If the White House decides to accept an international code of conduct for outer space activities, could it made that code a form of international law? (credit: J. Foust) Customary international law: A troublesome question for the Code of Conduct?

The first publically released draft of the International Code of Conduct (the Code) represents a significant evolution from the former EU Code of Conduct, which failed to garner international support and was abandoned in 2012. The present form of the Code has addressed many of the shortcomings and bears little resemblance to its predecessor. Combined with the EU utilizing the United Nations Institute for Disarmament Research (UNIDIR) as a backdrop for promoting and facilitating the effort to gather potential signatories, the effort for the Code is substantially larger in scope than the original effort by the EU Council. 1 Despite these efforts there is still concern about the Code and whether the major spacefaring nations will sign on. Considering it was the reluctance of the United States to sign on the EU Code of Conduct that contributed to its demise, the question of whether the United States will sign onto the Code is a compelling one. There are many issues to be addressed in the current draft of the Code, but one concern that could be a factor for the United States is whether the Code could become customary international law if it signs on to the measure. The Code and its effect on United States law To establish whether the United States could inadvertently create customary international law by adopting the Code, it is essential to understand the legal standing of the Code, and how it would be implemented into the legal structure of the United States. The Code is what is termed in international law as a transparency and confidence-building measure (TCBM). TCBMs are part of the legal and institutional framework supporting military threat reductions and confidence-building among nations. TCBMs are recognized by the United Nations as mechanisms that offer transparency, assurances, and mutual understanding among states and they are intended to reduce misunderstandings and tensions. TCBMs also promote a favorable climate for effective and mutually acceptable paths to arms reductions and non-proliferation. There are many issues to be addressed in the current draft of the Code, but one concern that could be a factor for the United States is whether the Code could become customary international law if it signs on to the measure. When applied to space, TCBMs can address other activities beyond those performed by the military or those performed for national security reasons. TCBMs promote transparency and assurance between states, but they do not have the legal force of treaties and states entering into them are bound only by a code of honor to abide by the terms of the instrument. TCBMs are considered a top-down approach to addressing issues; they are not intended to supplant disarmament accords but are intended as a stepping-stone to legally enforceable instruments. 2 The non-legal nature of the Code and TCBMs in general is of particular interest to the Obama Administration because it allows the Executive Branch to unilaterally address outer space security issues without the involvement of Congress. The Administration relies on the premise that the Code and TCBMs in general are recognized as a type of executive agreement called a “non-legal” agreement. 3 Non-legal agreements are political commitments or “gentleman agreements” entered into by the United States with foreign governments, over which the Executive Branch has long claimed the authority to enter into without Congressional authorization. The Executive Branch’s claim of unilateral authority over these types of agreements is based on the view that these agreements are political and not legal commitments and not subject to the same Constitutional constraints of entering into legally binding international agreements, which means that it lacks an express stipulation that it is intended to be non-legal in nature. 4 As it happens, Section 1.4 of the Code states explicitly that “Subscription to this Code is open to all States on a voluntary basis. This Code is not legally binding.” This provision is sufficient to establish that the Code is a non-legal, political agreement, which gives the Executive Branch exclusive authority to negotiate and enter into. Even though the Code is not intended to be legally binding on states in the international arena it could have a binding effect on a nation’s domestic law. Members of the United States Congress articulated this concern by relating to the now defunct EU Code of Conduct and the present Code in a letter to President Obama dated January 18, 2012. The letter, which was signed by Congressmen Michael Turner and Joe Heck and Senators John Kyl and Jeff Sessions, extended support for the administration’s decision not to sign on to the EU Code but at the same time expressed concern about then Secretary of State Hillary Clinton’s announcement that the United States intended to negotiate the current Code. (see “Congressional opposition to a Code of Conduct for space”, The Space Review, February 6, 2012) The letter expressed their concern that international policy derived from signing onto a non-binding code would require the Department of Defense and the intelligence community to implement regulations that would have a legally binding effect domestically and could influence both the national and economic security of the United States. The letter also contends that while the administration’s legal authority to unilaterally enter into a code is uncertain, the potential implications of regulations created to implement a code may involve the commercial sector, particularly in terms of the growing commercial space market and the jobs it creates. The authors of this letter make a valid point. The Executive Branch could require its agencies to implement or comply with the practices and political promises within an adopted Code and use regulations to achieve that end. Federal regulations are detailed rules created by executive agencies that outline how federal statutes legislated by Congress are implemented. Regulations created to meet the assurances of the Code would be applied to current statutes and not a statute created in response to the Code. 5 For example, one of the unknowns is how the Code will affect commercial space activities, especially in terms of future regulation. Commercial space transportation activities are under the jurisdiction of the Department of Transportation and specifically the FAA pursuant to Title 51, Chapter 509 of the United States Code. If assurances in the Code require that those activities meet certain standards, then the FAA would be required to implement new regulations. 