The Just Security Podcast

A New Guide to International Law and Military Activities in Outer Space

• Just Security • Episode 83

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Earlier this month, a SpaceX mission called Polaris Dawn launched four civilians into outer space. The crew completed the first ever “commercial spacewalk” while floating more than 800 miles above the Earth’s surface. But private companies aren’t the only ones interested in exploring the stars. Militaries are increasingly using space for a comparative advantage, from Russia’s plans to place a nuclear weapon into orbit to China’s development of anti-satellite weapons for the final frontier. 

And while these “new space races” are full of emerging technology, the law that governs outer space is decades old and incomplete. Much of it was developed in the 1960s and 70s. It remains murky and the legal guardrails, where they exist, are largely untested. 

Recently, experts from academia, industry, and government have published the Woomera Manual on the International Law of Military Space Activities and Operations. The Manual is the first comprehensive and detailed articulation of how international law applies to military operations in outer space.  

What motivated the project of drafting the Manual, and how was it developed? How might it benefit the future development of space law and where do gaps remain? 

Co-hosting this episode is Just Security’s Co-Editor-in-Chief, Tess Bridgeman. 

Joining the show to discuss the Woomera Manual are two of its editors, Jack Beard and David Koplow. Jack is a Professor of Law and the Director of the Space, Cyber, and National Security Law Program at the University of Nebraska College of Law. David is the Scott K. Ginsburg Professor of Law at Georgetown University Law Center where he specializes in public international law and national security law. 

Show Notes: 

Paras Shah: Earlier this month, a SpaceX mission called Polaris Dawn launched four civilians into outer space. They completed the first ever “commercial spacewalk” while floating more than 800 miles above the Earth’s surface. But private companies aren’t the only ones interested in exploring the stars. Militaries are increasingly using space for a comparative advantage, from Russia’s plans to place a nuclear weapon into orbit to China’s development of anti-satellite weapons for the final frontier. 

And while these new space races are full of emerging technology, the law that governs outer space is decades old and incomplete. Much of it was developed in the 1960s and 70s. It remains murky, and the legal guardrails, where they exist, are largely untested. 

Recently, experts from academia, industry, and government have published the Woomera Manual on the International Law of Military Space Activities and Operations. The Manual is the first comprehensive and detailed articulation of how international law applies to military operations in outer space.  

What motivated the project of drafting the Manual, and how was it developed? How might it benefit the future development of space law and where do gaps remain? 

This is the Just Security Podcast. I’m your host, Paras Shah. Co-hosting with me today is Just Security’s Co-Editor-in-Chief, Tess Bridgeman. 

Tess Bridgeman: Joining the show to discuss the Woomera Manual are two of its editors, Jack Beard and David Koplow. Jack is a Professor of Law and the Director of the Space, Cyber, and National Security Law Program at the University of Nebraska College of Law. David is the Scott K. Ginsburg Professor of Law at Georgetown University Law Center, where he specializes in public international law and national security law.  

Paras Shah: Jack, David, thank you so much for joining the show and congratulations on this massive achievement in publishing the Woomera Manual. Jack, I wanted to start by understanding what motivated this project, which has taken over six years and really is such an achievement. What did you have in mind when you first began work on the manual?

Jack Beard: Well, I think different people had different things in mind about what it would ultimately be, if you're going to have a lot of people working on something. I think that the subject matter is understudied. I think that states don't have much practical guidance. I think especially the Outer Space Treaty is not given the attention it deserves. And to the extent there's scholarship, there's a lot of scholarship from academics saying what they think law should be, and that's not so much of an interest to me, at least, because academics don't make international law. States do, and there didn't exist any real attempt to go through looking at how states are applying the rules that exist, and looking at all the different perspectives that states may have. 

And there's also a real shortage here. Our Manual covers space activities and operations during peace, times of tension, and during armed conflict. And there's been a real shortage of meaningful scholarship or state action, practice, about applying the law of armed conflict to space. So, there were a lot of things that were worthy of study and research and explanation. And that's how it began. 

David Koplow: I would just add that the idea of manuals that summarize the applicable international law in a new or contested area — that's now a thing. There are a number of efforts in recent years to try to describe the current status of what the law is, perhaps most prominently the Tallinn Manuals on cyber law, but there have been a number of others, and this sort of follows in that tradition. We were hoping that we could capture a neutral description of what the law currently is in a way that would be useful for practitioners in the United States and around the world. 

Jack: And in fact, as you hold up that Tallinn manual, we had a slightly different project, in the sense that cyber is still largely a wild west sort of thing. Very little agreement among states on many of the big rules, no guiding international agreement. With space law, actually have a guidebook, a framework, the Outer Space Treaty, and its implementing agreement. So, we tried to stick to that as closely as we could and not be either predicting in the distant future how things would go, or fill in all the gaps, whatever gaps there are, with what we think things should be. Tallinn had a more ambitious agenda because they didn't have any agreed framework really to work with. 

