EU-led International Code of Conduct for outer space activities

activities (ICoC) in response to UN General Assembly Resolution 61/75 (2006)305 _{and 62/43} (2007),306 _{which had invited all members to submit concrete proposals on international} outer space TCBMs in the interest of maintaining international peace and security and promoting international cooperation and the prevention of an arms race in outer space. The aim was a voluntary set of principles and guidelines regarding space security matters, such as space debris and the operation of spacecraft or satellites in space. Therefore, the ICoC developed its three principles on the basis of 1) all countries’ inherent right to use space for

300 _{Statement by Russian Foreign Minister Sergey Lavrov at the Plenary meeting of the Conference on}

Disarmament, Geneva, February 12th_{, 2008.}

301 _{Listner, Michael, and Rajeswari Pillai Rajagopalan, The 2014 PPWT: A new draft but with the same and}

different problems. The Space Review, August 11, 2014. www.thespacereview.com/article/2575/1

302 _{Rose, Frank A., ‘Continuing Progress on Ensuring the Long-Term Sustainability and Security of the Space}

Environment’, official statement at Conference on Disarmament Plenary, Geneva, June 10th_{, 2014.}

303 _{The NFP has 34 countries as co-authors. See UN passes Russian-Proposed Resolution Banning Arms Race}

in Outer Space. Sputnik International, December 4, 2014.

http://sputniknews.com/politics/20141204/1015510727.html

304 _{Statement by the Representative of the Russian Federation at the 2015 session of the UN Disarmament}

Commission. April 7th _2015.

305 _{UN General Assembly, A/RES/61/75, December 16, 2006.} 306 _{UN General Assembly, A/RES/62/43, January 8, 2008.}

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peaceful purposes; 2) protection of security and reliability of space objects in orbit; and 3) consideration for states’ legitimate defense interests.

The primary ICoC draft was rejected by most significant space nations including the US, China, Russia, and India, because of the EU decision to keep the ICoC outside the purview of the CD. To respond to such criticism, an argument based on the same institutional approach was given that neither the CD nor the COPUOS has the fully mandated competence to accommodate the request to discuss and negotiate the comprehensive approach of the EU’s ICoC.307 _{Because of this, a third way could not be unlawful and should even be considered} logical. Had the EU made an effort to reach out to all the established spacefaring states, Rajagopalan noted, the impact of the Code could have been different.308 _{This view relates to} some states demonstrating their concerns regarding a lack of transparency and disappointment about the EU’s insufficient consultation with other states.309 _{As a result,} many Asian and African states objected to “an otherwise acceptable document.”310 Otherwise, most countries saw the ICoC draft as an innocuous measure because it listed a few desirable steps to be taken by states that would ensure the sustainable use of outer space and avoid possible accidental and intentional mishaps.

During 2011-2012, the US Obama administration had debated whether to endorse the EU code, pending a Pentagon assessment as to whether it would have an operational impact on the military's uses of space. Most officials believed that it would not, as its provisions concur with all US space plans and policies. The US and the EU had engaged in four rounds of consultations about the code, after which the EU incorporated suggested US language, such as on the right to self-defense in space. However, in February 2011, thirty-seven Republicans noted that they were "deeply concerned" about the code because inadequate Obama administration briefings led to the mistaken belief that it could constrain missile defenses or ASAT weapons. 311 _{Ultimately, on February 17, 2012, Hillary Clinton, Secretary} of State for the Obama Administration, formally endorsed the code on behalf of the US. Hence, Canada Australia, Japan, India had also endorsed the Code.

Beijing, Moscow and some others312 kept pointing to the security references in the draft, notably the reference to “self-defence”. Russia, China, Thailand, Brazil, Ethiopia, Ukraine and Belarus argued that the ICoC aimed at dealing comprehensively with the issues of the safety and sustainability of the space environment, and that the issues of stability and security in outer space were inadequately developed. In their view, the ICoC actually only deals with “peaceful uses” of outer space, so, a change of ICoC title sounds desirable to an “international code for peaceful uses in space”. In parallel, a common African position focused on whether the Code would limit or make it more difficult for those non-spacefaring

307 _{Remark made at my First Doctoral Examination Committee Meeting by H.E. Frank Asbeck, the Former}

Principal Adviser for Space and Security Policy, European External Action Service, European Commission.

308 _{Rajagopalan, Rajeswari Pillai, (2016) Chapter 9 The International Code of Conduct and Space Sustainability,}

in European Space Policy Institute Yearbook on Space Policy 2014 – The Governance of Space. Wien: Springer Verlag: 229-241.

309 _{Russia, Brazil, China, Bangladesh, India, and numerous Latin American states.}

310 _{Rajagopalan, Rajeswari Pillai, (2011) “Debate on Space Code of Conduct: An Indian Perspective,” ORF}

Occasional Paper No. 26, Observer Research Foundation, October 2011.

311 _{Zenko, Micah, A Code of Conduct for Outer Space, Policy Innovation Memorandum No. 10, Council on}

Foreign Relations, November 2011.

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states to be part of future space activities, so they asked to improve the ICoC with greater inclusivity. It seems to us, the inclusive-sounding procedural approach remains as idealist and vague as other existing language and terminology repeated in the development path of the entire space security governance dimension, such as “peaceful use” of outer space. The important relative soft force of such constructive argument is unquestionable. It reduces the tension caused by states’ security-interest centered stances and facilitates their engagement in bilateral and multilateral dialogues. Nonetheless, it remains doubtful whether the major space states would unconditionally join an inclusive project. Over the course of space governance development, the fulfillment of states’ functional necessity, such as nuclear safety concerns, seems more often to have attained its goals so is probably more attractive.

3.4. THE US INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR)