It looks as if Obama appointees may be attempting to make an end run around the US Senate's constitutional duty to ratify treaties and to impose a arms control treaty on the US military in the guise of a "space code of conduct. " Given the choice between arms control agreements and US military superiority, some political appointees at the Defense and State departments may decide to go go for an agreement. Can this administration, then, be trusted to protect America's military space systems in an era when space is where the next great war will in all likelihood be fought?

America, more than any other nation, depends on satellites. Our military depends on the Global Positioning Systems [GPS], where troops and materiel are and where they are going. It needs satellites for communication, and satellites of various kinds to see what is happening on the surface of the Earth. The civilian economy depends on communications satellites, on GPS and on remote sensors for almost everything: electronic funds transfers, weather forecasting, pollution monitoring and most importantly to keep hundreds of millions of Americans connected with each other wherever they are.

The European Union has proposed a space code of conduct, officially called, "The Code of Conduct for Outer Space Activities." Although It is an agreement that the EU claims will solve the space debris problem [footnote 1.] A large proportion of this debris is the result of the Chinese Anti-Satellite [ASAT] weapons test of February 2007, when a Chinese space weapon hit an old Chinese weather satellite and blew it to pieces. ]footnote 2.] The debris from this test has been falling out of orbit since then, but, as with all forms of space debris, it is a slow process, and if a piece were to hit a satellite or another piece of debris, more "space junk" would be created.

The proposed EU Code of Conduct would add little or nothing to ongoing international efforts to handle the space debris problem. It would, however, have the effect of banning all "space weapons" or at least ones that create debris or space weapons whose use will result in an out of control spacecraft that is the functional equivalent of a piece of debris. It is reasonable to suspect that some of the the governments and NGOs which are promoting the code of conduct, are exaggerating the danger in order to achieve other, non-military, solutions that they prefer.

What this Code would in fact ban is what the Europeans, the Russian and the Chinese see as American " space weapons." The Code is designed to prevent the United States and other liberal democracies from deploying systems actively to defend their own satellites, while it would allow Russia, China and just about anyone else to continue their space weapons programs, probably with only minimal cosmetic changes.

The proposed Code is a prime example of the way some nations and NGOs are using the tools of what is loosely called "lawfare" to undermine US national security. By providing a way to stop America from actively protecting its military and civilian satellites, and by surreptitiously opening the door for other nations to build space weapons aimed at US space targets, supporters of the Code are jeopardizing America's military superiority. Some of the promoters of the Code may be motivated by the best intentions, but history sadly shows that good intentions, even when wrapped in the concept of international law, are no substitute for military force.

There is an inherent contradiction in the assertion that states have a right of self defense but that they also have the right to safe and interference-free, space operations: How can a state have the right to self defense in space if it cannot interfere with enemy space activities? Jamming transmissions from a communications satellite in self defense could, in some potential interpretations of the Code, be a violation, as would the jamming of satellite navigation signals such as those transmitted by America's GPS satellites.

Iran has been jamming satellite signals -- without any negative repercussions -- in defiance of international agreements. The Code of Conduct would, in fact, encourage minor attacks, such as jamming American and allied satellites. States that conducted such attacks will safely assume that the US would be reluctant to retaliate, especially as the ability to prove who committed the attacks would be of a highly technical nature. The part of the Code that allows for self-defense could easily be interpreted as forbidding any retaliation. If the US did retaliate, it could be accused of "violating international law." It is also possible that a rogue nation could launch an attack on a US satellite and then deny that it did so.

Nations have also been known to sign arms control agreements with the deliberate goal of using them as camouflage while they built exactly the weapons they supposedly agreed not to build. North Korea's nuclear weapons are a monument to the success of this tactic. As a result of the Chinese 2007 anti-satellite weapons test for example, we know just how easy it is to develop a space weapons program, either under the guise of a civilian research project or as a secret military venture.

Experience shows that any state can mislead international inspectors. Some international inspectors can be bribed to look the other way, and will even modify or falsify their reports based on their ideological affinities. Former head of the International Atomic Energy Agency (IAEA), Mohamed ElBaradei, is suspected of softening his reports on the Iranian nuclear program possibly due to his hostility to Israel. An example of this weakness was also on display in 2004 when the IAEA claimed that Iran was in violation of the Nuclear Non-Proliferation Treaty, but refused to recommend sanctions against it. Even in the United States, the summary of the 2007 National Intelligence Estimate Report, which stated that Iran had stopped producing nuclear weapons several years earlier, has recently been shown to have been deliberately inaccurate, thanks to the wishes of its authors who apparently wanted to advance their wishes for a non-military, diplomatic, agenda rather than objectively to report the facts.

