U.S. RESPONSE TO EU DRAFT CODE OF CONDUCT FOR

C O N F I D E N T I A L SECTION 01 OF 05 STATE 126206

SIPDIS
GENEVA FOR CD DEL

E.O. 12958: DECL: 12/09/2019
TAGS: AS CA CDG EC ESA EUN FR GM IT JA KACT KS KTIA MCAP
PARM, PO, PREL, SP, TSPA, UK, UP
SUBJECT: U.S. RESPONSE TO EU DRAFT CODE OF CONDUCT FOR
OUTER SPACE ACTIVITIES

REF: A. (A) 07 LISBON 002604

B. (B) 07 STATE 157671

C. (C) STATE 002007

Classified By: DEHoppler,Reasons 1.4(a),(d),(e),and(g)


1. (SBU) THIS IS AN ACTION REQUEST. See paragraph 3
below.


2. (U) BACKGROUND: On December 8, 2008, the European Union
(EU) Foreign Ministers endorsed a draft proposal for a "Code
of Conduct for Outer Space Activities"
(http://register.consilium.europa.eu/pdf/en/0 8/st17/st17175.
en08.pdf). Upon approving this draft package of voluntary
transparency and confidence-building measures (TCBMs),in
which Subscribing States would participate on a voluntary
basis, the EU Council called for consultations "with key
third countries that have activities in outer space or have
interests in outer space activities, with the aim of reaching
a text that is acceptable to the greatest number of
countries."


3. (C) The United States received the first, preliminary
draft from the Portuguese Presidency of the EU Council in
October 2007 (REF A). The United States provided
"line-in/line-out" comments on this draft in November 2007
(REF B). The Department received a second preliminary draft
of the Code of Conduct from the French Presidency in July

2008. On September 19, 2008, U.S. and EU experts held
informal consultations in Washington, D.C., during which U.S.
experts clarified several concerns regarding the second
preliminary draft.


4. (C) In November 2008, reflecting a desire to reach an
expanded consensus, the French Presidency sent advance copies
of the draft approved by the EU Foreign Ministers to eight
countries "with activities in outer space or interests in
outer space," including Canada, Japan, Israel, Brazil, India,
the United States, Russia, and China.


5. (C) In a November 27, 2008, letter to Acting Under
Secretary of State for Arms Control and International
Security, John C. Rood, French MFA Director of Strategic
Affairs, Security and Disarmament, Jacques Audibert, invited
the United States to provide the EU with further comments.
The French Presidency also expressed its interest in pursuing
further bilateral consultations on the text "to continue to
improve it." In his letter to U/S Rood, Audibert noted
"fruitful" consultations between the United States and the EU
on two preliminary versions of the draft code.


6. (SBU) In January 2009, the United States provided the
Czech Presidency and the Council of the European Union with a
U.S. non-paper (dated January 7, 2009) that detailed initial
U.S. reactions to the EU's December 2008 draft (REF C).


7. (SBU) The current Swedish EU Presidency has continued
developing the draft, using informal inputs provided by U.S.
experts in June and September 2009 as well as inputs received
during formal consultations with other countries with
"activities in outer space or interests in outer space." In
October 2009, the EU announced its intent to pursue the space
Code of Conduct at an ad hoc conference to be convened in
2010, using a process for adoption modeled on the Hague Code
of Conduct Against Ballistic Missile Proliferation. In
November, Stockholm informally requested that Washington
provide inputs prior to the conclusion of the Swedish
Presidency. END BACKGROUND.


8. (U) ACTION REQUESTS:

STATE 00126206 002 OF 005

SUBJECT: U.S. RESPONSE TO EU DRAFT CODE OF CONDUCT FOR
OUTER SPACE ACTIVITI
(SBU) For Stockholm: Embassy is requested to hand over the
U.S. non-paper (contained in paragraph 9 below) to the
Swedish Presidency of the EU (Ronnie Nilsson) as soon as
possible. Embassy also is authorized to provide the U.S.
line-in/line-out mark-up of the EU's December 2008 draft (to
be transmitted via e-mail). Embassy should indicate that the
United States welcomes further exchanges on this topic with
Sweden and with future EU Presidencies. Embassy also should
note that the U.S. non-paper is marked "For Government Use
Only," and request that the non-paper be handled in the same
manner as "Restreint UE" information.

