Is Anti-Satellite Arms Control Feasible? The Potential Impact of an International Space Code of Conduct

By Allison Kempf       

          The European Union began to draft the E.U. Code of Conduct for outer space in 2007 intending to prevent irresponsible behavior in space, reduce the quantity of space debris in Earth's orbit, and ultimately make outer space more sustainable as a domain for exploration, observation, telecommunications, and navigation. The United States was hesitant to agree to a code of conduct constructed with minimal U.S. input, but U.S. leaders announced on January 17, 2012 that they would meet with E.U. officials to renegotiate and establish an International Code of Conduct for outer space. [1] The dynamics of outer space have changed significantly over the past fifty years as the number of actors has increased, so now is an ideal time to reassess the current outer space legal regime and modify the international standards for space conduct. Due to recent concerns about space congestion and anti-satellite (ASAT) testing, the United States has three possible courses of action for negotiating a new space code of conduct: the United States could preserve its right to conduct ASAT testing, work with the European Union to restrict ASAT testing, or take on a leadership role in an international ASAT arms control initiative.

I. Current Legal Regime for Outer Space

            The legal and diplomatic principles underlying state conduct in outer space were initially outlined in 1967, in the United Nations Treaty on Principles Governing the Activities of States in the Use and Exploration of Outer Space, including the Moon and Celestial Bodies.[2] Popularly known as the Outer Space Treaty, this ensured the free and equal access of outer space to all states and called for international collaboration on scientific research and space exploration. States agreed that outer space was a collective good free from state sovereignty and that militaries could not launch weapons into orbit or establish bases on the moon or celestial bodies. The extent to which countries should engage in collaboration and mutual assistance was left ambiguous, and the call for information sharing and responsible space conduct was relegated to a voluntary commitment.

II. Challenges in Outer Space and the Need for a Code of Conduct

             In the past twenty years, new challenges have led to a wave of diplomatic engagement on best practices for space conduct. The technological capability to explore space and launch satellites into orbit is no longer a great power monopoly. Today over fifty countries have satellites in orbit[3] and many private corporations and universities operate satellites independently.[4] The United States government alone operates over 450 satellites, followed by the Russian government with over 100 and the Chinese government with over 70.[5] According to the U.S. Department of Defense, space congestion is a growing concern because it exacerbates the likelihood of collisions and can interfere with satellite activity. There are currently 22,000 man-made objects orbiting the earth, only 1,100 of which are active satellites. At least 10,000 of the objects in Earth’s orbit are considered “space debris”, often the result of collisions or the intentional use of ASAT weapons.[6]

            The European Union argues that the intentional use of ASAT capability denies the benefit of space activities to the international community as a whole by generating excess space debris.[7] In 2007 China conducted the world’s first ASAT test in over twenty years to destroy an inactive meteorological satellite,[8] and in 2008 the United States conducted its own ASAT test, prompting many analysts to suggest a post-Cold War arms race was beginning in outer space.[9] The E.U. Code of Conduct would call for all actors in space to refrain from actions that would damage or destroy space objects, effectively prohibiting the testing of ASAT weapons.[10] From the perspective of the United States, such a prohibition could be at odds with the U.S. National Security Space Strategy because the U.S. must have the ASAT capacity to deter, retaliate, and operate in a degraded space environment. It is not clear whether the United States is willing to commit to a prohibition of ASAT testing.

           Conceptually, a prohibition of ASAT testing would conform to the current legal regime for outer space. Signatories of the 1967 Outer Space Treaty agreed to avoid “harmful contamination [of the Moon and celestial bodies] and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter.”[11] Within the framework of the Outer Space Treaty, it is the responsibility of the individual state to “undertake appropriate international consultations” if it believes its actions in outer space could have adverse effects in space or in the Earth’s atmosphere, thus leaving the definition of adverse effect to the state’s discretion.[12] A prohibition on ASAT testing would have a legal basis within the current regime if signatories of a new code of conduct explicitly recognized ASAT testing as an action with adverse effects on the space environment.

III. Potential U.S. Courses of Action

           There are at least three possible courses of action the United States could be taking in its negotiations for an International Code of Conduct. First, U.S. officials could push for non-binding restrictions on ASAT testing or eliminate the commitment to refrain from damaging satellites entirely. This would allow the U.S. to use ASAT weapons to test its capability as needed and to respond to ASAT tests in other parts of the world. This code of conduct could reaffirm the U.S. and E.U. commitment to collaboration and information sharing in their space activities, but it would have little additional impact because in practice it would merely reinforce the current legal framework.

           Second, the United States could work with the European Union to pass a code of conduct that restricts weapons testing in order to set an example for the rest of the world. The United States did not test an ASAT weapon between 1985 and 2008,[13] and the likely reason for the 2008 test was to respond to China’s test with a show of capability rather than to test a new weapon. The United States would retain the right to use its ASAT capability if necessary for self-defense, but choosing not to test weapons sends an important political message: a country that conducts an ASAT test will be confronted with strong pressure from the United States and European Union, two of the world’s largest economies and most prominent political actors.

           Finally, the United States could play a leadership role in encouraging other countries to sign the International Code of Conduct beyond Europe and North America. If non-Western countries such as Japan and South Korea or emerging space powers such as India and Brazil agree to the terms of the code of conduct, international standards could shift as they have for nuclear weapons. The United States last tested a nuclear weapon in 1992 and signed the International Comprehensive Ban Treaty in 1996,[14] which has been adopted by the U.N. General Assembly. Although the treaty is not yet formally in force, it has had a strong impact on international opinion and custom; countries that continue to pursue and develop nuclear weapons face isolation from the international community and in some cases are regarded as rogue states. A similar initiative for banning ASAT tests to prevent adverse effects on the space environment could alter the international standards for acceptable behavior in outer space.

IV. Conclusions

           The United States and European Union could respond to the increasing congestion in Earth’s orbit by restricting the use of ASAT weapons, potentially setting the foundation for a global arms control initiative. Since the original Outer Space Treaty of 1967 was ratified, the number of actors in outer space has grown dramatically and a new space code of conduct may be necessary in order to adapt the existing legal regime to a modern context. The current negotiations between the United States and European Union for an International Code of Conduct could set an important precedent, impacting the security and sustainability of the space environment and shaping international action in the future.