A New Frontier of Warfare

Escalating Tensions in the United States as Russia Constructs a Space Nuclear Weapon

[1]

In May 2024, a high-ranking Pentagon official alerted Congress that Russia is developing an “indiscriminate nuclear weapon” to launch into outer space.[2] Assistant Secretary of Defense for Space Policy John F. Plumb warned in written testimony for the House Armed Services Committee that such a nuclear weapon “could pose a threat to all satellites operated by countries and companies around the globe, as well as to the vital communications, scientific, meteorological, agricultural, commercial, and national security services.”[3] When in low-earth orbit (LEO), most satellites are not able to withstand a nuclear detonation, which would make them “especially vulnerable to damage” and could make the satellites sufficiently close to the blast zone unusable for up to one year.[4] Any satellites within the blast zone would be destroyed.[5]

Shortly following this report, Russia vetoed a United Nations (U.N.) resolution sponsored by Japan and the United States that would have reaffirmed the principles of the U.N. Outer Space Treaty of 1967, which prevented nuclear weapons and weapons of mass destruction in space.[6] The draft resolution would have been the first adopted on outer space and proposed a “shared goal of preventing an arms race in outer space and the obligations of all States Parties to comply with the Outer Space Treaty.”[7] Russian U.N. Ambassador Vassily Nebenzia accused the United States of “double standards” and called for a resolution to ban all weapons in space “for all time.”[8] However, U.S. Deputy Ambassador to the U.N., Robert Wood, responded that Russia has “several conventional anti-satellite weapons already in orbit” in addition to a nuclear weapon being developed.[9]

On May 16, 2024 Russia launched a satellite into LEO that the U.S. government presumes is a counter space weapon capable of attacking other orbiting satellites.[10] To Pentagon officials’ knowledge, Russia has not placed a nuclear weapon into space, though officials fear Russia may be building toward that, to the detriment of every nation with satellites in outer space.[11] Importantly, the object Russia launched into orbit is likely in the same orbit as a U.S. government satellite, exposing the U.S. satellite to potential damage.[12]

Russia’s recent actions could directly violate multiple articles of the Outer Space Treaty. If Russia continues down its path and deploys a nuclear weapon into space, it would be a direct breach of Article IV of the Outer Space Treaty, to which Russia is a state party.[13] The language of Article IV requires state parties to the Outer Space Treaty must “undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction.”[14] If the object Russia launched into space on May 16 possesses nuclear capabilities, it would constitute a violation of Article IV. Any repercussions are unlikely, however, due to Russia's veto power on the U.N. Security Council for any resolution brought against it by another party to the treaty. Notwithstanding this power, because Russia is building a nuclear weapon to launch into space, it would violate Article IV immediately when the object enters space.

Additionally, Article VI of the Outer Space Treaty declares state parties of the treaty “shall bear international responsibility for national activities in outer space,” whether those activities are carried out by private or government actors.[15] Finally, Article VII states that each party “that launches or procures the launching of an object into outer space, including [onto] the moon and other celestial bodies . . . is internationally liable for damage [caused] to another State Party to the Treaty,” or to that party’s citizens or persons within its jurisdiction.[16] If the object Russia launched into space damages the U.S. satellite or another satellite, Russia will be internationally liable for damages under Article VII of the Outer Space Treaty. However, because Russia retains its veto power on the Security Council, enforcement through any resolution would be highly unlikely.

The Outer Space Treaty laid the groundwork for the system of international liability due to objects in space but did not create a complete methodology for holding bad actors accountable.[17] However, after the 1972 Convention on International Liability for Damage Caused by Space Objects (the Liability Convention), the rule plainly states that when harm on Earth is a result of an object formerly in space, the state that launched the object “is presumed to be liable.”[18]The consequences for Russia in this specific instance are unclear, because no nation has prosecuted Russia for violating the Outer Space Treaty.[19] This is a fluid situation that should be monitored as relations between Russia and the West continue to be strained.

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[1] Russian Defense Ministry Press Service, Photograph of a Russian Soyuz-2.1b being launched in May 2024, in Yuliya Talmazan, U.S. Says Russia Launched a Space Weapon in the Path of an American Satellite, NBC News, (May 22, 2024, 8:16 AM), https://www.nbcnews.com/news/world/russia-launched-counter-satellite-space-weapon-nuclear-drills-ukraine-rcna153436.

[2] Unshin Lee Harpley, DOD Official Confirms Russia Is Developing an ‘Indiscriminate’ Space Nuke, Air & Space Forces Mag. (May 2, 2024), https://www.airandspaceforces.com/dod-official-russia-indiscriminate-space-nuke/.

[3] Id.

[4] Id.

[5] Id.

[6] Edith M. Lederer, Russia Defends Veto of UN Resolution to Prohibit Nukes in Outer Space, Urges Vote to Ban All Weapons, AP, (May 6, 2024, 8:40 AM), https://apnews.com/article/un-russia-veto-nuclear-weapons-space-us-35610238289a460bfabd04417e414f10.

[7] Press Release, United States Mission to the United Nations Office of Press and Public Diplomacy, Joint Statement on Behalf of the United States and Japan on the Draft Security Council Resolution on Weapons of Mass Destruction in Outer Space (April 19, 2024), https://usun.usmission.gov/joint-statement-on-behalf-of-the-united-states-and-japan-on-the-draft-security-council-resolution-on-weapons-of-mass-destruction-in-outer-space/.

[8] Lederer, supra note 6.

[9] Richard Thomas, US DoD: Russian Anti-satellite Weapon Placed in Same Orbit as US Satellite, Airforce Tech., (May 23, 2024), https://www.airforce-technology.com/news/us-dod-russian-anti-satellite-weapon-placed-in-same-orbit-as-us-satellite/.

[10] Jeff Foust, U.S. Claims Recently Launched Russian Satellite Is an ASAT, Space News (May 21, 2024), https://spacenews.com/u-s-claims-recently-launched-russian-satellite-is-an-asat/.

[11] Id.

[12] Yuliya Talzmazan, US Says Russia Launched a Space Weapon in the Path of an American Satellite, NBC News (May 22, 2024, 8:16 AM), https://www.nbcnews.com/news/world/russia-launched-counter-satellite-space-weapon-nuclear-drills-ukraine-rcna153436.

[13] Foust, supra note 10.

[14] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty) art. 4, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205, 6 I.L.M. 386 (1967).

[15] Id. at art. 6.

[16] Id. at art. 7.

[17] Trevor Kehrer, Closing the Liability Loophole: The Liability Convention and the Future of Conflict in Space, 20 Chi. J. Int’l L. 178, 180 (2019).

[18] Id.

[19] Jill Stuart, The Outer Space Treaty Has Been Successful – But Is It Fit for the Modern Age?, Space.com (Feb. 19, 2017), https://www.space.com/35758-outer-space-treaty-success-modern-assessment.html.