6 The same holds true for the Department of Defense and the intelligence community in the United States. If their activities are implicated by the Code, the executive agencies that they operate under would be required to implement regulations that would affect their authorization statutes to meet the assurances made under the Code subject to any statutory limitations. All this means that if the Code is adopted by the United States, regulations from the Executive Branch and its agencies, which will be legally binding upon the agencies and non-governmental entities of the United States, will be implemented along with practices to fulfill assurances within the Code. The question is whether compliance with the assurances of the Code could inadvertently create customary international law. Customary international law and the Code Customary international law is defined as international obligations arising from established state practice, as opposed to obligations arising from formal written international treaties. It consists of two components. First, there must be a general and consistent practice of states. This does not mean that the practice must be universally followed; rather, it should reflect wide acceptance among the states particularly involved in the relevant activity. Second, there must be a sense of legal obligation, or opinio juris sive necessitatis. In other words, a practice that is generally followed but which states feel legally free to disregard does not contribute to customary law; instead, there must be a sense of legal obligation to the international community. States must follow the practice because they believe it is required by international law, not merely because that they think it is a good idea, or politically useful, or otherwise desirable. 7 The specter of the Code becoming customary international law is not a trivial matter. There are significant assurances in the Code that could be problematic for international space law and US space policy should it be deemed to be customary. The definition of customary international law is nuanced because not all states are equal when considering whether a state’s practice and opinio juris sive necessitatis reaches the level of customary international law. State practice and opinio juris sive necessitatis of states such as the United States, which holds a special place and position of prestige in the field of outer space activities, will be given more weight than a state that has a fledgling space program and would be more likely considered to be customary international law than those of a state with a nascent space program. The specter of the Code becoming customary international law is not a trivial matter. There are significant assurances in the Code that could be problematic for international space law and US space policy should it be deemed to be customary. One problem could arise in the context of the Outer Space Treaty and specifically with Article IX. 8 Article IX is an elusive precept in the Outer Space Treaty in that it has yet to be put into practice and given customary usage. 9 The Code as drafted contains many requirements, specifically under Sections 5 and 6, that are synonymous with the requirements of Article IX. If the assurances in Sections 5 and 6 of the Code are regarded as customary international law through practice by the subscribing states to the Code, then those practices could inadvertently reach across the threshold and establish an international customary practice of the application of Article IX by not only subscribing states of the Code but also non-subscribing states and those who are parties to the Outer Space Treaty. This means that the potential exists for what was supposed to be a non-legally binding measure to affect a legally binding international treaty that is the foundation of international space law. Another concern is the effect a transformed Code could have on the national space policy of the United States specifically with the use of TCBMs. 10 Pursuant to the National Space Policy of 2010, the United States is engaged in multilateral discussions with the Group of Governmental Experts to use TCBMs to address outer space security issues. 11 If the United States adopted the Code and it were to become customary international law, any TCBMs that the United States entered into per the National Space Policy could become customary international law as well. This means that in its attempt to engage outer space security issues in a non-binding manner, the United States could inadvertently create binding customary international law, which would give Congress leverage to insist that it be involved in the further negotiation and approval of TCBMs. This would take away political leverage away from Obama Administration, invalidate this avenue of American space policy, and require reconsideration of its National Space Policy towards outer space security. Whether the assurances and principles advocated in the Code implemented by the United States through practices and domestic regulations could reach the level of customary international law is answered by applying the test established by the 11th Circuit of the United States Circuit Court of Appeals. 