April 2011
Rules of the Road in Space:
Does a Code of Conduct Improve U.S. Security?
Jeff Kueter,
President, The George C. Marshall Institute
Much has been made of the need to devise new rules to govern the behavior of nations in
space. While there is general agreement that space should not be left to anarchy, the
presumption is that a ‘code of conduct’ or ‘rules of the road’ will speed creation of normative
standards detailing responsible behavior in space. Responsible behavior in space is an
admirable goal, just as nations acting responsibly on Earth is an admirable goal. Neither is
achievable simply by stating principles. Fundamental questions remain unanswered, the most
basic of which is whether a code of conduct can produce responsible behavior. To what
extent are norms of responsible behavior already developing in the absence of a formally
negotiated code? Will the proposed European Union’s Code of Conduct (hereafter the Code)
materially improve U.S. security?
The EU Code is a solution in search of a problem. The tangible issues it seeks to address –
space debris, space traffic management, and collision avoidance – all can be and to some
extent are being addressed in other international and multilateral venues. The Code certainly
will keep space diplomats busy, but its practical contributions to U.S. security in space are
limited and potentially harmful.
The EU Code has become the focal point for discussions about crafting rules of the road in
space. The Code is a listing of general principles, which in themselves would appear to be
reasonable statements and objectives. If the EU document were presented as a European
Union “National Space Policy” akin to U.S. National Space Policies,1 it likely would be noncontroversial and of interest only to those directly involved in space policy matters. Over the
years, U.S. space policies have included many of the same goals and objectives. But the EU
Code of Conduct goes beyond providing an example of leadership and aims to socialize these
statements into a “non-legally binding instrument, where adhering states voluntarily commit
themselves to rules of the road.”2
The Code elicits a wide range of views ranging from enthusiastic support through tepid
neutrality to hostile opposition. Proponents claim the existing legal regime in space is
incomplete and rife with loopholes that need to be closed to improve the stability of the space
security environment.3 The Code is necessary “because all nations with national security and
military space assets have a common interest in assuring each other and the rest of the world
that these activities are consistent with, and non-threatening to, peaceful uses of outer
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space.”4 Agreement on best practices is required to address space debris creation, ensure safe on-orbit
maneuvers and traffic management, and to ensure that spacefaring nations provide information about
on-orbit activities, register their space assets, and agree to consult with others to resolve disputes.
Space operations do require basic understanding among spacefaring entities. Whether such “rules”
develop is not the question presented by the Code. The question is – does the Code facilitate their
development or could it possibly hinder their emergence?
Other space analysts have examined the Code and
War will find its way to space
concluded it would do no harm, but provide little benefit, to
because there are things of military
U.S. security.5 The U.S. should go along with the EU’s effort
value in space and their denial or
because it shows “leadership” and a willingness to work
destruction would net a military
with the international community on space issues, both of
advantage during a conflict.
which were or were seen to be lacking in the George W.
Bush Administration. The Code of Conduct is non-binding
and voluntary and so poses little constraint on the U.S., they note. Others see the Code as imposing de
facto limits on U.S. freedom of action.6
The implications of the Code are profound. Space is a critical enabler of U.S. power and adversaries of
the U.S. are clear about their intentions to exploit vulnerabilities and weaknesses of U.S. space systems.
The Predicate: Space is Important to U.S. Security
Space matters because of what it provides. Space-based flows of information are inextricably
intertwined in the economic and national security affairs of the United States.7 Economically, the
benefits of space for television and radio are obvious, but space is offering enormous added value in the
financial sector as well as agriculture, land-use management, transportation, and telecommunications,
for example. For the U.S. military, information collected and distributed via satellite provides real-time
communications capabilities, offers the ability to see most places on the globe in fine detail, detects
missile launches around the world, enables detailed and accurate weather forecasts, and provides global
navigation and timing functions used for precision operations and a multitude of other military missions.
