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military threat reductions and confidence-building among nations. TCBMs
are recognised by the UN as mechanisms that offer transparency, assurances
and mutual understanding among states and they are intended to reduce
misunderstandings and tensions. TCBMs also promote a favourable climate
for effective and mutually acceptable paths to arms reductions and nonproliferation.
When applied to space activities, TCBMs can address other space activities
outside of 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 honour 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
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intended more as a stepping stone to legally enforceable instruments.
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
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“non-legal” agreement. 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 authorisation. 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
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stipulation that it is intended to be non-legal in nature. As it happens, §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.
This concern was articulated by members of the United States Congress
54 | Awaiting Launch: Perspectives on the Draft ICoC for Outer Space Activities