A NASA spacecraft carrying a satellite payload launches atop a SpaceX Falcon 9 rocket from Space Launch Complex 40 at Cape Canaveral Space Force Station in Florida. (Credit: Denny Henry, NASA)
Feature
Countering Space-Based Weapons of Mass Destruction
By Major Brian D. Green
How should the United States respond if another country attempts to station a nuclear weapon in outer space? Although the Outer Space Treaty of 1967 (OST) forbids stationing nuclear weapons and other weapons of mass destruction (WMD) in outer space, prohibition does not guarantee prevention.1 Certain powerful states, possessing significant space and nuclear capabilities, habitually violate international law and have tested capabilities that probe the OST’s boundaries. For example, since February 2024, U.S. Government officials have warned the public that Russia may be preparing to violate this core OST mandate.2 This chilling prospect is far from inconceivable. This article will outline the reasons why a state might seek to station a nuclear weapon in outer space, why a state might refrain from doing so, and detail a range of legal response options for the United States and the rest of the world to consider. If another country does decide to flout international law by placing a nuclear weapon in orbit, installing it on a celestial body, or otherwise stationing it in outer space, other states must be prepared to act with all lawful means at their disposal to deter and defeat such actions. Only then may humanity be protected from the threat of space-based nuclear weapons.
Nuclear Space Threats
Russia
Russia’s full-scale invasion of Ukraine in 2022, accompanied by its nuclear saber-rattling against countries that might seek to intervene, has raised the specter of nuclear war to a level perhaps not seen since the Cuban Missile Crisis.3 Like the Soviet Union during the Cold War, Russia developed an “escalate to de-escalate” doctrine4 that could lead it to employ relatively low-yield “tactical” or “non-strategic” nuclear weapons5 to gain an offensive advantage or to compensate for conventional battlefield losses6—of which it has suffered many in the Ukraine conflict.7 Although some analysts believe Russia now has a higher threshold for nuclear use,8 the continuing bellicose rhetoric of Russian officials,9 combined with Russia’s illegal claims to have annexed Crimea and four other Ukrainian oblasts,10 suggests that the threshold may still be too low for comfort.11 Russian leaders also claim to be developing new kinds of nuclear or nuclear-capable weapons,12 and Russia has violated numerous arms control treaties and commitments,13 culminating in Vladimir Putin’s February 2023 announcement that Russia was suspending its participation in the strategic arms reduction treaty known as New START.14 In general, Russia under Putin, as under Soviet leaders before him, has taken an instrumentalist approach to international law.15
In addition, Russia, China, and other countries have been developing and testing a wide variety of space-based and counterspace weapons.16 As then-Lieutenant General B. Chance Saltzman said in his confirmation hearing to become the U.S. Space Force’s second Chief of Space Operations, “I’m worried about the pace with which they are making those changes, China first amongst them but Russia also which is committed to investing heavily in the kinds of capabilities that are going to disrupt, degrade or even destroy our on-orbit capabilities.”17
A key demonstration of such capabilities occurred in November 2021, when Russia conducted its first-ever direct-ascent anti-satellite (ASAT) missile test to successfully destroy a satellite in low Earth orbit (LEO), irresponsibly doubling the debris conjunction risk for the International Space Station and endangering the lives of the ISS crew, including Russian cosmonauts.18 Indeed, although he did not explicitly claim that Russia had violated the OST, the immediate response of General James Dickinson, then-Commander, U.S. Space Command (USSPACECOM), was that “Russia has demonstrated a deliberate disregard for the security, safety, stability, and long-term sustainability of the space domain for all nations.”19 Although many countries condemned the test,20 Russia displayed no remorse. The Russian Ministry of Defense claimed that the fragments “did not pose and will not pose a threat to orbital stations, spacecraft, or space activities” and that they were “immediately taken under surveillance until they were destroyed.”21 Meanwhile, state television host Dmitry Kiselyov broadcasted that Russia now had the ability to destroy the entire U.S. Global Positioning System (GPS) satellite constellation.22
Russia’s co-orbital ASAT testing and “inspector satellite” stalking of U.S. intelligence satellites also suggest a willingness to flout the New START restrictions on interference with national technical means of treaty verification by conducting uncomfortably close approaches with a capability designed to fire a high-velocity projectile in orbit.23 Russia allegedly launched its newest version of this type of orbital weapon on 16 May 2024—mere weeks after insisting that the United Nations (U.N.) Security Council should ban all placement of weapons in space while vetoing a resolution to reaffirm the OST’s ban on stationing nuclear weapons in space.24
Russia’s Security Council veto was all the more troubling because of what it sought to conceal. On 14 February 2024, the House Permanent Select Committee on Intelligence Chairman, Congressman Mike Turner of Ohio, alleged that there was a serious national security threat that should be made known to the public.25 The next day, White House Deputy Press Secretary John Kirby acknowledged that this threat was “an anti-satellite capability that they’re developing,” while stating, “We are not talking about a weapon that can be used to attack human beings or cause physical destruction here on Earth” and parrying press questions about whether the capability was “nuclear-capable.”26
As details were sparse, some commentators initially speculated that this could be a nuclear-powered electronic warfare system rather than a satellite designed to produce a nuclear detonation in space.27 While a nuclear-powered space weapon would be troubling, it would not necessarily be illegal. However, Assistant Secretary of Defense for Space Policy Dr. John F. Plumb added more details when he testified to Congress in May. He stated,
Russia is also developing a concerning [ASAT] capability related to a new satellite carrying a nuclear device that Russia is developing. This capability 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 we all depend upon.28
This characterization suggests that a satellite-mounted “nuclear device” will be the key mechanism by which the “ASAT capability” threatens “all satellites” in orbit. The remainder of this article will therefore focus on the very real risk that Russia will attempt to place a nuclear weapon in orbit, and argue that such threats demand a serious, deliberate, and full-spectrum response.
The risk of the International Space Station (pictured) colliding with space debris doubled as a result of Russia’s November 2021 ASAT missile test. (Credit: NASA)
China
Russia is not alone in flouting international law and posing a nuclear threat to the United States. Like Russia, China tends to discount the idea of a rules-based international order to which China is accountable, preferring instead to engage in “legal warfare” in which the law is just one more weapon in the Chinese Communist Party’s arsenal.29 For example, China recently violated international law and U.S. sovereign airspace by flying a high-altitude spy balloon across Alaska, Canada, and the continental United States.30 It continues to assert, and at times violently enforce, illegal maritime claims in and around the South and East China Seas,31 fires potentially blinding lasers at Philippine coastguardsmen and Australian military pilots,32 attempts to expand its land territory through border skirmishes and redrawing maps,33 and has been engaged in an ongoing genocide and crimes against humanity against the Uyghur people in Xinjiang province, in violation of the Genocide Convention and jus cogens requirements of customary international law.34
China is also rapidly building its nuclear arsenal to achieve parity with the United States, with the U.S. Department of Defense (DoD) estimating that China “has surpassed 600 operational nuclear warheads in its stockpile as of mid-2024 and will have over 1,000 operational nuclear warheads by 2030, much of which will be deployed at higher readiness levels.”35 This is in spite of China’s recent reaffirmation that it would “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date.”36 And, of course, the DoD assesses, “The PRC continues to develop counterspace capabilities—including direct-ascent [ASAT] missiles, co-orbital satellites, [electronic warfare], and directed-energy systems—to contest or deny another nation’s access to and operations in the space domain.”37
Despite China’s longstanding claim of a “no first use” policy for nuclear weapons, its rapid expansion of nuclear capability could still enable it to commit malign conventional aggression. Chinese officials have threatened nuclear strikes against the United States during previous diplomatic confrontations.38 According to Dr. Jonathan D.T. Ward, a writer and strategist with extensive experience living and working in China, and whose writings about the coming “decisive decade” in Sino-U.S. relations informed the 2022 U.S. National Security Strategy:
China’s 2021 test of a hypersonic missile and fractional orbital bombardment system, as well as its expanding nuclear silos in its western regions . . . would allow them to rely much more aggressively on conventional capabilities and even lean much more heavily into an expanding conflict below the threshold of nuclear war.39
Thus, just as Russia forestalls direct foreign intervention in the war in Ukraine by brandishing its nuclear weapons, China could threaten to use its expanding nuclear and counterspace arsenals to prevent other countries from intervening in its conquest of Taiwan, or to radically turn the tide of a war it is losing.40 In these scenarios, China would challenge law-abiding states to defend Taiwan without risking devastating reprisals on their own vital interests. It would also contradict China’s pledge that nuclear weapons “should serve defensive purposes, deter aggression, and prevent war.”41
As a result of these adversaries’ threatening and often illegal activities, the 2022 U.S. National Security Strategy describes China as the “pacing challenge” for the U.S. military to deter, and Russia as an “acute threat” to be managed.42 Their demonstrated willingness to violate international law, combined with their rhetoric and development of novel nuclear, space-based, and counterspace weapons, should cause U.S. and allied political and military leaders to consider what to do if Russia, China, or another country such as North Korea chooses to violate another fundamental precept of international law by stationing a nuclear weapon in outer space.
International Law Forbids Stationing a Nuclear Weapon in Outer Space
Treaty Requirements
The OST, to which all major spacefaring countries (including Russia and China) are parties, forbids states parties to place nuclear weapons or other WMD in orbit around the Earth, install them on the Moon or other celestial bodies, or station them in outer space in any other manner.43 The Limited Test Ban Treaty of 1963 also prohibits states parties from detonating a nuclear device in or beyond the Earth’s atmosphere, including outer space, or underwater, or in any environment if it would cause radioactive debris to be present outside the state’s territory.44 In addition, the Environmental Modification Convention prohibits using environmental modification techniques as a weapon of war, including by deliberately manipulating natural processes in outer space—a prohibition that could reasonably be understood to encompass exoatmospheric nuclear detonations that create harmful artificial radiation belts.45 The Soviet Union was among the first signatories and depositaries to all three treaties, and Russia remains bound by them.46
Despite these clear prohibitions, neither the OST nor the Limited Test Ban Treaty is self-enforcing. Although the OST and the subsequent Liability Convention assign responsibility and liability for damage caused by space objects to launching states,47 and the OST includes requirements to exercise due regard, avoid harmful contamination, and engage in international consultations if states parties foresee potential harmful interference resulting from space activities,48 the treaty texts contain no penalties or enforcement mechanisms for a breach of these duties—or of the OST’s Article IV ban on stationing WMD in outer space. As for the Limited Test Ban Treaty, the International Court of Justice (ICJ) has opined that it is presumptively limited in scope to testing scenarios and does not necessarily constrain its parties’ actions in wartime.49
Mr. Dean Rusk (2nd from right), Secretary of State of the United States, signs the Outer Space Treaty at a White House ceremony. At the table (right to left): President Lyndon B. Johnson of the United States; Ambassador Arthur J. Goldberg, Permanent Representative of the United States to the U.N.; Sir Patrick Dean, Minister of State for Foreign Affairs and Permanent Representative of the United Kingdom to the UN; and USSR Ambassador to the United States Anatoly F. Dobrynin. (Credit: U.N. Photo)
A FOBS Loophole?
Article IV’s scope is also limited by its own text and subsequent state practice. The fact that it requires states parties “not to place in orbit around the Earth any objects carrying nuclear weapons . . . or station such weapons in outer space”50 suggests that there must be a degree of permanency to the weapons’ placement in outer space for a violation to occur. The ban has been narrowly construed since its inception. In 1968, the Soviet Union tested a “fractional orbital bombardment system” (FOBS), in which ballistic missiles would be launched into an orbital trajectory but descend to strike their targets before completing a full orbit.51 This would, in theory, have made it easier to avoid the United States and allies’ northern-tier missile warning network by sending intercontinental ballistic missiles to strike them from the south.52 However, U.S. leaders concluded at the time that the testing and even the wartime use of this system would not violate the OST.53
More recently, China has tested a similar capability, mated to a hypersonic glide vehicle whose speed and maneuverability could enable it to evade modern missile defenses.54 It is also unclear whether China’s capability is only a FOBS or if it can function as a multiple-orbital bombardment system (MOBS) if left in an orbital trajectory for a longer period.55 As with the earlier Russian FOBS tests, the non-nuclear Chinese test did not violate the OST, and it probably would not violate the OST even if it were to deploy a nuclear weapon on only a partial orbital or sub-orbital trajectory. However, it increases China’s potential to violate the OST by placing a nuclear weapon into orbit and keeping it there with very little warning. Journalists have also speculated that China’s Shenlong reusable spaceplane, which has deployed and recaptured other objects in orbit, could also be used for short-notice orbital bombardment.56
Recognizing the muted international response to their exploitation of the FOBS loophole and other provocations, countries such as Russia and China might be tempted to test the limits of other countries’ strategic patience, space domain awareness, and willingness to enforce international law by placing a nuclear weapon in orbit. As outer space becomes more clearly recognized as a warfighting domain, it is vitally important to deter the deployment of, and be prepared to defend against, a nuclear-armed satellite and other possible space-based WMD.
Why the Space WMD Bans Make Sense
One may ask, what makes the possibility of a space-based nuclear weapon uniquely dangerous? After all, the U.S. nuclear triad of land-based intercontinental ballistic missiles, submarine-launched ballistic missiles, and bomber aircraft is designed to be able to strike anywhere in the world at high speed and with minimal warning or detection.57 Why shouldn’t a state opt to add a fourth domain of outer space to deliver its nuclear weapons?
There are two crucial differences: illegality and the inherently indiscriminate and offensive nature of space-based nuclear weapons. First, even the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the ICJ recognize that terrestrial nuclear weapons programs may lawfully exist for deterrence and self-defense.58 But space-based nuclear weapons are unlawful under the OST, at least for all its parties, which include all states that are known or believed to possess nuclear weapons.59
In addition, while individual nuclear weapons may conceivably be used in a terrestrial conflict in a way that their effects are largely localized and proportionate under the circumstances, a nuclear weapon detonated in Earth’s orbit would inevitably cause severely deleterious effects for a large number of satellites, irrespective of their state of registry. In addition to ending or significantly reducing many satellites’ useful lifespan, the nuclear radiation could render them unable to conduct station-keeping, collision avoidance, or end-of-life disposal maneuvers, thus exacerbating the problem of long-lived orbital debris and the risk of a “Kessler cascade.”60 For all these reasons, the treaty prohibitions against stationing or detonating a nuclear weapon in outer space remain utterly sound and should be honored by all nations.
Potential Motivation to Deploy Nuclear Weapons in Space
Why might a state attempt to station a nuclear weapon in outer space? Why would a state be willing to risk the international opprobrium that would ensue? Perhaps more importantly, why would a state be willing to put its own space assets—and potentially even its own astronauts—at risk from the effects of a nuclear detonation in outer space? Didn’t the world learn enough about the harmful effects of exoatmospheric and high-altitude nuclear testing in the run-up to the Limited Test Ban Treaty that it should now be unthinkable to seek to detonate a nuclear device in space in the first place?
As to the first of these questions, a country might want to have a nuclear weapon in outer space for a variety of reasons. A space-based nuclear weapon could take different forms, depending on whether it is designed to be detonated in outer space or deliver a nuclear payload to a target on Earth. A space-based nuclear bombardment system could be used for coercive leverage as an orbital sword of Damocles, hanging over the heads of any country below.
What if the weapon were intended to be used against targets in outer space rather than on Earth? The nuclear device tests that preceded the Limited Test Ban Treaty had a variety of effects on space systems, mostly harmful.61 In outer space, they created artificial radiation belts that shortened the lives of many other satellites in orbit.62 For example, U.S. and Soviet exoatmospheric nuclear testing degraded the functional life of Telstar-1, the first commercial communications satellite, and Ariel-1, the United Kingdom’s first satellite.63 On Earth, they created electromagnetic pulse effects that disrupted communications and energy transmission, often inadvertently harming the countries that conducted them.64 The effects of a nuclear detonation in space are impossible to localize and may run afoul of the law-of-armed-conflict principles of distinction and proportionality depending on how they are used in war.65
Perhaps if a country believed it could conduct a nuclear attack in space that would inflict more harm on its enemies than on itself, it would consider the attack as in its interest to commit. As with the kamikaze attacks of World War II or the suicide bombings of modern terrorists, perhaps if a country had relatively little to lose in space, but could cause a disproportionate amount of damage to its foes through an indiscriminate nuclear attack, it would do it. North Korea and Iran, with their nascent space programs and burgeoning missile programs, might most closely fit this profile, although Iran has not yet announced a nuclear weapon capability.66 Russia, with its deteriorating space program,67 high tolerance for losses on its own side,68 and disregard for the interests of other states, might also resort to such measures in extremis, or even for offensive advantage. Any of these states might see a nuclear attack in space as an effective way to counter other countries’ attempts to assure resiliency in space through widely proliferated satellite constellations such as Starlink.69
One potential upside to China’s growth as a major spacefaring nation is that its own extensive use of space probably reduces the appeal of a nuclear strike in space. Indeed, in response to Vladimir Putin’s recent intimations about nuclear readiness, Chinese foreign ministry spokesman Wang Wenbin reiterated the five major nuclear powers’ agreement that a nuclear war “cannot be won and must never be fought.”70 However, China’s FOBS development requires recognition of the risk that China could someday seek to bombard another country with space-based nuclear weapons, even if they are not in orbit for long.
