- The Washington Times - Thursday, January 27, 2011

The Obama administration is negotiating with the European Union on an agreement limiting the use of anti-satellite weapons, a move that some critics say could curb U.S. development of space weapons in general.

Three congressional staffers told The Washington Times that Pentagon and intelligence analysts said in a briefing Monday that the administration is looking to sign on to the European Union’s Code of Conduct for Outer Space Activities.

The briefing followed the completion of an interagency review that recommends the United States sign on to the document with only a few minor changes to its language, according to two administration officials familiar with the review.

That recommendation is awaiting final approval from the National Security Council.

“The United States is continuing to consult with the European Union on its initiative to develop a comprehensive set of multilateral TCBMs, also known as the Code of Conduct for Outer Space Activities,” Rose Gottemoeller, assistant secretary of state for arms control, verification and compliance, said Thursday at the U.N. Conference on Disarmament. TCBM stands for “transparency and confidence-building measures.”

“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,” Ms. Gottemoeller added.

A draft of the code of conduct dated Sept. 27 says countries that sign on to the document vow 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.”

The United States has worried about the safety of commercial, intelligence and military satellites for years, but that concern has heightened since 2007. That year, the Chinese military successfully tested a ground-based missile that destroyed one of its own satellites.

In 2009, a communications satellite owned by satellite-phone maker Iridium crashed into a Russian satellite over northern Siberia.

Both incidents created debris that could collide with other satellites.

“Space debris, to me, I equate it with global warming in orbit,” said Matthew Hoey, a military space consultant who has worked for the U.S. government and the U.N. Institute for Defense and Disarmament Studies. “It is a race against time, and once we pass the tipping point, there is no reversing it. The ramifications of a collision on economics, space exploration and communications — these are grand issues.”

Mr. Hoey said the code of conduct’s emphasis on space debris is “a good thing,” adding that the EU code “is a great precedent.”

“It is not exactly binding,” he said. “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.”

The United States is a party to one major arms-control treaty dealing with outer space. Signed in 1967, that treaty bans countries from bringing nuclear weapons or other weapons of mass destruction into space.

Paula DeSutter, who was an assistant secretary of state for verification and compliance under President George W. Bush, said the EU code would be much better for U.S. national interests than a space-based arms control treaty introduced by the Russian and Chinese delegations at the 2008 U.N. Conference on Disarmament.

That proposed treaty, known as the Prevention of the Placement of Weapons in Outer Space Treaty (PPWT), is regarded by the Obama administration, and the Bush administration before it, as unverifiable and not in the U.S. national interest, according to public statements by both administrations.

“The code of conduct needs a few changes, but it is certainly far better than the PPWT,” Ms. DeSutter said. “One of the good things about it is that it recognizes specifically the legitimate right of self-defense in space and the virtue of the U.S. satellite shootdown in 2008. It does not appear to limit U.S. missile defenses in any way.”

However, she added that “it needs to be thoroughly reviewed to make sure that it protects U.S. intelligence and military satellite systems.”

A senior State Department official familiar with the interagency review of the code of conduct said: “We had everyone look at this. Our defense programs are not harmed by it.”

The State Department has exchanged language with the EU on the code of conduct. The U.S. and Russia also have begun talks about creating confidence-building measures regarding space-based activities. The U.S. has reached out to China on space issues, but Beijing has declined offers to discuss the issue, according to a senior State Department official.

One congressional staffer said many aides still had questions after Monday’s briefing.

“There are capabilities that we have in space and that we want to have in space,” the staffer 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.”

Another congressional staff member said: “There is a suspicion that this is a slippery slope to arms control for space-based weapons, anti-satellite weapons and a back door to potentially limiting missile defense.”

Baker Spring, a defense analyst at the Heritage Foundation, said the staffers’ concerns are “likely to be well-founded.”

“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,” Mr. Spring 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.”

But Scott Pace, director of the Space Policy Institute at George Washington University, said: “I don’t see this text as limiting U.S. capabilities. In fact, I see the idea of limiting space debris as deeply in the U.S. national interest and the interest of all space-faring nations.”

In briefings with Congress, administration officials have said they do not consider the EU code of conduct to be a treaty, meaning it would not have to sent to the Senate for approval.

Mr. Pace said that “saying responsible countries agree on responsible behavior is not the same as a treaty.”

Mr. Spring disagreed. He said the resolution of ratification adopted by the Senate last month for the New Strategic Arms Reduction Treaty spells out exactly the kinds of agreements that require the Senate’s approval and the definition of militarily significant limitations would cover the code of conduct.

“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,” he said.