All these information products increasingly are integrated into U.S. conventional war fighting capabilities
and have fundamentally reshaped the way the United States fights for the better. Other nations have
taken notice and are responding accordingly.
The recently released National Security Space Strategy notes the changed environment saying that
“space is increasingly contested in all orbits.”8 Potential adversaries are said to be pursuing a range of
activities to “deny, degrade, deceive, disrupt, or destroy assets.” Why? Because those assets are
vulnerable, as are the ground stations and transmissions of information from space to the surface. If an
adversary could successfully deny or degrade the use of American space assets, they would gain an
advantage. If an adversary can threaten the denial or destruction of American space assets, they might
very well deter or dissuade U.S. actions against them.
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For years, national security analysts have engaged a largely esoteric debate about the militarization and
weaponization of space. During the 1980s, some critics saw deployment of anti-satellite weapons and
missile defenses in space as destabilizing and predicted it would incite a destructive arms race in space.
Formal arms control efforts were started to “ban” space weapons. Those initiatives ultimately faltered,
as did efforts to build and deploy anti-satellites (ASATs) and space-based missile defenses.
The military use of space continued unabated, however, as did space’s weaponization, albeit not in the
manner anticipated by national security scholars. The integration of reconnaissance, surveillance,
communications, weather monitoring and other space services in real-time warfighting has steadily
intensified the militarization of space. And as the military uses of space intensified, so too did interest in
space weaponry. Space weapons shifted from explicit ASAT programs to electronic systems designed to
jam or spoof information transmissions from space and lasers to blind satellites. China maintains an
active kinetic-kill ASAT program. China’s 2007 ground-to-space test likely served twin purposes. First, it
demonstrated a nascent ASAT capability in a highly visible way and second, because the target satellite
was at an altitude roughly equivalent to where a U.S. intercontinental ballistic missile would deploy its
penetration aids, the test is judged by some as confirmation of China’s development of ballistic missile
defenses. The U.S. missile defense program was converted to perform an anti-satellite mission, but has
not maintained that capability. Prior U.S. ASAT programs from the Cold War have long since been
discontinued. The status of the Soviet Union’s ASAT programs perhaps is less certain, but there is no
public evidence suggesting that Russia has an active program.
That may not matter because space systems inherently present dual-use characteristics. Investments in
on-orbit maneuverability and situational awareness can provide important contributions to space-based
weapons along with their other contributions to peaceful uses of space. The kinetic destruction of
satellites on-orbit envisioned by Cold War era ASAT systems can be accomplished today by maneuvering
a satellite into another satellite. The recent Iridium-Cosmos collision offers ample illustration of the
destructive effectiveness of such satellite-to-satellite encounters.
For years, Russia and China, along many others, have pushed an arms control proposal designed to
“ban” weapons in space. The U.S. has long opposed such a measure for a variety of reasons.9 The
inability to move that proposal forward gave rise to demands for ‘rules of the road.’ An international
consensus defining appropriate behavior in space, proponents claim, would diffuse pressures to
weaponize space while offering impetus to address the practical concerns of many nations operating in
space. Neither approach, of course, addresses the core reason why war would come to space. War will
find its way to space because there are things of military value in space and their denial or destruction
would net a military advantage during a conflict.
Bottom-Up or Top-Down: What’s the Best Way to Build a Norm?
The Code of Conduct aims to encourage the emergence of best practices to address problems posed by
the creation of debris in space and the management of movement in orbit so as to avoid accidental
collisions. The assumption behind the Code is that a consensus agreement on the part of the signatory
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states to address these issues will speed the development of multilateral, rule or norms-based
approaches. Put another way, the top-down imprimatur provided by high-ranking diplomatic officials is
expected to stimulate serious discussion and activity. A multinational Code is thought to encourage
widespread adoption of the best practices arising out of these discussions by the “new” spacefaring
nations.
