The schlocky 1998 Bruce Willis film Armageddon was the highest wholesaler movie of that year. Blockbuster saw a master oil driller (Willis) and an unlikely crew of misfits placing a nuclear weapon inside a giant asteroid heading towards the earth, inflating it – and saving humanity. Armageddon is not exactly a documentary: it is full of sci-fi nonsense. But, for 20 years, its basic plot – using a nuclear explosion to ward off a catastrophic asteroid collision – does not seem as stupid as it did then.
Greater asteroid impact is a low probability but great risk for life on earth. Big "Near Earth Objects" (NEO) do not meet the Earth often, but it only takes one (just ask the dinosaurs – oh, wait, you can't). Of course, low-probability risks are easily dismissed, though high as the implications of them may be – and until recently, the countries largely saw the threat of NEOs as something best left for Hollywood.
But it changes as the consequences (in more ways than one) of the meteorite that beat Chelyabinsk in Russia in 2013, which damaged more than 1000 people. Suddenly, the NEO threat became "real" and major players – the US, Russia and the EU – started pumping money into NEO preparedness and developing formal response strategies (see, for example, the production of the US First Ever National Near Earth's Objective Response Strategy in December 2016) .
At the United Nations, we have recently witnessed the creation of an embryonic international institutional infrastructure to detect and respond to asteroids. As part of all this – and in line with the increased scientific view – there is also a remarkable focus on state and intergovernmental levels on the use of nuclear weapons as our best hope. The US and Russia have even been working together on a nuclear safety planning initiative. Suddenly, it seems that Bruce Willis and his team can be put on NASA's fast-track, after all.
What the law says
As a lawyer, I cannot wonder whether the latest developments are in international law. Not good, it seems. At the intersection of law and space law on nuclear weapons, the proliferation of cold war measures seems to exclude the defense of the nuclear plan. The legal picture is not always clear – the relevant law was drafted with the superpowers' arms race in mind, after all, not asteroids. But if a collision course NEO was identified, it can at least be said that a proposed nuclear response would be very likely to conflict with international law.
For example, Article IV of the 1967 Outer Space Treaty prohibits the stationing of nuclear weapons in space, which would obviously exclude nuclear defense, at least if a nuclear system was located in space (rather than being launched from the earth).
1963 Partial Test Ban Treaty is an even bigger obstacle for most states (although not all nuclear weapons are party to it – but the US and Russia are both). Article I.1 (a) of the Treaty prohibits "any … nuclear explosion … in outer space". And these are just the most important treaties: there are also a number of other possible legal barriers.
A huge asteroid dried out the dinosaurs, but what danger is less?
So what? If it came to a choice between legal niceties and to save mankind from extinction, it would not be much of a choice at all: the law should not be a global suicide pact. In fact, a nuclear power, Russia, has already stated that – if that asteroid appears – it would probably choose "launch first, second time".
But ignoring the law is always a dangerous activity, and it is not difficult to think of nuclear weapons using the vague threat of "asteroids" as a pretext for developing new warheads, or even for starting nukes in space. And if they do so in an unapologic violation of international law, they will also circumvent all the controls and balances that the law can provide. That threat is perhaps more worrying than the threat of a hypothetical space rock.
In a major article that was just published in Hastings International & Comparative Law Review, I argue that international law needs to elaborate a way to thread this needle.
The law must protect us from states that use asteroids as a pretext for displacing nuclear disarmament bans, or – gulp – nuclear attacks in space, while providing for a limited, protected exception that would allow multilateral nuclear safety planning that we will ever need "the nuclear option" to save ourselves.
As such, I propose either an amendment from the Treaty (or probably the adoption of the Additional Protocol) to develop a new, adapted legal exception for the use of nuclear weapons in space, where a major collision course NEO was identified and verified, and where the balance of independent scientific alternative clearly supported a core response.
At the same time, in order to promote security, protect against abuse and increase the chances of success through pooling of expertise and resources, I also argue for the creation of a new multilateral decision-making and monitoring body composed of all states (or as many states as possible), and included direct effort from independent designated scientific experts and organizations.
The purpose is that the new body would be equipped both to stop countries that abuse the new legal exemption to develop militarized nuclear programs, while avoiding the problems associated with existing institutions (such as the UN Security Council) if humanity has to act fast to avoid going on the dinosaur path.
All this would be extremely complicated (legal, political and financial) and would take a lot of time to set up. But when it comes to "asteroid threats", time is not a problem. Until that is So I suggest we get started now.
The political and scientific context has changed since 2013, but the legal context is still fixed in the thinking of the 1960s – and we need to update it. If we don't, we can really risk Armageddon.