The Account of NORAD 40258 and U.S. Options Under Article IX

The LUCH (OLYMP) satellite, which is designated NORAD ID 40258, was launched by the Russian Federation on Sept. 28, 2014, aboard a Proton-M rocket from the Baikonur Cosmodrome in Kazakhstan. The spacecraft was built by ISS Reshetnev, a Russian satellite manufacturer.

According to an October 9, 2015 article in Space News, NORAD 40258 has caused concern in recent months most notably when the spacecraft parked itself in geostationary orbit at 18.1 degrees west longitude, due south of the western tip of Africa, around April 4, which placed it between INTELSAT 7, which is located in the orbital slot at 18.2 degrees west, and INTELSAT 901, which is located in orbital slot at 18 degrees west. From this point, NORAD 40258 maneuvered as close as 10 kilometers of the spacecraft. This type of activity, according to INTELSAT, is unprecedented, and according to Space News, efforts by INTELSAT to communicate with the Russian government have been met with silence. INTELSAT has reportedly been working with the Department of Defense, who has held several classified briefings on the situation.

INTELSAT’s efforts to communicate with the Russian government about NORAD 40258’s activities in geosynchronous orbit will be most certainly be met with continued silence, but it is likely State Department has or will make inquiries to the Russian government. However, the current state of diplomatic affairs between the United States and the Russian Federation are tense considering Russia’s annexation of Crimea, the on-going tensions with Ukraine and Russian involvement in Syria. This will certainly make any diplomatic overtures through normal channels awkward and almost certainly lead to more silence and stone-walling about NORAD 40258 ‘s activities. The State Department does have another avenue to potentially bring sufficient diplomatic leverage upon Russia to disclose NORAD 40258 ‘s activities. Specifically, the State Department could invoke Article IX of the Outer Space Treaty.

Article IX of the Outer Space Treaty states:

In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.

Article IX contains two specific legal obligations and one legal right. The first legal obligation, as previously discussed, deals with contamination of extraterrestrial environments and preventing the contamination of Earth’s biosphere by extraterrestrial material introduced via the space activities of a State Party. This segment of Article IX has been borne out in State practice with protocols such as those developed by NASA’s Office of Planetary Protection, and therefore it is an accepted international practice.

The Legal Duty to Consult

The second legal obligation and the legal right in Article IX are co-joined and have little or no customary precedent in the international arena. The second legal obligation is found in the second segment of Article IX whereby:

If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment.

This segment of Article IX creates a legal duty upon a State to consult with the international community, presumably through the United Nations and specifically the Committee on the Peaceful Uses of Outer Space (COPUOS), in the event a State believes its planned space activities, including those by non-government actors, will potentially cause harmful interference with the peaceful exploration or use of outer space by other State actors or their nationals. Unlike the first legal obligation of Article IX, this legal obligation has never been invoked by any State outer space actor, although there have been substantial activities could have warranted its application.

For instance, both the United States and the Soviet performed numerous national activities space activities subsequent to the signing of the Outer Space Treaty and during the Cold War to include both direct-ascent and co-orbital anti-satellite (ASAT) tests, but neither side felt the legal duty to consult was triggered, which was influenced by the classified nature of these activities.  Moreover, during the last decade there were two highly-publicized events that may or may not have implicated this legal duty under Article IX.

First, is Operation Burnt Frost, where the United States used an ancillary capability to its ship-based anti-ballistic missile system to intercept its derelict satellite, USA-193, on February 20, 2008 out of concern the intelligence satellite’s hydrazine fuel might survive reentry and cause contamination, which the United States would be liable for under international law. The United States concluded prior to the intercept because the satellite was in such a low orbit any debris from a successful intercept would reenter shortly after and not pose harmful interference to the space activities of other States, which would not rigger the duty to consult  in Article IX.  Notwithstanding, COPUOS was informally briefed on the planned intercept by Dr. Nicholas Johnson, formerly of the NASA’s Orbital Debris Program Office, just hours prior to the intercept.

A second more serious event occurred prior to Operation Burnt Frost when on January 11, 2007 the People’s Republic of China destroyed FY-1C, an aging Chinese weather satellite, with a direct-ascent ASAT.  The resulting hard-kill created a substantial debris field in polar orbit, which has increased in the orbital space it encompasses.  As a result, the debris field intersects the orbits of many functioning satellites belonging to several States and requires monitoring to prevent interference and collisions.  Several days after the test, the international community expressed its concern to the PRC, including why the PRC did not inform the international community of the impending test whether informally or via Article IX.  Plausibly, it is this type of event that would trigger the second legal obligation in Article IX, yet the PRC did obligate itself.