Proponents expect that shared ideational aspirations will become ties that connect and bind spacefaring
nations in such a way as to advance a collective interest in space. The Code is an effort to express a
collective intent for space through the establishment of “rules of the road.” The mutual recognition of
this collective intent will then give structure to and impose de facto limits on the conduct of state-tostate relations in space. The Preamble of the Code says subscribing states are “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” and are “conscious that a comprehensive code, including
transparency and confidence-building measurements could contribute to promoting common and
precise understandings.”10
The question at hand for consideration of the Code is—Are there ‘shared ideational aspirations’ that are
sufficiently mature enough to express a ‘collective intent’ in space? In other words, are the norms that
the Code seeks to formalize (and, as an aside, on which the U.S. National Security Space Strategy also
places much emphasis) sufficiently developed to represent an international consensus. If the answer is
no, and additional work is required to construct that shared framework of ideas, then the Code is
nothing more than an empty shell. Worse, conflicting interpretations will lead to confusion when
disputes inevitably arise and could result in an even less transparent and less stable security
environment in space.
A comparison of the principles espoused in the Code with the U.S. National Space Policy (either the
Obama policy or the George W. Bush policy) reveals many areas of overlap, which could give confidence
that there is a shared framework for space, at least between the U.S. and European spacefaring nations.
And the expressed objective of the EU is a dialogue with other nations about what should be included in
a final document. The intention clearly is to produce a broad framework of shared aspirations.
Unfortunately, the details will matter and it is in the details that the effort to grow a set of shared beliefs
through diplomatic discussions falters. For example, the Code requires subscribing states 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.”11
Without additional details on what comes out of the “appropriate fora,” a state signing onto the Code
risks agreeing on the basic idea – safe operations are better than unsafe operations – without any idea
of what the guidelines it will be required to follow are. The guidelines may prove unacceptable because
they impose restrictions on space activities that the state believes are vital to its interests. Or the
guidelines may prove to be so vague as to only loosely limit operations, resulting in little improvement in
safe space operations. Nevertheless, subscribing states are obligated to abide by the results. Code
proponents reply to such charges with the reminder that the Code is voluntary and its requirements are
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Rather than require states to buy
into a process whose outcomes
remain undefined, there is another
way to work toward the same
ultimate objectives without the
risks, and doing so may produce
stronger and more viable norms.
non-binding. If that is the case, the norms it strives to
create are not really shared in any meaningful sense.
The Code would exert de facto influence on U.S. space
programs. Take, for example, the commitment to “refrain
from the intentional destruction of any on-orbit space
object or other activities which may generate long-lived
space debris.”12 If the Code is approved by the United
States, it is difficult to foresee the United States initiating a
kinetic kill or other ASAT program and avoiding being
criticized sharply for failing to live up to the spirit of the Code, even though those actions are allowed.
Indeed, early proponents of the Code argued for a “hedging strategy” wherein the U.S. would agree to
rules of the road while pursuing research and development programs to enable deployment of space
weapons should the need arise.13 If the Code is interpreted as a shared international custom or practice,
the risk becomes that the non-binding and voluntary provisions will become less and less meaningful.14
Rather than require states to buy into a process whose outcomes remain undefined, there is another
way to work toward the same ultimate objectives without the risks, and doing so may produce stronger
and more viable norms. Concerned spacefaring nations already are engaged in detailed technical
discussions of ways to mitigate debris creation, procedures for maneuvering safely in space, or tracking
and notification procedures to prevent accidental collisions. These efforts are the result of recognition
of the importance of the issue at hand and involve the voluntary, cooperative effort of interested
parties.
Debris mitigation offers the best example of a bottom-up effort to address a space management issue.
The United States and others worked through technical fora to socialize a set of best practices for space
operations to minimize debris creation via the Interagency Space Debris Coordination Committee.
