Back in the Day: The Outer Space Treaty During War

Have you ever wondered whether the Outer Space Treaty applies during war?  We have some clues from the past to suggest it does not.  The Senate held full hearings on the treaty before ratifying it, so there is lots of testimony from the treaty’s U.S. negotiators.

The Outer Space Treaty’s applicability provision at Article XIII states that “The provisions of this Treaty shall apply to the activities of States Parties to the Treaty in the exploration and use of outer space, including the moon and other celestial bodies, …”  If the Treaty applies only to “exploration and use” it may be argued that neither of those activities include war, although a broader interpretation might view war as a “use.”  However, General Wheeler, then Chairman of the Joint Chiefs of Staff, testified to the Senate during the 1967 ratification hearings that the Treaty would not apply during war.

The Department of Defense’s Office of the General Counsel later provided a fuller explanation in 1999 and as updated in 2002:

During an international armed conflict between the two nations concerned, however, the law of armed conflict would apply unless it was trumped by the principle of noninterference with space systems. Resolution of this issue depends largely on whether the four space treaties will be considered to apply during an armed conflict. None of them has any specific provision that indicates whether the parties intended that the agreement apply in wartime. There appears to be a strong argument that the principle of noninterference established by these agreements is inconsistent with a state of hostilities, at least where the systems concerned are of such high military value that there is a strong military imperative for the adversary to be free to interfere with them, even to the extent of destroying the satellites in the system. As indicated in the discussion of treaty law in the introduction to this paper, the outcome of this debate may depend on the circumstances in which it first arises in practice. Nevertheless, it seems most likely that these agreements will be considered to be suspended between the belligerents for the duration of any armed conflict, as least to the extent necessary for the conduct of the conflict.

In short, the U.S. Department of Defense seems unlikely to apply the strictures of the Outer Space Treaty during an armed conflict.  The DOD position does not appear to have changed as of the 2016 DOD Law of War Manual, which states in reliance on the 1999 assessment quoted above: “Certain provisions of these treaties may not be applicable as between belligerents during international armed conflict.”