U.S. COMMENTS ON EU COUNCIL'S DRAFT "CODE OF

C O N F I D E N T I A L SECTION 01 OF 05 STATE 002007 SIPDIS GENEVA FOR CD DEL E.O. 12958: DECL: 01/08/2019 TAGS: CDG EC ESA EUN EZ FR KACT KTIA MCAP PARM PREL TSPA UK SUBJECT: U.S. COMMENTS ON EU COUNCIL'S DRAFT "CODE OF CONDUCT FOR OUTER SPACE ACTIVITIES" REF: (A) 07 LISBON 002604 (B) 07 STATE 157671 Classified By: PAMcNerney, Reasons 1.4 (a),(d),(e),and (g) ¶1. (SBU) THIS IS AN ACTION REQUEST. See paragraph 3 below. ¶2. (C) 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). In approving this draft package of voluntary transparency and confidence building measures, in which Subscribing States would participate on a voluntary basis, the 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." (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 U.S. 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." (C) In his letter to U/S Rood, Audibert noted "fruitful" consultations between the U.S. and EU on two preliminary versions of the draft code. The U.S. received the first preliminary draft from the Portuguese Presidency of the EU Council in October 2007 (REFTEL A). The U.S. provided "line-in/line-out" comments on this draft in November 2007 (REFTEL 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. (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, and India as well as to the U.S., Russia, and China. (C) EU experts report that the Czech Presidency will continue developing the draft using inputs provided by the U.S. and other countries with "activities in outer space or interests in outer space." The ultimate goal of the EU is to present the draft Code of Conduct in 2009 to relevant international fora, including the Conference on Disarmament, the UN Committee for the Peaceful Uses of Outer Space, and the UN General Assembly. The EU also is considering the possibility of establishing a stand-alone process for adoption modeled on the Hague Code of Conduct measures for ballistic missile proliferation. Acting Under Secretary Rood met with his P-3 counterparts (UK FCO Director General for Defence and Intelligence Mariot Leslie and French MFA Director of Strategic Affairs Security and Disarmament Jacques Audibert) on Thursday, January 8, 2009, and during their discussions on the EU-proposed Code of Conduct, he provided them a copy of the U.S. non-paper at paragraph 4. ¶3. (SBU) Action Request. For Prague: Embassy is requested to hand over the U.S. non-paper (contained in paragraph 4 below) to the Czech Presidency of the EU (Mr. Jiri Svoboda, Head of the Disarmament and Conventional Arms Unit within the MFA, and/or to other appropriate MFA officials) as soon as possible. Embassy also should indicate that the U.S. welcomes further exchanges on this topic with the Czech Republic and with future EU Presidencies. Post should note STATE 00002007 002 OF 005 SUBJECT: U.S. COMMENTS ON EU COUNCIL'S DRAFT "CODE OF CONDUCT FOR OUTER SPACE ACTIVITIE 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 4 below) to Hlne-Diane Dage of the European Commission's Space Policy and Coordination Unit and to Zuzana Sutiakov of the General Secretariat of the Council of the European Union, or to other appropriate officials as soon as possible. USEU also should indicate that the U.S. welcomes further exchanges on this topic with EU Council Disarmament (CODUN) experts. Post 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 4 to John Saltford of the UK FCO and to Rosine Couchoud of the French MFA, or to other appropriate FCO or MFA officials. Embassies also should indicate that the U.S. welcomes continued close collaboration within the P-3 as well as at the experts level on a bilateral basis on approaches to build consensus for this draft proposal. (C) For Berlin, Ottawa, Rome, and Tokyo: Embassies are requested to hand over the U.S. non-paper contained in paragraph 4 to outer space experts at their Host Nation's MFAs. Embassies should indicate that this is the U.S. response to the December 2008 EU's draft "Code of Conduct for Outer Space Activities," and that the U.S. welcomes opportunities for discussions on specific points of the document at future bilateral space security dialogue discussions conducted at the experts level. (C) For USDEL to CD: Following hand over to the Czech Republic, USDEL to the Conference on Disarmament is authorized to provide courtesy copies of the U.S. non-paper contained in paragraph 4 to CD Delegations of EU Member States. USDEL also is authorized to share copies of the non-paper with non-EU members of the CD Western Group (WEOG), as well as to Brazil and India. ¶4. (SBU) BEGIN TEXT OF U.S. NON-PAPER: FOR GOVERNMENT USE ONLY United States Non-Paper January 7, 2009 -The United States is pleased to respond to the Presidency of the Council of the European Union's request of November 27, 2008, for further comments on the EU's draft "Code of Conduct for Outer Space Activities." -The United States welcomes the opportunity for substantive discussions on outer space transparency and confidence-building measures with all established and emerging spacefaring nations. -The United States appreciated the opportunity for detailed and fruitful exchanges with European experts on this pragmatic and constructive EU initiative. We are pleased to see that the draft approved on December 8-9, 2008, by the Council of the European Union (as contained in Council document 17175/08 of December 17, 2008),reflects a number of U.S.