Those guidelines became the basis for a proposal before the United Nations. 15 The outcome, like the
Code, is non-binding, but the debris case offers clear evidence that a diplomatically negotiated Code is
not needed to spur international dialogue on issues important to space operations. Further, the debris
case reveals a potential issue with the Code. If these agreements are judged insufficient by Code
proponents, what additional steps do they favor? That detail seems necessary before judging the
viability of the Code.
The Space Data Association’s (SDA) effort to provide conjunction assessments represents another way
to socialize the norm of safe operations and debris mitigation short of diplomatic initiatives.16
Developed by private companies, in part out of frustration over government not providing the
information for them, the SDA represents a serious commitment to the “norm” of safe space operations
and its further use and maturation will socialize that norm further. Similarly, the U.S. Department of
Defense’s Space Track service is another effort underway to provide space surveillance and conjunction
data to interested and eligible parties.17 Neither activity required a diplomatic agreement to begin nor
does either require a diplomatic effort to continue. Nations or corporate entities that agree with the
proposition that conjunctions in space are “bad for business” will cooperate with one or both of these
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efforts or start another. For those examining the need for a Code of Conduct, the take-away is simple –
the practical problems facing space operations can and are being addressed quite independently of a
proposed Code of Conduct.
Few will argue that addressing debris, avoiding accidents, and managing space traffic are unimportant
concerns. Indeed, managing each is important for the continued exploitation of space. When
evaluating the Code of Conduct, however, these issues need to be separated from the Code. The only
judgments that matter are whether the Code is the most effective way to address those topics. Because
the Code is simply a set of high-level, vague commitments, considerable work is required to
operationalize its meanings. In many cases, those discussions already are ongoing and the Code does
not necessarily contribute positively to them. In those cases where additional discussion is required,
other models to spur international discussion exist and have a proven record of success. The Code is
neither essential nor necessarily the most effective way to achieve the desired ends.
The Importance of Penalties: Verifying and Enforcing the Code
Without punishment, do rules matter? Some proponents of the Code claim the creation of rules is
sufficient because their mere existence allows the identification of rule breakers. That is true, but for
what purpose? If there is no way to punish a rule-breaker, the regime of rules lacks credibility.
Similarly, rule breakers have to be identified or, put another way, compliance with the Code has to be
verifiable. Neither verification nor enforcement is a priority for the EU Code.
Employing a rules-based construction to govern international behavior is not unique. The Code’s
proponents point to a host of other international agreements that fit the same genre, namely the
Proliferation Security Initiative, the Hague Code of Conduct on Ballistic Missile Proliferation, and the
Missile Technology Control Regime. Without exploring the motives and context behind the genesis of
each of these agreements or their subsequent successes, failures, or sustainability, they represent a
mixed bag. Each is criticized for the absence of an enforcement mechanism and none is considered
successful at “stopping” the activities they were designed to address.
The EU Code constructs a “consultation mechanism” to investigate incidents and subscribing states are
to agree to participate in consultations in pursuit of “mutually acceptable solutions.”18 This language is,
of course, limited by other language in the document that reserves the right for states to act in their
self-defense as well as the voluntary, non-binding nature of the agreement. What one state envisions as
necessary for its self-defense may not been seen in the same light by the impacted party. Jamming or
otherwise inhibiting satellite transmissions in unstable regions (to disorient and perhaps quell
opposition groups) clearly would be in the interest of certain regimes, but also not looked upon
favorably by those satellite operators whose systems are impacted.
Not all norm-building advocates dismiss the need for enforcement. The Union of Concerned Scientists,
for example, place emphasis on the issue. They argue: “Because negotiated agreements can reduce the
likelihood and effectiveness of a potential attack, a particularly important role for diplomacy is setting
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clear international norms of behavior and specified consequences for violations. Strong norms and
penalties increase the political costs of aggression.”19
As presented, the Code presents a quandary. Without penalties, there is no cost for breaking the rules
(aside from international condemnation, which can be done today regardless of the Code) and thus
offers little prospect of advancing U.S. security interests. The U.S. will need to prepare to operate in
recognition of the lack of constraint on the actions of others in space. With penalties, the Code
becomes arms control.