Launch of Shenzhou 13 a Chinese spaceflight to the Tiangong space station. (Source: Creative Commons
Response Options in International Law
In international law, states have a variety of means available to respond to internationally wrongful acts. Options, ranging from least to most severe, may include diplomacy, retorsion, countermeasures, or even the use of force in self-defense. This article will discuss these options and then look at historical examples of state responses to other states’ development of WMD for insights into potentially appropriate responses to WMD in outer space. Vignettes will include the Israeli strikes on under-construction Iraqi and Syrian nuclear reactors, U.S. and coalition use of force to end Iraqi and Syrian chemical weapons programs, the Stuxnet cyberattack on Iran’s nuclear program, and the international response to North Korea’s nuclear weapons program.
Diplomacy
In international relations theory, a state’s “instruments of national power” are often summarized with the acronym DIME to represent the state’s means of exerting diplomatic, informational, military, and economic leverage over other states or institutions.71 Diplomacy, the “D” in DIME, refers to the way a state conducts its foreign policy, and it encompasses statements and actions by the head of state, the foreign minister or secretary of state, ambassadors, and other political appointees and career diplomats in the country’s foreign service.72 It also includes the negotiation and enforcement of treaties and other international agreements.73 It is often seen as a “soft” instrument of national power, insofar as it largely relies on state officials speaking with each other, with the public, or in international forums, to advance their respective foreign policy interests.74 However, if a state’s diplomacy takes the form of coercive threats, backed up by the economic and military instruments of power, it can become “harder.”75
When a state believes another state has wronged it, diplomacy is often one of the first means of recourse. The affected state may engage in private back-channel communications to complain of the wrong and request redress, including by a démarche—
a strongly worded diplomatic letter demanding the other state cease its bad behavior.76 If the state views these means as insufficient to produce the desired change, it may lodge its complaint in public.77 This may even take the form of a proposed U.N. General Assembly or Security Council resolution, or a request for action by another treaty-monitoring body.
What would the right diplomatic strategy for addressing space-based nuclear weapons look like? Initially, it should focus on deterring any state from developing or deploying them. This campaign would include continuing to promote accession to the OST among countries that have not ratified it yet, emphasizing the treaty’s benefits for ensuring peaceful coexistence in space, and advocating for continued adherence to treaties such as the Limited Test Ban Treaty and the NPT. If a country appeared to be developing space-based WMD, those who detected it could privately warn the bad actor to stop or could reveal what they know to other countries to build international pressure against the illegal weapons development.
Venues for discussions within the U.N. should include the Committee on the Peaceful Uses of Outer Space, the Conference on Disarmament, the First Committee, the Security Council, and the General Assembly. Although Russian and Chinese diplomats representing their countries’ permanent seats on the U.N. Security Council and other bodies are often intransigent on space security matters,78 they may be marginally more receptive to arguments directed against the likes of Iran or North Korea rather than themselves.79 Even if they refuse to cooperate, presenting a draft Security Council resolution to condemn and authorize action against space-based WMD would put them on the record as having accepted, abstained from voting on, or vetoed the resolution.80
In fact, that has already happened. On 24 April 2024, the United States and Japan presented a Security Council resolution, backed by sixty-five total co-sponsors, to reaffirm that all OST parties should comply with the treaty’s ban on stationing WMD in outer space and should not develop WMD intended for placement in space; Russia vetoed the resolution, and China abstained.81 Subsequently, the General Assembly passed a non-binding resolution to the same effect.82
Could a country simply withdraw from the OST or decline to ratify it in the first place to evade the prohibition? Perhaps. By nature, treaties are only binding as a matter of affirmative consent between their parties.83 However, some treaty provisions have become so widely followed that even non-parties have affirmed them as customary international law.84 Even as he exercised Russia’s veto of the proposed U.N. Security Council resolution discussed above, Russian U.N. ambassador Vasily Nebenzia affirmed that the OST’s Article IV obligation remained binding and averred that the U.N. Security Council resolution was therefore unnecessary.85
In the wake of Russia’s veto, the United States and like-minded countries should begin seeking to promote the notion that OST Article IV’s ban on space-based nuclear weapons has crystallized into customary international law, and seek to garner official statements from as many states as possible affirming the same. Although the formation of customary international law may be hindered by persistent objections from leading states such as Russia, any existing state party to the OST would be on shaky ground to raise such an objection, given that they have already agreed to the rule in the treaty.86 If they decided to disregard the rule anyway, having it widely recognized as customary international law could help to enhance the international legitimacy of any response to the breach.
Of course, diplomacy without a credible promise of action to back it up is ineffective at best, and often counterproductive. Recall former President Barack Obama’s stern warnings that Syrian dictator Bashar al-Assad would cross a “red line” if he used chemical weapons against his own people again—and the lack of meaningful consequences when Syria crossed that “red line.”87 It wasn’t until years later, when the United States, France, and Britain launched strikes destroying Syria’s chemical weapons facilities that Syria finally stopped using chemical weapons against civilians—and even then, only for a time.88 Diplomatic messaging must be accompanied by follow-through. If leaders determine that additional legislative support is necessary or desirable to accomplish that follow-through, they should seek to build and gain assurance of that support before committing to act. This is especially important if leaders perceive a significant risk of escalation.
It remains to be seen what options the world might pursue now that Russia has vetoed the Security Council resolution calling for compliance with the OST’s WMD ban. If diplomacy fails to deter a country from developing space-based WMD, it would face similar challenges in dissuading the weapon’s deployment or use. Therefore, additional options must be considered to strengthen the diplomatic hand.
Retorsion
Retorsion refers to unfriendly but lawful ways a state may respond to another state’s unwelcome acts.89 These are means within a state’s inherent legal authority, such as the ability to unilaterally impose or advocate for other countries to support international economic sanctions and the ability to expel another country’s diplomats or prosecute their spies.90 The United States and its allies have made extensive use of retorsion to respond to Russian aggression in Ukraine. While not desiring for NATO members or any other countries to become a party to the conflict, the free world has imposed unprecedented economic sanctions against Russia and many of its key officials, expelled Russian diplomats suspected of spying, reduced participation with Russia in many international cooperative endeavors and forums, expanded the NATO alliance to include Finland and Sweden, and sold, lent, and donated hundreds of billions of dollars’ worth of military equipment, training, and humanitarian relief aid to Ukraine.91 While Russia continues to criticize these actions, it has not conducted an overt armed attack on any NATO member in response.
Retorsion is appealing because it sends a stronger message than diplomacy alone and imposes tangible consequences on a bad actor. Its measures can be calibrated to the needs of the situation and easily stopped if the offending country ceases its bad behavior. Retorsion should certainly be considered as part of a response to space-based WMD development. For instance, individuals involved in any space WMD program could be targeted with travel bans, international arrest warrants for crimes they are suspected to have committed, asset seizures, or financial restrictions on foreign transactions.
However, just as retorsion has been insufficient to end the conflict in Ukraine, it may be inadequate to counter the threats posed by space-based WMD. States hit with economic sanctions often find ways to avoid them, diverting trade and financial transactions through friendlier third countries and developing indigenous supply chains that can maintain resilience despite a fall-off in international trade.92 If a country is committed to developing space-based nuclear weapons, diplomacy and sanctions may delay them, but they will not ultimately prevent them from doing so.
For example, even though most countries adhere to the NPT,93 Russia and China have stymied international efforts to protect Ukraine’s Russian-occupied Zaporizhzhia nuclear power plant and restrict the development of fissile material for nuclear weapons;94 several countries besides the original NPT-recognized nuclear powers have developed their own nuclear weapons;95 and Iran may be on the verge of a nuclear breakout.96 No amount of economic or diplomatic pressure has caused these countries to forswear the buildup of their own nuclear arsenals.
Countermeasures
When a state violates an international obligation without using force, a state injured by the violation may respond with countermeasures. In the international law context, countermeasures are measures, short of the use of force, “that would otherwise be contrary to the international obligations of an injured state vis-à-vis the responsible state, if they were not taken by the former in response to an internationally wrongful act by the latter in order to procure cessation and reparation.”97 In other words, they are analogous to self-defense, but limited to non-forcible means. Although these means would normally be considered wrongful in the absence of another state’s provocation, the wrongfulness of a countermeasure may be precluded if it is directed against another state’s breach of an international obligation, and if it is necessary and proportionate to overcome the breach.98 A countermeasure should, if possible, be temporary and reversible, so that the states involved may resume fulfilling the obligations they owed each other before the breach that provoked the countermeasure.99
The ICJ has opined that the state exercising a countermeasure must also warn the offending state to stop before it undertakes the countermeasure.100 As an example of this, the United States notified Russia of countermeasures the United States planned to take in response to Russia’s violations of the New START Treaty.101 However, some states have denied that notification is always a requirement; they observe that, at least in the case of countermeasures in cyberspace, it may undermine the effectiveness of the countermeasure to provide notice to the offender because the originally offending state could take the notification as a cue to start circumventing the countermeasure.102 This argument should apply in the space context as well. If a state conducting a countermeasure reasonably expects the state committing the original breach to evade a countermeasure if it becomes aware of it, yet that the countermeasure would likely be effective if unannounced, the state undertaking the countermeasure should not be required to give notice in a way that would defeat the purpose of the countermeasure.
What might countermeasures look like in space? The U.N. Charter recognizes that “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations” are all “measures not involving the use of armed force.”103 While this section is in the chapter that enumerates the powers of the Security Council, its language defining these measures as “not involving the use of armed force” is not expressly restricted to its context. Thus, space electromagnetic warfare techniques or defensive and offensive cyber operations that disrupt or deny satellite communications would not involve the use of force. Therefore, they could potentially qualify as valid countermeasures, provided they met the other criteria of necessity and proportionality and were directed at achieving the cessation of another country’s breach of international law.
It should be noted that, ordinarily, intentionally causing harmful interference with satellite communications violates international law. The International Telecommunication Union (ITU) Constitution prohibits causing harmful interference with radiofrequency communications.104 However, it also recognizes that military radio installations “retain their entire freedom,” while providing that they “must, so far as possible, observe statutory provisions relative to . . . the measures to be taken to prevent harmful interference.”105
Construing the “entire freedom” for military radio installations broadly, as the language itself suggests, it would appear that the ITU Constitution encourages military radio installations to avoid causing unintentional harmful interference in accordance with their country’s domestic laws. However, if a military radio installation’s purpose is to conduct communications jamming in the context of an armed conflict, it would not be “possible,” consistent with mission requirements, to avoid causing harmful interference.106 Therefore, intentional satellite communications jamming, when done by a military unit for a valid military purpose, would not necessarily violate the ITU Constitution.107
However, even if military satellite jamming were considered to violate the ITU Constitution under some circumstances, if a state sought to jam a satellite’s signals to induce the satellite’s launching state to cease its own violations of international law (in this case, stationing WMD in outer space), the jamming could be a lawful countermeasure.108 Under these circumstances, any perceived wrongfulness of the jamming would be precluded. Thus, military units could legitimately conduct electromagnetic spectrum operations against a satellite with a WMD payload or its supporting infrastructure if appropriate authorities determined it constituted a threat hostile to national interests.109
Similarly, while the OST requires consultations if a country believes its planned space activity or experiment “would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space,”110 the OST would not appear to require consultations if a country expected to cause harmful interference with non-peaceful uses of outer space. Traditionally, most military uses of space, such as missile warning, reconnaissance, weather, communications, and navigation, have been regarded as peaceful insofar as they are not used for aggression in the space domain, even if they support terrestrial military operations. However, WMD stationed in orbit in violation of Article IV of the OST should not be entitled to claim protection under the consultation requirement as a “peaceful” use of space. Thus, a country seeking to negate the use of orbital WMD should not be required to notify the offender beforehand under either the OST itself or the modified countermeasures doctrine described above.
While countermeasures are an appealing avenue for action, their efficacy for dealing with space-based WMD threats may also be questioned because they tend to be temporary and reversible. While countermeasures are encouraged to be reversible,111 the nature of countermeasures such as radiofrequency jamming and certain actions in cyberspace means that they may cease to be effective as soon as the jammer stops radiating, the targeted satellite moves out of range, or the operator uploads a software patch. A more permanent solution may therefore be required for a persistent threat like orbital WMD.
A Russian Soyuz-2.1a launch vehicle with a payload of three satellites is pictured at Vostochny Cosmodrome in Russia. (Source: RIA Novosti).
Self-Defense
The U.N. Charter requires states to settle their disputes by peaceful means “in such a manner that international peace and security, and justice, are not endangered”112 and to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the [U.N.]”113 However, it also states, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the [U.N.], until the Security Council has taken the measures necessary to maintain international peace and security.”114 In doing so, it recognizes the pre-existing right of states to national and collective self-defense when force is threatened or used against them.
Despite the conditional language “if an armed attack occurs” in Article 51 of the U.N. Charter, most countries recognize that the right of self-defense also applies against imminently threatened attacks. In the famous “Caroline Case” formulation, the United States and the United Kingdom agreed that the anticipatory use of force could be justified as self-defense, but only when the threat is “instantaneous, overwhelming, and leaving no choice of means and no moment for deliberation.”115 The standard is grounded in even older standards of the requirement for necessity in self-defense, such as Hugo Grotius’s argument in his 1625 treatise, De Jure Belli ac Pacis:
[A]pprehensions from a neighbouring power are not a sufficient ground for war. For to authorize hostilities as a defensive measure, they must arise from the necessity, which just apprehensions create; apprehensions not only of the power, but of the intentions of a formidable state, and such apprehensions as amount to a moral certainty.116
After World War II ended, the Nuremberg war crimes tribunal applied the Caroline standard as customary international law in ruling against Nazi claims that their invasion of Norway and Denmark was justified as preventive self-defense.117
As discussed below, the logic of anticipatory self-defense justified Israel’s strikes against the Syrian nuclear reactor that was under construction in 2007, as well as strikes by various nations against Syria’s chemical weapons facilities in more recent years. More controversially, it has also been cited to support the Israeli strike against Iraq’s Osirak nuclear reactor in 1981 and the U.S.-led invasion of Iraq in 2003.
The preceding examples help to cast light on state practice as an element of customary international law. The Statute of the International Court of Justice requires the court to apply “international custom, as evidence of a general practice accepted as law.”118 When no treaty provision is in place to govern states’ behavior, state practice and opinio juris can be examined to assess whether an unwritten rule of customary international law exists and, if so, whether a state’s behavior has violated that rule.119 State practice can also provide evidence of how states interpret their obligations under treaties.120 Thus, it is useful to examine various instances of how states have conducted self-defensive actions to counter WMD in the past and draw out lessons that could support action against space-based WMD.