-recommended inputs. -Mindful of the Council of the European Union's aim of reaching a text that is acceptable to the greatest number of countries, we must note that several problematic elements still remain in the latest draft. These include three provisions that would prevent the United States from subscribing to the December 2008 draft text. -First, the language in the section on "Notification of Space Activities" (Section 6.1) of the December 2008 draft calls on Subscribing States to provide prior notification of "scheduled maneuvers" or "orbital changes and re-entries, as STATE 00002007 003 OF 005 SUBJECT: U.S. COMMENTS ON EU COUNCIL'S DRAFT "CODE OF CONDUCT FOR OUTER SPACE ACTIVITIE well as other relevant orbital parameters," regardless of any risk of hazard to another nation's space activities. --On national security grounds, the U.S. strongly opposes any such prior notification provision in a Code of Conduct. The United States believes the implementation of national spaceflight safety measures ) including collision avoidance and de-confliction ) is sufficient to ensure that space activities are conducted in a safe and responsible manner that is consistent with national security requirements. --With regard to re-entry notifications, the U.S. believes any notification regime should be consistent with the measures outlined in Annex VI "Risk Object Re-entry Data Exchange" to the Terms of Reference of the Inter-Agency Space Debris Coordination Committee. --Therefore, the U.S. recommends that the first and second bullets in Section 6.1 be revised to read: ---"- scheduled maneuvers or orbital changes, consistent with the principles of Article IX of the Outer Space Treaty;" ---"- high risk re-entry events, consistent with the risk object data exchange guidelines of the Inter-Agency Space Debris Coordination Committee;" -Second, the United States also strongly objects to language in the draft text regarding "Measures on Space Operations" (Section 4.2) that calls on states to refrain from any intentional action that "will or might bring about, directly or indirectly, the damage or destruction of outer space objects8 unless such an action is justified by "imperative safety considerations" and/or the post-mission disposal of a Subscribing State's own spacecraft to reduce orbital debris. --Per the August 2006 U.S. National Space Policy, as well as U.S. Presidential guidance endorsed for decades, the U.S. would object to any provisions in a proposed Code of Conduct that might impair its "freedom of action" in outer space, or that would impair the rights of the United States to conduct research, development, testing, and operations or other activities in space in the pursuit of U.S. national security interests. In effect, the EU's draft "Code of Conduct" is attempting to establish an arms control-type constraint ) in this case a prohibition except under exceptional circumstances ) on operations in space through a politically-binding mechanism. --The U.S. recommends that the first part of Section 4.2 be revised to read: ---"Subscribing States should, in conducting outer space activities: -refrain from any intentional action which will, or is likely to 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 national security considerations or imperative public safety considerations;" -Third, the United States has significant concerns relating to the draft language on a "consultation mechanism" (Section 9.1). The provision 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." --Although the proposed Code of Conduct is only voluntary and not legally-binding, a lack of clarity in the purpose, limitations, and criteria for establishing such a consultative mechanism could create an opportunity for states to conduct "fishing expeditions" against legitimate U.S. and allied military and intelligence space activities. --In order to avoid such a risk, the U.S. strongly recommends indicating that a "Subscribing State" asking for consultations should be directly affected by the outer space activity of specific concern. Such a qualification for the