37 International Code of Conduct on Outer
Space Activities
| Committee's assessment
| Politically important |
| Committee's decision | (a) Cleared from scrutiny; further information requested (decision reported on 23 May 2012) (33884); (b) Cleared from scrutiny; further information requested (decision reported on 22 January 2014) (35714)
|
| Document details | Council Decisions on EU participation in drawing up an International Code of Conduct on Outer Space Activities
|
| Legal base | —
|
| Department | Foreign and Commonwealth Office
|
Summary and Committee's conclusions
37.1 The Council Decision that the Committee cleared
in 2012 and 2014 provided funding for and authorized the EEAS,
with administrative support from the United Nations Institute
for Disarmament Research (UNIDIR), to hold a series of meetings
involving all 71 members of the UN Committee on the Peaceful Uses
of Outer Space, with a view to developing a voluntary Conduct
for Outer Space Activities.
37.2 In his latest update, the Minister for Europe
(Mr David Lidington) emphasises the UK's dependency on space-based
technologies for a wide range of services that affect our daily
lives. Despite the ongoing delay, the Minister continues to believe
that the EU-led Code of Conduct, although not legally binding,
would play a key role in delivering international co-operation
for a safe, secure and sustainable space environment — a
political commitment to agreed norms of responsible behaviour
in outer space that would serve as a basis for future space management
initiatives; a series of transparency and confidence building
measures; and — with a space sector currently worth over
£9 billion annually to the British economy and ambitions
to raise this further to £40 billion by 2030 — the
well-managed level playing field in outer space that is increasingly
important to UK industry.
37.3 But there is still work to be done: the Minister
reports that the latest round of multilateral consultations on
the draft Code, hosted by the EU in Luxembourg, continued the
trend of increasingly constructive discussions, leaving noticeably
fewer unresolved substantive issues. Whilst not the preferred
route for all, a large number of states are calling for formal
multilateral negotiations on the draft Code, which the Minister
believes would most likely attract wider support for the initiative
and where, given the role it has played in developing the Code,
the EU is the best candidate to host the negotiations. However,
mindful that some states wish to see the UN playing a key role,
the EU is currently considering a number of UN institutions as
possible partners for delivery of the negotiating conference,
with a view to them then hosting the Secretariat for the Code
when it is opened for subscription. The Government is currently
considering the detail of this proposal, but believes that an
EU-hosted negotiating conference with UN involvement should allow
the EU and its Member States to retain sufficient control to ensure
that the Code is finalised in a timely manner whilst generating
support from those states uncomfortable with a process taking
place outside of the UN framework.
37.4 With regard to the way forward, the Minister
notes that the EU has the authority under CFSP to speak or make
decisions about the Code on the basis of consensus amongst its
Member States; to consult with third parties; and to convene multilateral
consultative events. But he also notes that, although the EEAS
is facilitating the process and providing a forum for discussion,
the text itself is being developed by EU Member States, under
the principle of unanimity, and EU Member States are participating
in all consultation meetings in their own right:
"the EEAS is not presenting a position
on behalf of either the EU or its Member States at these meetings.
The EU does not have the authority to negotiate a final text on
Member States' behalf. As things stand, EEAS' mandate will have
been fulfilled once the next revised draft of the Code has been
published."
37.5 The Minister confirms that another Council Decision
will be needed in order to take the Code to the next phase of
negotiation, which he hopes to be able to submit for scrutiny
in the near future; he says that it is not envisaged that the
EU will seek to increase its role beyond facilitation, but his
officials are alert to any move to do so.
37.6 The Minister sees value in the EU having a role
in the Code once it is open for subscription (as its main architect,
and given its own space interests), and the current provisions
within the text of the Code are in line with the General Arrangements:[151]
"It would not preclude the UK from subscribing
independently, nor from taking an active role in the management
of the Code if we wished to do so. I do not believe that there
are currently any issues concerning EU competence or external
representation."
37.7 Our major concern since this proposal first
emerged over two years ago has been ensuring that, in this process
whereby Member States were essentially sub-contracting the process
to the EEAS, the latter does not over-reach themselves, and that
instead Member States remained in control. In that regard, all
would seem to continue to be in good order thus far.
37.8 We now look forward to the next Council Decision,
when we ask that the Minister explain clearly and fully the roles
of the EU and the UN in negotiating the Code; what role the UN
will have in administering the Code; and what the EU's and the
Member States' position will be once the Code it is open for subscription.
37.9 In response to our question about the review
conducted into how the FCO handles Scrutiny Committee Correspondence,
we note that we have not encountered any further such oversights
since (as the Minister puts it) his officials have improved how
they track requests for further information; and hope that this
will remain the case.
