The Nonproliferation Policy Education Center commissioned a paper from me on the Outer Space Treaty’s constraints on military activities. My brief was to identify which provisions were clear and which ambiguous. Wargamers (and others) need to know these things.
From the introduction:
The Outer Space Treaty of 1967 (the “Outer Space Treaty” or the “Treaty”) was entered into during the height of the Cold War and during the space race to the Moon between the United States and the Soviet Union. The Treaty establishes the basis for a legal regime governing the activities of nation–states, referred to as “States Parties” throughout the Treaty, in outer space. Under Article XIII, the Treaty applies “to the activities of States Parties to the Treaty in the exploration and use of outer space.” As the U.S. Secretary of State, Dean Rusk, explained in his statement to the Senate, “[t]he treaty is not complete in all possible details. It does not deal with all problems that may develop. But it is responsible to those problems that can be described and forecast today.”This assessment focuses on whether and how the Treaty prohibits military activities in outer space, with an eye toward determining which are clear and which are ambiguous.
In summary, it is clear that States party to the Treaty may not place nuclear weapons or other weapons of mass destruction in a full orbit around the Earth. They may deploy intercontinental ballistic missiles (“ICBMs”) armed with nuclear warheads. Although the weight of opinion of two major spacefaring nations appears to be that fractional orbital bombardment systems armed with nuclear warheads comply with the Treaty, one may argue that that conclusion is not certain. States party to the Treaty may place weapons that are neither nuclear nor WMD in orbit, on celestial bodies, including the Moon, or otherwise in outer space. Similarly, there is no Treaty prohibition on military reconnaissance, communications, or navigation satellites. The Treaty requirement to use celestial bodies exclusively for peaceful purposes allows for self–defense. Space between Earth and the Moon does not fall under this requirement, so it need not be used exclusively for peaceful purposes. Parties to the Treaty undertake not to establish military bases, installations, or fortifications and to abstain from testing any type of weapon or conducting military maneuvers on celestial bodies. The U.S. position identifies the Moon as a celestial body for purposes of this prohibition, but, again, that is arguably ambiguous. States Parties to the Treaty may verify treaty compliance on the Moon and other celestial bodies. Access requires reciprocity, advanced notice, consultations, safety precautions, and avoiding interference in the operation of a facility accessed. If two countries were at war, the U.S. position appears to be that the Treaty would not apply as between the two belligerents.
If you want to see where I show my work, the rest of the paper is available here.
“Although the weight of opinion of two major spacefaring nations appears to be that fractional orbital bombardment systems armed with nuclear warheads comply with the Treaty, one may argue that that conclusion is not certain. ”
This is completely expected as outlawing those in the treaty would have meant that the treaty would have been signed by neither the US nor the USSR. Reading it otherwise would be absurd.
Admittedly there are a number of other treaties out there with absurd provisions.