GROUNDING THE HUMA: THE LEGALITY OF SPACE DENIAL AND (POTENTIAL) AMERICAN INTERFERENCE IN THE IRANIAN SPACE PROGRAM.

• Author: Grunert, Jeremy J.

1. Introduction II. Background A. History of the Iranian Space Program B. "Peace and Pride" or Rocket Rogue? Purposes and Perceptions of the Iranian Space Program III. Legal and Policy Framework A. Outer Space Law B. Interpretations of the Use of Outer Space for "Peaceful Purposes" C. United States Space Security Policy IV. Analysis A. Alleged American Sabotage in Light of United States' Space Policies B. Iran, "Peaceful Uses" of Outer Space, and America's Catch-22 C. "Aggression" and "Responsibility": New Constructions for Space Participation? V. Conclusion "How can men turn their head away from him whose shadow creates kings?" [1]

1. Introduction

   In the legends of ancient Persia, one can find tales of a curious mythological beast: the Huma bird. Traditionally viewed as bird of good-omen, the Huma--like a satellite locked in orbit around the Earth--flew perpetually, "never alighting on land." [2] Its true power, however, came from its shadow, which held a strange and mystic power: the ability to create kings. [3] The Huma's shadow "herald[ed] a royal destiny" for any person on whom it fell. [4] In modern Persia, now known as the Islamic Republic of Iran (hereinafter, "Iran" or "the Islamic Republic"), the legend of the Huma bird serves as an excellent stand-in for a very different heavenly phenomenon: a State's successful national outer space program and the benefits that can be derived from space-based activities. In the shadow of a successful space program, a State can stoke its national pride, bask in global prestige, and even, potentially, partake in cosmic riches. The Iranian government certainly views a successful space program as a means of "attain[ing] the position that it deserves in the global arena," and, as we shall see, has devoted significant resources over the past two decades toward creating an independent space launch capability. [5] But recent events indicate that not all are pleased that the shadow of this new, modern Huma may be falling on Iran. Indeed, some members of the international community may be taking measures to keep the Iranian space Huma firmly on the ground.

   On August 29, 2019, an explosion rocked the launchpad at the Imam Khomeini Space Center in Semnan, Iran--the Islamic Republic's primary space rocketry and launch facility. [6] Damaging the space launch vehicle (SLV), gantry tower, and mobile launcher on the pad at the time, the explosion was the latest in a string of failed launches for the Iranian Space Agency (ISA). With the ISA's recent track record, the failed launch might have garnered little attention. The following day, however, President Donald Trump took to Twitter to comment on Iran's misfortune. Attaching a high-resolution photograph of the damaged launch pad (a photograph that many experts believe was taken by a classified American spy satellite [7]), President Trump declared:

   The United States of America was not involved in the catastrophic accident during final launch preparations for the Safir SLV Launch at Semnan Launch Site One in Iran. I wish Iran best wishes and good luck in determining what happened at Site One. [8] The President's comment appeared to respond to an accusation that, at least at the time, no one had made.

   In the aftermath of President Trump's tweet, Iranian officials prevaricated. Mohammad Javad Azari Jahromi, Iran's Minister of Information and Communications Technology, immediately claimed that the intended payload of the failed launch, Iran's Nahid I communications satellite, was not damaged, tweeting a photograph of himself supposedly standing next to an intact Nahid I. [9] After several days of silence, the Iranian Government acknowledged the explosion, citing a technical malfunction as the underlying cause and reiterating Mr. Jahromi's claim that the damaged rocket had not contained its satellite payload. [10] The American media, meanwhile, largely focused its coverage of the incident on the legality and wisdom of President Trump's release of the high-quality satellite image contained in his tweet. [11] While several stories mentioned suspicions of American sabotage, the brief media firestorm surrounding the incident mostly ignored this aspect of the story, particularly after Iran's claim that technical problems, rather than sabotage, caused the explosion.