The Cuban Missile Crisis
In the early 1960s, the Soviet Union began covertly sending missiles into Cuba to target the United States with nuclear weapons from a much shorter distance and with a much-reduced warning time.121 When the United States discovered the plot, with help from space-based surveillance capabilities, a period of brinksmanship between U.S. President John F. Kennedy and Soviet Premier Nikita Khrushchev ensued.122 To break the stalemate, President Kennedy imposed a “quarantine” of Cuba to prevent further arms transfers, while offering in private to remove U.S. Jupiter missiles from Turkey.123 The Kennedy administration sought to distinguish the quarantine on arms shipments to Cuba from a naval blockade, which attempts to prevent all maritime trade with the targeted state and has traditionally been considered an act of war.124 This high-risk “carrot and stick” combination induced Khrushchev to back down and remove the missiles from Cuba.125
Similarly, serious and overt threats to use military force against space-based WMD might be useful in a crisis. However, the situations are markedly different. Whereas the Soviet Union was able to extract its missiles from Cuba relatively easily, it would likely not be nearly as feasible to safely remove a nuclear-armed satellite from orbit, to deactivate it in a verifiable manner, or to move it to a disposal orbit where it would no longer pose a threat to active satellites. Deorbiting such an object could cause a disaster similar to the crash of the Soviet nuclear-powered spy satellite Cosmos 954, whose debris irradiated hundreds of miles of northern Canadian territory in 1978 and resulted in millions of dollars in damages.126 Leaving it in outer space would make it difficult to assess any purported deactivation, and it may not be capable of exiting its initial orbit to pass into deep space where it would no longer endanger other spacecraft. The WMD satellite’s owner may also simply deny its nature and purpose and refuse to do anything about it, particularly if it doubts the credibility of any threats.127
U.S. and Canadian forces clean up Cosmos 954 radioactive debris. (Source: Royal Canadian Air Force)
Israeli Strike on Osirak Nuclear Reactor
In 1981, Iraqi dictator Saddam Hussein had begun to build a nuclear reactor at Osirak, Iraq, with help from French contractors.128 When Israel learned that it was being fueled, Israeli Prime Minister Menachem Begin became alarmed.129 Iraq had joined coalitions of Arab states against Israel numerous times before—in 1948, 1967, and 1973—and Hussein continued to express anti-Israeli rhetoric and support Palestinian terrorism.130 If Iraq developed a nuclear weapon, Israel was likely to be one of its first potential targets. Prime Minister Begin authorized a daring long-distance raid in which Israeli F-16A fighter jets struck and destroyed the reactor.131 U.S. officials publicly condemned the attack at the time, as did the U.N. Security Council.132
However, after Saddam Hussein later invaded Kuwait and was expelled by the U.S.-led coalition in Operation Desert Storm, then-Secretary of Defense Dick Cheney sent a letter thanking the raid’s architect, former Israeli Air Force Chief David Ivry, for making the coalition’s job much easier.133 Saddam Hussein had restarted his efforts to develop a nuclear capability, which the United States itself had to terminate in 1991, 1993, and again in 2003.134 Thus, the passage of time, combined with continued Iraqi aggression and pursuit of WMD, softened the views of U.S. leadership as to the justification for Israel’s action. Likewise, a preemptive attack against illegal space-based WMD may be controversial when it occurs. However, opposition to such a strike can be mitigated with adequate intelligence sharing or public disclosure of the nature of the threat, as well as by conducting the strike in a responsible manner that leaves little or no collateral damage and does not result in escalation.135
Operation Iraqi Freedom
After suffering nearly 3,000 casualties in the terrorist attacks of September 11, 2001, the United States saw a need to more proactively counter terrorist threats, especially if those terrorists could potentially obtain access to WMD.136 Al-Qaeda’s operatives had turned civilian airliners into flying bombs when they crashed them into the World Trade Center towers, the Pentagon, and a field in Pennsylvania.137 U.S. authorities shuddered to think of what they might do with access to chemical, biological, radiological, or nuclear weapons.138 One potential source of such weapons was the aforementioned Saddam Hussein, who, despite the loss of his nuclear program, had a record of killing Iranians and his own civilians with chemical weapons; had attempted to conceal the extent of his chemical weapons program from international inspectors; was continuing to shelter notorious terrorists such as Abu Musab al-Zarqawi; had regularly attacked U.S. and allied forces enforcing the no-fly zones over northern and southern Iraq; and had plotted to assassinate former U.S. President George H.W. Bush.139 These and other activities violated a variety of U.N. Security Council Resolutions.140
U.S. Secretary of State Colin Powell addressed the U.N. Security Council to argue that Saddam Hussein was a threat to the world and should be removed from power.141 When the Security Council took no action, the United States, in concert with a broad coalition of nations, launched Operation Iraqi Freedom, which commenced on 19 March 2003, and notified the Security Council on 20 March that the coalition was doing so in self-defense, among other reasons.142 The coalition quickly defeated the Iraqi military, deposed Saddam Hussein, and began rebuilding the country.143
Unfortunately, the aftermath of Hussein’s downfall proved to be substantially more challenging than the initial invasion. Moreover, Hussein’s stockpile of illegal chemical weapons turned out to be much smaller and more decrepit than Western leaders and intelligence analysts had believed.144 While the invasion of Iraq made sense to most Americans at the time based on what we knew then, many later criticized the war as a mistake in light of how costly the counterinsurgency became and how small a threat, in hindsight, the chemical weapons posed.145
The Iraq war and its reappraisal remind us that it is critically important to develop reliable intelligence and sound judgment about the threats we perceive and how to deal with them. The more distant an adversary is, in terms of both capability and intent, from threatening or using force against us, the more challenging it is to justify military action in self-defense, particularly in the case of preemptive action. However, we should also be careful not to unduly minimize past threats just because they no longer seem so dangerous in hindsight.
Israeli Strike on Syrian Nuclear Reactor
In 2007, Israeli intelligence identified an undeclared nuclear reactor under construction in eastern Syria, with North Korean nuclear scientists present at the site.146 Israeli Prime Minister Ehud Olmert feared that the Assad regime intended to use it to create fissile material for a nuclear weapon, with Israel as the most likely target.147 The fact that Syria, unlike Iraq, shared a border with Israel, made it an even more pressing threat than the Osirak reactor had been. Having learned some lessons from the Osirak strike, this time, Israeli officials quickly approached U.S. authorities, shared their intelligence findings, and sought to gain U.S. support for an Israeli airstrike against the Syrian reactor.148 Unlike in 1981, the U.S. administration and key allies recognized the nuclear reactor as a mortal threat to Israel, shared intelligence that corroborated the Israeli assessment, and pledged not to condemn or interfere with Israel’s action.149 In a raid on 6 September 2007, Israeli Air Force fighters quickly turned the illegal nuclear site into rubble.150
Factors that helped the world to see this strike as justified included the illegality of Syria’s covert actions under the NPT; Syria’s history and ongoing stance of hostility toward Israel; Syria’s geographic proximity to Israel; the accurate intelligence data and assessments shared between Israel and the United States; and Israel’s well-founded judgment that lesser means, such as exposure of Syria’s malfeasance to the International Atomic Energy Agency (IAEA), would be ineffective.151 Israel’s precision attack also resulted in little or no collateral damage, thus satisfying the law-of-armed-conflict principles of distinction and proportionality.
Just as Israel was threatened by the possibility of a hostile nuclear-armed power on its border, the whole world would be threatened by the existence of a nuclear weapon in space. Whether intended for detonation in orbit or for nuclear bombardment of terrestrial targets, such a weapon would be profoundly destabilizing, as well as patently illegal for any party to the OST. Therefore, countries that believe themselves threatened by the placement of a nuclear weapon in outer space should develop the means to destroy it before it becomes operational, just as Israel destroyed the Iraqi and Syrian nuclear reactors. As the U.S. Department of Justice Office of Legal Counsel opined in 2002, “[A]s the magnitude of the possible harm caused by an attack increases, the probability that the attack will occur may be reduced and still justify an exercise of the right to anticipatory self-defense.”152
Payload farings are fitted around a satellite to secure and protect it during its launch atop the Atlas V 541 rocket at Cape Canaveral Space Force Station. (Credit: Ben Smegelsky, NASA)
U.S., Coalition, and Israeli Strikes on Syrian Chemical Weapons Facilities
At various points in the Syrian Civil War that began in 2011 and continues in part to this day, Syrian dictator Bashar al-Assad used chemical weapons against both rebels opposing his regime and Syrian civilians not participating in the conflict.153 In 2012, U.S. President Barack Obama warned that such behavior was crossing a red line and needed to stop.154 However, when Assad attacked rebels in Damascus with sarin gas in August 2013, President Obama deferred to Congress to authorize the use of military force to punish Assad, and Congress did not grant such an authorization.155 Instead, special envoy John Kerry accepted Russia’s offer to mediate and monitor the situation and pressured Assad into signing the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, also known as the Chemical Weapons Convention (CWC).156
Despite Syria’s putative accession to the CWC, Assad continued attacking Syrian civilians with chemical weapons over each of the next five years,157 even after President Donald Trump authorized missile strikes against an airfield used in Assad’s 2017 chemical attack.158 Still undeterred, Assad’s forces dropped barrels full of toxic chemicals to poison rebels and civilians at Douma in April 2018.159 This time, French and British forces joined the U.S. Air Force and Navy in striking targets that included chemical weapons research laboratories in the heart of Damascus.160 These strikes, along with ongoing efforts at deterrence, set back Syria’s chemical weapons program for another year. However, after President Trump decided to disengage from Syria,161 Assad used them once again.162 Finally, as the Assad regime collapsed in December 2024, Israel launched airstrikes to finish off the Syrian chemical weapons facilities and keep them from falling into the hands of the militants who toppled Assad.163
Lessons from this episode include the risks associated with negotiating with Putin’s Russia and the demonstration that in some situations, the military instrument of national power—especially when wielded in concert with allies—is far preferable to diplomacy alone. Like the OST, the text of the CWC does not provide for the use of military force as an enforcement mechanism.164 However, illegal WMD create risks to civilian populations that many nations find especially intolerable. Therefore, Syria’s repeated use of chemical weapons in violation of the CWC demanded a harsher response than merely sending inspectors or filing reports with the U.N. The multinational military response degraded Syria’s chemical weapons capabilities and restored deterrence against their further use—but once it appeared that the United States was no longer interested in Syria, deterrence vanished. Thus, the international community must remain vigilant and poised to act repeatedly against WMD threats if these threats are to remain under control.
Stuxnet Cyberattack on Iranian Nuclear Program
Iran’s ongoing efforts to develop a nuclear capability have provoked a wide variety of reactions from other states, including economic sanctions,165 U.N. Security Council resolutions,166 IAEA inspections,167 the ill-fated Joint Comprehensive Plan of Action (JCPOA),168 and even assassinations of Iranian nuclear scientists and military officers.169 One of the most notable incidents involved the cyber worm known as Stuxnet, which is widely believed, though not acknowledged, to have been developed by U.S. and Israeli intelligence agencies.170 The Stuxnet code infected the control systems for Iranian nuclear centrifuges and caused them to spin out of control, reportedly physically damaging or destroying around 900 centrifuges in fourteen Iranian nuclear facilities.171
The Stuxnet event illustrates both the promise and the peril of seeking to affect nuclear programs via cyberspace. It caused a significant setback in Iran’s nuclear enrichment program, destroying numerous centrifuges without causing any direct collateral damage. However, it did not permanently eliminate Iran’s path to a nuclear capability, and once Iran discovered it, Iran was able to protect itself from further damage.172 Similarly, cyber methods may offer a subtle, sophisticated, and difficult to detect and attribute way of impairing an adversary’s space-based nuclear weapons capability. However, they may be challenging to implant, and, if discovered, could potentially be turned against their original developer or third parties.
North Korean Nuclear and Missile Developments
North Korea has been hostile to the United States, the Republic of Korea (ROK), and the free world, often including the U.N. itself, since its inception. Exchanging Japanese occupation for Soviet occupation at the end of World War II, the Communist-dominated portion of the Korean peninsula soon launched a war of aggression against the ROK, its neighbor to the south.173 U.S. and U.N. forces intervened to restore South Korean sovereignty over the ROK’s internationally recognized territory, and hostilities were suspended with the declaration of an armistice in 1953.174 However, the ruling Kim dynasty in Pyongyang has remained implacably opposed to the mere existence of ROK, the United States, and democratic values ever since. It continues to threaten South Korea and the United States, occasionally resorting to the unprovoked use of force.175
To back up its threats, North Korea has developed nuclear weapons, having conducted six known underground nuclear detonation tests to date.176 It has also rapidly advanced its long-range ballistic missile capabilities in tandem with its space launch program, having developed multiple intercontinental ballistic missile (ICBM) variants capable of hitting most of the continental United States.177 It frequently tests ballistic missiles by shooting them up into outer space such that they splash down in the seas on either side of Japan.178 It is unknown whether North Korea has successfully mated a nuclear weapon with an ICBM, but its demonstration of both technologies likely indicates that their integration is not far off if it has not already occurred.
U.S. and allied efforts to isolate, sanction, condemn, and deter North Korea over the past seven decades of armistice have met with mixed success at best. While the primary goal of deterring another massive attack on the ROK seems to have succeeded so far, North Korea’s continuing bellicose rhetoric and increasingly fearsome nuclear and missile arsenal suggest that we may not always be so lucky.179 If North Korean dictator Kim Jong-Un gives the order to finish what his grandfather Kim Il-Sung started in 1950, his forces could potentially launch an attack at any time, resuming the Korean War and causing inconceivable amounts of suffering.180
North Korea’s ability to develop extensive nuclear weapons and ICBM programs despite international sanctions illustrates how even an impoverished rogue state can protect its illegal nuclear weapons development through concealment, lies, and threats while deterring any possibility of a preemptive anti-nuclear strike, such as those Iraq and Syria experienced. Fears about how the Kim regime would retaliate against the ROK deterred preemptive actions even before the North Korean nuclear breakout. They became insurmountable once North Korea’s nuclear weapon capability was confirmed.
Closing Thoughts on Preemptive Self-Defense
Comparing the North Korean nuclear situation to a potential space-based nuclear weapons development situation, we see some similarities and some differences. In both situations, there are substantial risks to acting preemptively to neutralize a weapon possessed by a known nuclear power. Even if a space-based nuclear weapon itself were not fully activated, the possibility that its owner might retaliate in space or another domain would need to be accounted for. If a space-based nuclear weapon’s owner wanted to deny its nature and purpose and claim to be the innocent victim of aggression, it could accuse any state that attempted to negate the weapon of interfering with its peaceful use of outer space—and undertake reprisals accordingly. The state that acted to negate the weapon would also need to explain its action to counter this false narrative and be prepared to deal with any further retaliation that might ensue. Professor Louisa Handel-Mazzetti has helped to lay the legal groundwork for preemptive self-defense through her argument that stationing a nuclear weapon in outer space is inherently an unlawful threat of force in violation of Article 2(4) of the U.N. Charter.181
Neutralizing an illegal space-based nuclear weapon might also be substantially less escalatory than attempting to neutralize a well-defended terrestrial nuclear program. Strikes against hardened nuclear facilities, perhaps underground and defended by antiaircraft missiles, within a nation’s sovereign territory, would require a massive investment in resources and would undoubtedly invite counterstrikes if the targeted country were not sufficiently chastened. In contrast, neutralizing an illegal space-based nuclear weapon would not have to involve penetration into enemy territory,182 human casualties, or the types of damage that tend to provoke genuine grief and outrage among the populace and condemnation by other countries. Rather, most countries, even if normally aligned with the country that stationed a nuclear weapon in space, might privately breathe a sigh of relief that such a menace was neutralized.
One might also ask whether preemptively neutralizing a space-based nuclear weapon would risk harmful escalation by threatening the nuclear balance of power. U.S. policy takes pains to avoid interference with other countries’ nuclear command and control,183 and Western countries such as the United States do not go about attacking potentially hostile nuclear ballistic missile submarines, ICBM launchers, or nuclear bomber bases and depots just because of the possibility that they could launch a devastating nuclear strike some day. However, those capabilities are largely recognized as legitimate tools of deterrence and self-defense, which a nuclear state has the authority to possess.184 A nuclear weapon stationed in outer space, by contrast, would be manifestly unlawful and destabilizing. Because of its prohibition in the OST and its indiscriminate nature affecting all spacefaring nations, it would make no sense for responsible and law-abiding states to respond in kind by fielding a comparable capability that they could never justify using. Thus, targeted efforts to neutralize the illegal space weapon would be preferable to traditional forms of nuclear deterrence that rely on achieving some degree of parity in delivery methods for a first- or second-strike capability.
The degree of international acquiescence to any preemptive action against space-based WMD will likely depend in part on what means are chosen to carry it out, and their foreseeable long-term effects. For example, a kinetic strike that causes large amounts of long-lived, possibly radioactive, space debris would be less likely to garner international support or toleration than a non-kinetic strike, perhaps with some form of directed-energy weapon or cyber mechanism. The latter method could, in theory, render the weapon harmless without splintering it into thousands of shards of space shrapnel—and may also be more difficult to detect and attribute, mitigating the risk of retaliation. Non-kinetic actions to disable the capability before launch, or kinetic or non-kinetic actions to neutralize it in the early launch phase before it achieves orbit, should also be considered.185 However, launch disruptions might carry a higher risk of discovery or terrestrial damage.
Certain prior U.S. policy proclamations, such as the ban on destructive direct-ascent ASAT testing (now echoed by dozens of other countries and endorsed in a U.N. General Assembly Resolution)186 and the tenet-derived responsible behaviors in space,187 suggest significant reluctance to cause permanent harm to any other country’s satellite—particularly if collateral damage is expected. However, if that other country’s satellite contains an illegal WMD payload, it could be more responsible to neutralize it than to leave it alone.
As General Stephen Whiting, Commander, USSPACECOM, recently argued at the 40th Space Symposium, “It’s time that we can clearly say that we need space fires, and we need weapon systems. We need orbital interceptors. . . . We call these weapons. And we need them to deter a space conflict and to be successful if we end up in such a fight.”188 A new U.S. Space Force doctrinal document also makes clear that the United States needs space superiority to ensure “the enemy is no longer able to act in a meaningful or dangerous way against friendly celestial lines of communication,”189 which may require “seeking out and destroying an enemy’s spacecraft, systems, and networks.”190 It is difficult to imagine a target more worthy of such destruction than a satellite with an illegal WMD payload.
