by Madison Graham, 2024 Student Ambassador and a third-year law student at the University of Georgia Law School*

This blog is part of a series of reflections on ILW 2024 by our Student Ambassadors. Each Student Ambassador engaged with various panels and will share their experiences over the spring and in the lead up to ILW 2025.

In 1967, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space – more commonly referred to as The Outer Space Treaty – was signed and entered into force. While both were monumental for their time and a feat for the three original signing parties (the US, the UK, and the Soviet Union), the Outer Space Treaty (“OST”) has remained untouched for the last 60 years. One hundred fifteen states are now party to the treaty, but the original 8-page, 17-article treaty has not been amended despite the dramatic evolution of outer space technology and activities. Against this backdrop, a few questions come to mind: For a treaty so short and covering such complicated technology, is everything concretely defined and explained? If provisions are unclear, which actors will decide what they mean?

On October 25, 2024, Jack Beard, Professor and Director of the Space, Cyber & National Security Law Program at the University of Nebraska College of Law, and member of Committee on the Use of Force for the American Branch of the International Law Association (“ABILA”), moderated a discussion on “Empowering International Law to Address Rising Tensions in Outer Space: The Woomera Manual on the International Law of Military Space Activities and Operations.” The speakers discussed the questions posed above and some more specific questions regarding space law and other fields, such as legal and scientific. The speakers also discussed how several of these ongoing questions may be answered by The Woomera Manual on the International Law of Military Space Activities and Operations, a book co-authored or contributed to by several panelists.

The panel included: Laura Grego, Senior Scientist and Research Director for the Global Security Program of the Union of Concerned Scientists; Heather Harrison Dinniss, Senior Lecturer for the Department of International and Operational Law at the Swedish Defence University; David A. Koplow, Scott K. Ginsburg Professor of Law for the Georgetown University Law Center; and Dale Stephens, Professor and Director of the Research Unit on Military Law and Ethics at the University of Adelaide, Australia.

The discussion opened by contextualizing the audience with the central dilemma posed by the OST: how to interpret the treaty. The speakers indicated that the answer has taken a few forms. Some specialists argue that the OST is the law precisely as the states have interpreted it. Others suggest that the OST’s broadness allows contemporary lawyers to decide what the law should be. For example, regarding Article VI on responsibility for outer space activities, space lawyers believe the text means only what it says, per Article 31(1) of the Vienna Convention on the Law of Treaties. In contrast, military lawyers suggest a more varied and malleable approach; “[l]awyering in the space arena therefore requires not only the application of existing space law and other applicable international and domestic law, but also, where relevant, the nuanced incorporation of lessons from the practice of law in all other domains.”

Next, the panel discussed what is not included in the OST and the interpretive issues such exclusions pose for the treaty’s interpretation. Notably, the OST contains no definition section or other elaboration on the articles’ meaning. This lack of explanation has sparked dispute regarding what several articles are supposed to mean or cover, especially Article IV.

“States 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.

The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited.”

Broadly, Article IV prohibits weapons or military base-building in outer space. More specifically, it mandates that weapons cannot be placed in orbit, installed on celestial bodies, stationed in outer space, or tested in outer space. Left unanswered by the text of the treaty, however, is what exactly counts as an ‘instillation,’ what a ‘station’ is, what will count as a ‘weapon,’ or what will be considered ‘orbit.’

What a ‘stationed’ weapon would be is quite unclear, given that nothing in space is truly stationary. The speakers noted that ‘weapon’ is generally interpreted with hostility, but that may not be the case if an in-space emergency requires ‘weapons’ of one state to help people of another state. Finally, the definition of ‘orbit’ has been particularly troubling as scientists and defense agencies’ opinions diverged. Scientists generally hold the “functionalist view” that an object in space is in orbit even if it does not go all the way around Earth one complete time.  On the other hand, the US Department of Defense has rejected that view in favor of a definition of ‘orbit’ that necessitates an object undergo “one complete [rotation] around the Earth.” The speakers noted that these questions will remain ripe for discussion as long as they stay open – or as long as the treaty remains unamended – and an excellent opportunity for industries to work together to pursue the answers. Indeed, the goal of The Woomera Manual was to bring together perspectives and instruction from various sectors to help guide the OST’s application moving forward. While compiling various industries’ perspectives to help answer what the OST does not, the speakers remarked that a more fundamental issue arose: some industries and fields of view clashed.

Accordingly, the speakers concluded with a big-picture discussion of how they see the intersecting of science and legal interpretations of space. Additionally, how the industries’ collision may affect states’ legal order moving forward. For example, it is still unclear what ‘space’ is. Where the very understanding of what ‘space’ is, literally or functionally, remains unanswered, applying law with any consistency will be equally challenging. Further, concerning military operations, law and policy often disagree on what constitutes ‘military’ action and what is ‘civilian.’ But the reality of space is that it is dual use. Projects like Starlink, perhaps initially intended as scientific development for civilian use, are becoming increasingly militaristic and, thus, more targetable. On the other hand, there are developments like the Global Positioning System (“GPS”), initially designed for the military but now so commonly used it is deemed “civilianized’ and no longer targetable by military operations.

The speakers concluded that the risk of leaving these questions unanswered is that States cannot clearly understand their duties per the OST. Without understanding expectations, they are less likely to fulfil their responsibilities or hold other States responsible. While drafting broadly has advantages in certain areas of the law, outer space is not one of them; the dangers for humanity and the environment will likely outweigh the benefits. In sum, there is space for greater legal clarity and available foundations that must be built when it comes to the law in outer space.

*Madison Graham is a third-year law student at the University of Georgia Law School, where she has been focusing mainly on public international law and national security law. She says: “While I came to law school knowing I would be interested in studying international law, it has been amazing over the past two years to have my perspective broadened on how widely the subject of ‘international law’ spans. Groups like ABILA have been an integral part of my academic growth, and I am thrilled to have had the opportunity to contribute as a student ambassador.”