As demonstrated, none of the Big Three have obligated themselves to the consultation duty in Article IX.  This is not surprising because each of these States have sufficient prestige in outer space activities to establish by their own actions a customary practice of when the legal obligation to consult under Article IX is triggered. This in turn would create an international litmus test for the duty to consult under Article IX, which could expose national security activities in outer space to unwanted scrutiny.  In effect, this is likely the rationale why the United States and the Soviet Union never obligated themselves to consult via Article IX during the Cold War.

Conversely, by not obligating themselves to Article IX for these activities, both the United States and the Soviet Union created a customary international norm for not when the legal obligation to consult in Article IX is triggered but instead when it is not triggered.  Notably, the PRC claimed its 2007 ASAT test conformed with international law, which suggests it was alluding to this customary practice, i.e. the PRC felt prior to the test the customary practice created by the United States and the Soviet Union allowed it to destroy one of its satellites with a direct-ascent ASAT without triggering the legal obligation to consult in Article IX.

Furthermore, it is clear the Russian Federation did not consider itself obligated to consult per Article IX prior to the launch of NORAD 40258 nor before its maneuvers between INTELSAT 7 & INTELSAT 901, which suggest the Russian Federation is relying on the customary practice regarding when the legal obligation to consult in Article IX is not triggered. Moreover, the Russian Federation may be subjectively relying on what it perceives to be customary law created by the United States through its national security activities in geosynchronous orbit, which in turn affects the legal obligation to consult in Article IX.

The Legal Right to Request a Consultation

The legal right to request a consultation in Article IX dove-tails the legal obligation to consult. The right is created in Article IX whereby:

A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.

The legal right to request a consultation occurs before a State performs a space activity.  Unlike the duty to consult, the right to request a consultation was invoked by Japan following the PRC’s 2007 ASAT test. The question is whether Japan’s use of this right under Article IX creates a binding customary practice. There are two reasons it may not create a customary usage. First, the right to request a consultation is for an activity being planned by another State Party in outer space, but Japan claimed the right to request a consultation after the test occurred. The second and most persuasive reason for denying a customary practice was created is because Japan, although a noteworthy State actor in outer space, simply lacks the level of standing for a customary norm to be created. That is to say, even though Japan’s use of the right to request a consultation is indicative of a state practice, which Japan appeared to hold itself legally obligated to, no other State has since similarly invoked the right to request a consultation in Article IX.  Simply put, Japan lacks the level of prestige in outer space activities to create a customary norm on its own.

Additionally, Japan’s use of the right to request a consultation though technically incorrect and lacking the standing to create a customary practice on its own pales in comparison to the inaction of the United States in the matter. Reportedly, Western intelligence organs had foreknowledge the PRC was planning an ASAT test, although it is unclear how much detail they knew and whether that detail would have been enough to trigger the right to request a consultation. Nevertheless, there is an argument the failure of the United States to request the right of consultation creates a similar conundrum to the legal obligation of consultation in that the failure to use either creates a customary norm of when it is not applicable.

So herein lies the impasse for the United States. NORAD 40258 has positioned itself in proximity to INTELSAT 7 and INTELSAT 901. Because NORAD 40258 is a Russian military satellite, INTELSAT has no legal recourse to address the situation nor do they have the authority to open a dialogue with the Russian Federation. Therefore, because INTELSAT 7 and INTELSAT 901 are registered to and under the jurisdiction of the United States per Article VIII of the Outer Space Treaty, INTELSAT’s only recourse is to turn to the United States government for assistance. As noted before, the diplomatic environment between the United States and the Russian Federation is chilly and tense at best, and whether diplomatic overtures will even be acknowledged is questionable.

This bears the question whether the time may be ripe for the United States to make a formal request for consultation under Article IX. Making a formal request before the United Nations could work to the soft-power advantage of the United States because it would not only put significant political pressure on the Russian Federation to respond to the United States’ request, but also given the prestige of the United States in outer space activities would create a customary practice of under what circumstances the duty to consult is triggered, which would give new significance to Article IX.

However, making such a request is akin to opening Pandora’s Box as once a customary norm is established there is no telling how it could be used. Clearly, using the right of consultation would put the Russian Federation on the diplomatic defensive with regards to the activities of NORAD 40258, but the flip-side is if a customary practice is created, the Russian Federation, the PRC and other nations could use that practice to make diplomatic inquiries into the national security activities of the United States and simultaneously create a soft-power and diplomatic nightmare for the United States while bolstering the influence and standing of geopolitical competitors.

The saga of NORAD 40258 will surely continue for some time. The geopolitical and diplomatic challenge is whether to confront it head on with Article IX and risk the soft-power fallout down the road or allow the game of cat and mouse to play out.

 

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