Tess: Well, I think it's very timely, the publication of the Manual. And you know, as you both have noted, there is a legal framework there. It is dated. It was time to fill in these gaps, and not least because outer space is, of course, already an active theater of military operations. Satellite communications is a very well-known example that I think folks all understand, but there's a huge range of activities, and even during peacetime, right? Like position navigation, ISR or intelligence reconnaissance and surveillance operations. So, militaries are heavily and increasingly reliant on space, both in peacetime activities and, you know, potentially in armed conflict situations in ways that we currently see, for example, even playing out in the Ukraine conflict and others, and likely in other ways in the future. The United States, NATO, others have declared outer space an operational domain, of course. 

So, if you can kind of make this real for our listeners in terms of the concrete issues that are at stake when you're aiming to flesh out how the law applies here, what are some of the specific operational contexts where the law applicable to outer space activities is actually contested, and what are some of the different legal views among states that would lead to meaningfully different results in terms of what would be permissible or what might be impermissible in their military operations in outer space?

Jack: I'd like to start by saying that if we just look at military operations first, you have a big disagreement amongst the countries of the world about whether or not the law of armed conflict, also known as international humanitarian law, also known as jus in bellum, whether it even applies to space. The Russians and the Chinese in particular object to applying it. You could surmise some political reasons they might have for doing that. But, it's an odd sector of humanity where the humans aren't protected in an armed conflict by international humanitarian law, but that is their position, at least now. And so, this has been a very raucous topic at the United Nations, and it has meant that there's been very, very, very little discussion among states about just how the law of armed conflict applies. All those wonderful, ancient but relevant rules like proportionality and distinction haven't enjoyed much commentary. In fact, the U.N/ has been blocked largely from doing it because it's argued by some that that's just an invitation for armed conflict, that it just encourages it. 

So, that's a rather — it's a big thing for a manual to include a discussion on it, and I would note that last year in the open-ended Working Group at the United Nations, a draft of the Woomera manual, which was graciously sent around the world by the Dutch Ministry of Foreign Affairs for states to review, a copy was available to states at the U.N. and the Chinese delegate was discussing it, and they asked their lawyer to discuss it, and he said, “This is really complicated stuff.” I agree. We all agree, it's really complicated. That's why we should be talking about it. But he said, you know, the time wasn't right. That would just legitimize a war in space right now. So, there's a huge difference on that front. 

David: And to compliment that, here's one nitty gritty current issue that has burst on the scene. In recent weeks, there have been stories about the possibility that Russia might be interested in putting a nuclear weapon in outer space, and we don't have complete clarity as to exactly what they have done, what they might do, what they plan to do, but from our perspective, one of the few crystal clear rules is that you can't put a nuclear weapon in orbit around the Earth, installed on celestial bodies, or stationed in space in any other way. And there aren’t very many absolutely clear black and white rules about outer space, but that's one, and it would appear that Russia is contemplating violating that rule. They've denied that, but they haven't quite said, “Oh, no, we would never do that, because it's illegal, because the Outer Space Treaty, Article Four prohibits that.” And so right there, we've got in recent weeks a current illustration about the value of clarity about the fundamental rules regarding military activities in space. 

Jack: And important to note, David's very careful with his language. It's so specific. We're talking about three critical verbs — putting things in orbit, about installing and about stationing. That's pretty broad. And you know, it was the most significant achievement of the Outer Space Treaty as an arms control agreement. And the Russians were definitely behind it, really praised it and everything. So, with all the Russian saber rattling going on, you have to evaluate whether or not that's just on the long list of bad things they say they're contemplating, whether they're serious about it or not, but they deny doing it. As David says, it'd be great to have a categorical statement of the legal applicability of the Outer Space Treaty to it. 

Tess: So just one follow up. It sounds in some ways reminiscent — and I am one of the people who doesn't think that cyber is a wild west, so much as there are still a few very pernicious places of disagreement, at least as of today — but there certainly was a time when it felt more like a wild west, when you couldn't even get governments to agree, you know, in the U.N. or otherwise, that international law applies to cyberspace. You know, we had some very basic moments of needing to come together on, you know, the applicability of the U.N. Charter. And then, of course, similar debates about IHL, as you were just mentioning, Jack. 

Do you see Outer Space Law following a similar trajectory insofar as, sure, maybe it takes a decade, but states are going to get together and agree on these basic fundamentals, even if there remain gaps, even if there remain areas of disagreement about the specifics. Do you think we're on that kind of kind of trajectory? 

Jack: I think we have a different trajectory. Also, you talk about all that agreement in cyber — a lot of countries reject that notion of self-defense in cyber. The Cubans are big. The Chinese and Russians have not expressed all this embracing of many of the basic rules that the Westerners keep on citing. The Outer Space Treaty is a unique animal in that all our adversaries, the major space powers that oppose us, or could oppose us, whatever, are parties to this agreement. So, we actually have words and practice and a negotiating history for these different rules.

