Author: A Ferreira-Snyman SELECTED LEGAL CHALLENGES RELATING TO THE MILITARY USE OF OUTER SPACE, WITH SPECIFIC REFERENCE TO ARTICLE IV OF THE OUTER SPACE TREATY

Since the end of the Second World War the potential use of outer space for military purposes persisted to be intrinsically linked to the development of space technology and space flight. The launch of the first artificial satellite, Sputnik 1, by the USSR in 1957 made Western states realise that a surprise attack from space was a real possibility, resulting in the so-called "space-race" between the USA and the USSR. During the Cold War space activities were intrinsically linked to the political objectives, priorities and national security concerns of the USA and the Soviet Union. After the Cold War the political relevance and benefits of space continued to be recognised by states. In view of the recent emergence of new major space powers such as China, the focus has again shifted to the military use of outer space and the potential that a state with advanced space technology may use it for military purposes in order to dominate other states. Article IV of the Outer Space Treaty prohibits the installation of nuclear weapons and weapons of mass destruction in outer space and determines that the moon and other celestial bodies shall be used for peaceful purposes only. Due to the dual-use character of many space assets, the distinction between military and non-military uses of outer space is becoming increasingly blurred. This article discusses a number of legal challenges presented by article IV of the Outer Space Treaty, relating specifically to the term peaceful, the distinction between the terms militarisation and weaponisation and the nature of a space weapon. It is concluded that article IV is in many respects outdated and that it cannot address the current legal issues relating to the military use of outer space. The legal vacuum in this area may have grave consequences not only for maintaining peace and security in outer space, but also on earth. Consequently, an international dialogue on the military uses of outer space should be facilitated under the auspices of the UNCOPUOS to address these uncertainties as a matter of urgency. Although it is agreed with the proponents of a hard law approach that a legally binding instrument should be adopted to regulate the military use of outer space, it is submitted that, as an interim measure, soft law guidelines should be developed to provide a framework for the eventual creation of a consolidated and binding legal instrument on all aspects relating to the use of outer space.


Introduction
In an address to the United Nations General Assembly on 22 September 1960, the then President of the United States of America, Dwight Eisenhower, stated that: The emergence of this new world [outer space] poses a vital issue: will outer space be preserved for peaceful use and developed for the benefit of all mankind?Or will it become another focus for the arms race and thus an area of dangerous and sterile competition?The choice is urgent.And it is ours to make.The nations of the world have recently united in declaring the continent of Antarctica off limits to military preparations.We could extend this principle to an even more important sphere.National vested interests have not yet been developed in space or in celestial bodies.Barriers to agreement are now lower than they will ever be again.The opportunity may be fleeting.Before many years have passed, the point of no return may have passed. 1though the race to the moon dominated the attention of the two major space powers, the (then) USSR and the USA, during the 1960s, 2 the potential use of space for military purposes has continued to be intrinsically linked to the development of space technology 3 and space flight 4 since the end of the Second World War.
The launch of the first artificial satellite, Sputnik 1, by the USSR in 1957 "caused a crisis in Western military thinking" 5 as it indicated that a surprise attack from space was a real possibility.This event was the impetus for the so-called "space race" between the USA and the USSR, causing these two world powers to invest huge  Anél Ferreira-Snyman.B Juris (PUCHE); LLB (PUCHE); LLM (PUCHE); LLD (UJ).Professor, School of Law, Unisa.E-mail: ferremp@unisa.ac.za.Most of the research for this article was conducted in April/May 2013 by utilizing the research collection of the Institute for Air and Space Law at the University of Leiden.The research was undertaken with a research grant awarded by the College Research and Innovation Committee of the College of Law at Unisa.Management and Organisation 2001 http www.dod.gov/space20010111.html),which cautions in ch 2 that the USA is "an attractive candidate for a 'Space Pearl Harbor'" and that it must therefore reduce its space vulnerability.
September 2001, resulting in the "War on Terror", policies concerning space-based weapons have again been placed on the military agenda of the USA. 14 Venet 15 points out, outer space activities have a clear political dimension.During the Cold War space activities were intrinsically linked to the political objectives, priorities and national security concerns of the two superpowers, the USA and the Soviet Union. 16After the Cold War the political relevance and benefits of space continued to be recognised by states not only as a foreign policy tool to affirm their sovereignty 17 and increase their power on the international level, but also to solve domestic and transnational problems. 18 view of the recent emergence of new major space powers, such as China, 19 the focus has again shifted to the military use of outer space and the potential that a state with advanced space technology may use it for military purposes in order to dominate other states. 20This has already been illustrated, when China in January 2007 "shocked the international community" 21 by performing an Anti-Satellite (ASAT) test which generated a vast amount of space debris in low earth orbit. 2214 Shah 2007 http://www.globalissues.org/article/69/militarization-and-weaponization-of-outerspace.
Lyall and Larsen Space Law 499, 508.In this regard Soucek "International Law" 318 refers to the doctrine of space control as one of the purposes of space capacities identified by the US Space Command.Soucek points out that, although the idea of space superiority is in itself a legitimate goal, the doctrine of space control may be contrary to the provision in a 1 of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (1969) (Outer Space Treaty) that all states should be free to use and explore outer space.He explains as follows: "Space control has four key aspects: surveillance, protection, prevention and negation.The problem lies in the last of the four: Space control wants to limit the space freedoms if unilaterally found necessary (applying upon occurrence, ie during a military conflict).The doctrine of space control requires capacities and methods; much of it sounds like Star Wars turned true: anti-satellite weapons, space mines, bodyguard satellites, high altitude nuclear detonations, etc.The focus of the doctrines of space superiority and space control is ultimately to achieve national goals through a dominant use of outer space in comparison to adversaries."Tronchetti "Soft Law Approach" 365; Maogoto and Freeland 2008  As will be further discussed below, the Outer Space Treaty 23 prohibits the installation of nuclear weapons and weapons of mass destruction in outer space and determines that the moon and other celestial bodies shall be used for peaceful purposes only. 24though the installation and testing of military equipment and space weapons in outer space is clearly unlawful, the problem remains that most space assets have the potential to be used for military purposes. 25For example, while satellite technology in the form of remote sensing can be used to gather meteorological data, it can also be used to gather intelligence in other states.Similarly, Global Navigation Satellite Systems (GNSS) or Global Position Systems (GPS) can be used for civilian purposes, but also to direct bombs or cruise missiles. 26Telecommunication satellites are used to transmit not only civilian communications but also military messages. 27Remote sensing by means of satellite is also used in the civilian as well as military spheres. 28 is clear that the distinction between military and non-military uses of space, is becoming increasingly blurred. 29The question therefore remains whether the military use of space equipment is contrary to the provision in the Outer Space Treaty that outer space must be used for peaceful purposes exclusively.Moreover, due to the importance for states to protect their space assets from possible neutralisation by other states, the potential for conflict is self-evident. 30In this regard Goodman 31 aptly notes: 23 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (1969) (Outer Space Treaty).

