Glenn Reynolds and Leigh Ootten posted this essay a few days ago, which Reynolds has been pinging since then. Up until the 1961 test-ban treaty the Americans were planning Boom Boom, a pulsed rocket into space with much cargo... so much cargo. Per Outten and Reynolds the treaty was lightened up in 1967, with a different treaty.
The Arctic-facing nations, counting NORAD as one nation for this purpose, worry a bit about nuclear bombs going off nearby. Also lately we might get Starship for our cheap, heavy-lift needs.
On the proÖrion side mainland China never signed the 1960s treaties. The official US (and to an extent Soviet) line back then was that Mao was a bandit and that Chiang was President. The US line famously changed under Nixon who, you'll recall, took office in 1969. But if Reynolds is right we all forgot to bring China into the framework. For the purpose of these treaties, I take it that Russia at least is heir to the Soviet Union.
Orion's engine based on smallscale nukes as it is would fall under that "tactical" category. This on account that, when used in war, they're meant to bust up a small target - best would be an army base in the wilderness - and not half a city as was done in Japan. They're in a grey area in international law. As David French points out, Russia could detonate such a low-critical-mass bomb in its warzone and we'd not be able to do much about it - because MasterCard has already shot its wad. What, we're going to boycott Putin more? Also President Trump himself banned "weapons grade Uranium" in space, although maybe it doesn't count if whatever heavymetal is tactical and we're not in space yet.
I personally think that the Orion should be restricted to the polar latitudes, which basically means the far north on account the Antarctic treaties keep that particular continent off-bounds for this stuff. Kerguelen maybe? I dunno. Either way what "should" be legal and what the US Senate has actually ratified are different things - as Reynolds rightly notes.
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