 And you'll notice that the states are reluctant in both space and cyber to invoke a lot of the rules that may apply. There's a lot of interesting reasons for that and what it means, but occasionally, with respect to the Outer Space Treaty, states do invoke it, and the filling in of what gaps there are does depend on states acting out. They have a binding treaty to do that with. Cyber still has to find its way. You know, when the United Nations has met and talked about cyber and their work and the working groups, group of governmental experts, they can't really agree on rules, right? They're just talking about norms that should be a good idea to follow. Space has a blueprint, and we get to experience exactly how states choose to apply it and invoke it. So, it's a little different. 

David: I have a little narrative that I like to spin out when I teach the international law course at Georgetown about the evolution of space law and the unusual way it has progressed. From my perspective, it's astonishing that within only 10 years after the launching of Sputnik in 1957, the world had negotiated and concluded the Outer Space Treaty that sets out the principles that are still the main guardrails for operations in outer space. And to do that within only a decade after the opening of the space age, that's astonishingly rapid for international law, which ordinarily operates at a very stately pace and can take decades or centuries to respond to new opportunities, new resources. To do that within only 10 years is unprecedented. 

And within only another 10 years after that, the world had negotiated three other important treaties that further flesh out some of the infrastructure that's necessary for smooth and uncontested operations in space — again, dramatic speed in the articulation of the rules. But after that point, after the late 1970s, the process broke down, and the world has not negotiated new treaties about outer space, about weapons in outer space, about other aspects of space operations for the succeeding decades. And that absence is not what the negotiators in 1967 thought they were doing with the Outer Space Treaty. The title of that document is that it's the treaty on principles applicable to the exploration and use of outer space. They thought they were stating principles that would subsequently be fleshed out by additional increments of lawmaking, and that happened in three treaties within the decade thereafter, but not since then. So, my perspective is that space law is not obsolete. It's not too old. It's just incomplete because the process of making new law has not proceeded since the late 1970s

Jack: But I hasten to add, the fact that it is incomplete doesn't mean the part that we have doesn't deserve an awfully lot of study. And I think people have heard about how incomplete it is so much that they just think they can start talking about what the law should be in space when they haven't gone to the effort to do what we tried to do in the Manual, and that is, try to flesh out as much as we can what is in the treaty.

 And I also like to note how with the continuing fusion of military and civilian or commercial activities — which is astounding to me, that American companies are so willing to embrace being an adjunct of the Defense Department — as military and civilian activities seem to merge and Starlink, you know, is a great example of it, I'm glad that the Manuel takes the approach of looking at space law in peace time and the outer space rules and implementing agreements and custom international law, and where the military fits in, and where the two regimes, the different regimes, we have come into situations where you really, you really do get to drill down on what the guiding principles mean, and how they're going to play out. 

And if I could, I think one of the more interesting things that usually comes up in this area is the apparently categorical rule in the Outer Space Treaty prohibiting appropriation in space, appropriation of celestial bodies, outer space. It's not just sovereignty, which many people mistake it for, that you can't have sovereignty. It's broader than that. Any sort of appropriation — in fact, designating an area that you impose obligations on other states that aren't part of the Outer Space Treaty represents a violation in most situations of the big Article One principle that everyone has a free right to space, free navigation, free exploration, free use. That, of course, comes into conflict with the appropriation principle. 

And then that brings us to the moon. And all of the interesting discussions about what is going on and what will go on to moon. We will clearly have more settlements there at some point soon. China is moving quickly in its work, and you're going to inevitably have questions about what exactly the rights are of the countries that are involved in the Artemis project and the competing projects. And I think the Manual helps flesh out some of those principles and highlight some of the differences. States take somewhat different positions on the appropriations principle and resource mining or exploitation. But it's amusing to look at the states criticizing, it is not really saying it's illegal to do it, just that they want more rules and more guidelines and so forth. 

And as more and more countries join the Artemis Accords, which clearly involves exploiting moon resources, whether that's part of what it is, you have some flow of states growing and growing to embracing that sort of new approach. So, we've got interesting connections between space in military and commercial operations before we ever even get into armed conflict and so forth. 

Tess: Yeah, that's crucially important, and I think we can talk more later as well about the ways in which increasing commercial and, you know, civilian uses of space complicate the picture here. One of the things that you've been touching on is the importance of looking at not just armed conflict, but peace time. And I want to zoom out and note the organization of the Manual is, as you put it, David in your recent piece, for Just Security, it's three critical time frames — ordinary peacetime, periods of tension and crisis, and during armed conflict. And I'm wondering how the Manual goes about cabining the concept of tension and crisis from a legal perspective. It's clear how it's useful from a policy perspective, the whole concept of gray zone conflict and of adversarial operations that fall below the threshold of armed conflict. Makes a lot of sense from the policy perspective.

