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Sunday, February 13, 2011

Obama Administration Could Adopt EU Space Code

The United States is studying possible adoption of European Union rules relevant to the use of antisatellite armaments, the Washington Times reported today (see GSN, Jan. 20).

"The United States is continuing to consult with the European Union on its initiative to develop a comprehensive set of multilateral [transparency and confidence-building measures], also known as the Code of Conduct for Outer Space Activities," Assistant Secretary of State Rose Gottemoeller said yesterday at the international Conference on Disarmament in Geneva, Switzerland (see related GSN story, today).

"We plan to make a decision in the coming weeks as to whether the United States can sign on to this code, including what, if any, modifications would be necessary," Gottemoeller said.

An assessment by federal agencies advises the Obama administration to adopt a slightly altered version of the rules, two administration officials said. The National Security Council has yet to give the final go-ahead on the move.

A draft version of the EU document calls for signatories 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-defense in accordance with the United Nations Charter or imperative safety considerations."

"We had everyone look at this. Our defense programs are not harmed by it," said a high-level State Department official with knowledge of the code's federal review.

Adoption of the rules would benefit U.S. interests, according to some experts.

"The code of conduct needs a few changes, but it is certainly far better than the [Prevention of the Placement of Weapons in Outer Space Treaty]," former Assistant Secretary of State Paula DeSutter said. That pact, proposed at the Conference on Disarmament in 2008 by Russia and China, was publicly dismissed both by the Obama administration and its predecessor (see GSN, Feb. 13, 2008).

"One of the good things about [the EU code] is that it recognizes specifically the legitimate right of self-defense in space and the virtue of the U.S. satellite shootdown in 2008 (see GSN, Feb. 21, 2008). It does not appear to limit U.S. missile defenses in any way," said DeSutter, who served under the George W. Bush administration.

"It is not exactly binding," space defense specialist Matthew Hoey added. "There are not exactly penalties. It is a bit of an honor system. But it's the first step towards space-based arms control that we will eventually need."

Washington is a signatory to the 1967 Outer Space Treaty, which calls on member nations not to place "in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner."

Congressional staff members expressed concern about the code's possible bearing on U.S. defense options. The staff members on Monday received details from Defense Department and intelligence officials about Washington's possible adoption of the rules.

"There are capabilities that we have in space and that we want to have in space," one staff member said. "We want to make sure our ability to conduct space situation awareness and to pursue those capabilities are not hindered by the code of conduct."

"There is a suspicion that this is a slippery slope to arms control for space-based weapons, antisatellite weapons and a back door to potentially limiting missile defense," a second staffer said.

Such worries are "likely to be well-founded," Heritage Foundation defense expert Baker Spring said.

"Because it appears that they are talking about limiting operations, as opposed to limiting the weapons themselves, it could be that this is as much an agreement on the law of war as it is on arms control," he said. "If it is something more like a law-of-war agreement, then you are creating a situation of legal jeopardy for a military commander who is responsible for operating systems in space."

The EU code is not a treaty and would therefore not require endorsement by the Senate, administration officials have told lawmakers. "Saying responsible countries agree on responsible behavior is not the same as a treaty," said Scott Pace, head of George Washington University's Space Policy Institute.

Spring expressed a different view, arguing that the Senate made clear in its ratification text for a new nuclear arms control treaty with Russia that agreements with military implications should be subject to scrutiny by the body (see related GSN story, today).

"The administration is trying to pretend with the EU code of conduct that an agreement that places significant restrictions on how the military may operate its systems is not militarily significant," Spring said

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