Arms Control By Another Name?
Some assessments see the Code as the first step toward arms control in space. While neither the EU nor
some Code proponents claim that is their intent, there are at least three ways that arms control (or
“arms control-like” activities) may arise.
The first is already mentioned. As the Code is presented to other nations for their comment, the need
for enforcement mechanisms outside of the consultative process becomes apparent.
The second is a prediction that the Code will fail to tangibly address the issues affecting space and,
through its failure, create the conditions for formal arms control negotiations. The best illustration of
this view comes from Alexei Arbatov and Vladimir Dvorkin who recently argued that “the greatest
potential contribution of such a code of conduct in space would be to create the political conditions
needed for negotiations on full-fledged and legally binding treaties to ban or limit space weapons.”20
The third is found in the answer to the following question -- what happens when the “common interest”
comes into conflict with the pursuit of one’s inherent right to self-defense, which is also reinforced by
the Code? The Code requires states 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.”21 If the standard is enhancing the security of all states and the goal is
the prevention of an arms race, the actions appear obvious. Activities judged too destabilizing will be
condemned, perhaps formally but certainly through the media, non-governmental organizations and
diplomatic channels. Some nations will ignore the condemnation, further illustrating the Code’s
impotence. Others will alter their behavior, either in the face of criticism or anticipating it.
The United States is likely to be one such nation. If the Code of Conduct is signed by the United States,
one has a difficult time seeing a future president approving work on an ASAT system, kinetic or
otherwise, or launching another satellite destruction effort akin to the Burnt Frost mission. The cost in
political capital to do so would simply be too high.
A fourth reflects the reality of the give-and-take likely to be necessary to obtain the accession of Russia
and China, and to a lesser extent India, to the Code. Those nations, already dissatisfied at having been
left out of the initial negotiations of the Code and distrustful of the ‘gentlemen’s agreement’ approach
to international agreement-making, can be expected to demand concessions, formal or informal, from
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the United States and others to secure their signature on the Code. Formal, textual changes to the Code
are probable. The more dangerous concessions, though, are the informal agreements that will be
reflected in implementation. For instance, Russia may agree to sign the Code in exchange for the United
States agreeing to a series of confidence-building measures. Those confidence-building measures may
be good, but they might also entail a host of commitments whose implications have not been thought
through or discussed thoroughly. But, a hasty decision may very well be the price of securing an
agreement.
Agreements, Treaties, and the Constitution
The United States Constitution reserves for the U.S. Senate the right to provide advice and consent on
all treaties entered into by the United States. Proponents of the Code are quick to point out that it is
not a treaty, and therefore, would not require the advice and consent of the Senate. Once signed, a
treaty is “implemented” domestically through legislation passed by the Congress adjusting U.S. law,
budgets, and programs to comply with the treaty’s requirements. For an international agreement, like
the Code, how it is implemented is less clear.
The most probable and efficient tool is the executive order. The President simply will sign an order
detailing general or specific steps departments and agencies must take to comply with the Code. Such
an order is not formerly reviewed, certainly is not subject to Senate approval, and may even be classified
so as to escape public scrutiny and notice altogether. Presidential executive agreement authority is
important and arguments favoring wide latitude for allowing executive discretion can be made
persuasively. But the tool can be misused and its use to advance poorly constructed policy ideas is
particularly problematic.
That is likely the case with the EU Code. The open-ended nature of the Code as presented, lacking
enforcement provisions, lacking implementation details, and lacking linguistic precision, leaves open to
question how and what the President will order federal department and agencies to do. If the
implementation order is written in such a way as to compel adherence with the Code’s requirements no
matter how they evolve, then the other signatories have carte blanche, knowing that whatever they can
get the diplomats to agree to will be implemented with little or no congressional or public oversight. In
theory, an implementation order can be written more precisely to protect U.S. interests, but that may
prove impossible given the incomplete nature of the Code.
Furthermore, because the Code has enormously implications for the future of space commerce and the
activities of private companies, quasi-unilateral action on the part of the executive branch to adopt the
Code without a full and complete hearing of its implications is both premature and arbitrary.
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Conclusion
While the objectives of the Code are consistent with U.S. interests, consistency is not a justification for
action when other options are available to achieve the same ends. In such a circumstance, policy
makers ought to thoroughly and cautiously examine the consequences, intended and unintended, of the
proffered course of action. Arguments favoring the adoption of the Code are weak and the practical
outcomes sought are achievable through other means. The U.S. should participate as a leader in any
and all international discussions about the governance and management of space, but the Code itself
offers little to advance those discussions outside of what could be done and is largely happening without
it. The risks the Code presents are understated, at a minimum, and in all probability entail negative
consequences far in excess of the likely benefits.
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Endnotes
1
See the website, Making National Space Policy (http://www.marshall.org/article.php?id=803) for original copies
of U.S. space policy documents from President Eisenhower to the present.
2
Wolfgang Rathgber, Nina-Louisa Remuss, and Kai-Uwe Schrogl (2009). “Space Security and the European Code of
Conduct for Outer Space Activities.” Disarmament Forum. No. 4: 34.
3
Michael Krepon, Theresa Hitchens, and Michael Katz-Hyman (2007). Preserving Freedom of Action in Space:
Realizing the Potential and Limits of U.S. Spacepower. (Washington, D.C.: Henry L. Stimson Center, Report No. 66):
10.
4
Theresa Hitchens (2004). Future Security in Space: Charting a Cooperative Course (Washington, D.C.: Center for
Defense Information): 17.
5
See Marshall Institute (2011). Codes of Conduct in Space: Considering the Impact of the EU Code of Conduct on
U.S. Security in Space, (Arlington, VA: George C. Marshall Institute), http://www.marshall.org/article.php?id=927.
6
Baker Spring (2011). “The Senate’s Letter to Prevent the Space Code of Conduct: Issues Remain,” (February 10,
2011),
http://blog.heritage.org/?p=52031?query=The+Senate's+Letter+to+Prevent+the+Space+Code+of+Conduct:+Issues
+Remain.
7
See the various sessions of the Marshall Institute-Space Enterprise Council Day Without Space series for details
on the use of space for economic and military purposes, http://www.marshall.org/article.php?id=928.
8
National Security Space Strategy Unclassified Summary (January 2011): 3.
9
See Paula DeSutter (2008). Is a Space Arms Control Treaty Verifiable? (Washington, D.C.: George C. Marshall
Institute), http://www.marshall.org/article.php?id=592.
10
Council of the European Union (2010). Council Conclusions concerning the draft Code of Conduct for Outer Space
Activities (Brussels, October 11, 2010): 4.
11
European Union (2010): 8.
12
European Union (2010): 8.
13
Krepon et al (2007): 6-8.
14
For discussion of the binding nature of customary international law, see Douglas Feith (2011). “Obama
Embraces Transnational Law.” Wall Street Journal (March 23, 2011): A13.
15
See Hodgkins presentation in http://www.marshall.org/pdf/materials/554.pdf.
16
For more information, see http://www.space-data.org/sda/wpcontent/uploads/downloads/2011/01/SDA_press_release_21_Jan_2011_RELEASED.pdf.
17
See http://www.space-track.org/perl/login.pl.
18
European Union (2010): 10-11.
19
Laura Grego and David Wright (2010). Securing the Skies: Ten Steps the United States Should Take to Improve
the Security and Sustainability of Space (Washington, D.C.: Union of Concerned Scientists): 14.
20
Alexei Arbatov and Vladimir Dvorkin (2011). Outer Space: Weapons, Diplomacy, and Security (Washington, D.C.:
Carnegie Endowment): 108.
21
European Union (2010): 8.
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