But in terms of applying the law, what kinds of things are we talking about that fall in that middle category? Are we thinking about rendezvous and proximity operations by an unfriendly state, say? But during peacetime, are we talking about, say, a cyber operation that might temporarily jam a civilian satellites downlink capability? So, what kinds of actual operations might we be thinking about, just to conceptualize this idea of periods of tension in crisis? And then the follow- on from that is, is there anything gained, from a legal perspective, about having that third category. And I will put my cards on the table and admit that I'm a sort of above the threshold, below the threshold, kind of person. I like that binary as a lawyer who advises operators, or used to do so, I should say. And so, I'm curious how you would explain the legal significance of that third category, if there is one. It may be an organizing principle, more of a policy or operational nature.

David: What a good place to pursue this conversation, because just as a matter of analysis and drafting, it drove us crazy to try to sustain the three different segments, because so many of the scenarios we wanted to play with, so many of the rules would — so many of the activities would span more than one of those categories, and we were constantly trying to avoid repetition, because in the first section, you'd want to say, well, this is the world peace time. But of course, it shades into these other categories. And here would be the practice there, but wait, that's, that's in the next part of the Manual. So, you put your finger on one of the great difficulties in trying to separate it, but we found, at least from our perspective, that it doesn't make sense to try to put three categories rather than just the two. 

Jack: And to draw on your gray zone knowledge, some of the rules really are inclined to be more important, much more important as activities bounce around closer and closer to passing the threshold. For instance, you're talking about rendezvous, close proximity operations. Well, harmful interference is something that might happen. A lack of due regard would be something that might happen. And when you look at the rules that are in that section, it's true that they could go anywhere, as Dave mentioned, but the ones that are there are the ones most likely to be looked at and invoked on your way up to a conflict. And that's also why you find the jus at bellum, the U.N. Charter, and those things at the end of that section, because you're not in an armed conflict, you're talking about where that use of force threshold is crossed. 

And so, they fit in there, although, as Dave also mentioned in the first part in peacetime, it's important, at the end of many of those rules, to step back and say — and this is a very important point — that if there is an armed conflict, the Outer Space Treaty doesn't suddenly, poof, disappear. It does not. It lives on, especially for the parties out there relying on it as the treaty they signed and became parties to. They have their rights under that treaty continuing on, and an armed conflict has to respect those rights. And so, when you look at those rules in the first part, like astronauts, we've got a discussion of what an astronaut is not based on just 1967 thinking, but how things are evolving with spaceflight participants and space tourists and so on. So, we do a service, I think, in bringing the way states are approaching, applying those rules and say, no, no, no, these guys are not astronauts. And that's a goal.  

But when you talk about when there's an armed conflict, what happens to the astronauts, we have to put a separate section on astronauts and talk about, hey, the rules don't disappear to the extent possible. You want to strive to reconcile the regimes. And the search for some magic trigger that turns on or turns off space law is not — it's an elusive search. Each rule, some rules more than other rules, highlight the critical importance of space law, for instance, the not positioning nuclear weapons in space. That's so fundamental and also hard to see states easily sacrificing leading up to an armed conflict or in an armed conflict. So, good question, hard topic, but I think, I think we've got a reasonable approach to it. Hard, but reasonable.

David: I wanted to amplify that with a comment that is pretty far down in the weeds. It's, it's sort of nerdy, even for Just Security people, and that is that one of the things that characterizes this area is that there's overlapping bodies of law, and that they overlap in ways that I think are unprecedented, at least we hadn't confronted this kind of situation previously. One body of law is the general international law, and the Outer Space Treaty clearly affirms that international law applies in outer space, and that includes the charter the United Nations and all the other fundamental documents about general international law. 

But outer space law is also a lex specialis. It contains its own special rules that are not applicable elsewhere, and that in fact, in some ways, are very different from the rest of international law. And the general proposition is that lex specialis will trump lex generalis. And so, when we're dealing with outer space, you look at the background laws, but you also look at the special areas of space law. And the challenging part is that the law of armed conflict is also a lex specialis, and it also therefore supersedes general international law. But what do you do when you have two areas of lex specialis that simultaneously apply? 

And that drove us to some of the most interesting conversations that we think explored facets of current or potential military operations in outer space in a way that we've never seen written, never seen even speculated about. And you got to address, if you're looking just a little ways down the road in outer space, that there are two competing, specialized areas of law that you've got to deal with simultaneously.

Jack: Stunning. Absolutely stunning that they have not been looked at more carefully. I think part of that is, each of the two lex specialises go on and write about the world as lex specialis. And then, if you talk to a group of space lawyers, they just say, hey, space law trumps everything. We're not interested in what you have there. And that has resulted in very little discussion of when the regimes do clearly call for you deciding which one of these lex specialis applies. 