Full
details of the documents:
(a) Council Decision 2012/281/CFSP in support of the EU proposal
for an International Code of Conduct on Outer Space Activities:
(33884),—; (b) Draft Council Decision amending Decision
2012/281/CFSP: (35714), —.
Background
37.10 Article 26(2) TEU says:
"The Council shall frame the common foreign
and security policy and take the decisions necessary for defining
and implementing it on the basis of the general guidelines and
strategic lines defined by the European Council."
37.11 On 28 October 2010, the Council adopted Conclusions
that:
— recalled its aim of strengthening the
security of activities in outer space in the context of expanding
space activities that contribute to the development and security
of states;
— noted that the European Union's space
policy can contribute towards this objective; and
— invited the High Representative of the
Union for Foreign Affairs and Security Policy (HR) to pursue consultations
with third countries on the basis of a revised draft for a Code
of Conduct for Outer Space Activities which had been established
in the light of wide consultations with "space faring nations".
37.12 The Conclusions said that all States were to
be invited to adhere on a voluntary basis to the Code, which includes
transparency and confidence-building measures; and that in the
upcoming consultations, the High Representative would engage with
third countries that have an interest in outer space activities,
with the aim of establishing a text that is acceptable to the
greatest number of countries and of adopting the Code of Conduct
at an ad-hoc diplomatic conference.[152]
37.13 In May 2012, the Committee considered what
became Council Decision 2012/281/CFSP (document (a)). This authorized
the EEAS, with administrative support from the United Nations
Institute for Disarmament Research (UNIDIR), to hold a series
of meetings involving all 71 members of the UN Committee on the
Peaceful Uses of Outer Space; UNIDIR would also conduct a range
of associated supporting activities. The EU's ultimate aim was
for the Code to be formally opened for signature at an ad hoc
diplomatic conference in mid-2013. The estimated total was €1,490,000
(or 0.4% of the CFSP budget).
37.14 The only wrinkle was the one to which the Minister
for Europe (Mr David Lidington) drew attention, viz., ensuring
that, in this process whereby Member States were essentially sub-contracting
the next stage to the EEAS, the latter did not over-reach themselves,
and that instead Member States remained in control. So, in clearing
the Council Decision, the Committee asked the Minister to write
in good time before the proposed ad hoc diplomatic "signature"
conference, to permit any questions arising to be pursued prior
to it, with an update containing his overall views on the Code
as it then stood and what the prospects were for its adoption,
and illustrating how Member States' competence had continued to
be preserved.[153]
37.15 Some 18 months later, the Minister finally
did so, confirming that all was well on this latter front (see
paragraph 14.17 of our most recent previous Report).[154]
But he also said that the Code itself had "suffered from
a lack of consistent drive from within the EU" and "a
lack of capacity in the EEAS to complete the programme in the
time permitted by the original Council Decision". However,
in recent months the process had gathered positive momentum and
credibility. Despite some remaining issues to be resolved, a Code
of Conduct was broadly supported in principle. The last multilateral
meeting (in Bangkok on 20-22 November 2013) had seen over 60 states
"engage in a constructive and positive discussion over the
substance of the proposed Code". There was now "an expectation
among many states that a further multilateral experts meeting
would be useful and necessary".
37.16 The existing mandate only permitted the EEAS
to work with the UNIDIR until the end of November 2013. Even though
the EEAS appeared to have been less concerned than the Minister
about the dangers of delays to this process, it seemed that the
Code of Conduct was preferable to any possible alternative. No
additional money was involved; the further Council Decision (document
(b)) simply amended document (a) to extend the period in which
the EEAS could work with UNIDIR, in order to hold a final "open-ended
consultation" in the first half of 2014. The Committee therefore
cleared it from further scrutiny.
37.17 Thereafter, the Minister said, it was hoped
that the Code of Conduct would be in a position to be taken into
formal negotiation and adoption. The draft Conclusion asked him
to provide a further update once this initial phase had finally
been concluded, particularly with regard to the proposed way forward.
He noted that the EEAS were presently contemplating handing over
leadership thereafter to an appropriate UN organisation to see
the Code through to adoption and signature, and that he was "pushing
the EEAS to clarify their thinking on their role thereafter, and
their criteria for such a transition".
37.18 The Minister was very apologetic about the
delay in writing. He said that this seemed to have been caused
by an administrative error; that "my officials are investigating
the reasons for this as a priority"; and that he had asked
them to review current practice to ensure that this problem did
not recur.
37.19 We asked the Minister to provide a further
update once this initial phase had been finally concluded, particularly
with regard to the proposed way forward. We noted that the EEAS
was contemplating handing over leadership of the Code of Conduct
thereafter to an appropriate UN organisation, to see the Code
through to adoption and signature, and that the Minister was "pushing
the EEAS to clarify their thinking on their role thereafter, and
their criteria for such a transition". We asked the Minister
to ensure that this was dealt with in his update, particularly
given his view in 2012 that any such move would run the risk of
the Code being subsumed into something less desirable.
