the dominant position
the EU has exercised since it first unveiled its proposed Code
of Conduct in 2008. It remains to be seen whether the EU will
accept such a severance of the umbilical cord and all the ensuing
uncertainty as to the contents of a Code of Conduct
emerging from a UN-led negotiation. In the absence of such a
decision however, the EU initiative may just become another
well-intentioned proposal that fails to gain the broad acceptance
necessary for its international credibility and effective
implementation.
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