This week, commercial imagery revealed more on China’s extensive high-altitude military balloon and blimp program. Experts believe that the purpose of this program is to complement or substitute for Chinese military satellites if they should be disabled in future space combat.

Is overflying other states with these systems illegal? Or are overflights of high-altitude balloons permissible if they’re “high enough?” What do international space rules have to say?

And what about nuclear arms in space?

The Outer Space Treaty prohibits orbiting nuclear weapons. Does this include satellites armed with nuclear weapons that don’t complete an orbit — such as fractional orbiting bombardment systems that the Russians and Chinese have developed? Are weapons in space banned per se? What about putting nuclear weapons on the moon?

These questions and other legal military space issues are non-trivial, especially if they might be in dispute. To help clarify just what space laws have to say, NPEC commissioned Laura Montgomery, adjunct professor of space law at Catholic University’s Columbus School of Law, proprietor of Ground Based Space Matters, LLC, and former manager of the Federal Aviation Administration’s Space Law Branch.

Some of Ms. Montgomery’s findings in her piece, “The Outer Space Treaty and Prohibited Military Space Activities,” are surprising. She notes, for example, that the Outer Space Treaty, properly read, ought to prohibit fractional orbiting bombardment systems, even though the Pentagon and Beijing say they are permitted. Equally surprising is her insight that placing and detonating a nuclear explosive in low-Earth orbit may be legal for states that have not agreed to the Limited Threshold Test Ban Treaty (e.g. China and North Korea) so long as they don’t place a nuclear weapon into full orbit.

These and more of Ms. Montgomery’s observations suggest ways in which we not only may be surprised in the future, but have options to act that we didn’t otherwise think we had. For anyone interested in space policy, her brief, legal analysis is a must reading.

 

 

 

The Outer Space Treaty and Prohibited Military Space Activities

Laura Montgomery

 

The Outer Space Treaty of 1967[1] (the “Outer Space Treaty” or the “Treaty”) was entered into during the height of the Cold War and during the space race to the Moon between the United States and the Soviet Union. The Treaty establishes the basis for a legal regime governing the activities of nation-states, referred to as “States Parties” throughout the Treaty, in outer space.[2] Under Article XIII, the Treaty applies “to the activities of States Parties to the Treaty in the exploration and use of outer space.” As the U.S. Secretary of State, Dean Rusk, explained in his statement to the Senate, “[t]he treaty is not complete in all possible details. It does not deal with all problems that may develop. But it is responsible to those problems that can be described and forecast today.”[3] This assessment focuses on whether and how the Treaty prohibits military activities in outer space, with an eye toward determining which are clear and which are ambiguous.

In summary, it is clear that States party to the Treaty may not place nuclear weapons or other weapons of mass destruction in a full orbit around the Earth. They may deploy intercontinental ballistic missiles (“ICBMs”) armed with nuclear warheads. Although the weight of opinion of two major spacefaring nations appears to be that fractional orbital bombardment systems armed with nuclear warheads comply with the Treaty, one may argue that that conclusion is not certain. States party to the Treaty may place weapons that are neither nuclear nor WMD in orbit, on celestial bodies, including the Moon, or otherwise in outer space. Similarly, there is no Treaty prohibition on military reconnaissance, communications, or navigation satellites. The Treaty requirement to use celestial bodies exclusively for peaceful purposes allows for self-defense. Space between Earth and the Moon does not fall under this requirement, so it need not be used exclusively for peaceful purposes. Parties to the Treaty undertake not to establish military bases, installations, or fortifications and to abstain from testing any type of weapon or conducting military maneuvers on celestial bodies. The U.S. position identifies the Moon as a celestial body for purposes of this prohibition, but, again, that is arguably ambiguous. States Parties to the Treaty may verify treaty compliance on the Moon and other celestial bodies. Access requires reciprocity, advanced notice, consultations, safety precautions, and avoiding interference in the operation of a facility accessed. If two countries were at war, the U.S. position appears to be that the Treaty would not apply as between the two belligerents.

 

I. Basic rules for interpreting the Outer Space Treaty

A. A treaty’s language governs its interpretation

The Outer Space Treaty addresses a host of activities that a country may carry out in outer space and includes military activities amongst those it governs. Few if any court opinions address the Outer Space Treaty, which means that anyone seeking to interpret its meaning must rely on the text. Where the text is ambiguous, a reader may look to the treaty’s drafting history to ascertain the intent behind unclear language.

This approach to interpretation is rooted in the law of the United States. For example, the first step relies on the rubric that the language of a treaty tells us what the treaty means. When interpreting a treaty, the Supreme Court explained that the treaty’s unambiguous text governs its interpretation, regardless of the treaty’s drafting history.[4] In the same case in which the Supreme Court applied this rule, it also pointed out that where the treaty language is clear, the court may not “insert an amendment.”[5] In other words, a reader may not assume that the plain language of a treaty has somehow lost its effectiveness or contains a provision not present in writing because doing so might suit that reader’s own purposes.

Only if a treaty provision is ambiguous will the courts consult the drafting history to help understand its meaning.[6] For example, although the court in Narayanan pointed out that the treaty’s drafting history leant support to the court’s interpretation, the court made sure to first disavow the need to even look at that history.[7]

 

[1]. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the “Outer Space Treaty”), Jan. 27, 1967, 610 U.N.T.S. 205 (adopted by the General Assembly in its resolution 2222 (XXI) and entered into force on 10 October 1967.

[2]. Treaty on Outer Space: Hearing before the Comm. on Foreign Relations of the U.S. Senate, 4, 90th Cong. (1967).

[3]. Treaty on Outer Space: Hearing before the Comm. on Foreign Relations of the U.S. Senate, 4, 90th Cong. (1967).

[4]. Chan v Korean Air Lines, 490 U.S. 122, 134 (1989); Narayanan v British Airways, 747 F3d 1125, 1131 (9th Cir. 2014).

[5]. Chan v Korean Air Lines, 490 U.S. 122, 134 (1989)(finding courts should read international agreements without “alter[ing], amend[ing], or add[ing] to any treaty, by inserting any clause, whether small or great, important or trivial”); Narayanan v British Airways, 747 F3d 1125, 1129 (9th Cir. 2014) (“Plaintiffs effectively ask us to write an implied fourth trigger into the Convention’s terms. This we cannot do.”).

[6]. Chan v Korean Air Lines, 490 U.S. 122, 134 (1989); Narayanan v British Airways, 747 F3d 1125, 1131 (9th Cir. 2014) (Where the language is unambiguous, a court need not assess a treaty’s drafting history).

[7]. Narayanan v British Airways, 747 F3d 1125, 1131 (9th Cir. 2014) (Where the language is unambiguous, a court need not assess a treaty’s drafting history).

 

To view the full occasional paper click here.