37.20 Although in this instance no harm was done,
we asked the Minister nonetheless also to include in his update
a report on how current practice within the FCO scrutiny process
had been changed to ensure that such delays did indeed not recur.
37.21 We also noted that any proposed activity following
the completion of the current round of experts' meetings would
require a fresh Council Decision with full scrutiny.[155]
The Minister's letter of 17 July 2014
37.22 The Minister says that, as well as answering
our questions, he is also taking the opportunity "to apprise
you of plans for a future Council Decision that would take the
initiative into its next, and hopefully final, stage of development".
37.23 The Minister continues as follows:
"As I have previously set out, the UK's
dependency on space-based technologies is rapidly increasing.
We rely on them for a wide range of services that affect our daily
lives. In 2010, the National Security Strategy identified severe
disruption to space-based services as a Tier 2 risk to the security
of the UK, placing it in the same category as the risk of an attack
on the UK using chemical, biological, radiological or nuclear
weapons. The threats to such capabilities, be it by accidental
damage caused by debris or by a deliberate attack, are real and
growing. They are not threats that the UK can address alone."
37.24 The Minister then refers to UK policy on space
security:
"The UK's first National Space Security
Policy was published in April, and set out how we intend to achieve
continued access to space, mitigating the risks posed by state-sponsored
and criminal interference with satellites, severe space weather
events and the growing threat to satellite operations from space
debris. It makes clear that maintaining and enhancing our already
close co-operation with international partners is fundamental
to our space security objectives. The UK has recently signed a
Combined Space Operations Agreement with America, Canada and Australia
to share expertise and resources, and therefore the financial
burden, dedicated to outer space operations."
37.25 With regard to the proposed Code of Conduct,
the Minister says:
"We continue to believe that the EU-led
Code of Conduct, although not a legally binding document, would
play a key role in delivering international co-operation for a
safe, secure and sustainable space environment. It would provide
a political commitment to agreed norms of responsible behaviour
in outer space that would serve as a basis for future space management
initiatives. It would deliver a series of transparency and confidence
building measures, such as notifications of activities, information
exchanges and consultations, and a mechanism for analysing incidents,
and was highlighted in the report of the UN Group of Government
Experts in October 2013. Importantly, it would bridge both military
and civilian uses of outer space.
"With a space sector currently worth over
£9bn annually to the British economy and ambitions to raise
this further to £40bn by 2030, a well-managed level playing
field in outer space is increasingly important to UK industry.
It remains the Government's view that the Code of Conduct would
make an important contribution to achieving this."
37.26 Turning to progress and the way forward,
the Minister says:
"The latest round of multilateral consultations
on the draft Code, hosted by the EU in Luxembourg has now been
concluded. The event continued the trend of increasingly constructive
discussions on the Code. Although there are still a number of
substantive issues to be resolved these are now noticeably fewer
in number.
"Multilateral experts' meetings, such as
Luxembourg, have been invaluable in building awareness and support
for the draft Code and in ensuring that it meets the expectations
of all interested states, not just those within the EU. They have
now broadly achieved their aims and a decision is needed on how
to move beyond consultations to the final delivery of the Code.
"Whilst not the preferred route for all,
a large number of states are calling for formal multilateral negotiations
on the draft Code. It is important to the UK that the Code gains
broad support from around the world from states at different stages
of their space-faring development. It is the Government's opinion
that moving to a phase of negotiations would most likely attract
wider support for the initiative.
"The EU has proposed convening a multilateral
conference to negotiate the final Code on the basis of the text
developed so far (once adjusted to reflect suggestions made at
Luxembourg). Given the role it has played in developing the Code,
we believe that the EU is the best candidate to host the negotiations.
The EU, and the Government, is nonetheless mindful that some states
wish to see the UN playing a key role. The EU is therefore currently
considering a number of UN institutions as possible partners for
delivery of the negotiating conference with a view to them then
hosting the Secretariat for the Code when it is opened for subscription.
"The Government is currently considering
the detail of this proposal, but believes that an EU-hosted negotiating
conference with UN involvement should allow the EU and its Member
States to retain sufficient control to ensure that the Code is
finalised in a timely manner whilst generating support from those
states uncomfortable with a process taking place outside of the
UN framework."