   Whether sabotage directly led to the August 2019 explosion in Semnan, that the United States may be working to hinder--or even, potentially, actively sabotaging--the Iranian space program is not beyond the realm of possibility. The United States has a history of engaging in covert operations against Iran, most notably the advanced Stuxnet cyber-attack that derailed the Islamic Republic's nuclear program in 2010. [12] Further, there have been recent reports that the Trump Administration has "accelerated" efforts to sabotage Iran's rocket and missile development--mostly through the introduction of "faulty parts and materials into Iran's aerospace supply chains." [13] While this sabotage is ostensibly directed at Iran's ballistic missile program, it is likely to affect the Iranian space program as well. If the United States is indeed sabotaging the Iranian space program, this raises a host of significant legal and policy questions. This article will examine these issues, arguing that even if American sabotage of the Iranian space program would violate the United States' treaty obligations under the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (more commonly known as the "Outer Space Treaty"), [14] the United States can justify such actions based upon other principles of international law.

   To begin this discussion, Section II will provide a background of Iran's space program, detailing the history of Iran's pre- and post-revolution interests in outer space, and, specifically, the recent history of the ISA, Iran's official civilian space agency. This section will also examine of the motivations underlying the Iranian space endeavor, both Iran's claims that the program is for purely "peaceful purposes" and the United States' (and others') suspicions that the space program masks more threatening aims, such as the development of long-range ballistic missiles.

   Section III will examine the relevant law involved in the possible sabotage of Iran's space program, specifically outer space law as framed in the Outer Space Treaty and interpretations of its provisions under international law. It will also detail the United States' current outer space policies, with a particular emphasis on the national policies promulgated by Presidents Trump, Obama, and Bush--the three most recent presidential administrations.

   In Section IV, the United States' possible sabotage of the Iranian space program will be analyzed in light of the relevant law discussed in earlier sections. Do the United States' actions run afoul of the Outer Space Treaty? If so, is there another area or principle of international law under which they would be legitimate? Section V will provide a conclusion, offering policy recommendations for American decision-makers with respect to how best to confront Iranian space ambitions while still complying with international law and existing treaty obligations.

2. Background

   In order to better understand possible American interference with the Iranian space program, it is essential to have a working knowledge of the program's history, as well as the possible threats--at least from an American and international perspective--that such a program may pose. This section will address these topics. First, it will provide a history of Iran's participation in outer space-related international regimes and development of its own space program. Second, it will compare Iran's portrayal of the purposes of its space program with what Americans and others perceive those purposes to be.

   1. History of the Iranian Space Program

      Iran has been involved with issues related to outer space at the international level almost since the beginning of the Space Age in 1957. After the Soviet Union's launch of the Sputnik I satellite on October 4, 1957, and subsequent American proposals at the United Nations (U.N.) for "an international program of space cooperation," [15] Iran joined the United States and its allies at the U.N. in supporting the creation of an Ad Hoc Committee on the Peaceful Uses of Outer Space. The U.N. General Assembly approved the creation of this Ad Hoc Committee on December 13, 1958, in General Assembly Resolution 1348, listing Iran as a founding member. [16] The Ad Hoc Committee was formalized into the permanent Committee on the Peaceful Uses of Outer Space (COPUOS) the following year, with direction from the General Assembly (1) "[t]o review ... area[s] of international co-operation, and to study practical and feasible means for giving effect to programmes in the peaceful uses of outer space," and (2) "[t]o study the nature of legal problems which may arise from the exploration of outer space." [17]

      During the two decades separating the founding of COPUOS from the unrest that would lead to the Iranian Revolution, Iran expanded its Space Age bona fides by participating in the international treaty regimes that grew up around expanding American and Soviet efforts in outer space. Of the five major outer space-related treaties drafted and open for signature between 1967 and 1979, Iran signed four: [18] the Outer Space Treaty (1967); [19] the Rescue and Return Agreement (1968); [20] the Liability Convention (1972); [21] and the Registration Convention (1975). [22] While Iran's signing of these four treaties indicates its recognition and acceptance of the legal provisions and obligations therein contained, Iranian authorities only ratified the Rescue and Return Agreement and the Liability Convention--leaving at least some question with respect to the international legal obligations modern Iran...