Lawyers at the State and Defense Departments, and representatives of pro-arms-control NGOs, would advocate shutting down any US space activities that might be seen as contradicting the Code. Even if the US had refused to sign on the grounds that the programs violate the norms of international customary law, these organizations would attempt to abolish suspect military space programs.

Rogue nations would then feel free to interfere with American or Western space systems by filing lawsuits against any US space programs that some NGO deemed might violate the Code. Lawyers at the State and Defense Departments, and representatives of pro-arms-control NGOs would advocate shutting down any US space activities that might be seen as contradicting the code. They would attempt to abolish suspect military space programs, even if the US had refused to sign on the grounds that the programs violate the norms of customary international law . It is easy to imagine that rogue nations would be free to interfere with American or western space systems by filing lawsuits against any US space programs that some NGO deemed might violate the code. Soft power, such as lawsuits, diplomacy and threats of being hauled up before unaccountable international courts, has become a means preventing nations from defending themselves.

The Stimson Center, in its pamphlet, "Space Security, " which supports the European Code of Conduct, asks, "But won't bad actors break the rules ?" -- and then answers its own question: "Laws are broken," it states. "That doesn't make the laws irrelevant, or unimportant. Rules still matter. Agreed rules also make it easier to identify and build coalitions against rule breakers." On a totally theoretical level this might be true, but unfortunately experience has shown that international law and coalitions based on it are never effective in constraining the behavior of truly powerful states that flaunt International Law, and are certainly never used against states that combine real military power with an aggressive foreign policy.

Experience also shows that International Law only constrains those who voluntarily abide by it. This is partly due to a lack of enforcement mechanisms -- as is evident not only in space law, but in humanitarian law as well. There is no controlling body that is empowered to enforce the law and punish those who break it; therefore such treaties and agreements only constrain those nations who choose to conform to them. Accordingly, any such treaty or agreement that constrains US military power should be viewed with caution.

According to one of the most passionate promoters of the Code of Conduct, Michael Krepon of the Stimson Center, the rights under the Code of spacefaring states include, "The right of access to space for exploration and other peaceful purposes, the right of safe and interference free space operations, including military support functions. The right of self defense as enumerated in the charter of the United Nations, The right to be informed on matter pertaining to this Code of Conduct, the Right of Consultation on matters of concern and the proper implementation of this Code of Conduct."

In the September12, 2011 issue of "Space News," however, Michael Krepon makes the point that "Space diplomacy offers the Obama administration, a welcome reprieve from trench warfare, since executive agreements like the space Code of Conduct are not treaties, do not require the approval of two-thirds of the Senate and are a clear presidential prerogative." As the Code may have effects on the US military that are indistinguishable from an arms control treaty, this assertion should be carefully examined -- certainly by members of the US Senate, whose constitutional rights may be undermined if the President does agree to sign an agreement implementing the code.

If the US were to abide fully by a restrictive interpretation of the Code of Conduct, the use of anti-satellite weapons by China against US satellites would give it a major advantage that might last for weeks or months -- enough time comfortably to invade and occupy Taiwan and to change the balance of military power in the Far East. The US would have to decide if it wanted to fight a major war to restore its military superiority and to liberate Taiwan, or to accept defeat. The use of Earth-based lasers to degrade the performance of spacecraft optics, which the US claims the Chinese have done against America's spy satellites on several occasions, would supposedly be a violation of the Code. Yet the US has done nothing in retaliation for this except to complain through diplomatic channels. It is hard to see how the Code would make much of a difference. It is difficult to imagine the EU or Japan imposing meaningful sanctions on China in response to a Chinese laser attack on a US soy satellite.

