Norm Setting for Outer Space

By Michael Krepon

Norms are standards of proper or acceptable behavior. They establish expectations and clarify misbehavior, thereby helping to isolate, limit and sanction bad behavior. Without norms, there are no norm breakers. They can be codified in treaties and other legal instruments, or they can be less formal, such as those embedded in international codes of conduct. When less-formal norms become customary international practice, they gain standing in international law.

Norms can be particularly helpful when they encourage transparency, because transparency measures can lead to important negotiating breakthroughs. Extraordinary treaties that drastically reduced nuclear forces between the United States and the Soviet Union were enabled by a slightly regarded, multilateral agreement in 1983 in which the Kremlin permitted foreign observers to attend conventional military exercises.

Not everyone will sign up to norms right away, and there will always be outliers. Even so, norms can discourage unwanted behavior, even by holdouts — but not for die-hard outliers. The speed and effectiveness of norm building depends on the attitudes and actions of major powers, not outliers. The most reluctant major power is usually China.

Norms relating to nuclear weapons have been well established. The most important norm since 1945 has been against the use of mushroom clouds on battlefields. Another important norm has been against atmospheric nuclear testing. The superpowers stopped doing this 1963; China didn’t sign up to this norm until 1980. The cessation of underground nuclear tests is becoming a norm, even though the Comprehensive Test Ban Treaty hasn’t entered into force. The Soviet Union stopped testing underground in 1989, followed by the United States and Great Britain in 1992, then France and China in 1996. India and Pakistan haven’t signed the Comprehensive Test Ban Treaty and tested in 1998, but not since. That leaves only one outlier — North Korea.

The 1967 Outer Space Treaty began to codify norms, such as the obligation not to place weapons of mass destruction in this domain. The Outer Space Treaty also gained important adherents over time. France didn’t sign up until 1970, West Germany in 1971, India in 1982, and China in 1983.

The Outer Space Treaty predated and didn’t tackle problems of debris, harmful interference and traffic management in this domain. For space to be sustainable for military, intelligence, commercial, scientific and exploratory purposes, norms governing debris, harmful interference and traffic management will have to be established or strengthened.

Some in the United States assume that U.S. adversaries will disregard norms and that rules of the road for space will hamstring U.S. responses. Their preference for freedom of action is understandable, but paradoxically at odds with U.S. national security and commercial interests in space. A free-for-all in space would impair everything the United States has gained and stands to gain in this domain. Freedom of action to engage in certain types of bad behavior — such as anti-satellite (ASAT) tests that generate long-lasting, lethal space debris — can ruin space for everyone.

Because norms can’t be taken for granted, the United States has to have insurance policies against those who behave irresponsibly in space. No spacefaring nation has more retaliatory options to choose from than the United States — and not just in space. The ability to retaliate helps to deter norm breakers. The denial of gain by norm breakers also helps to deter. Having resilient capabilities for space operations is therefore essential.

There are three ways to proceed to set norms in space:

• An ambitious treaty that seeks to prevent the placement of weapons and the threat or use of force in outer space.

• A narrow treaty banning the worst and most verifiable kinds of ASAT tests — those that generate long-lasting, mutating debris clouds.

• A norm-setting international code of conduct.

The second and third options are not mutually exclusive.

Russia and China have proposed the first approach, offering a revised treaty draft in June. This initiative does not address the needs of norm building relating to debris, harmful interference and space traffic management. Nor does it address ground-based ASAT capabilities or inherently ambiguous technologies that can be used for military as well as peaceful purposes. A space weapon in their draft treaty is defined in the eye of the observer, and there are no verification provisions.

The Russian and Chinese draft treaty is not a serious diplomatic initiative; it’s a dodge. China has the world’s most active, unacknowledged ASAT testing program and is allergic to transparency measures; Russia is playing catch-up in space.

The second option — a ban on “hit-to-kill” ASAT tests that generate long-lasting debris — would be useful and verifiable. While any steps that prevent new debris fields would be welcome, this initiative focuses on only one norm and could take a long time to negotiate. Russia and China will likely seek to merge their draft treaty with an ASAT test ban in order to buy time while they move forward with ASAT programs under the guise of missile defense testing. The U.S. Senate’s consent to ratification of a narrow ASAT treaty may not be forthcoming.

The third option is, by far, the best. The European Union has been drafting an international code of conduct that sets strong norms relating to debris and harmful interference. The former would address hit-to-kill ASAT tests that generate long-lasting debris. The draft International Code of Conduct for Outer Space Activities sets up consultative and information-sharing mechanisms that can pave the way for traffic management-related practices and norms. The EU has consulted broadly with other states, and will unveil a new version of a draft international code in the coming months. The United States and other spacefaring nations are supportive of the EU’s handiwork, but there will be important stragglers.

Beijing and Moscow have agreed in principle to the notion of an international code, but both are reluctant to sign up to this one. New Delhi has no substantive problems with the EU’s draft code and has a history of responsible behavior in space — but India has difficulty joining codes of conduct. Brazil and some other nonaligned states prefer the startup of negotiations on an ambitious treaty.

What to do? Capitals can choose to take concrete steps to create and strengthen norms for responsible spacefaring nations, or wait for stragglers. Two stragglers are crucial — Russia and China. They are likely to sign up, but not right away. Will moving forward with a code of conduct for space quicken their adherence, or retard it?

In my view, the longer responsible spacefaring nations wait to define norms, the more harm will be done to the space environment. Beijing and Moscow will join the code just as they joined the ban on nuclear testing — after meeting minimum military requirements and after being embarrassed by not being part of an emerging consensus.

I recommend the following course of action: It’s time to call the roll on the international code of conduct for space this fall at the United Nations, followed by a signing ceremony. Begin regular consultations and information sharing, as the code calls for, inviting non-signatories to lend a hand with the build-out. All major construction projects relating to space now proceed in stages. It’s crucial to get the design right at the front end, and the EU’s diplomatic initiative does this admirably well.

It’s time to get to work. Norm setting against dangerous military practices in space will not be helped by waiting for stragglers. The United States plans to adhere to the code of conduct’s provisions whether or not China and Russia sign up. A signing ceremony will hasten the day when they join.

View this piece in Arms Control Wonk here.