When it comes to defending against a nuclear FOBS or MOBS, the announcement of a new “Golden Dome for America”191 is also a heartening sign. Building on the legacy of President Reagan’s Strategic Defense Initiative, the Golden Dome initiative directs planning for a next-generation missile defense architecture with significant space-based components that will enable identification, tracking, and interception of “ballistic, hypersonic, advanced cruise missiles, and other next-generation aerial attacks from peer, near-peer, and rogue adversaries.”192 If such a system is fielded and operates as intended, it could potentially interdict a FOBS-type threat in the pre-launch, boost, or terminal phases.193
Finally, effective deterrence must rely on more than legal arguments that self-defense is a valid option. It must be backed up by hard power, and the training, ability, and willingness to employ it in a disciplined and lethal way. Even if the first Russian satellite that provoked so much consternation is not already armed, it could be followed by one or more successors with a live nuclear payload.194 Before that happens, we must urgently build the capability to deny any attempt to deploy or use a space-based nuclear weapon before it lays waste to the world’s satellite constellations, imperils our cities and military forces with orbital bombardment, or enables terrestrial military adventurism by presenting a constant threat to render space unusable. This will require significant investment in counterspace systems, space domain awareness, and an operational test and training infrastructure to prepare U.S. Space Force Guardians acting in concert with other joint and combined forces to face and defeat the threat.
Conclusion
In this new and dangerous era of great-power competition, irresponsible states threaten to cast aside the hard-won legal prohibitions on space-based WMD that the international community collectively achieved during the Cold War. The United States and its allies must use all lawful means at our disposal to protect our space assets, our homelands, our allies, and our modern way of life from these threats—and to deter or prevent them from materializing in the first place. These means may include elements of diplomacy, retorsion, countermeasures, and, if necessary, anticipatory self-defense, as circumstances and capabilities warrant. This article has detailed some of the ways to do so, recognizing the risks and benefits of each type of action. What we cannot afford is inaction. We must not allow WMD to be stationed in outer space. Si vis pacis, para bellum. TAL
Maj Green is the Chief, Space and Operations Law at Headquarters, Space Training and Readiness Command, presently located in Colorado Springs, Colorado.
The author thanks Colonel Ted Richard, Mr. Robert Jarman, Major Danny Beaulieu, Mr. Christian Packard, and Mr. Todd Pennington for their invaluable editorial insights. The opinions expressed in this essay are the author’s and do not necessarily reflect the views of the Department of Defense, the Department of the Air Force, the Department of the Army, or any of their components or members. The citation of secondary sources in this article should not be construed to confirm or deny the veracity of any of their contents.
Notes
1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. IV, cl. 1, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter OST]. The OST does not specify any penalty for states that violate this prohibition.
2. See, e.g., Press Briefing by Press Secretary Karine Jean-Pierre and White House National Security Communications Advisor John Kirby, White House (Feb. 15, 2024) [hereinafter White House Press Briefing], https://www.whitehouse.gov/briefing-room/press-briefings/2024/02/15/press-briefing-by-press-secretary-karine-jean-pierre-and-white-house-national-security-communications-advisor-john-kirby-3; Fiscal Year 2025 Budget Request for National Security Space Programs: Hearing before the H. Armed Servs. Comm., Subcomm. on Strategic Forces, 118th Cong. 4 (May 1, 2024) (statement of Dr. John F. Plumb, Assistant Sec’y of Def. for Space Pol’y) [hereinafter Plumb Statement], https://docs.house.gov/meetings/AS/AS29/20240501/117236/HHRG-118-AS29-Wstate-PlumbJ-20240501.pdf; Jim Garamone, Military Experts Highlight Space Opportunities, Threats at Aspen Conference, DoD News (July 18, 2024), https://www.spacecom.mil/Newsroom/News/Article-Display/Article/3844275/military-experts-highlight-space-opportunities-threats-at-aspen-conference.
3. Zoë Richards & Patrick Smith, Biden Warns Risk of Nuclear ‘Armageddon’ Is Highest since Cuban Missile Crisis, NBC News (Oct. 6, 2022), https://www.nbcnews.com/politics/joe-biden/biden-warns-risk-nuclear-armageddon-highest-cuban-missile-crisis-rcna51146; David Sanger, Biden’s Armageddon Moment: When Nuclear Detonation Seemed Possible in Ukraine, N.Y. Times (Mar. 11, 2024), https://www.nytimes.com/2024/03/09/us/politics/biden-nuclear-russia-ukraine.html.
4. Mark B. Schneider, Escalate to De-escalate, Proc., U.S. Naval Inst. (Feb. 2017), https://www.usni.org/magazines/proceedings/2017/february/escalate-de-escalate; Amy F. Woolf, Cong. Rsch. Serv., R45861, Russia’s Nuclear Weapons: Doctrine, Force, and Modernization 1 (Mar. 1, 2022), https://crsreports.congress.gov/product/pdf/R/R45861/10.
5. Regarding terminology, the U.S. Department of State has noted, “The United States no longer uses the term ‘tactical nuclear weapon’ preferring the term ‘non-strategic nuclear weapon’ because we do not envision any use of nuclear weapons to be tactical in character or effect. We note that all nuclear weapons can have strategic implications. The use of any nuclear weapon would fundamentally alter the nature of a conflict.” U.S. Dep’t of State, Adherence to and Compliance with Arms Control, Nonproliferation, and Disarmament Agreements and Commitments 9 n.1 (2022) [hereinafter Adherence Report], https://www.state.gov/adherence-to-and-compliance-with-arms-control-nonproliferation-and-disarmament-agreements-and-commitments. Despite the potential for nuclear weapons of any size to have strategic implications, the Treaty between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive Arms, Apr. 8, 2010, S. Treaty Doc. No. 111-5 [hereinafter New START Treaty], does not define the term “strategic offensive arms.” However, it focuses on the following types of arms that generally possess intercontinental range: nuclear-armed or nuclear-capable intercontinental ballistic missiles (ICBMs), sea-launched ballistic missiles (SLBMs), heavy bombers, and their associated nuclear warheads and launchers. Id. at 11.
6. Micah McCartney, China Responds to Putin’s Nuclear Weapons Warning, Newsweek (Mar. 14, 2024), https://www.newsweek.com/china-responds-putin-nuclear-weapons-warning-1879113 (citing former Russian president Dmitry Medvedev as endorsing a nuclear strike on Ukraine if Ukraine were to successfully repel Russia’s invasion).
7. Boldizsar Gyori, Russia Has Spent $200 Billion on Full-Scale War in Ukraine, Suffered 700,000 Casualties, Austin Says, Kyiv Indep. (Dec. 9, 2024), https://kyivindependent.com/russia-has-spent-200-billion-on-full-scale-war-in-ukraine-suffered-700-000-casualties-austin-says (citing Russian casualties as having reached at least 700,000 by U.S. estimates and over 750,000 by Ukrainian estimates). In early January 2025, the Ukrainian Armed Forces estimated that Russian casualties exceeded 800,000, while United Kingdom Defence Intelligence offered a slightly more conservative estimate of “over 790,000 casualties.” Maya Mehrara, Russia’s Losses in Ukraine Pass Grim Milestone, Newsweek (Jan. 7, 2025), https://www.newsweek.com/russias-losses-ukraine-pass-grim-milestone-2010764.
8. Kristin Ven Bruusgaard, Myths and Misconceptions around Russian Military Intent, Myth 9: ‘Russian Nuclear Strategy Is Best Described as “Escalate to De-Escalate,” Chatham House (Aug. 23, 2022), https://www.chathamhouse.org/2022/07/myths-and-misconceptions-around-russian-military-intent/myth-9-russian-nuclear-strategy. This analysis contends that Russia has improved its conventional capabilities to the point that it would reserve nuclear use to counter threats to its own vital national interests, such as preventing a conventional defeat on its own territory. See id.
9. See McCartney, supra note 6 (citing Medvedev’s statements). More recently, as some NATO members have signaled a greater potential willingness to train Ukrainian forces in Ukraine or to permit Ukraine to use their weapons against targets deeper into Russia and Crimea, Russia announced its forces would begin conducting tactical nuclear weapons drills. Russia Begins Nuclear Drills in an Apparent Warning to West over Ukraine, Associated Press (May 22, 2024), https://apnews.com/article/russia-nuclear-drills-ukraine-war-62ad37602b0cf2901bf82a75e593294d.
10. In October 2022, Vladimir Putin signed documents purporting to absorb the regions (“oblasts”) of Kherson, Donetsk, Luhansk, and Zaporizhzhia into the Russian Federation—despite not even occupying all those territories, let alone legitimately governing them. Adam Schreck, Putin Signs Annexation of Ukrainian Regions as Losses Mount, Associated Press (Oct. 5, 2022), https://apnews.com/article/russia-ukraine-putin-international-law-donetsk-9fcd11c11936dd700db94ab725f2b7d6.
11. Off. of the Dir. of Nat’l Intel., Annual Threat Assessment of the United States Intelligence Community 15 (Feb. 5, 2024), https://www.dni.gov/files/ODNI/documents/assessments/ATA-2024-Unclassified-Report.pdf (“Moscow will be more reliant on nuclear and counterspace capabilities for strategic deterrence as it works to rebuild its ground force.”).
12. Schneider, supra note 4 (describing Russian claims to have developed a “nuclear-armed, fast, drone submarine”); Woolf, supra note 4, at 22-29; see also Karoun Demirijian, Here Are the Nuclear Weapons Russia Has in Its Arsenal, Wash. Post (Oct. 5, 2022), https://www.washingtonpost.com/world/2022/10/05/russia-nuclear-weapons-military-arsenal; Ashish Dangwal, Russia’s ‘Monster Missile’ Sarmat ICBM to Be Tested by End Of 2022; 1st Regiment to Be Deployed after Gauging Outcome, EurAsian Times (Nov. 8, 2022), https://eurasiantimes.com/russias-monster-missile-sarmat-icbm-to-be-tested-by-end-of-2022; Associated Press, Russia Simulates Nuclear Strike after Opting out of Treaty, Guardian (Oct. 25, 2023), https://www.theguardian.com/world/2023/oct/25/russia-simulates-nuclear-strike-after-opting-out-of-treaty. On 21 November 2024, Russia attacked Dnipro, Ukraine, with an experimental, conventionally armed “Oreshnik” intermediate-range ballistic missile, “the first time such a weapon was used in a war.” Russia Has Used Its Hypersonic Oreshnik Missile for the First Time. What Are Its Capabilities?, AP (Dec. 9, 2024), https://apnews.com/article/russia-oreshnik-hypersonic-missile-putin-ukraine-war-345588a399158b9eb0b56990b8149bd9.
13. U.S. Dep’t of State, New START Treaty Annual Implementation Report (2023), https://www.state.gov/wp-content/uploads/2023/01/2022-New-START-Implementation-Report.pdf (stating for the first time that the United States “cannot certify the Russian Federation to be in compliance with the terms of the New START Treaty” because Russia refused to permit U.S. inspections or convene a timely session of the Bilateral Consultative Committee); Adherence Report, supra note 5 (accusing Russia of violating its obligations under the Biological Weapons Convention and the Treaty on Open Skies, and raising compliance concerns with Russia’s activities and reporting failures under the Threshold Test Ban Treaty, the Vienna Document on Confidence- and Security-Building Measures, and Presidential Nuclear Initiatives committing to the reduction of nonstrategic nuclear weapons); U.S. Dep’t of State, Compliance with the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction Condition 10(C) Report 16 (2022) [hereinafter CWC Adherence Report], https://www.state.gov/wp-content/uploads/2022/04/Condition-10-c-Report.pdf (noting that Russia “retains an undeclared chemical weapons program and has used chemical weapons” to attempt assassinations twice in recent years—including in the United Kingdom in March 2018). Russia also reneged on its commitment to respect Ukraine’s territorial sovereignty in exchange for Ukraine’s sending Soviet-era nuclear weapons back to Russia. Jamie McIntyre, In 1994, the US Succeeded in Convincing Ukraine to Give up Its Nukes but Failed to Secure Its Future, Wash. Examiner (Jan. 13, 2022), https://www.washingtonexaminer.com/policy/defense-national-security/in-1994-the-us-succeeded-in-convincing-ukraine-to-give-up-its-nukes-but-failed-to-secure-its-future; see also Lorne Cook & Harriet Morris, NATO Freezes a Cold War-Era Security Pact after Russia Pulls Out, Raising Questions on Arms Control, Associated Press (Nov. 7, 2023), https://apnews.com/article/russia-treaty-arms-control-cold-war-39038fa5a73a4a33bccce6a5c60be341 (describing NATO’s response to Russia’s withdrawal from the Treaty of Conventional Armed Forces in Europe).
14. Mary Ilyushina, Robyn Dixon & Niha Masih, Putin Says Russia Will Suspend Role in New START Nuclear Accord with U.S., Wash. Post (Feb. 21, 2023), https://www.washingtonpost.com/world/2023/02/21/putin-speech-ukraine-state-of-nation. In November 2023, Russia also revoked its ratification of the Comprehensive Test Ban Treaty (CTBT). Putin Signs Bill Revoking Russia’s Ratification of a Global Nuclear Test Ban Treaty, Associated Press (Nov. 2, 2023), https://apnews.com/article/russia-putin-nuclear-test-ban-9029a57a951df5f7a5039abc472c75a9. The CTBT has never entered into force because several other key nuclear states, including the United States, have not ratified it.
15. Colonel Theodore Richard, Can International Law Constrain Russian Behavior?, Lawfire (Nov. 8, 2023), https://sites.duke.edu/lawfire/2023/11/08/col-ted-richard-on-can-international-law-constrain-russian-behavior.
16. Fiscal Year 2023 Priorities and Posture of United States Space Command, Hearing Before the S. Armed Servs. Comm., 117th Cong. (2022) (statement of Gen. James H. Dickinson, Commander, U.S. Space Command), https://www.armed-services.senate.gov/imo/media/doc/USSPACECOM%20FY23%20Posture%20Statement%20SASC%20FINAL.pdf. General Dickinson stated,
Our competitors are also developing and proliferating satellites and satellite attack capabilities to hold our space and strategic capabilities at risk. These counterspace capabilities include cyber, electronic warfare (EW), directed-energy weapons, anti-satellite missiles, and space-based weapons, which enable our competitors to achieve a range of effects. These effects range from degrading space services temporarily to damaging or destroying satellites permanently in and through space that jeopardize our capabilities in other domains.
Id. at 4.
17. Charles Pope, Senate Confirms Saltzman to be Space Force’s Next Chief of Space Operations, Sec’y Air Force Pub. Affs. (Sept. 30, 2022), https://www.spaceforce.mil/News/Article/3176090/senate-confirms-saltzman-to-be-space-forces-next-chief-of-space-operations.
18. OST art. IX requires states parties to conduct their activities in outer space “with due regard to the corresponding interests of other States Parties,” and to engage in international consultations if they have reason to believe their planned activity or experiment “would cause potentially harmful interference” with the peaceful space activities of other states parties. OST, supra note 1, art. IX. See also Mark Carreau, Russian Anti-Sat Test Doubled ISS Debris Threat, NASA Says, Aviation Week (Jan. 18, 2022), https://aviationweek.com/defense-space/space/russian-anti-sat-test-doubled-iss-debris-threat-nasa-says. A new ISS crew arrived in orbit just four days before the ASAT test, joining Russian cosmonauts Commander Anton Shkaplerov and Flight Engineer Pyotr Dubrov. The Station Crew Welcomed Four New Members, NASA Space Station (Nov. 11, 2021), https://blogs.nasa.gov/spacestation/2021/11/11/the-station-crew-welcomed-four-new-members.
19. Russian Direct-Ascent Anti-Satellite Missile Test Creates Significant, Long-Lasting Space Debris, U.S. Space Command Pub. Affs. (Nov. 15, 2021) [hereinafter Russian DA-ASAT Test], https://www.spacecom.mil/Newsroom/News/Article-Display/Article/2842957/russian-direct-ascent-anti-satellite-missile-test-creates-significant-long-last (emphasis added).