(SBU) For USEU: USEU is requested to hand over the U.S.
non-paper (contained in paragraph 9 below) to the Personal
Representative on Non-Proliferation of WMD of the General
Secretariat of the Council of the European Union, to
Lars-Gunnar Wigemark of the Security Policy Unit of the
European Commission's Directorate-General for External
Relations, and to Stefan Nonneman of the Space Policy and
Coordination Unit of the EC's Directorate-General for
Enterprise and Industry, as well as to other appropriate
officials, as soon as possible. USEU also is authorized to
provide the U.S. line-in/line-out mark-up of the EU's
December 2008 draft (to be transmitted via e-mail). USEU
also should indicate that the United States welcomes further
exchanges on this topic with EU Council Disarmament (CODUN)
experts. Mission should note that the U.S. non-paper is
marked "For Government Use Only," and request that the
non-paper be handled in the same manner as "Restreint UE"
information.

(SBU) For Madrid: Embassy is requested to hand over the U.S.
non-paper (contained in paragraph 9 below) to the CODUN
coordinator at the Spanish MFA as soon as possible. Embassy
Madrid is also authorized to provide the U.S.
line-in/line-out mark-up version of EU's December 2008 draft
(to be transmitted via e-mail). Embassy should indicate that
the U.S. welcomes further exchanges on this topic during the
Spanish Presidency of the EU Council and note that the United
States will continue to work with the European Union and
other like-minded nations in efforts to advance a set of
voluntary TCBMs that is acceptable to the greatest number of
countries. Embassy also should note that the U.S. non-paper
is marked "For Government Use Only," and request that the
non-paper be handled in the same manner as "Restreint UE"
information.

(SBU) For London and Paris: Embassies are requested to hand
over the U.S. non-paper contained in paragraph 9 to John
Saltford of the UK FCO and to Donatianne Hissard of the
French MFA, as well as to other appropriate FCO or MFA
officials. Posts also are requested to provide the U.S.
line-in/line-out mark-up of the EU's December 2008 draft (to
be transmitted via e-mail). Embassies also should indicate
that the U.S. welcomes continued close collaboration within
the P-3, as well as at the expert level on a bilateral basis,
on approaches to build consensus for the EU's Code of Conduct
initiative. Embassy also should note that the U.S non-paper
is marked "For Government Use Only," and request that the
non-paper be handled in the same manner as "Restreint UE"
information.

(SBU) For Berlin, Ottawa, Rome, and Tokyo: Embassies are
requested to hand over the U.S. non-paper contained in
paragraph 9 to outer space disarmament experts at Host
Nation's MFAs. Posts also are requested to provide the U.S.
line-in/line-out mark-up of the EU's December 2008 draft (to
be transmitted via e-mail). Embassies should indicate that
this is a further U.S. response to the EU's December 2008
draft "Code of Conduct for Outer Space Activities," and that
the United States welcomes opportunities for discussions on
specific points of the document at future bilateral space
security dialogue discussions conducted at the expert level.
Embassy also should note that the U.S non-paper is marked
"For Government Use Only."


STATE 00126206 003 OF 005

SUBJECT: U.S. RESPONSE TO EU DRAFT CODE OF CONDUCT FOR
OUTER SPACE ACTIVITI
(SBU) For Canberra: Embassy is requested to hand over the
U.S. non-paper contained in paragraph 9 to Cameron Archer at
Australian DFAT, as well as to other appropriate DFAT
officials. Post also is requested to provide the U.S.
line-in/line-out mark-up of the EU's December 2008 draft (to
be transmitted via e-mail). Embassy should indicate that
this is a further U.S. response to the December 2008 EU's
draft "Code of Conduct for Outer Space Activities," and that
the United States is looking forward to the first bilateral
space security dialogue discussions with Australia in March