37.27 Then, concerning the preservation of Member
States' competence, the Minister comments as follows:
"The EU has the authority under CFSP to
speak or make decisions about the Code on the basis of consensus
amongst its Member States; to consult with third parties; and
to convene multilateral consultative events. Although the EEAS
is facilitating the process and providing a forum for discussion,
the text itself is being developed by EU Member States, under
the principle of unanimity, and EU Member States are participating
in all consultation meetings in their own right — the EEAS
is not presenting a position on behalf of either the EU or its
Member States at these meetings. The EU does not have the authority
to negotiate a final text on Member States' behalf. As things
stand, EEAS' mandate will have been fulfilled once the next revised
draft of the Code has been published.
"As you have noted in your report another
Council Decision will be needed in order to take the Code to the
next phase of negotiation and we hope to be able to submit this
to you for scrutiny in the next couple of months. It is not envisaged
that the EU will seek to increase its role beyond facilitation,
but my officials are alert to any move to do so. The draft Council
Decision has not yet been published but the UK, along with France
and Germany, are encouraging this to be taken forward quickly
so as to allow sufficient time for consideration. Once we have
received the draft Decision formally, I will of course submit
it for your scrutiny in the usual way.
"We see value in the EU having a role in
the Code once it is open for subscription (as its main architect,
and given its own space interests), and the current provisions
within the text of the Code are in line with the General Arrangements.
It would not preclude the UK from subscribing independently, nor
from taking an active role in the management of the Code if we
wished to do so. I do not believe that there are currently any
issues concerning EU competence or external representation."
37.28 Finally, with regard to the review conducted
into how the FCO handles Scrutiny Committee Correspondence, the
Minister says:
"my officials have further improved how
we track information requests. They continue to send out regular
reminders to policy leads in order to ensure deadlines are met
and if there is a reason for a delay, such as where strategic
reviews of CSDP missions are postponed, my officials notify the
Clerks and request deadline extensions.
"My officials are always willing to discuss
with the Committee's Clerks how our systems could be further improved."
Previous
Committee Reports
Thirty-first Report HC 83-xxviii (2013-14), chapter
14 (22 January 2014) and Third Report HC 86-iii (2012-13), chapter
14 (23 May 2012).
151 The Lisbon Treaty removed the distinction between
the EU and the EC and conferred "the EU" with legal
personality. It also led to the replacement of the Rotating Presidency's
role in the conduct of the CFSP by the High Representative, assisted
by the External Action Service, and the replacement of the former
Commission and Council Delegations by unified EU Delegations.
This meant that to continue to agree statements "on behalf
of the EU", regardless of the actual breakdown of competence
in the issues covered by the statement, could imply that there
was EU competence on areas where competence in fact lay with the
Member States. Therefore, on the initiative of the UK, the General
Arrangements were agreed in 2011, whereby:
· The EU can only make a statement
in those cases where it is competent and there is a position which
has been agreed in accordance with the relevant Treaty provisions;
· External representation and internal
coordination does not affect the distribution of competences under
the Treaties nor can it be invoked to claim new forms of competences;
· Member States and EU actors will
coordinate their action in international organisations to the
fullest extent possible as set out in the Treaties;
· The EU actors and the Member
States will ensure the fullest possible transparency by ensuring
that there is adequate and timely prior consultation on statements
reflecting EU positions to be made in multilateral organisations;
· Member States agree on a case
by case basis whether and how to co-ordinate and be represented
externally. The Member States may request EU actors or a Member
State, notably the Member State holding the rotating Presidency
of the Council, to do so on their behalf;
· Member States will seek to ensure
and promote possibilities for the EU actors to deliver statements
on behalf of the EU;
· Member States may complement
statements made on behalf of the EU whilst respecting the principle
of sincere cooperation;
· EU representation will be exercised
from behind an EU nameplate unless prevented by the rules of procedure
of the forum in question;
· EU actors will conduct local
coordination and deliver statements on behalf of the EU unless
prevented by the rules of procedure of the forum concerned (default
setting).
Where practical arrangements such as
those at the World Trade Organisation, at the Food and Agricultural
Organisation and in burden sharing exist for coordination and/or
representation, such arrangements will be implemented for the
preparation and delivery of the statement on behalf of the EU
from behind the EU nameplate. For the Committee's consideration
of the General Arrangements, see Fifty-fourth Report HC 428-xlix
(2010-12), chapter 18 (1 February 2012). Back
152
The Conclusions, preamble and draft Code of Conduct are available
at http://www.consilium.europa.eu/uedocs/cmsUpload/st14455.en10.pdf.
Back
153
See Third Report HC 86-iii (2012-13), chapter 14 (23 May 2012)
for full information, including the draft Code of Conduct. Back
154
See Thirty-first Report HC 83-xxviii (2013-14), chapter 14 (22
January 2014). Back
155
Thirty-first Report HC 83-xxviii (2013-14), chapter 14 (22 January
2014). Back
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