20. See, e.g., id.; Anurag Roushan, UK Condemns Russia’s Anti-satellite Missile Test, Claims It Puts Space Missions at Risk, RepublicWorld (Nov. 16, 2021), https://www.republicworld.com/world-news/uk-news/uk-condemns-russias-anti-satellite-missile-test-claims-it-puts-space-missions-at-risk.html; France Says Russian Anti-satellite Test Is ‘Destabilising, Irresponsible’, Reuters (Nov. 16, 2021), https://www.reuters.com/article/uk-usa-russia-space-france-idUKKBN2I12F2. Later, by a 155-to-9-vote margin with nine abstentions, the U.N. General Assembly passed a resolution condemning such tests and calling on all countries to refrain from intentionally destroying satellites in direct-ascent ASAT tests. Jeff Foust, United Nations General Assembly Approves ASAT Test Ban Resolution, SpaceNews (Dec. 13, 2022), https://spacenews.com/united-nations-general-assembly-approves-asat-test-ban-resolution.
21. The Russian Military Confirmed that They Shot Down a Soviet Satellite During Testing, Interfax (Nov. 16, 2021), https://www.interfax.ru/russia/803293 (translated by Google).
22. Tracy Cozzens, Russia Issues Threat to GPS Satellites, GPS World (Nov. 29, 2021), https://www.gpsworld.com/russia-issues-threat-to-gps-satellites. Kiselyov’s claim was probably exaggerated. Russia’s destructive ASAT test took place about 480 kilometers above the Earth, whereas the GPS constellation operates about 20,200 kilometers above mean sea level in medium Earth orbit (MEO)—an area about 42 times farther away than the Nudol’s target in November 2021. Space Segment, GPS.gov, https://www.gps.gov/systems/gps/space (June 28, 2022). C.f. Ankit Panda, The Dangerous Fallout of Russia’s Anti-Satellite Missile Test, Carnegie Endowment for Int’l Peace (Nov. 17, 2021), https://carnegieendowment.org/2021/11/17/dangerous-fallout-of-russia-s-anti-satellite-missile-test-pub-85804.
23. W.J. Hennigan, Exclusive: Strange Russian Spacecraft Shadowing U.S. Spy Satellite, General Says, Time (Feb. 10, 2020), https://time.com/5779315/russian-spacecraft-spy-satellite-space-force; Brian Weeden, Secure World Found., Russian Co-Orbital Anti-satellite Testing (July 2023), https://swfound.org/media/207608/fs23-05_russian-co-orbital-asat-testing_0723.pdf; Morgan McFall-Johnsen, A Russian ‘Inspector’ Satellite Appears to Be Chasing a Secret US Military Satellite in a Game of Cat and Mouse, Bus. Insider (Apr. 28, 2023), https://www.businessinsider.com/russian-inspector-satellite-chasing-secret-us-military-satellite-cat-mouse-2023-4 (quoting General Dickinson’s characterization of Russia’s Kosmos-2558 launch into close orbital proximity with USA-326 as “really irresponsible behavior”).
24. Jeff Foust, U.S. Claims Recently Launched Russian Satellite Is an ASAT, SpaceNews (May 21, 2024), https://spacenews.com/u-s-claims-recently-launched-russian-satellite-is-an-asat; For Second Time Since Late April Security Council Fails to Adopt First-Ever Resolution on Preventing Arms Race in Outer Space, UN Meetings Coverage (May 20, 2024), https://press.un.org/en/2024/sc15700.doc.htm.
25. House Intelligence Committee Chairman Turner Statement on Serious National Security Threat, House Permanent Select Comm. on Intel. (Feb. 14, 2024), https://intelligence.house.gov/news/documentsingle.aspx?DocumentID=1360.
26. White House Press Briefing, supra note 2.
27. Geoff Brumfiel, A New Russian Weapon System for Targeting Satellites Is Under Development, NPR (Feb. 15, 2024), https://www.npr.org/2024/02/15/1231861013/a-new-russian-weapon-system-for-targeting-satellites-is-under-development; The Aerospace Advantage, Special Edition: Russian Nukes in Space?, Mitchell Inst. for Aerospace Studies, at 3:43 (Feb. 20, 2024), https://mitchellaerospacepower.org/episode-169-special-edition-russian-nukes-in-space-understanding-the-threat-and-implications.
28. Plumb Statement, supra note 2, at 4.
29. Dean Cheng, Winning without Fighting: Chinese Legal Warfare, Heritage Found. (May 21, 2012), https://www.heritage.org/asia/report/winning-without-fighting-chinese-legal-warfare; U.S.-China Econ. & Sec. Rev. Comm’n, 2023 Report to Congress: Executive Summary and Recommendations 16-17 (2023), https://www.uscc.gov/sites/default/files/2023-11/2023_Executive_Summary.pdf.
30. Secretary Blinken’s Call with People’s Republic of China (PRC) CCP Central Foreign Affairs Office Director Wang Yi, U.S. Dep’t of State (Feb. 3, 2023), https://www.state.gov/secretary-blinkens-call-with-peoples-republic-of-china-prc-ccp-central-foreign-affairs-office-director-wang-yi; Transcript: Senior Defense Official Holds a Background Briefing on High-Altitude Surveillance Balloon, U.S. Dep’t of Def. (Feb. 2, 2023), https://www.defense.gov/News/Transcripts/Transcript/Article/3287204/senior-defense-official-holds-a-background-briefing-on-high-altitude-surveillan; Jake Tapper, Transcript: State of the Union, CNN (Feb. 5, 2023), https://transcripts.cnn.com/show/sotu/date/2023-02-05/segment/01 (interviewing U.S. Secretary of Transportation Pete Buttigieg and Senator Marco Rubio after a U.S. Air Force pilot shot down the balloon off the coast of South Carolina). The Chicago Convention on International Civil Aviation, to which China is a party, provides, “No state aircraft of a contracting State shall fly over the territory of another State . . . without authorization . . . .” Convention on International Civil Aviation, art. 3(c), Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295 (entered into force Apr. 4, 1947) [hereinafter Chicago Convention].
31. Bureau of Oceans & Int’l Env’t & Sci. Affs., U.S. Dep’t of State, Limits in the Seas No. 150, People’s Republic of China: Maritime Claims in the South China Sea 1 (2022), https://www.state.gov/wp-content/uploads/2022/01/LIS150-SCS.pdf; Steven Stashwick, Chinese Vessel Rams, Sinks Philippine Fishing Boat in Reed Bank, Diplomat (June 14, 2019), https://thediplomat.com/2019/06/chinese-vessel-rams-sinks-philippine-fishing-boat-in-reed-bank (describing how a Chinese vessel rammed and sank a Philippine fishing boat in the Philippines’ exclusive economic zone, and mentioning how other Chinese vessels have attacked Japanese and South Korean coast guard patrol craft); Tom Sharpe, China Is Pushing the Naval ‘Grey Zone’. Sooner or Later, the Shooting Will Start, Telegraph (Nov. 21, 2023), https://www.telegraph.co.uk/news/2023/11/21/china-plan-navy-australia-frigate-divers-war-grey-zone (describing how a Chinese destroyer used high-powered sonar in an acoustic attack against Australian naval divers); Dzirhan Mahadzir, China Coast Guard Vessel Collides with Filipino Supply Ship in South China Sea, U.S. Naval Inst. News (Oct. 22, 2023), https://news.usni.org/2023/10/22/china-coast-guard-vessel-collides-with-filipino-supply-ship-in-south-china-sea (describing how a China Coast Guard vessel collided with a supply boat and a Chinese Maritime Militia vessel bumped a Philippine Coast Guard patrol vessel in unsuccessful efforts to prevent the resupply of Philippine Marines stationed at the grounded Sierra Madre on Second Thomas Shoal). In two separate incidents in March 2024, Chinese water cannon attacks injured Philippine sailors and damaged their vessel. Micah McCartney, Injured Allied Navy Sailors Given Combat Medals After China Clash, Newsweek, https://www.newsweek.com/injured-allied-navy-sailors-given-combat-medals-after-china-clash-1884460 (Mar. 28, 2024); Nectar Gan & Kathleen Magramo, ‘Only Pirates Do This’: Philippines Accuses China of Using Bladed Weapons in Major South China Sea Escalation, CNN (June 20, 2024), https://www.cnn.com/2024/06/20/asia/philippines-footage-south-china-sea-clash-china-intl-hnk/index.html.
32. China is a party to the Convention on Certain Conventional Weapons and all its amendments and protocols. See Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (with Protocols I, II, and III), Oct. 10, 1980, 1342 U.N.T.S. 137 [hereinafter CCW]. Protocol IV prohibits states from employing laser weapons designed to cause permanent blindness and requires them to take feasible precautions to avoid causing blindness when using laser weapons. Additional Protocol to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol IV, entitled Protocol on Blinding Laser Weapons) arts. I-II, Oct. 13, 1995, T.I.A.S. No. 09-721.2, 1380 U.N.T.S. 370. However, a Chinese coast guard vessel reportedly fired military-grade lasers at crew members of a Philippine coast guard vessel in February 2023, roughly a year after a Chinese naval ship lased a Royal Australian Air Force P-8A Poseidon surveillance aircraft. Katharine Murphy, ‘Act of Intimidation’: Morrison Condemns Chinese Navy for Shining Laser at Australian Surveillance Plane, Guardian (Feb. 19, 2022), https://www.theguardian.com/australia-news/2022/feb/20/act-of-intimidation-morrison-condemns-chinese-navy-for-shining-laser-at-australian-surveillance-plane; Brad Lendon, Philippine Coast Guard Says Chinese Ship Aimed Laser at One of Its Vessels, CNN (Feb. 13, 2023), https://www.cnn.com/2023/02/13/asia/philippines-china-coast-guard-laser-intl-hnk-ml/index.html.
33. Naman Kothari, Maps as Weapons: Legal Implications of Territorial Claims, Oxford Political Rev. (Mar. 30, 2024), https://oxfordpoliticalreview.com/2024/03/30/maps-as-weapons-legal-implications-of-territorial-claims; Aadil Brar, US Reacts After China Renames Neighbor’s Territory, Newsweek, https://www.newsweek.com/china-india-renaming-territory-neighbor-arunachal-1887173 (Apr. 8, 2024).
34. Michael R. Pompeo, Sec’y of State, Determination of the Secretary of State on Atrocities in Xinjiang, U.S. Dep’t of State (Jan. 19, 2021), https://2017-2021.state.gov/determination-of-the-secretary-of-state-on-atrocities-in-xinjiang. C.f. Jerry Dunleavy, After Holding Out, Biden Administration Acknowledges Ongoing Uyghur Genocide in China that ‘Cannot Be Ignored’, Wash. Examiner (Mar. 10, 2021), https://www.washingtonexaminer.com/news/biden-administration-acknowledges-genocide-uyghurs-china-cannot-be-ignored (citing Secretary of State Anthony Blinken’s agreement with his predecessor’s assessment); United Nations Human Rights Office of the High Commissioner, OHCHR Assessment of Human Rights Concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China ¶¶ 143-48 (2022), https://www.ohchr.org/sites/default/files/documents/countries/2022-08-31/22-08-31-final-assesment.pdf (finding that “[s]erious human rights violations have been committed,” “[a]llegations of patterns of torture or ill-treatment . . . are credible, as are allegations of individual incidents of sexual and gender-based violence,” and that China has imposed “far-reaching, arbitrary and discriminatory restrictions on human rights and fundamental freedoms, in violation of international norms and standards,” resulting in an overall conclusion that China’s arbitrary and discriminatory detention of Uyghurs and other Muslims “may constitute international crimes, in particular crimes against humanity”).
35. U.S. Dep’t of Def., Military and Security Developments Involving the People’s Republic of China 2024, at IX (2024) [hereinafter China Military Power Report], https://media.defense.gov/2024/Dec/18/2003615520/-1/-1/0/military-and-security-developments-involving-the-peoples-republic-of-china-2024.pdf; see also Off. of Dir. of Nat’l Intel., Annual Threat Assessment of the U.S. Intelligence Community 15 (2025), https://www.dni.gov/files/ODNI/documents/assessments/ATA-2025-Unclassified-Report.pdf.
36. Joint Statement of the Leaders of the Five Nuclear-Weapon States on Preventing Nuclear War and Avoiding Arms Races, White House Briefing Room (Jan. 3, 2022) [hereinafter Joint Statement], https://web.archive.org/web/20250106231502/https://www.whitehouse.gov/briefing-room/statements-releases/2022/01/03/p5-statement-on-preventing-nuclear-war-and-avoiding-arms-races (citing Article VI of the Nuclear Non-Proliferation Treaty).
37. China Military Power Report, supra note 35, at 68.
38. Barton Gellman, U.S. and China Nearly Came to Blows in ‘96, Wash. Post (June 20, 1998), https://www.washingtonpost.com/archive/politics/1998/06/21/us-and-china-nearly-came-to-blows-in-96/926d105f-1fd8-404c-9995-90984f86a613 (citing a former U.S. defense official as being told by a senior Chinese military officer, “In the 1950s, you three times threatened nuclear strikes on China, and you could do that because we couldn’t hit back. Now we can. So you are not going to threaten us again because, in the end, you care a lot more about Los Angeles than Taipei.”); Joseph Kahn, Chinese General Threatens Use of A-Bombs if U.S. Intrudes, N.Y. Times (July 15, 2005), https://www.nytimes.com/2005/07/15/washington/world/chinese-general-threatens-use-of-abombs-if-us-intrudes.html (quoting Maj Gen Zhu Chenghu as saying, in his personal capacity, that any U.S. missile or precision munition strikes on China’s territory should result in nuclear retaliation).
39. Jonathan D.T. Ward, The Decisive Decade: American Grand Strategy for Triumph Over China 180 (2023).
40. Gregory Weaver, The Role of Nuclear Weapons in a Taiwan Crisis, Atlantic Council (Nov. 22, 2023), https://www.atlanticcouncil.org/in-depth-research-reports/issue-brief/the-role-of-nuclear-weapons-in-a-taiwan-crisis; see also Thomas Hamilton, RAND, PAF-1P-797, Even Small Nuclear Detonations in Space Can Threaten Commercial Low Earth Orbit Satellites 2 (2024).
41. Joint Statement, supra note 36. Of course, Chinese Communist Party rhetoric, unfortunately reinforced in certain respects by most other countries’ accession to the “one China principle,” maintains that “the [People’s Republic of China (PRC)] is the sole legitimate government of China and that Taiwan is an integral part of Chinese territory that cannot be allowed independence and must eventually be unified with the PRC.” Phillip C. Saunders, Three Logics of Chinese Policy Toward Taiwan: An Analytic Framework, in Crossing the Strait: China’s Military Prepares for War with Taiwan 35 (Joel Wuthnow et al. eds., 2023). Thus, China would argue that even a forcible unification with Taiwan (which U.S. policy opposes) would be a matter of internal affairs, not of international aggression.
42. The White House, National Security Strategy 12, 20 (2022), https://bidenwhitehouse.archives.gov/wp-content/uploads/2022/11/8-November-Combined-PDF-for-Upload.pdf. Although this document softened the characterization of China from the “pacing threat” described by then-Secretary of the Air Force Frank Kendall, officials in the second Trump administration and Congress have again begun to describe China as the “pacing threat.” See John A. Tirpak, Kendall Says Countering China Is Why He’s Coming Back to Pentagon, Air & Space Forces Mag., May 25, 2021, https://www.airandspaceforces.com/kendall-motivation-air-force-china; David Vergun, Leaders Describe Host of Threats to Homeland, Steps to Mitigate Them, DoD News (Apr. 1, 2025), https://www.defense.gov/News/News-Stories/Article/Article/4142304/leaders-describe-host-of-threats-to-homeland-steps-to-mitigate-them (quoting Navy Admiral Alvin Holsey, Commander, U.S. Southern Command); Rogers: We Must Reestablish Deterrence Against China, Opening Statements: House Armed Servs. Comm. (Apr. 9, 2025), https://armedservices.house.gov/news/documentsingle.aspx?DocumentID=5047 (remarks of Committee Chairman Mike Rogers).
43. OST, supra note 1, art. IV, cl. 1. While “weapons of mass destruction” are not defined in the treaty, they are usually understood to encompass nuclear, chemical, and biological weapons. Daryl Kimball, The Outer Space Treaty at a Glance, Arms Control Ass’n (Oct. 2020), https://www.armscontrol.org/factsheets/outerspace. While much of this article’s analysis would apply to space-based biological or chemical weapons as well, the article’s primary focus is on nuclear weapons because of the potential magnitude of their effects in the space domain and the limited number of people who could potentially be affected by a chemical or biological attack in outer space at any time.
44. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, July 26, 1963, 14 U.S.T. 1313, T.I.A.S. 5433 [hereinafter Limited Test Ban Treaty].
45. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques arts. I-II, Dec. 10, 1976, 31 U.S.T. 333, 1108 U.N.T.S. 151 [hereinafter ENMOD].
46. For a further discussion of the Russian Federation’s accession to Soviet-era treaties, see Christian Packard, Falling Back to Earth: The Return of State Predominance in Russian National Space Legislation in the Roscosmos Era, 44.1 J. Space L. 76, 85 (2020), https://airandspacelaw.olemiss.edu/wp-content/uploads/2023/06/8.-Article-3-Packard-pp-76-to-145.pdf.