It was, it was fascinating to us to see that. And I'd also note that, because we are in an area truly in some ways uncharted, there are several places there in the Manual where we note there are two or more very different, competing versions about how those regimes should be reconciled, and we lay those out. But after you go through the bounds of the Outer Space Treaty, trying to preserve it for as many of the states in space that are relying on it does provide a pretty somber view of just how far your rights go in an armed conflict. Of course, you're going to comply with the law of armed conflict. But then there are other questions about what limitations you might face. Anyway, very, very interesting, uncharted stuff that we face, questions we've never faced in international law before. 

Paras: Yeah, that is so interesting, especially on the potential divergences and convergences of the lex specialis regimes. Another thing that both of you have mentioned is really the aim of the manual to try to codify or distill lex lata — the law as it is — instead of lex ferenda, or the law as it ought to be. And I'm wondering how you went about approaching this subject matter. There's so much of it. It's so vast. And how did you think about trying to understand state practice in situations in which states might have not directly confronted, or where there might be limited state practice? 

Jack: Well, you know, we had a rare privilege. David, me and our other editor, Dale Stevens from Australia, presided over this meeting with all these states, and we're asking them, right? So, what do you do? And what's silence? Because you guys sure are being silent about a lot of things. And I had to call the group out and say, you know, look, when something happens over and over and over again, and you don't invoke the Outer Space Treaty, and you don't invoke legal obligations in play, and you just look the other way and say, oh, it's irresponsible, it's unfriendly, it's not right, but you don't say it's illegal. What are we doing? And then there's a chorus for the states, and it's really complicated, and, you know, but I thought one of the most interesting ones, which Dave and I both laughed at, was the states, hey, we don't want to set a precedent. You know, you are setting a precedent of some sort after, you know, not invoking the rules, and you're wondering whether or not the threshold for bad behavior — and this is especially true for cyber — whether the threshold for permissible behavior is just making that gray zone grow higher and higher and higher. So, it is a really interesting thing. 

And Dave is going to have a lot to say on state practice too, but I'd like to do a shout out for, if you're going to begin somewhere with state practice, let's begin with the way the states approach each of these terms in the Outer Space Treaty. It annoys me to no end to see a TV broadcast or something that says well, no one knows what's going to happen on the moon with each other's facilities. You know, no one knows. No. There are rules that are space treaties about visiting each other's facilities, and they were debated strenuously in the Outer Space Treaty. And there are significant parts of the treaty added by the Soviets that were really what the Soviets wanted that I don't think the Russians will be quick to abandon. 

There are a lot of things you can learn from that, and people continue to act like it hasn't happened. So, I think — and actually studying, negotiating history is difficult. There's no comprehensive bound volume of all the comments. You have to search through Xerox documents from San Francisco in 1946 and 47. So there's work to be done at the very beginning on state practice, which, you know, we use also not just to find customary international law, but also to interpret international agreements with respect to their ambiguous terms and our beloved Vienna Convention on the Law of Treaties. But, I turn it over to you on state practice, David.

David: Well, the part I wanted to say is that the rigid focus on lex lata, on being the neutral reporters of what is the law today, required a degree of self-discipline that is uncharacteristic for all of the editors. We all have our opinions about what the law ought to be and how the law may develop in the future. And in our other writings, we have a lot to say about that, but this project was designed to be straightforward reporting about what is the law, beginning with the text of the treaty, and with what state behaviors are and what states say and do and refrain from saying and refrain from doing. And that is an important challenge of its own, and it's also why, from my perspective, it is just wrong to characterize outer space as the Wild West. In fact, both Jack and I are from the west, from the Midwest part of the United States, we know what a wild west looks like, and this ain’t it. There are rules in outer space and there are rules that have been very carefully laid down and that the world has respected. There are not enough of those rules. We need more infrastructure on that. But you can describe what states have said and done and the way they've reacted to each other, and that does articulate the rules that are currently applicable, and we think that summary of those rules should be useful to governments and practitioners and academics and others around the world.

Jack: So, the abstention from saying how you think it should be is an act of discipline of enormous height for academics, just incomprehensibly difficult, right? Oh my gosh. I know how it should be, and if I could give you an example of where we chose not to do it, but in the process, also pick the different things you would argue that would be important, that states still have to choose from, but have not yet chosen from. So, it's not like we just throw up our hands and say, golly, there's just no agreement here. I guess we go on. No, we're trying to identify the factors that the states have to work with. And one of my favorites is, you know, the ocean is so simple compared to space. Ships with flags, ships that are registered, ships that are the nationals of countries, you know, battleships with their insignia and flags and rights and passage through territories that don't exist in space. The space doesn't have any of that. You know, painting a flag on the spaceship isn't going to help in a lot of situations. You've got all sorts of different, interesting legal connections between states and the space objects.  