12 The first prong of the test argues in favor of customary international law in that the practice of the principles in the Code by the United States would reflect the wide acceptance of the practice by the other subscribing states to the Code. The practice of the principles within the Code by the United States would be given special emphasis taking into consideration the place of position and prestige that it has in outer space activities. The second prong of the test for customary international law, which is whether the United States would have a sense of opinio juris sive necessitatis towards the Code, is less favorable for customary international law. The question of the United States’ opinio juris sive necessitatis is two-tiered: Whether the US would have a sense of international legal obligation when employing the principles of the Code into practice, and whether the Executive Branch’s action of promulgating regulations that are legally binding to the domestic agencies and non-governmental entities under its jurisdiction would represent an intent to show international legal obligation. The short answer to both questions is no. The United States would enter into the Code with the specific understanding that the assurances within the Code are political promises and not legally binding obligations to the international community. The use of legally binding domestic regulations by the Executive Branch to bring its domestic agencies and non-governmental entities into compliance with the Code would not rise to the level of acknowledging an international legal obligation. The Code’s non-legal nature means that the assurances and principles are not self-executing and there would not be an automatic international legal obligation, nor would the Congress have to create new federal statutes to implement the Code’s assurances, which means that that the legal effect of any regulations instituted because of the Code would be to reinforce and clarify existing federal statutes. These regulations would reflect the position that the United States finds compliance with the Code is a good idea, is politically useful, or otherwise desirable. 13 Taking into account the standing of the United States in outer space activities, an acknowledgement like this would not support an interpretation of customary international law. The question of customary international law and the Code may turn out to be a non-issue, but in the world of geopolitics with states angling to gain an advantage the rule of unintended consequences cannot be overlooked. The likelihood of the Code morphing into customary law is slim without the influence of states like the United States providing a core intention to make the Code a legally binding international obligation through its practices and opinio juris sive necessitati. 14 However, the United States and others may be still be hesitant to sign on to the Code if there is even a remote chance that the Code could spawn customary international law. States with less developed outer space capabilities might try to press the issue that the Code does create customary international law, and even though such a claim would likely be ineffective, it still presents uncertainty when assessing whether or not to sign onto the Code. If the true intent of the EU Council is for the Code to be a non-binding measure, then the solution to alleviate this uncertainty is to preemptively negate a claim by a subscribing state or any potential scenario where the Code could make the leap into the realm of customary international law by redrafting Section 1.4 of the Code to read as follows: 1.4 Subscription to this Code is open to all States, on a voluntary basis. • The Subscribing States will adhere to the principles and precepts of the Code because they believe that it is desirable to further the preservation of outer space for all nations. • The Code is not intended to be legally binding and does not have legal standing of an international treaty, executive agreement or any other legally binding instrument nor is the Code intended to become the precursor to any legally binding instrument. • The Code’s precepts and principles are not intended to become customary international law. The general and consistent practice of the Code’s precepts and principles by the Subscribing States and a Subscribing State’s use of domestic regulation in furtherance of its adherence to the Code’s precepts and principles and assurances will not be considered the acceptance that the precepts and principles of Code create an obligation under international law. This modification or one similar to it would eliminate uncertainty regarding the internationally legally binding nature of the Code whether expressly or through custom. Conclusion Whether the Code is adopted by the United States may turn on many issues aside from the issue of customary international law. The question of customary international law and the Code may turn out to be a non-issue, but in the world of geopolitics with states angling to gain an advantage the rule of unintended consequences cannot be overlooked. Addressing the issue proactively would eliminate a potential game-changer for an implemented Code and boost confidence for those states sitting on the fence. Endnotes 1 One of the issues of the EU Code of Conduct revolved around logistics. The EU Council lacked the resources and experience to facilitate an international undertaking like the Code. When the International Code of Conduct was announced, the EU Council outlined three specific projects to be undertaken: outreach activities promoting the proposal for an international Code of Conduct for outer space activities, the organization of up to three multilateral experts’ meetings to discuss the proposal for an international Code of Conduct, and the coordination of a consortium of non-governmental experts. The EU Council allocated €1.49 million (US $1.85 million) to sub-contract with the United Nations Institute of Disarmament Research (UNIDIR) to facilitate these technical performance of these projects. 2 See generally, Andrey Makarov, Transparency and Confidence-Building Measures: Their Place and Role in Space Security, Security in Space: The Next Generation-Conference Report, 31 March-1 April 2008, United Nations Institute for Disarmament Research (UNIDIR), 2008 for a discussion about TCBMs and their role in outer space security. 