47. OST, supra note 1, art. VII; Convention on International Liability for Damage Caused by Space Objects arts. II-III, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 [hereinafter Liability Convention]. A launching state is any state that launches or procures the launch of a space object, or from whose territory or facility the object is launched into space.
48. OST, supra note 1, art. IX.
49. The ICJ has opined that: “the treaties dealing exclusively with . . . testing of nuclear weapons, without specifically addressing their threat or use . . . could . . . be seen as foreshadowing a future general prohibition of the use of such weapons, but they do not constitute such a prohibition by themselves.” Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226, ¶ 62 (July 8) [hereinafter Legality of the Threat or Use of Nuclear Weapons].
50. OST, supra note 1, art. IV, cl. 1.
51. Michael Listner, FOBS, MOBS, and the Reality of the Article IV Nuclear Weapons Prohibition, Space Rev. (Oct. 17, 2022), https://www.thespacereview.com/article/4466/1.
52. Id.
53. Id. (describing how Secretary of Defense Robert McNamara analyzed the situation, rejecting the argument from Edward C. Welsh, the executive secretary of the National Aeronautics and Space Council, that sending a weapon on a fractional orbital trajectory would still constitute placing it in orbit).
54. Theresa Hitchens, It’s a FOBS, Space Force’s Saltzman Confirms Amid Chinese Weapons Test Confusion, Breaking Def. (Nov. 29, 2021), https://breakingdefense.com/2021/11/its-a-fobs-space-forces-saltzman-confirms-amid-chinese-weapons-test-confusion; see also China Military Power Report, supra note 35, at 65, 101, 109-10.
55. A nuclear MOBS, by remaining in outer space through more than one orbit around the Earth, would more clearly violate the OST than a FOBS would.
56. Gabriel Honrada, China’s Space Plane Puts Mysterious Wingmen in Orbit, Asia Times (Dec. 21, 2023), https://asiatimes.com/2023/12/chinas-space-plane-puts-mysterious-wingmen-in-orbit.
57. See America’s Nuclear Triad, U.S. Dep’t of Def., https://www.defense.gov/Multimedia/Experience/Americas-Nuclear-Triad (last visited Apr. 23, 2025).
58. Article I of the NPT begins, “Each nuclear-weapon State Party to the treaty,” and Article VIII gives these nuclear-weapon states privileged status by requiring amendments be passed by their unanimous consent, along with a majority of all states parties. Treaty on the Non-Proliferation of Nuclear Weapons arts. I, VIII, Jan. 7, 1968, 21 U.S.T. 483, 721 U.N.T.S. 161. C.f. Legality of the Threat or Use of Nuclear Weapons, supra note 49, at 242-46 (recognizing that neither environmental protection requirements nor the law of war principle of proportionality prohibit the use of nuclear weapons in self-defense, and that the U.N. Charter ban on the threat or use of force was only agreed to prohibit the threat of illegal use of force, not the threat of use of nuclear weapons in self-defense or to deter unlawful attacks).
59. The list of declared nuclear weapons states includes the United States, Russia, China, the United Kingdom, France, India, Pakistan, and North Korea. World Nuclear Forces, Stockholm Int’l Peace Rsch. Inst. (2020), https://www.sipri.org/yearbook/2020/10. All have ratified the OST, as has Israel, which neither confirms nor denies whether it has nuclear weapons. Id.; OST, supra note 1. Iran, which may be on the verge of producing a nuclear weapon, and which has recently achieved successful space launches after an initial string of failures, has signed but not ratified the OST. U.N. Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., Status of International Agreements relating to Activities in Outer Space as at 1 January 2024, U.N. Doc. A/AC.105/C.2/2024/CRP.3 (Apr. 15, 2024) [hereinafter Space Treaties Status], https://www.unoosa.org/res/oosadoc/data/documents/2024/aac_105c_22024crp/aac_105c_22024crp_3_0_html/AC105_C2_2024_CRP03E.pdf.
60. Donald Kessler & Burton Cour-Palais, Collision Frequency of Artificial Satellites: The Creation of a Debris Belt, 83 J. Geophys. Res. A6, 2645 (1978) (positing that collisions between space objects will eventually lead to an exponential increase in the amount of orbital debris). As a real-world illustration of this hypothesis, the collision of the Iridium-33 and Cosmos-2251 satellites in February 2009 produced over 2,000 pieces of trackable debris, which remain a significant component of the orbital debris population fifteen years later. Update on Three Major Debris Clouds, Orbital Debris Q. News, Apr. 2010, at 4, http://orbitaldebris.jsc.nasa.gov/newsletter/pdfs/ODQNv14i2.pdf; Goldstone Radar Measurements of the Orbital Debris Environment, Orbital Debris Q. News, Feb. 2024, at 3, 4, https://orbitaldebris.jsc.nasa.gov/quarterly-news/pdfs/ODQNv28i1.pdf; see also Matt Field, A Nuclear Blast in Space Would Wipe Out Satellites, Wall St. J. (Nov. 26, 2011), https://www.wsj.com/articles/SB10001424052970204531404577050403048374584; Brett Tingley, Russian Plans for Space-Based Nuclear Weapon to Target Satellites Spark Concern in US Congress, Space (Feb. 15, 2024), https://www.space.com/russia-space-nuclear-weapon-us-congress.
61. See, e.g., Gilbert King, Going Nuclear Over the Pacific, Smithsonian Mag. (Aug. 15, 2012), https://www.smithsonianmag.com/history/going-nuclear-over-the-pacific-24428997.
62. Id.
63. J.S. Mayo et al., The Command System Malfunction of the Telstar Satellite, 42 Bell Sys. Tech. J. 1631, 1639-40 (1963) (“Because the average dose rate encountered in the Telstar orbit was found to be approximately two orders of magnitude greater than expected at the time of launch . . . and because only a part of the transistors in the command decoder were screened, ionization damage remains the prime suspect as the cause of circuit malfunction, . . . . A large part of these high-energy electrons are believed to have been introduced by the high-altitude nuclear explosion of July 9, 1962.”); Richard Hollingham, The Cold War Nuke that Fried Satellites, BBC (Feb. 24, 2022), https://www.bbc.com/future/article/20150910-the-nuke-that-fried-satellites-with-terrifying-results; Edward Conrad et al., Def. Threat Reduction Agency, DTRA-1R-10-22, Collateral Damage to Satellites from an EMP Attack, Defense Threat Reduction Agency 11-14 (2010), https://apps.dtic.mil/sti/pdfs/ADA531197.pdf.
64. Liz Boatman, Sixty Years After, Physicists Model Electromagnetic Pulse of a Once-Secret Nuclear Test, Am. Phys. Soc’y News (Nov. 10, 2022), https://www.aps.org/publications/apsnews/202212/pulse.cfm (describing street light outages in Honolulu); Vasiliy Greetsai et al., Response of Long Lines to Nuclear High-altitude Electromagnetic Pulse (HEMP), 40 IEEE Transactions on Electromagnetic Compatibility 4, 4 (1998) (describing how Soviet high-altitude nuclear testing over Kazakhstan caused the failure of a 500-kilometer stretch of communications line).
65. The principle of distinction obliges belligerents to distinguish between enemy combatants and valid military objectives, which may be targeted, and protected civilians and civilian objects, which may not. Off. of Gen. Counsel, U.S. Dep’t of Def., Department of Defense Law of War Manual § 2.5.2 (31 July 2023), https://media.defense.gov/2023/Jul/31/2003271432/-1/-1/0/DOD-LAW-OF-WAR-MANUAL-JUNE-2015-UPDATED-JULY%202023.PDF. The principle of proportionality requires belligerents to refrain from attacks in which the anticipated collateral harm to civilians and civilian objects would outweigh the concrete and direct military advantage of the strike, and to take feasible precautions to reduce the risk of such harm. Id. § 2.4.1.2. While nuclear weapons are exempted from the First Additional Protocol to the Geneva Conventions, to which the United States is not a party in any case, see id. § 6.18.3, the United States argued to the ICJ that customary international law would apply to use of nuclear weapons as well, and the ICJ concurred that these principles did not operate as an absolute ban on the threat or use of nuclear weapons. Legality of the Threat or Use of Nuclear Weapons, supra note 49, at 245, 257-60.
66. Intriguingly, while North Korea has ratified the OST, Iran has signed but not ratified it, raising questions as to whether Iran would even consider itself bound to follow Article IV. Space Treaty Status, supra note 59.
67. Clara Moskowitz, Are Russia’s Recent Space Woes a Sign of Larger Problems?, Space (Feb. 15, 2012), https://www.space.com/14588-russian-space-failures-larger-problems.html. C.f. Eric Berger, A Domestic Newspaper Warns of the Russian Space Program’s “Rapid Collapse,” Ars Technica (Dec. 17, 2021), https://arstechnica.com/science/2021/12/a-state-aligned-russian-newspaper-reviews-the-space-program-and-its-scathing; Bruce Einhorn, Russia’s Alternative to GPS Satellites Is Outdated and Outnumbered, Bloomberg (Sept. 20, 2023), https://www.bloomberg.com/news/articles/2023-09-20/russia-s-glonass-satellite-system-badly-needs-an-upgrade; Isabel Keane, Russia’s First Lunar Mission in 47 Years Smashes into Moon in Failure, N.Y. Post (Aug. 20, 2023), https://nypost.com/2023/08/20/russias-luna-25-space-craft-smashes-into-the-moon-in-failure.
68. See, e.g., Stavros Atlamazoglou, After a Lull, Russian Casualties in Ukraine Are Skyrocketing Again, Nat’l Interest (Apr. 16, 2025), https://nationalinterest.org/blog/buzz/after-a-lull-russian-casualties-in-ukraine-are-skyrocketing-again (describing respective U.S. and UK estimates of Russian casualties in Ukraine as approximately 790,000 to over 920,000, with the deadliest months happening in late 2024 and early 2025); Russian DA-ASAT Test, supra note 19. C.f. Derek Richardson, Russian Anti-Satellite Test Forces ISS Crew to Shelter in Place, Spaceflight Insider (Nov. 15, 2021), https://www.spaceflightinsider.com/missions/iss/russian-anti-satellite-test-forces-iss-crew-to-shelter-in-place (noting that the seven-member International Space Station crew, including Russian cosmonauts Anton Shkaplerov and Pyotr Dubrov, had to take emergency actions to shelter from the new debris field caused by Russia’s destructive ASAT test). Russia also routinely jams global navigation satellite services and expects that others will do the same to them in a conflict. Tracy Cozzens, Russia Expected to Ditch GLONASS for Loran in Ukraine Invasion, GPS World (Feb. 17, 2022), https://www.gpsworld.com/russia-expected-to-ditch-glonass-for-loran-in-ukraine-invasion. C.f. Eur. Union Aviation Safety Agency, SIB No. 2022-02R1, Global Navigation Satellite System Outage Leading to Navigation / Surveillance Degradation (Feb. 17, 2023), https://ad.easa.europa.eu/blob/EASA_SIB_2022_02R1.pdf; Brendan Cole, NATO Nations Hit by GPS Attack Blamed on Russia, Newsweek (Mar. 2, 2024), https://www.newsweek.com/nato-gps-russia-attack-blamed-1875276.
69. W.J. Hennigan, The Warning, N.Y. Times (Dec. 5, 2024), https://www.nytimes.com/interactive/2024/12/05/opinion/nuclear-weapons-space.html.
70. McCartney, supra note 6. C.f. Joint Statement, supra note 36.
71. See Joint Chiefs of Staff, JP 1, Vol. 1, Joint Warfighting I-3 (27 Aug. 2023) (“The United States leverages its diplomatic, informational, military, and economic instruments of national power to pursue its national interests.”). Some commentators have identified additional instruments of national power, such as financial, intelligence, law, and development. See, e.g., Peter C. Phillips & Charles S. Corcoran, Harnessing America’s Power, Joint Forces Q., 4th Q., 2011, at 38, https://ndupress.ndu.edu/Portals/68/Documents/jfq/jfq-63/jfq-63_38-46_Phillips-Corcoran.pdf; Jeremy S. Weber, Playing the MIDFIELD: It’s High Time to Recognize Law as an Instrument of National Power, JAG Reporter (Nov. 4, 2019), https://www.jagreporter.af.mil/Portals/88/2019%20Articles/Documents/20191104%20Weber-Midfield.pdf.
72. See Diplomacy: The U.S. Department of State at Work, U.S. Dep’t of State (June 2008), https://2009-2017.state.gov/r/pa/ei/rls/dos/107330.htm.
73. Id.
74. See Michael J. Zwiebel, Why We Need to Reestablish the USIA, Mil. Rev., Nov.-Dec. 2006, at 130.
75. See id.
76. Foreign Serv. Inst., U.S. Dep’t of State, Protocol for the Modern Diplomat 30 (July 2013) (defining démarche), https://2009-2017.state.gov/documents/organization/176174.pdf.
77. See, e.g., U.S. Dep’t of State, supra note 30.
78. See, e.g., Therese Hitchens, Russia Spikes UN Effort on Norms to Reduce Space Threats, Breaking Def. (Sept. 1, 2023), https://breakingdefense.com/2023/09/russia-spikes-un-effort-on-norms-to-reduce-space-threats.
79. In some instances where the behavior of rogue states has been raised to the U.N. Security Council for action, Russia and China have refrained from exercising their vetoes. See, e.g., the Security Council resolutions against Iraq discussed infra note 143, as well as Security Council Resolution 1973 authorizing a no-fly zone over Moammar Qaddafi’s Libya. S.C. Res. 1973, ¶¶ 6-12 (Mar. 17, 2011). However, China and Russia subsequently expressed regret over NATO airstrikes in Libya, claiming that the actions exceeded the scope of the resolution they abstained from voting on. Russia, China Urge Adherence to Libya Resolutions, Reuters (June 16, 2011), https://www.reuters.com/article/idUSLDE75F13V.
80. For instance, Ukraine presented a draft U.N. Security Council resolution condemning Russia’s armed aggression in February 2022, which Russia promptly vetoed. Russia Blocks Security Council Action on Ukraine, UN News (Feb. 26, 2022), https://news.un.org/en/story/2022/02/1112802. Although no Security Council resolution resulted, a subsequent U.N. General Assembly resolution enabled 141 countries to call for an immediate end to Russia’s conquest of Ukraine. General Assembly Resolution Demands End to Russian Offensive in Ukraine, UN News (Mar. 2, 2022), https://news.un.org/en/story/2022/03/1113152.
81. Aila Slisco, US Hints Russia ‘Hiding Something’ After Nuclear Space Weapons Ban Blocked, Newsweek (Apr. 24, 2024), https://www.newsweek.com/us-hints-russia-hiding-something-after-nuclear-space-weapons-ban-blocked-1893987; Security Council Fails to Adopt First-Ever Resolution on Arms Race in Outer Space, Due to Negative Vote by Russian Federation, UN (Apr. 24, 2024) [hereinafter Security Council Fails], https://press.un.org/en/2024/sc15678.doc.htm.
82. Threat of Mass-Destruction Weapons in Space, New Technology in Military Domain Inform General Assembly’s Adoption of 72 First Committee Texts, UN (Dec. 2, 2024), https://press.un.org/en/2024/ga12660.doc.htm (describing how the resolution passed by a vote of 167 to 4, with six abstentions).
83. United Nations, 2011 Treaty Event Fact Sheet No. 1, Towards Universal Participation and Implementation (2011).
84. For example, the United States has recognized many aspects of the U.N. Convention on the Law of the Sea (UNCLOS) as constituting customary international law, even though our Senate has not ratified it and even though some of these provisions were examples of “positive law” created by the treaty without merely codifying pre-existing customary international law.
85. See sources cited supra note 81.
86. U.N. SCOR, 79th Sess., 9616th mtg. at 3, U.N. Doc. S/PV.9616 (Apr. 24, 2024), https://undocs.org/en/S/PV.9616.
87. Patrice Taddonio, “The President Blinked”: Why Obama Changed Course on the “Red Line” in Syria, PBS Frontline (May 25, 2015), https://www.pbs.org/wgbh/frontline/article/the-president-blinked-why-obama-changed-course-on-the-red-line-in-syria; see also Peter Baker & Jonathan Weisman, Obama Seeks Approval by Congress for Strike in Syria, N.Y. Times (Aug. 31, 2013), https://www.nytimes.com/2013/09/01/world/middleeast/syria.html.