On Capitol Hill, Senator William Sessions (R Ala) expressed his reluctance to sign on to such a Code, telling Gregory Schulte of the Defense Department, who was testifying in favor of the Code, that he thought, "Our military is fundamentally configured so it depends on space capabilities. So I would be a bit nervous -- and am a bit nervous --- and want to examine carefully whether or not through some agreement we have constricted our ability to to effectively defend out interests." Schulte dodged the question by bringing up the Chinese-Russian proposed ban on space weapons. Sessions pointed out that, like the Bush administration, the Obama administration finds that the proposed Chinese-Russian ban on space weapons is not verifiable, and "It does not capture many of the Chinese counterspace systems that worry us." A counterspace system is a polite way of referring to ASATs, or Chinese anti-satellite weapons.

Schute claimed, however, that the Code of Conduct will not constrain any US development of kinetic anti satellite weapons or space-based ballistic missile interceptors. One is entitled to be skeptical of his claims: the administration is full of people who have long and very public records of opposing any kind of US national missile defense system. Former Congresswoman Ellen Tauscher, now the Under Secretary of State for Arms Control was a ferocious opponent of the plan to station a small force of ten interceptor missiles in Poland.

Accepting constraints on US military capabilities in space is also implied in the administration's "National Security Space Strategy," published in January 2011. The document says, "We believe that it is in the interests of all space-faring nations to avoid hostilities in space. In spite of this some actors may still believe counterspace actions could provide military advantage."

The Space Strategy document claims that "We will improve the ability of the US military and intelligence agencies to operate in a denied or degraded space environment through focused education, training and exercises and through new doctrine, tactics techniques and procedures." This leaves out the option of forcibly protecting US satellites with active defensive systems

Another part of the policy states that, " With our allies, we will explore the development of combined space doctrine with principals, goals and objectives, that, in particular endorse and enable the collaborative sharing of space capabilities in crisis and conflict."

The Space Strategy is deeply ambiguous when it states that, "We will use force in a manner that is consistent with longstanding principals of international law, treaties to which the United States is a party and the inherent right of self defense." Unfortunately the relevant principals of international law are in dispute, as is the interpretation of the ban on weapons of mass destruction clause of the Outer Space Treaty.

Problematically, nowhere does the US Space Strategy statement make it clear that the US reserves the right forcibly to react to an attack on a US spacecraft. Instead, the policy will be to restore capabilities or to "fight through" the loss of one or more critical space assets. This means that the US military will have to accept the loss of one or more of its satellites and continue to function. The statement does not anywhere assert that America will inevitably and powerfully retaliate if attacked in space.

Some see this language as nothing more than what the late Congresswoman Clare Booth Luce called "Globaloney" -- the kind feel-good rhetoric that disguises attacks on America's national interests in the name of an imagined global "good". Others see this kind of language as opening the door to the cancellation of major US military space programs, such as the next generation of GPS satellites or new military communications satellites, in the name of both cost-savings and international cooperation. After all, if the Europeans are building their own satellite navigation system, or if we can buy communications services from commercial sources, why buy expensive US systems? Of course this would give the foreign states which control these systems veto power over US operations if they felt that US actions somehow were in violation of their interpretation of the code of conduct.

The Code's promoters envisage that it will, at some point become a part of customary international law. If the EU were to embody the Code of Conduct in an EU regulation, member states would be obligated to make it part of their national law, thus arguably fulfilling the requirements of customary international law. In practice this would dangerously tie America's hands.

According to the textbook "Public International Law" by Thomas Buergenthal and Harold Maier, however, " A practice does not become a rule of customary international law merely because it is widely followed. It must, in addition, be deemed by states to be obligatory as a matter of law."

* * *

Footnote 1. There are currently about 20.000 pieces of debris cluttering up Earth's orbit and which could possibly inflict serious damage to satellites or to the International Space Station.

Space debris threatens to demolish expensive satellites as when a supposedly out-of-control piece of Russian space junk ran into an American owned communications satellite over Siberia in 2009. Space debris is without doubt a problem, but just how big a danger it represents is a legitimate matter for debate.

footnote 2. Technically this Chinese space weapon is an example of what is known as a "Direct Ascent" ASAT. That is to say that it was launched directly at its target, rather than having been launched into orbit and only making its attack after it reached orbit; but any nation with the capability of launching a satellite into orbit also has the theoretical capability of building a Direct Ascent ASAT. Other types of "space weapons" include the so-called "co-orbital ASAT," which is launched into orbit and then approaches and attacks its target while both the weapon and the target orbit together around the Earth. This type of weapon can be developed, based on any satellite that can maneuver in orbit.

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