You know, if something is launched from Chinese territory, from a Chinese facility, procured by China, and is launched into space from China and all the astronauts are Chinese and the object is registered in China, and the Chinese government says, yeah, we're responsible for that spacecraft — you've got all these different legal connections, and if they're all there, happy story, and in many situations, it's going to be very obvious what the Chinese military and the American military satellites are, but not so easy in lots of other situations where the satellites are commercial — registered in one country, operated from another — the responsibility, technically, of another country. You've seen this, and it's going to multiply as more and more commercial things go up. 

The Netherlands, you know, the leader in so many international law activities, we were at The Hague, was in charge of a satellite that was launched. They were clearly the entity that should be responsible for it. Some countries objected to things that were going on and the Netherlands refused to register it as the Netherlands, as a Dutch satellite. Ultimately, they wouldn't say they were responsible for it, but not that they would register it, because, as you know, only launching states can register a spacecraft. And so, you know, it's a question of also who is the launching state and which launching state registered it — and I'm just saying all this because, as the actors involved multiply, and the entities involved in launching a spacecraft multiply, especially when they're like, dumped out of the back of the ISS or something, we’ve got really interesting questions about who the victim of some sort of action is, and who the aggressor, or the malfeasor, I guess, if we're not into an armed conflict is. And we didn't say this categorically makes this state responsible for this type of — I mean, you can surmise that some connections are going to be more important than others, but we backed away from the ironclad rules, because states haven't done it yet.

Paras: Jack, you lay out a lot of really interesting and fascinating circumstances. It already reminds me of a law school, international law exam hypothetical. And David, as you mentioned, we're not quite in the Wild West, but there is a need to build out some of this infrastructure, and I'm wondering where the gaps are. Where did you see significant areas where a lot of this law is still open or undefined, and how might states fill it? 

David: So, there are so many to choose from. One of the difficulties with the Outer Space Treaty, the foundational document, is that because it was an articulation of principles, it's a pretty brief document. Depending on the format you printed it in, it'd be two or three pages long. And more modern treaties — the treaty about chemical weapons, or the treaty about the New START agreement on nuclear weapons — those are dozens, scores, hundreds of pages long, and they include definitions of terms and elaborations of what we mean when we said this — common understandings about the vocabulary. 

The Outer Space Treaty didn't include any of that. And therefore, when the Outer Space Treaty says that you must exhibit due regard for the interests of other states, we don’t know what that means. It's not a meaningless phrase. It does have some content, but it's not so clear, and that's why it requires more elaboration. If I could, I'd like to give you one small example — it's by no means the most important or the most vivid — but it's one concrete example of an important passage that is not self-defining. The Outer Space Treaty, Article Four, as we said before, prohibits certain activities with respect to nuclear weapons in space, and it says that you can't put a nuclear weapon in orbit or install it on celestial bodies or station it in outer space. 

I've done some work with NASA on the problem that they've identified as planetary defense. That is, what should you do if you discover someday that there's a large asteroid on a collision course with Earth. And the world would like to have better capabilities for diverting such a threat or destroying it or doing something about it. And NASA and the companion space agencies in other countries have begun to explore some technologies that might be useful in that kind of horrible scenario. One possibility is to use a nuclear explosive that would divert the asteroid or break it apart or something. Nobody's ever tried anything like that. Nobody's experimenting with it, but it's at least been sanctioned by a number of B-grade Hollywood disaster movies. So, that puts it on the agenda of something that could be contemplated. And one legal interpretation is — question of legal interpretation is, if you use a nuclear explosive for that purpose, is it still a nuclear weapon that the Outer Space Treaty prohibits you from putting in orbit around the Earth? The treaty does not define what is a nuclear weapon. And some might be tempted to say, well, if you're using it not for hostile or war-like purposes or to harm people on their property, you're using it instead to protect Earth from an outside threat, then it's not a weapon. It's something else. It's a nuclear explosive device, not a weapon. And others would say, a nuclear weapon is always a weapon, regardless of what you're using it for. It's a nuclear weapon that you might be diverting for a beneficial purpose, but the treaty covers it because it's still a weapon. And the treaty doesn't define that and state practice, blessedly, has not had to confront that problem. So, it's just one small but vivid example of an important term used in the treaty that does not have its own definition.

Jack: I volunteer one phrase. Well, I'd like to talk about two, but one phrase gives us great pause, and that word is space debris. You know, is space debris harmful contamination when you cause it? You know, what about the harmful contamination principle, and what about the verbs they use that say you're supposed to avoid harmful contamination? That's not — that doesn't say you shall not do it. The footnote in Woomera notes that the Germans say the way it's written makes the article basically useless. And you know, it's important throughout the document, instead of having a reference to Professor Pufendorf’s wonderful treatise in 1956 or whatever — although there are useful things that the academics have drawn from state practice to discuss — but it's always good to have a document that lets other foreign ministries and practitioners look at it and say, oh, that's interesting that the Germans said that, right? 