88. Phil Stewart & Tom Perry, U.S. Says Air Strikes Cripple Syria Chemical Weapons Programme, Reuters (Apr. 14, 2018), https://www.reuters.com/article/us-mideast-crisis-syria-idUSKBN1HJ0ZS. But see Lara Jakes, U.S. Concludes Syria Used Chemical Weapons in May Attack, N.Y. Times (Sept. 26, 2019), https://www.nytimes.com/2019/09/26/world/middleeast/syria-chemical-weapons-us.html. After the surprising collapse of the Assad regime in December 2024, Israel conducted airstrikes targeting other suspected Syrian chemical weapons facilities to prevent terrorists from acquiring them. Mick Krever, Israel Strikes Syria 480 Times and Seizes Territory as Netanyahu Pledges to Change Face of the Middle East, CNN (Dec. 11, 2024), https://www.cnn.com/2024/12/10/middleeast/israel-syria-assad-strikes-intl/index.html.
89. Int’l Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries 128 (2001) [hereinafter Articles on State Responsibility], http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.
90. See id.; Michael N. Schmitt, Lieber Institute White Paper: Responding to Malicious or Hostile Actions Under International Law, Arts. of War (Apr. 26, 2022), https://lieber.westpoint.edu/white-paper-responding-malicious-hostile-actions-international-law.
91. Steven Erlanger, Sweden Enters NATO, a Blow to Moscow and a Boost to the Baltic Nations, N.Y. Times (Mar. 7, 2024), https://www.nytimes.com/2024/03/07/world/europe/sweden-nato-neutrality.html; Rachel Wilson, Lou Robinson & Henrik Pettersson, Ukraine Aid: Where the Money Is Coming from, in Four Charts, CNN (Oct. 6, 2023), https://www.cnn.com/2023/10/05/world/ukraine-money-military-aid-intl-dg/index.html (detailing nearly $350 billion in total foreign commitments to Ukraine, of which almost $100 billion was military aid).
92. Olivia Allison & Gonzalo Saiz, Track and Disrupt: How to Counter Sanctions-Evasion Networks, Royal United Servs. Inst. (Nov. 10, 2023), https://www.rusi.org/explore-our-research/publications/commentary/track-and-disrupt-how-counter-sanctions-evasion-networks; Fin. Crimes Enforcement Network, U.S. Dep’t of Treas., FIN-2022-Alert001, FinCEN Advises Increased Vigilance for Potential Russian Sanctions Evasion Attempts (2022), https://www.fincen.gov/sites/default/files/2022-03/FinCEN%20Alert%20Russian%20Sanctions%20Evasion%20FINAL%20508.pdf; Christopher Condon, Yellen Takes Aim at Russian Sanctions Evasion at G-7 Gathering, Bloomberg (May 11, 2023), https://www.bloomberg.com/news/articles/2023-05-11/yellen-takes-aim-at-russian-sanctions-evasion-at-g-7-gathering; Treasury Hardens Sanctions with 130 New Russian Evasion and Military-Industrial Targets, U.S. Dep’t of Treas. (Nov. 2, 2023), https://home.treasury.gov/news/press-releases/jy1871.
93. The International Atomic Energy Agency (IAEA) heralds the NPT as “the centrepiece of global efforts to prevent the spread of nuclear weapons” and states, “With 191 States parties, it is the most widely adhered to treaty in the field of nuclear non-proliferation, peaceful uses of nuclear energy and nuclear disarmament.” The IAEA and the Non-Proliferation Treaty, IAEA, https://www.iaea.org/topics/non-proliferation-treaty (last visited Apr. 24, 2025).
94. Gabriela Rosa Hernández & Daryl G. Kimball, Russia Blocks NPT Conference Consensus Over Ukraine, Arms Control Ass’n (Sept. 2022), https://www.armscontrol.org/act/2022-09/news/russia-blocks-npt-conference-consensus-over-ukraine.
95. India, Pakistan, and North Korea have all tested nuclear weapons and are not parties to the NPT. International Day Against Nuclear Tests, United Nations (Aug. 29, 2023), https://www.un.org/en/observances/end-nuclear-tests-day/history. South Africa developed nuclear weapons, but gave them up before joining the NPT. Id. Israel is suspected to have nuclear weapons, but neither confirms nor denies they exist. Id.
96. In early 2023, the Associated Press reported that Iran had stockpiled 87.5 kilograms of 60 percent-enriched uranium, even as International Atomic Energy Agency (IAEA) inspectors had detected uranium particles enriched up to 83.7 percent—not far below the 90 percent needed for weapons-grade purity—and former Under Secretary of Defense for Policy Colin Kahl testified to Congress that “it would take about [twelve] days” for Iran “to produce one bomb’s worth of fissile material.” Stephanie Liechtenstein, UN Report: Uranium Particles Enriched to 83.7% Found in Iran, Associated Press (Feb. 28, 2023), https://apnews.com/article/iran-nuclear-uranium-enrichment-germany-israel-c9b3669a7721bd8929d465117c81b70f.
97. Articles on State Responsibility, supra note 89, at 128.
98. Id. at 128-29.
99. Id. at 128-31.
100. Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 I.C.J. Rep. 7, 56, ¶ 85 (Sept. 25) [hereinafter Gabčíkovo-Nagymaros Project], https://icj-cij.org/sites/default/files/case-related/92/092-19970925-JUD-01-00-EN.pdf (“[T]he injured State must have called upon the State committing the wrongful act to discontinue its wrongful conduct or to make reparation for it.”).
101. Bureau of Arms Control, Deterrence, & Stability, U.S. Countermeasures in Response to Russia’s Violations of the New START Treaty, U.S. Dep’t of State (June 1, 2023), https://www.state.gov/u-s-countermeasures-in-response-to-russias-violations-of-the-new-start-treaty.
102. See, e.g., Application of International Law to States’ Conduct in Cyberspace: UK Statement, UK Foreign, Commonwealth & Dev. Off. ¶ 19 (June 3, 2021), https://www.gov.uk/government/publications/application-of-international-law-to-states-conduct-in-cyberspace-uk-statement/application-of-international-law-to-states-conduct-in-cyberspace-uk-statement#countermeasures; Michael Schmitt, France’s Major Statement on International Law and Cyber: An Assessment, Just Sec. (Sept. 16, 2019), https://www.justsecurity.org/66194/frances-major-statement-on-international-law-and-cyber-an-assessment (noting that, like the United Kingdom, “France rejected an absolute duty to notify the State against which countermeasures are to be taken before mounting them” and also observing that Estonia diverges from the International Law Commission’s position by stating that collective countermeasures are permissible).
103. U.N. Charter art. 41 (emphasis added).
104. The ITU Constitution states, “All stations, whatever their purpose, must be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other Member States . . . which operate in accordance with the provisions of the Radio Regulations.” Constitution of the International Telecommunication Union art. 45, cl. 1. The U.S. National Space Policy also asserts,
Purposeful interference with space systems, including supporting infrastructure, will be considered an infringement of a nation’s rights. Consistent with the defense of those rights, the United States will seek to deter, counter, and defeat threats in the space domain that are hostile to the national interests of the United States and its allies. Any purposeful interference with or an attack upon the space systems of the United States or its allies that directly affects national rights will be met with a deliberate response at a time, place, manner, and domain of our choosing.
National Space Policy of the United States of America3-4 (2020), https://trumpwhitehouse.archives.gov/wp-content/uploads/2020/12/National-Space-Policy.pdf. Thus, it both acknowledges the wrongfulness of purposeful interference against U.S. and allied space systems even when that interference does not constitute an “attack,” while upholding the U.S. right to counter such interference as it sees fit.
105. Constitution of the International Telecommunication Union art. 48.
106. For a discussion of electromagnetic warfare and other operations involving the electromagnetic spectrum, see generally U.S. Dep’t of Air Force, Doctrine Pub. 3-85, Electromagnetic Spectrum Operations (14 Dec. 2023), https://www.doctrine.af.mil/Portals/61/documents/AFDP_3-85/AFDP%203-85%20Electromagnetic%20Spectrum%20Ops.pdf.
107. Sarah M. Mountin, The Legality and Implications of Intentional Interference with Commercial Communication Satellite Signals, 90 Int’l L. Stud. 101, 138 (2014) (explaining how the terms of Article 48 of the ITU Constitution “clearly suggest military exigency or necessity (such as measures taken in armed conflict) may supersede the obligation to prevent harmful interference”), paraphrasing Robert W. Jarman, The Law of Neutrality in Outer Space 41 (2008) (unpublished LL.M. thesis, McGill University Institute of Air and Space Law), https://apps.dtic.mil/sti/tr/pdf/ADA485937.pdf.
108. See Articles on State Responsibility, supra note 89, at 128-30. The International Law Commission commentaries note that countermeasures do not have to be reciprocal: “There is no requirement that States taking countermeasures should be limited to suspension of performance of the same or a closely related obligation.” Id. at 129. In this case, electromagnetic spectrum countermeasures would be far preferable to the reciprocal act of stationing another nuclear device in orbit, which would breach an international obligation owed to the rest of the world and not only to the offending State.
109. See discussion of U.S. National Space Policy, supra note 104.
110. OST, supra note 1, art. IX (emphasis added),
111. According to ICJ dicta, countermeasures must be reversible. Gabčíkovo-Nagymaros Project, supra note 100, ¶ 87 (“[O]ne other condition for the lawfulness of a countermeasure [is] that its purpose must be to induce the wrongdoing State to comply with its obligations under international law, and that the measure must therefore be reversible.”). However, the Articles on State Responsibility provide some flexibility on this point, stating that countermeasures “shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question.” Articles on State Responsibility, supra note 89, art. 49, § 3 (emphasis added). In the case of countermeasures against space-based WMD, the only way to make the responsible state resume performing its obligation may be to permanently negate the space-based WMD capability.
112. U.N. Charter art. 2(3).
113. Id. art. 2(4).
114. Id. art. 51. This article also requires states to report the measures they take in exercising their right of self-defense to the Security Council, which may take “at any time such action as it deems necessary in order to maintain or restore international peace and security.” Id. However, if a permanent Security Council member or a rogue state aligned with a Security Council member has committed the armed attack or threat thereof that necessitated the self-defensive measures in the first place, the Security Council is unlikely to act. See discussion supra note 80.
115. The quotation is from U.S. Secretary of State Daniel Webster, writing to the British Minister in Washington, Henry Fox, in the aftermath of the British-Canadian raid that destroyed the American steamship Caroline, which was ferrying arms to rebels seeking Canadian independence. 29 British and Foreign State Papers, 1840–1841, 1129 (1857).
116. Hugo Grotius, On the Rights of War and Peace 227 (John Morrice tr., Richard Tuck ed., Liberty Fund 2005).
117. Judgement: The Invasion of Denmark and Norway, Yale L. Sch. (2008) https://avalon.law.yale.edu/imt/juddenma.asp.
118. Statute of the International Court of Justice, art. 38(1)(b), June 26, 1945, 59 Stat. 1055, 1060.
119. Identification of Customary International Law, [2018] 2 Y.B. Int’l L. Comm’n 89, 89-90, U.N. Doc. A/CN.4/SER.A/2018/Add.1.
120. See, e.g., Vienna Convention on the Law of Treaties, arts. 7, 31, 46, May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980) [hereinafter Vienna Convention]. The United States has signed but not ratified this treaty, but it generally accepts the principle that a state’s behavior provides evidence of how that state interprets its treaty obligations.
121. The Cuban Missile Crisis, October 1962, Off. of the Historian: U.S. Dep’t of State, https://history.state.gov/milestones/1961-1968/cuban-missile-crisis (last visited Apr. 25, 2025).
122. See id.
123. Id.
124. Id.
125. Id.
126. Andrew Brearley, Reflections Upon the Notion of Liability: The Instances of Kosmos 954 and Space Debris, 34 J. Space L. 291 (2008).
127. See, e.g., Guy Faulconbridge, Russia Denies US Reports Moscow Plans to Put Nuclear Weapons in Space, Reuters (Feb. 20, 2024), https://www.reuters.com/world/europe/russia-denies-us-claims-that-moscow-plans-deploy-nuclear-weapons-space-2024-02-20.
128. John T. Correll, Air Strike at Osirak, Air & Space Forces Mag. (Apr. 1, 2012), https://www.airandspaceforces.com/article/0412osirak.
129. See id.
130. Arab-Israeli Wars, Britannica, https://www.britannica.com/event/Arab-Israeli-wars (last visited Apr. 25, 2025); Saddam Hussein’s Support for International Terrorism, White House, https://georgewbush-whitehouse.archives.gov/infocus/iraq/decade/sect5.html (last visited Apr. 25, 2025).
131. Correll, supra note 128.
132. See id.
133. Yaakov Katz, Shadow Strike: Inside Israel’s Secret Mission to Eliminate Syrian Nuclear Power 98-99 (2019).
134. Authority of the President Under Domestic and International Law to Use Military Force Against Iraq, 26 Op. O.L.C. 143, 169-70 (2002) [hereinafter 26 Op. O.L.C. 143], https://www.justice.gov/sites/default/files/olc/legacy/2013/07/26/op-olc-26.pdf#page=153 (describing President George H.W. Bush’s decision to strike a nuclear site near Baghdad on 17 January 1993); Paul Wolfowitz on the Afghanistan and Iraq Wars and a Life in Foreign Policy, Uncommon Knowledge, 23:07-24:46 (May 1, 2024), https://podcasts.apple.com/us/podcast/paul-wolfowitz-on-the-afghanistan-and-iraq-wars-and/id1378389941?i=1000654111114 (in which former Under Secretary of Defense Paul Wolfowitz describes how Saddam Hussein might have obtained a nuclear weapon capability within two years had he not invaded Kuwait).
135. Of course, a country capable of placing a nuclear weapon in orbit may have more ability to retaliate than Iraq or Syria did when Israeli strikes killed their nuclear assets in the cradle.
136. The White House, The National Security Strategy of the United States (2002); History: 9/11 Investigation, FBI, https://www.fbi.gov/history/famous-cases/911-investigation (last visited Apr. 25, 2025).
137. History: 9/11 Investigation, supra note 136.
138. Hearing before S. Select Comm. on Intel., 108th Cong. (2003) (Statement of Robert S. Mueller III, Dir., Fed. Bureau of Investigation), https://archives.fbi.gov/archives/news/testimony/war-on-terrorism (“My greatest concern, Mr. Chairman, is that our enemies are trying to acquire dangerous new capabilities with which to harm Americans. Terrorists worldwide have ready access to information on chemical, biological, radiological, and nuclear—or CBRN—weapons via the Internet. Acquisition of such weapons would be a huge morale boost for those seeking our destruction, while engendering widespread fear among Americans and our allies.”).
139. Saddam Hussein’s Defiance of United Nations Resolutions, George W. Bush White House Archive, https://georgewbush-whitehouse.archives.gov/infocus/iraq/decade/sect2.html (last visited Apr. 25, 2025).
140. Id.; see also 26 Op. O.L.C. 143, supra note 134 (providing a comprehensive argument for the U.S. President’s domestic and international legal authority to use military force in Iraq).
141. Steven R. Weisman, Threats and Responses: Security Council; Powell, U.N. Speech, Presents Case to Show Iraq Has Not Disarmed, N.Y. Times (Feb. , 2003), https://www.nytimes.com/2003/02/06/world/threats-responses-security-council-powell-un-speech-presents-case-show-iraq-has.html.
142. Marjorie Anne Brown, Cong. Rsch. Serv., RS21323, The United Nations Security Council – Its Role in the Iraq Crisis: A Brief Overview 6 (2003); The Iraq War, George W. Bush Presidential Lib., https://www.georgewbushlibrary.gov/research/topic-guides/the-iraq-war (last visited Apr. 25, 2025); Permanent Rep. of United States to the U.N., Letter dated Mar. 20, 2003, from the Permanent Rep. of the United States to the United Nations addressed to the President of the Security Council, U.N. Doc. S/2003/351 (Mar. 21, 2003), https://digitallibrary.un.org/record/490434?ln=en&v=pdf (“The actions that coalition forces are undertaking . . . are necessary steps to defend the United States and the international community from the threat posed by Iraq and to restore international peace and security in the area.”); see also Mahmoud Hmoud, The Use of Force Against Iraq: Occupation and Security Council Resolution 1483, 36 Cornell Int’l L.J. 435, 435-36 (2004).
143. The Security Council subsequently authorized humanitarian relief efforts, determined that Iraq no longer posed a threat to Kuwait, welcomed the establishment of the new Iraqi Governing Council, and authorized a multinational force to stabilize Iraq. S.C. Res. 1472, ¶ 4 (Mar. 28, 2003); S.C. Res. 1490 (July 3, 2003); S.C. Res. 1500 (Aug. 14, 2003); S.C. Res. 1511 ¶ 13 (Oct. 16, 2003).