2010. Embassy also should note that the U.S non-paper is
marked "For Government Use Only."

(SBU) For Seoul and Kyiv: Embassies are requested to hand
over the U.S. non-paper contained in paragraph 9 to outer
space disarmament experts at their Host Nation's MFA. Posts
also are requested to provide the U.S. line-in/line-out
mark-up of the EU's December 2008 draft (to be transmitted
via e-mail). Embassies should indicate that this is a
further U.S. response to the EU's December 2008 draft "Code
of Conduct for Outer Space Activities," and that the United
States is pleased that the Host Nation indicated its support
in the UN General Assembly's First Committee for this
worthwhile endeavor to develop space transparency and
confidence-building measures. Embassy also should note that
the U.S non-paper is marked "For Government Use Only."

(SBU) For USDEL to CD: Following hand-over to Sweden, USDEL
to the Conference on Disarmament is authorized to provide
courtesy copies of the U.S. non-paper contained in paragraph
9 to the CD delegations of EU Member States. USDEL also is
authorized to provide the U.S. line-in/line-out mark-up of
the EU's December 2008 draft (to be transmitted via e-mail).
USDEL also is authorized to share copies of the non-paper and
line-in/line-out version of the EU's December 2008 draft with
non-EU members of the CD's Western Group, as well as to
Brazil and India. USDEL also should note that the U.S
non-paper is marked "For Government Use Only." END ACTION
REQUEST.


9. (SBU) BEGIN TEXT OF U.S. NON-PAPER:

Non-Paper
December 9, 2009

The United States welcomes opportunities for substantive
discussions on outer space transparency and
confidence-building measures (TCBMs) with all established and
emerging spacefaring nations.

In particular, the United States has appreciated the
opportunity to exchange with European experts our thoughts on
this pragmatic and constructive European Union initiative.

In consultation with the European Union and our allies in
other regions, the United States currently is assessing
options for international cooperation in space as a part of a
comprehensive review of U.S. national space policy. This
review of space cooperation options includes a "blank slate"
analysis of the feasibility of options for effectively
verifiable space-related arms control measures that advance
the national security interests of the United States, its
friends and allies, and all spacefaring nations.

--It is premature to predict the specific decisions that may
result from the U.S. policy review.

--As a result, the United States currently takes no position
regarding the feasibility and desirability of a political
commitment (in Section 4.2. of the EU's draft) for
Subscribing States to "refrain from any intentional action
which will or might bring about, directly or indirectly, the
damage or destruction of outer space objects, unless such
action is conducted to reduce the creation of outer space
debris and/or justified by imperative safety considerations."


STATE 00126206 004 OF 005

SUBJECT: U.S. RESPONSE TO EU DRAFT CODE OF CONDUCT FOR
OUTER SPACE ACTIVITI
--The United States thanks the Swedish Presidency and the
European Commission for the EU's timely and constructive
inputs dated October 8, 2009, to our Presidentially-directed
review.

--The United States looks forward to consulting with the
European Union in early 2010 on insights gained from this
Presidential review as part of our continuing dialogues on
space security.

The United States welcomes opportunities for fruitful and
forthright exchanges with the European Union to advance
voluntary transparency and confidence-building measures that
are acceptable to the greatest number of countries. In this
regard, the United States notes its proposals to make several
key revisions in the Council of the European Union's draft:

--In Section 2, relating to "General Principles":
-------------- Revise language in the fourth principle for greater
clarity regarding the responsibility of Subscribing States to
take measures to prevent outer space from becoming an area of
conflict. In modifying the word "measures," the United
States believes the adjective "reasonable" better reflects a
Signatory State's responsibility than the adjective
"adequate." To the United States, "adequate" means the
measures a party employs must resolve the problem, otherwise
that party could be accused of being deficient in its actions.