But with space debris, where does it fit under the law of armed conflict? Is it something that has to be calculated carefully in proportionality analysis? In peacetime, when countries are busy blowing up satellites, testing ASAT weapons and generating these vast fuels, especially by China, of space debris, what's the story there? And, you know, this brings us up to the United States, taking, I think, what was a really excellent move to push forward a U.N. General Assembly resolution calling on countries to stop destructive anti-satellite tests. We don't need to do it. Russia doesn't need to do it. You can disable satellites by cyber, or other means, right? Why not stop generating all this unnecessary debris? Of course, the Russians and Chinese opposed that, but it was overwhelmingly approved by the U.N. General Assembly as a non-binding resolution. The United States has declared a moratorium on it. 

Unfortunately, it is rather shocking to read the responses of states to these ASAT tests. They've had the opportunity to clearly say, dear Lord, this clearly violates the Outer Space Treaty, and they have chosen not to do that. I. And so you know, if you're looking for a norm, the norm might be, hey, blast any of your weather satellites you want. So, it's that's an area, though, that is under pressure as more and more commercial interests are involved. And can I just — this is just a little tiny down in the weeds thing, but when I talk to commercial audiences, of course, they're interested in damages. They're interested in liability. Talk to us about liability. Well, liability is pretty funny. There are a couple of really — there are two particular incidents that Woomera takes up in detail about the one crash of a Soviet satellite with radioactive material on Earth, although other pieces of debris have fallen and so forth, and collisions of satellites in space. There aren't very many of these things to go to. 

But who pays? You know, simple question. Well, all the launching states are responsible, and not the company. The launching state is responsible for paying, and so it's the companies saying, oh, except there are some fine print about how much they're covered in space in our statutes. Anyway. So, who's the launching state? Well, all the registration states have to be launching states, but a significant number of states aren't registered, or satellites aren't registered, and there's more and more pressure to not register them, because if you do, you're admitting you're liable for saying that happens. And so, there are four states that could be liable under launching. The state that is in charge the launch, the facility, the territory, and then also this phrase, the state that procures a launch. And the argument is, you know, Boeing goes somewhere else and gets a launch in Europe, and it's up there. Well, is Boeing, as a national of the United States, basically making the United States a procuring entity and liable for the damages? 

So, you can have a lot of interesting discussions about the facts about who pays for all the stuff. Right now, we're in a blessed golden age of space where practically no satellites have crashed into each other. My Secure World Foundation friends will say, now, wait, insurance is getting more and more expensive because satellite failures and stuff. The price is going up. But it's a glorious time to launch them up when there haven't been many accidents. But that is hard to believe it will continue with 30 or 40 Starlink satellites and soon, Amazon satellites going up in each launch. So, there are some holes to be filled in, but I think also in identifying the holes, you have some agreement about the area around the hole that you might be willing to look at. So interesting stuff. We had a lot of fun. 

Tess: Well, you read our minds, because I was going to ask you about both the ASAT moratorium and which rules the private sector is most interested in. And you've covered both of those beautifully just now. So, I'll switch to one last question from me before Paras closes us out with one final one.

So, this is one that hopefully you'll both find fun. My cheeky last question from me to you both is, if there were one rule that you could choose as the rule to watch, either because it's currently contested or maybe it's not contested at all right now, but it's a very important operational domain, and there's going to be pressure put on it in the future —what is a rule to watch? I'm not asking you to pick a favorite out of your 48 beloved children, but one that you would keep your eye on. 

David: Well, so for me, the one I worry about is the one we started with. That is, the rule in Article Four of the Outer Space Treaty that you can't put nuclear weapons in orbit or installing celestial bodies or stationed in space. The reason I'm sort of focused on this is because it's got nuclear weapons, and anything that touches that subject raises the most sensitive issues. 

When the treaty was first negotiated, what people said about it was that this treaty is the no nukes in space treaty. But in fact, it's a lot less than that. This treaty prohibits three particular activities with respect to nuclear weapons in space: putting them in orbit, installing them on celestial bodies or stationing in space. But other activities regarding nuclear weapons are not prohibited. In particular, transiting outer space — that is, sending a nuclear weapon on an ICBM from country X to country Y, where it transits outer space briefly en route to its target does not complete even one orbit of the Earth. And it's pretty clear that the United States and the Soviet Union, as the primary negotiators for this document, did not want to exclude that as a possible use, a possible application of nuclear weapons in space.  

But, as a result, we're left with some important gaps and the apprehension that countries might try to weasel around the prohibitions of Article Four, and that causes great distress. Just as one small illustration of that, the idea of a fractional orbit — that is, instead of just going over the North Pole, suppose you put your nuclear weapon on a long-range ballistic missile that went the long way around the earth, over the South Pole, en route to its target. Still, it does not complete one orbit. But a physicist would tell you that's putting the weapon in orbit. It's just, before it completes one orbit, you slow it down to de orbit to hit its target, and therefore it should be illegal under Article Four of the Outer Space Treaty. That’s the physicists’ answer. The lawyers’ and the political answer is probably the other way, and would say that the treaty only applies to a to a nuclear weapon completing at least one full orbit. At least that's a contested point, and it's the sort of thing that keeps people awake at night. 