144. See, e.g., C.J. Chivers, The Secret Casualties of Iraq’s Abandoned Chemical Weapons, N.Y. Times (Oct. 14, 2014), https://www.nytimes.com/interactive/2014/10/14/world/middleeast/us-casualties-of-iraq-chemical-weapons.html (reporting that between 2004 and 2011, U.S. forces discovered 5,000 chemical munitions left over from the Hussein regime, and that seventeen U.S. troops were wounded by them over six separate occasions); Jason Breslow, Colin Powell: U.N. Speech Was a “Great Intelligence Failure,” PBS (May 17, 2016), https://www.pbs.org/wgbh/frontline/article/colin-powell-u-n-speech-was-a-great-intelligence-failure.
145. See Breslow, supra note 144; Carrol Doherty & Jocelyn Kiley, A Look Back at How Fear and False Beliefs Bolstered U.S. Public Support for War in Iraq, Pew Rsch. Ctr. (Mar. 13, 2023), https://www.pewresearch.org/politics/2023/03/14/a-look-back-at-how-fear-and-false-beliefs-bolstered-u-s-public-support-for-war-in-iraq.
146. Stephen Farrell, Israel Admits Bombing Suspected Syrian Nuclear Reactor in 2007, Warns Iran, Reuters (Mar. 21, 2018), https://www.reuters.com/article/idUSKBN1GX09P.
147. See id.
148. See id.
149. Katz, supra note 133, at 111-23.
150. Farrell, supra note 146.
151. Katz, supra note 133, at 111-23. In Shadow Strike, Katz details the debate within the U.S. Government about the best way to respond. Defense Secretary Robert Gates and Secretary of State Condoleezza Rice both favored reporting Syria’s nuclear reactor construction to the U.N. with a warning that there would be severe consequences if Assad did not terminate the project himself. Id. By contrast, Vice President Dick Cheney believed the United States should conduct the strike itself. Id. President George W. Bush at first intended to the follow the advice of Gates and Rice, but ultimately chose a course similar to what Deputy National Security Advisor Elliot Abrams recommended: when Olmert confronted him with the existential nature of the threat, Bush told Olmert, “We will not get in your way.” Id. at 121.
152. 26 Op. O.L.C. 143, supra note 134, at 186.
153. See Tobias Schneider & Theresa Lütkefend, Glob. Pub. Pol’y Inst., Nowhere to Hide: The Logic of Chemical Weapons Use in Syria (Feb. 2019), https://www.gppi.net/media/GPPi_Schneider_Luetkefend_2019_Nowhere_to_Hide_Web.pdf.
154. See id. at 8; Taddonio, supra note 87.
155. Baker & Weisman, supra note 87; Larry Kaplow, History of U.S. Responses to Chemical Weapons Attacks in Syria, NPR (Apr. 13, 2018), https://www.npr.org/sections/thetwo-way/2018/04/13/602375500/history-of-u-s-responses-to-chemical-weapons-attacks-in-syria.
156. Taddonio, supra note 87; Syria and the OPCW, Org. for the Prohibition of Chem. Weapons (Jan. 24, 2024), https://www.opcw.org/media-centre/featured-topics/opcw-and-syria.
157. Yonette Joseph & Christina Caron, Burning Eyes, Foaming Mouths: Years of Suspected Chemical Attacks in Syria, N.Y. Times (Apr. 8, 2018), https://www.nytimes.com/2018/04/08/world/middleeast/syria-chemical-attacks-assad.html (documenting how Assad conducted one or more chemical weapon attacks against Syrians every year between 2013 and 2018, in some cases attacking with improvised chlorine bombs not covered by the CWC). The Organization for the Prohibition of Chemical Weapons estimates that Syria conducted nineteen chemical weapons attacks between 2013 and 2018. Fact-Finding Mission, OPCW, https://www.opcw.org/fact-finding-mission (last visited Apr. 25, 2025).
158. Michael R. Gordon, Helene Cooper & Michael D. Shear, Dozens of U.S. Missiles Hit Air Base in Syria, N.Y. Times (Apr. 6, 2017), https://www.nytimes.com/2017/04/06/world/middleeast/us-said-to-weigh-military-responses-to-syrian-chemical-attack.html.
159. Org. for Prohibition of Chem. Weapons [OPCW], Report of The Fact-Finding Mission Regarding the Incident of Alleged Use of Toxic Chemicals as a Weapon in Douma, Syrian Arab Republic, On 7 April 2018, OPCW Doc. S/1731/2019 (Mar. 1, 2019).
160. Helene Cooper, Thomas Gibbons-Neff & Ben Hubbard, U.S., Britain and France Strike Syria Over Suspected Chemical Weapons Attack, N.Y. Times (Apr. 13, 2018), https://www.nytimes.com/2018/04/13/world/middleeast/trump-strikes-syria-attack.html.
161. Luis Martinez, Elizabeth McLaughlin & Conor Finnegan, Trump Orders US Troops to Leave Syria as White House Declares Victory over ISIS, ABC News (Dec. 19, 2018), https://abcnews.go.com/Politics/trump-announce-us-withdraw-troops-syria-official/story?id=59906876.
162. Jakes, supra note 88.
163. Jack Nicas, Israel, Seeing an Opportunity, Demolishes Syria’s Military Assets, N.Y. Times (Dec. 10, 2024), https://www.nytimes.com/2024/12/10/world/middleeast/israel-strikes-syria.html.
164. See Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature Jan. 13, 1993, T.I.A.S. No. 97-525, 1974 U.N.T.S. 45.
165. Iran Sanctions, U.S. Dep’t of State, https://www.state.gov/iran-sanctions (last visited Apr. 25, 2025).
166. Kelsey Davenport, UN Security Council Resolutions on Iran, Arms Control Ass’n (Feb. 2025), https://www.armscontrol.org/factsheets/Security-Council-Resolutions-on-Iran.
167. Verification and Monitoring in Iran, Int’l Atomic Energy Agency, https://www.iaea.org/newscenter/focus/iran (last visited Apr. 25, 2025).
168. The JCPOA is a multinational effort initiated by the Obama Administration in which Iran affirmed that “under no circumstances will Iran ever seek, develop or acquire any nuclear weapons” in exchange for sanctions relief. Permanent Rep. of the United States to the U.N., Letter dated 16 July 2015 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, annex, U.N. Doc. S/2015/544 (July 16, 2015) (Joint Comprehensive Plan of Action, Vienna, 14 July 2015), https://documents.un.org/doc/undoc/gen/n15/225/49/pdf/n1522549.pdf. President Trump withdrew the United States from the JCPOA in 2018, alleging that it allowed Iran to continue a variety of malign activities and was not in the national security interests of the United States. President Donald J. Trump Is Ending United States Participation in an Unacceptable Iran Deal, Trump White House (May 18, 2018), https://trumpwhitehouse.archives.gov/briefings-statements/president-donald-j-trump-ending-united-states-participation-unacceptable-iran-deal. Iran subsequently proceeded to maintain “a stockpile of enriched uranium more than 20 times the limit set by the JCPOA” and export weapons in alleged violation of U.N. Security Council Resolution 2231. Effort to Restart Iran Nuclear Deal ‘at a Standstill’ Security Council Hears, UN News (Dec. 18, 2023), https://news.un.org/en/story/2023/12/1144917. C.f. Max Burman, Iran Pulling Out of Nuclear Deal Commitment after U.S. Strike That Killed Soleimani, NBC News (Jan. 5, 2020), https://www.nbcnews.com/news/world/iran-pulling-out-nuclear-deal-following-u-s-strike-killed-n1110636.
169. Barak Ravid, After Suspicious Deaths of Iranian Officers, Israel Warns of Threat to Tourists, Axios (June 15, 2022), https://www.axios.com/2022/06/15/alleged-assasinations-iran-israel-warns-tourists; Ronen Bergman & Farnaz Fassihi, The Scientist and the A.I.-Assisted, Remote-Control Killing Machine, N.Y. Times (Sept. 18, 2021), https://www.nytimes.com/2021/09/18/world/middleeast/iran-nuclear-fakhrizadeh-assassination-israel.html.
170. Paulius Ilevičius, Stuxnet Explained—The Worm That Went Nuclear, NordVPN (Mar. 10, 2022), https://nordvpn.com/blog/stuxnet-virus; Zero Days (Magnolia Pictures, 2016); Ellen Nakashima & Joby Warrick, Stuxnet Was Work of U.S. and Israeli Experts, Officials Say, Wash. Post (June 2, 2012), https://www.washingtonpost.com/world/national-security/stuxnet-was-work-of-us-and-israeli-experts-officials-say/2012/06/01/gJQAlnEy6U_story.html.
171. Ilevičius, supra note 170; David E. Sanger, Obama Order Sped Up Wave of Cyberattacks Against Iran, N.Y. Times (June 1, 2012), https://www.nytimes.com/2012/06/01/world/middleeast/obama-ordered-wave-of-cyberattacks-against-iran.html. For an analysis of whether this use of Stuxnet should be considered a use of force, see Andrew C. Foltz, Stuxnet, Schmitt Analysis, and the Cyber “Use-of-Force” Debate, 67 J. Force Q. 40 (2012) (concluding that it probably was a use of force, but noting that Iran did not characterize it as an armed attack).
172. Mark Hosenball, Experts Say Iran Has ‘Neutralized’ Stuxnet Virus, Reuters (Feb. 14, 2012), https://www.reuters.com/article/markets/experts-say-iran-has-neutralized-stuxnet-virus-idUSL2E8DE9NL.
173. Korean War, History, https://www.history.com/articles/korean-war (last visited Apr. 25, 2025).
174. Id.
175. North Korea’s Kim Threatens to Destroy South Korea with Nuclear Strikes If Provoked, Voice of Am. (Oct. 4, 2024), https://www.voanews.com/a/north-korea-s-kim-threatens-to-destroy-south-korea-with-nuclear-strikes-if-provoked/7810110.html. See generally Michael Rubin, Dancing with the Devil, ch. 3 (2014) (describing North Korea’s 1976 axe murders of two U.S. Service members in the demilitarized zone, its 2010 torpedoing of a South Korean naval vessel that killed forty-six, and its shelling of Yeongpyon Island that killed two South Korean marines).
176. A Timeline of North Korea’s Nuclear Tests, CBS News (Sept. 3, 2017), https://www.cbsnews.com/news/north-koreas-nuclear-tests-timeline.
177. Despite U.N. sanctions against any ballistic missile testing, North Korea has conducted more than 100 tests since 2022 alone, including flight tests of the solid-fueled Hwasong-18 and the liquid-fueled Hwasong-17, both of which are believed to be able to reach virtually all U.S. territory. Hyung-Jin Kim & Mari Yamaguchi, North Korea Conducts First Long-Range Missile Test in Months, Likely Firing a Solid-Fueled Weapon, Associated Press (Dec. 18, 2023), https://apnews.com/article/north-korea-missile-launch-bc0391e981b2eedce5dc17734e27ee0c; Wesley Rahn, What Do We Know about North Korea’s ‘Monster Missile’?, Deutsche Welle (Mar. 25, 2022), https://www.dw.com/en/what-do-we-know-about-north-koreas-monster-missile/a-61259183.
178. See, e.g., Jack Kim, North Korea Long-Range Ballistic Missile Test Splashes Down Between Japan and Russia, Reuters (Oct. 30, 2024), https://www.reuters.com/world/asia-pacific/north-korea-fires-ballistic-missile-yonhap-2024-10-30.
179. Hyung-Jin Kim, North Korea Launches a Suspected Intermediate-Range Ballistic Missile that Can Reach Distant US Bases, Associated Press (Jan. 14, 2024), https://apnews.com/article/north-korea-missile-tensions-c3edad4693574d533d893803792d76fe; Kim & Yamaguchi, supra note 177; Hyung-Jin Kim, North Korea’s Kim Says Military Should ‘Thoroughly Annihilate’ US and South Korea if Provoked, Associated Press (Jan. 1, 2024), https://apnews.com/article/north-korea-kim-us-missiles-nuclear-6c8834f71ac43bb9d0addc404fe00f18; Robert L. Carlin & Siegfried S. Hecker, Is Kim Jong Un Preparing for War?, 38 North (Jan. 11, 2024), https://www.38north.org/2024/01/is-kim-jong-un-preparing-for-war.
180. Edward Wong & Julian E. Barnes, U.S. Is Watching North Korea for Signs of Lethal Military Action, N.Y. Times (Jan. 25, 2024), https://www.nytimes.com/2024/01/25/us/politics/north-korea-war-kim.html.
181. Louisa Handel-Mazzetti, Deterrence Doesn’t Fly in Space: Nuclear Weapons in Outer Space as a Threat of Force, Arts. of War (May 2, 2025), https://lieber.westpoint.edu/deterrence-doesnt-fly-space-nuclear-weapons-outer-space-threat-force.
182. Notably, OST Article II prohibits countries from making territorial claims in outer space, although efforts to neutralize space-based WMD before or at the outset of their launch could involve territorial incursions.
183. See, e.g., Memorandum from Sec’y of Def. to Secretaries of the Mil. Dep’ts et al., subject: Tenet Derived Responsible Behaviors in Space (Feb. 9, 2023) [hereinafter Tenet Derived Responsible Behaviors in Space], https://media.defense.gov/2023/mar/03/2003172200/-1/-1/1/tenet%20derived%20responsible%20behaviors%20in%20space%20osd070983-22%20final.pdf.
184. Legality of the Threat or Use of Nuclear Weapons, supra note 49, ¶ 48 (recognizing that “States possessing or under the umbrella of nuclear weapons seek to discourage military aggression by demonstrating that it will serve no purpose, necessitat[ing] that the intention to use nuclear weapons be credible”).
185. See, e.g., Ashton B. Carter & William J. Perry, The Case for a Preemptive Strike on North Korea’s Missiles, Time (July 8, 2006), https://time.com/archive/6939453/the-case-for-a-preemptive-strike-on-north-koreas-missiles. Dr. Perry had served as Secretary of Defense in the Clinton administration and Dr. Carter would later serve as Secretary of Defense under President Obama.
186. FACT SHEET: Vice President Harris Advances National Security Norms in Space, White House Briefing Room (Apr. 18, 2022), https://web.archive.org/web/20241006152522/https://www.whitehouse.gov/briefing-room/statements-releases/2022/04/18/fact-sheet-vice-president-harris-advances-national-security-norms-in-space (describing then-Vice President Kamala Harris’s announcement of a ban on destructive direct-ascent ASAT testing); Jeff Foust, United Nations General Assembly Approves ASAT Test Ban Resolution, SpaceNews (Dec. 13, 2022), https://spacenews.com/united-nations-general-assembly-approves-asat-test-ban-resolution; Jeff Foust, European Union Nations Join ASAT Testing Ban, SpaceNews (Aug. 24, 2023), https://spacenews.com/european-union-nations-join-asat-testing-ban; Ching Wei Sooi, Secure World Found., Direct-Ascent Anti-Satellite Missile Tests: State Positions on the Moratorium, UNGA Resolution, and Lessons for the Future, at iii (2023), https://swfound.org/media/207711/direct-ascent-antisatellite-missile-tests_state-positions-on-the-moratorium-unga-resolution-and-lessons-for-the-future.pdf (describing how Norway and Costa Rica became the thirty-sixth and thirty-seventh countries to pledge direct-ascent ASAT test bans in October 2023).
187. Tenet Derived Responsible Behaviors in Space, supra note 183, attach., tab A. This document requires all DoD Components, unless otherwise directed, to avoid actions in conducting rendezvous and proximity operations that could harmfully interfere with the function of the other space object or significantly increase collision risk; to take all practicable steps to avoid interfering with satellite command and control that would increase its risk of loss; and to prevent interference with capabilities contributing to strategic stability, such as missile warning and nuclear command, control, and communications (NC3) systems, among other things. Id.
188. General Stephen Whiting, Remarks at Space Symposium 40 Keynote Address (Apr. 8, 2025), https://www.spacecom.mil/Portals/57/Gen_%20Whiting%20Keynote%20transcript_1.pdf.
189. U.S. Space Force, Space Warfighting: A Framework for Planners 7 (Apr. 8, 2025), https://www.spaceforce.mil/News/Article-Display/Article/4156245/ussf-defines-path-to-space-superiority-in-first-warfighting-framework.
190. Id. at 4.
191. Whiting, supra note 188, at 1-2. President Donald J. Trump, The Iron Dome for America, White House (Jan. 27, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/the-iron-dome-for-america; Sandra Erwin, Golden Dome Replaces Iron Dome: Pentagon Renames Missile Defense Initiative, SpaceNews (Feb. 28, 2025), https://spacenews.com/golden-dome-replaces-iron-dome-pentagon-renames-missile-defense-initiative.
192. The Iron Dome for America, supra note 191.
193. Id.
194. Plumb Statement, supra note 2, at 4.