first Subscribing State requesting consultations would be consistent with the principle in the EU Draft that other Subscribing States who desire to participate in the consultations must "be affected by the risk." --The U.S. recommends that the first bullet in Section 9.1 be revised to read: ---"A Subscribing State that is directly affected by certain outer space activities conducted by one or more Subscribing State(s) and has reason to believe that those activities are, STATE 00002007 004 OF 005 -Lastly, the United States has a significant concern related to the draft language that calls on the Subscribing States that are involved in this consultative mechanism to "seek solutions based on an equitable balance of interests." --The U.S. supports an approach for consultations based upon international law, including the 1967 Outer Space Treaty, that would be guided by the principle of resolving concerns with "due regard to the corresponding interests" of other spacefaring nations. --The U.S. recommends that the fourth bullet in Section 9.1 be revised to read: ---"The Subscribing States participating in the consultations should seek to resolve concerns based upon international law." -The United States has a number of additional substantive concerns outlined below that will require resolution before the U.S. can support the December 2008 draft text. -The United States has significant concerns about the widespread use of language connoting a binding obligation, 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 binding language. The United States would welcome the opportunity to work with the EU to re-draft the language to reflect properly the non-binding nature of the proposed Code of Conduct. -The United States has a substantive concern related to the draft language on "mechanism to investigate proven incidents affecting space objects" (Section 9.2). --The U.S. recommends that Section 9.2 be revised to read, in its entirety: ---"In addition, the Subscribing States may consider the desirability and practicability of establishing an appropriate mechanism for the voluntary resolution of questions arising from reports of possible acts of harmful interference with space activities, or other activities inconsistent with the existing framework regulating outer space activities, that may be brought by a Subscribing State with direct economic, civil, or national security interests." -------------- The recommended language above adapts language from the 2002 Hague Code of Conduct against Ballistic Missile Proliferation (HCOC),to which the United States and European Union nations have subscribed. -Additionally, the United States has a substantive concern regarding its subscription to a Code of Conduct that specifically calls on a Subscribing State (e.g., the United States) to reaffirm its commitment to a treaty (i.e., the Comprehensive Test Ban Treaty) that is not yet in force for any state and that the United States does not support (Section 3.1). Therefore, the U.S. is opposed to any reference to the Comprehensive Test Ban Treaty. --The United States is an Original Party to the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, which obligates Parties to prohibit, to prevent, and not to carry out any nuclear weapons test explosion, or any other nuclear explosion, in outer space. --The United States has maintained its moratorium on explosive nuclear testing and has supported a voluntary testing moratorium by all states. --The U.S. recommends that Section 3.1 be revised to read: ---"(a) the existing framework regulating outer space activities to which Subscribing States are a Party to, inter alia:" -and, in the sixth sub-bullet: ---"The prohibitions on nuclear explosions in outer space STATE 00002007 005 OF 005 -Finally, the United States notes that the implementation of the organizational structure described in "IV. Organisational Aspects" should be carried out without duplicating the efforts of existing international organizations and their roles and responsibilities under the existing legal framework relating to outer space activities. -The United States welcomes the opportunity for continued dialogue with EU experts on these concerns. In these discussions, we also would propose to discuss approaches for joint collaboration with other like-minded spacefaring nations to advance this initiative and to enhance this proposal's potential for reinforcing the principle of free access to, and use of, outer space in the interest of maintaining international peace and security. FOR GOVERNMENT USE ONLY END TEXT OF U.S. NON-PAPER. ¶5. (U) Any inquiries on this subject should be referred to the Bureau of International Security and Nonproliferation (PoC: Richard Buenneke, 1-202-647-3731; buennekerh@state.gov). RICE