Russia reportedly wants to put a nuke in space. What does that mean for the Outer Space Treaty?

President Lyndon B. Johnson looks on as the U.S., the U.K., and the U.S.S.R. sign the Outer Space Treaty, Jan. 27, 1967 (CORBIS/Corbis via Getty Images)

By: Joe Noser

On February 14, 2024, House Intelligence Committee Chairman Mike Turner (R-OH) made waves when his committee posted a cryptic statement calling on the Biden Administration to declassify all information regarding a “serious national security threat.”[1] The threat, it turns out, is significant: a reported Russian program to put a nuclear weapon into low Earth orbit to give it a menacing antisatellite capability.[2]

A nuclear explosion in low Earth orbit would have devastating effects on military and civilian satellites alike. Everything from GPS to aviation guidance to military targeting systems could be affected.[3] The proliferation of “space junk” from the ensuing destruction could trigger what’s known as the “Kessler Syndrome”–a theoretical scenario where Earth’s orbit being overwhelmed with debris causes surviving orbital objects to collide with said debris, creating a domino effect of collisions that makes space access impossible for generations.[4]

The Outer Space Treaty

If Russia manages to get the weapon into low Earth orbit, its mere presence would have significant effects on international law. Even if the weapon is never used, its deployment would represent a material breach of The Outer Space Treaty, a 1967 multilateral pact which the Russian Federation, the United Kingdom, and the U.S. are responsible for administering.[5]

Born out of concerns arising from the negative impacts of Soviet and American nuclear tests in the lower atmosphere during the 1960s, The Outer Space Treaty is one of the few anti-armament treaties still on the books between Russia and the U.S.[6] Article IV of the Treaty states in part that “State Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.”[7]

The Treaty itself does not say what would qualify as a breach.[8] According to Article 60(3)(b) of the Vienna Convention of the Law of Treaties, when a treaty doesn’t speak to what a material breach entails, such a breach occurs when there is a “violation of a provision essential to the accomplishment of the object or purpose of the treaty.”[9] Seeing as a major purpose of the Treaty was to ensure peaceful space exploration, Russia’s reported plan would constitute a material breach.

A material breach of a multilateral treaty, especially one that “radically changes the position of every party with respect to the further performance of its obligations under the treaty” (as Article 60(2)(c) of the Vienna Convention of the Law of Treaties states), has a devastating effect on the efficacy of the treaty itself.[10] Non-breaching parties have a variety of options at their disposal when such a breach takes place.[11] By unanimous agreement, they can suspend the operation of the treaty or terminate it, either in relations to themselves and the defaulting State, or between all the parties.[12] Parties specifically affected by the material breach can use it to suspend the treaty, in whole or in part, as it pertains to its relations with the defaulting State.[13] And, perhaps most critically, material breaches of the magnitude of Russia’s reported plan can cause any non-defaulting party to “invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself.”[14]

Conclusion

If Russia succeeds in putting a nuclear weapon in low Earth orbit, such a provocation would be a material breach that could have a variety of effects on the Outer Space Treaty. If all of the other parties agreed, they could terminate the treaty, creating a “wild west” scenario that would substantially increase the speed of space militarization. Alternatively, any of the other parties could claim Russia’s nuke “radically changes” their position on the treaty, therefore justifying their own deployment of weapons of mass destruction (WMD) to counter the threat.

Such destabilization remains unlikely, however. Because of the Kessler Syndrome threat, nations are highly disincentivized to increase the risk of military confrontation in space by deploying nuclear weapons into low Earth orbit. The global trade system’s reliance on GPS also means that nations will endeavor to ensure that low Earth orbit does not become a minefield. While targeting of Russian satellites would certainly be on the table, wholescale deployment of space-based WMD likely would not be. Therefore, even if Russia’s latest provocation comes to fruition, it is unlikely to result in a total collapse of the Outer Space Treaty.

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[1] House Intelligence Committee (@HouseIntel), X (Feb. 14, 2024, 11:35 AM), https://twitter.com/HouseIntel/status/1757805804885823775.

[2] John Parkinson, Luke Barr, Anne Flaherty, Luis Martinez, and Adam Carlson, GOP warning of ‘national security threat’ is about Russia wanting nuclear weapon in space: Sources, ABC News (Feb. 14, 2024, 5:27 PM), https://abcnews.go.com/Politics/white-house-plans-brief-lawmakers-house-chairman-warns/story?id=107232293.

[3]Paul Ratner, How the Kessler Syndrome can end all space exploration and destroy modern life, BigThink (Aug. 29, 2018), https://bigthink.com/surprising-science/how-the-kessler-syndrome-can-end-all-space-exploration-and-destroy-modern-life/.

[4] Id.

[5] https://lieber.westpoint.edu/russian-nuclear-weapons-space/

[6]Tara Copp, Before Russia’s satellite threat, there were Starfish Prime, nesting dolls and robotic arms, ABC News (Feb. 15, 2024, 7:18 PM), https://abcnews.go.com/US/wireStory/russias-satellite-threat-starfish-prime-nesting-dolls-robotic-107278363.

[7] William H. Boothby, Russian Nuclear Weapons in Space, Lieber Institute at West Point (Feb. 16, 2024), https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html.

[8] Id.

[9] Vienna Convention on the Law of Treaties art. 60(3)(b), May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969).

[10] Id. at art. 60.  

[11] Id. at art. 60(2).

[12] Id. at art. 60(2)(a).

[13] Id. at art. 60(2)(b).

[14] Id. at art. 60(2)(c).