3 There are three types of legal Executive Agreements: Congressional executive agreements, executive agreements made pursuant to an earlier treaty and sole executive agreements. Unlike a non-legal agreement, each of these agreements are legally binding at the international level. See Michael John Garcia, International Law and Agreements: Their Effect Upon U.S. Law, March 1, 2013, pp. 3–5, available at http://www.fas.org/sgp/crs/misc/RL32528.pdf 4 There are other factors used to determine whether or not an agreement is intended to be legally binding or not, including the form of the agreement and the specificity of its provisions. See Id. at p. 6. 5 Congress took preemptive steps to address the potential regulatory effect on the national security of the United States by adopting a measure such as the Code when it passed H.R. 4310. H.R. 4310 requires the President and the Secretary of Defense to give assurances and notifications prior to negotiating a measure synonymous to the Code as well as other conditions. See generally, Michael J. Listner, “Separation of powers battle continues over the Code of Conduct”, The Space Review, January 7, 2013, available at http://www.thespacereview.com/article/2215/1. 6 There is a question as to whether an assurance made under the Code could require the Secretary of Transportation to implement regulations under Title 51, Chapter 509 to affect commercial space activities. 51 U.S.C. §50919(e)(1) requires that the Secretary of Transportation “…carry out this chapter consistent with an obligation the United States Government assumes in a treaty, convention, or agreement in force between the Government and the government of a foreign country...” The issue is whether the Code, which is a non-legal agreement, would be considered “an agreement” for purposes of this statute. If “an agreement” equates to a legally binding executive agreement and not a non-legal agreement, commercial space activities under Title 51, Chapter 509 may be immune if the Code is adopted by the United States, unless Congress amends the law. This would be an unlikely scenario given the current Congress’ concern as articulated in the January 18, 2012 letter. See Michael J. Listner, “Regulatory effects of the International Code of Conduct on commercial space”, The Space Review, http://thespacereview.com/article/2470/1. 7 This definition of customary international law was articulated by the 11th Circuit Court of Appeals in United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1252 (11th Cir. 2012). The definition of customary international law pronounced by the 11th Circuit in this case is unanimous throughout the Federal Circuit Court of Appeals. 8 Article IX states that “In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.” 9 Japan invoked Article IX of the Outer Space Treaty for the first time shortly after China’s ASAT test in 2007; however, that one use of Article IX did not necessarily establish customary practice. Compare this to the intercept of USA 193, where the United States consulted with COPUOS before it intercepted its wayward satellite but did not invoke Article IX because it determined the nature of the intercept did not require Article IX to be raised. Whether the United States inadvertently created a customary practice regarding Article IX, specifically as to when it need not be invoked, depends on whether the United States intended that decision to be a legally binding international practice. Absent that intent, its decision will have no binding effect under customary international law. 10 The National Space Policy of 2010 reads in part that “[t]he United States will pursue bilateral and multilateral transparency and confidence-building measures to encourage responsible actions in, and the peaceful use of, space. The United States will consider proposals and concepts for arms control measures if they are equitable, effectively verifiable, and enhance the national security of the United States and its allies.” See National Space Policy of the United States, June 28, 2010, p. 6, available at http://www.whitehouse.gov/sites/default/files/national_space_policy_6-28-10.pdf. 11 See generally Michael J. Listner, TCBMs: A New Definition and New Role for Outer Space Security, July, 2011 available at http://www.defensepolicy.org/michlis/tcbms-a-new-definition-and-new-role-for-outer-space-security 12 See United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1252 (11th Cir. 2012) 13 See Id. 14 The two wildcards in this analysis are the People’s Republic of China (PRC) and the Russian Federation. Both have expressed doubts (and in some cases disdain) for the Code. The rationales for their objections are varied with many being political, but the root of their objections lie in the fact the Code is not intended to be legally binding. Both countries co-sponsored the Treaty on the Prevention of the Placement of Weapons in Outer Space (PPWT), which is currently languishing in the Conference of Disarmament (CD). The PPWT has limited support and its prospects to become binding international law are not good. However, if both countries subscribed to the Code and implement its practices and assurances, they would both be in a good position to make the case that the Code meets the standard of customary international law. As discussed before, this would put the space policy of the United States with regards to TCBMs in jeopardy and effectively back it into a legal and geopolitical corner. The flip side is that if either or both the PRC and the Russian Federation made the case that the Code meets the standard of customary international law, they would both be affected by the Article IX issues as they are both signatories to the Outer Space Treaty. See generally Michael J. Listner, Geopolitical Challenges to Implementing the Code of Conduct for Outer Space Activities, June 26, 2012, available at http://www.e-ir.info/2012/06/26/geopolitical-challenges-to-implementing-the-code-of-conduct-for-outer-space-activities/ (for a discussion on the geopolitical challenges to the acceptance of the Code). 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