--In Section 6, relating to "Notification of outer space
activities":
-------------- Revise language in Sub-section 6.1. to clarify the
circumstances for notification of planned maneuvers,
collisions, and other orbital incidents that could pose
hazards to spaceflight safety.
-------------- Remove a commitment in Sub-section 6.1. for notification
of "orbital changes and re-entries, as well as other relevant
orbital parameters" to "all potentially affected Subscribing
States." The United States believes that this proposed
measure is too broad, and could if adopted, constrain
unnecessarily national security space activities that are
already conducted with due regard to the corresponding
interests of all other spacefaring nations.
-------------- Add a provision in Sub-section 6.1. to provide for
notification of high-risk re-entry events, using
qualification criteria developed by the Inter-Agency Space
Debris Coordination Committee (IADC).
-------------- Add a new Sub-section (6.2.) defining the channels for
Subscribing States to provide appropriate notifications.
-------------- Delete original Sub-section 6.2, which repeats a
commitment made in Sub-section 3.1 (b).

--In Section 9, on "Consultation mechanism":
-------------- Revise language in Sub-section 9.1. to clarify the
conditions and channels for consultations between and among
Subscribing States.
-------------- Substitute an alternative word for "proven" in
Sub-section 9.2 for the purposes of clarity; it is unclear
what "proven incidents" are.
-------------- Revise language in Sub-section 9.2. to clarify the
approach used in a possible investigation mechanism to
develop advisory findings and recommendations of a
non-binding nature.

--In Section 10, on "Biennial meeting of Subscribing States:"
-------------- Add language on the agenda for biennial meetings to allow
for the discussion of measures that might appear necessary,
due to technology advances. The United States believes that
this provision could allow for the Code to adapt to the
development of new capabilities, such as novel concepts for
the removal of orbital debris.

--In Section 12, on "Outer space activities database:"
-------------- Add a provision to allow for the sharing of information
with all Subscribing, as well as non-Subscribing, States on
the basis of the principle of "co-operation and mutual
assistance" in Article IX and in Article XI of the Outer

STATE 00126206 005 OF 005

SUBJECT: U.S. RESPONSE TO EU DRAFT CODE OF CONDUCT FOR
OUTER SPACE ACTIVITI
Space Treaty, in which Subscribing States conducting
activities in outer space, including the Moon and other
celestial bodies, agree to inform the Secretary-General of
the United Nations, as well as the public and the
international scientific community, to the greatest extent
feasible and practicable, of the nature, conduct, locations,
and results of such activities. In order to enhance
space-flight safety, the United States would support
providing the database to all spacefaring nations, whether or
not they are Subscribing States.

The United States notes that these proposed revisions will
help to address a number of the key concerns identified in a
January 7, 2009, non-paper provided to the Czech Presidency.
These concerns include:

-- Language in the Section on "Notification of Space
Activities" (Section 6.1) of the December 2008 draft that
calls on Subscribing States to provide prior notification of
"scheduled maneuvers" or "orbital changes and re-entries, as
well as other relevant orbital parameters," regardless of any
risk of hazard to another nation's space activities.

-- Draft language on a "consultation mechanism" (Section 9.1)
that:
-------------- Would enable Subscribing States to pursue creation of a
consultative mechanism to discuss the space-related
activities of a Subscribing State for the purpose of
"achieving acceptable solutions regarding measures to be
adopted in order to prevent or minimize the inherent risks;"
and
-------------- Calls upon the Subscribing States that are involved in
this consultative mechanism to "seek solutions based on an
equitable balance of interests."

-- Draft language on "mechanism to investigate proven
incidents affecting space objects" (Section 9.2).

The United States also continues to have significant concerns
about the widespread use of language connoting binding
obligations, such as "shall" and "will," in the proposed
non-binding Code of Conduct. The use of such language in a
non-binding document is contrary to established practice; for
example, The Hague Code of Conduct, which is not binding
under international law, does not use such binding language.
The United States believes that its proposed revisions more
properly reflect the non-binding nature of the proposed Code
of Conduct.

END TEXT OF U.S. NON-PAPER.


10. (U) Any reporting on this subject should be flagged for
the Department (ISN/MDSP: Richard H. Buenneke) and Geneva
(CD).
CLINTON