Tess: That is fascinating. Thank you, David. I always do feel better when the lawyers and the physicists agree. So, I appreciate your highlighting that. It’s a really interesting one.

Jack: Before I answer the question, I want to highlight Dave's comment about how important the subject is. You know, the U.S. has more things up there than anyone else. Our military is so dependent on these satellites for everything. You can see a country seeing, unfortunately, considerable value in setting off a nuclear explosion that takes out a lot of satellites in a particular orbit. It is not inconceivable, and it is unfortunately potentially practical to some of our enemies that don't have as much interest in space. Of course, you're contaminating an area for everyone for so long, but I agree that is a heightened level of fear and uncertainty.  

But, my favorite provision involves mischief of another kind, and that's Article Six and our responsibility for Mr. Musk and Mr. Bezos, because Article Six is unprecedented, making the United States government responsible for all the non-governmental entities operating in space, that are our responsibility, and unquestionably the ones that are subject to our jurisdiction and control and operated by American companies are something very hard for the United States to deny they were not responsible for what's going on there. And we've already seen — and this is recorded in the Manual — we've already seen the drift towards, this is one rule that will be applied against the United States in a big way. China is unhappy at one point because they say they've had to maneuver around errant Starlink satellites. You know, you probably have read about that, and they send a diplomatic note to the United States complaining.  

You know, they could have complained about a lot of things. They could have said, this doesn't show due regard. It's harmful defense. They didn't choose to do those things because they wouldn't like to answer about some of their activities that haven't shown to. Instead, they invoke Article Five about endangering astronauts and the responsibility of the United States to report this dangerous activity and so forth. But that's all out there. And the papers report that, but they don't talk about the most interesting legal point, and that is China immediately turns to the U.S. State Department and says, your responsibility, what's your answer? And the State Department does not say, we're not responsible for those clowns. I mean, they're private sector actors. We don't control them. No, no. Instead, we send back a really detailed demarch about that's not true. We maneuvered, we tried to avoid, we notified them. The two sides disagree about what happened, but at no point does the United States say, well, we're not responsible for them. 

So, you see a future where the United States is in an unprecedented area of liabilities. Well, it's not really liability. It's responsibilities, broader than liability, and it's never been the U.S. government's position, going into new and unexplored domains. that everything an American does there is something the United States is responsible for. You can envision conflicts starting easily over disputes on mineral resources when the companies are so closely connected with their governments. You know, things like the East India Company come to mind, and British battleships sitting in the harbor supporting their commercial interests and so on. I've talked to more than one senior military leader who, upon retirement or near retirement, has mused the most likely conflict coming is when we're drawn into one by our companies fighting with other companies or their interests. So, I think it's also really understudied and uncared about, Article Six, and we aren't even talking about the most difficult parts for David, me and Dale. The hardest part in editing on this is, what about in an armed conflict? How far does responsibility extend for these things when it comes to a war crime or before that, use of force? Big, big questions, largely understudied and definitely going to be topical, hopefully before there's a nuclear incident that invokes Dave's concerns right now faster, who knows? We'll see. 

Paras: Yeah — big, understudied, topical questions, important questions. Is there anything that we haven't mentioned yet that you'd like to add as we wrap up. 

David: Well, the only thing I would close with is the hope that at some point in the not-too-distant future, perhaps we can come back and have another conversation when somebody decides to make a movie out of this book. We haven't had any dealings from Hollywood yet, but it's an engaging and important topic, and maybe we'll pursue it at that time. 

Jack: We’re still saying that because he’s so damn photogenic.

Tess: For those of you listening, we're all nodding vigorously. 

I was just going to say, you know, my tremendous thanks to you both for lending us your expertise for what turned into an hour-long conversation that was so enriched and informing, and we are indeed looking forward to having you on again, my guess will be when states and others start using this Manual, start having more public debates over how the law applies based on seeing these rules written out with the expositions of the disagreements that you mentioned in the areas of contestation. I think it will be rich ground for states and scholars, dare I say, and others, to continue to flesh out this important area of law. So, thank you again, and we look forward to having you back. 

Paras: Yeah. Thank you again.

Jack: Thank you, Tess, thank you, Paras. Pleasure to meet you. Pleasure to be on here. We both thank you.

Paras: This episode was co-hosted and produced by me, Paras Shah, and Tess Bridgeman with help from Clara Apt.

Special thanks to Jack Beard and David Koplow. 

You can read all of Just Security’s coverage of international law, including David’s analysis, on our website. If you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen.

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