24
A IV of the Outer Space Treaty.

25
Lyall and Larsen Space Law 500.Also see Goodman 2010 Journal of Space Law 108, who confirms that "[i]t is widely known that any object in space can become a space weapon".
Lyall and Larsen Space Law 500, 519.The authors point out that "the present operation systems, US GPS, Russian GLONASS and the Chinese Beidou are systems designed, operated and owned by the military to which civilians have been granted access" (Lyall and Larsen Space Law 519).Also see Frischauf "Satellite Navigation" 126-133 on the dual use of satellite navigation systems.As space assets become increasingly integrated into national and economic systems and military defences, space will become an increasingly attractive battleground.

Delimiting outer space
Since some military activities which are permitted on earth, may be prohibited in outer space, it is necessary to know where outer space is.The term outer space generally refers to the entire universe, in other words, any area beyond the earth's atmosphere.
However, since spaceflight can be undertaken only in a very limited part of outer space, this general meaning is too broad for legal purposes.In a legal sense, outer space refers to that part of the universe where human activities are practically possible or feasible. 32Some activities which are based on earth are, however, intrinsically linked to outer space activities and the question remains whether space law should be applicable to these activities also. 33e delimitation of outer space essentially concerns the question of where air space ends and where outer space begins.The answer to this question is significant in order to determine which activities are indeed space activities under international space law, and which activities are governed by other legal regimes.In contrast to air space, which falls under the territorial sovereignty of the underlying state, international law determines that outer space is not subject to the sovereignty of any particular state. 34 may therefore be regarded as customary international law that states do not need the prior consent of other states in order to conduct activities in outer space. 35eger and Walter "Space Law" 238.

33
Neger and Walter "Space Law" 238-239.According to the authors these activities include those which "can be considered as facilitating access to and the return from outer space, like all kinds of launching and return facilities (spaceports as well as spacecrafts)" and those activities which "regulate the operation and control of human conduct in outer space, like all activities concerning the functioning of satellites and other outer space systems (eg ISS)" (Neger and Walter "Space Law" 239).Although some commentators are of the opinion that the demarcation of outer space would be premature or even unnecessary, the need for a well-defined border line in order to avoid uncertainties and conflict situations is self-evident. 42At present it is Diederiks-Verschoor Introduction to Space Law 15.Cheng 1995 Air and Space Law 298 identifies three schools of thought on the delimitation and definition of outer space: (i) The spatialists who assert that there should logically be a legally determined delimitation of the end of national air space and the beginning of outer space.(ii) The functionalists who argue against the need for accepted, as a matter of customary international law, that the altitude of 100 kilometers above sea level (the so-called Von Kármán line 43 ) can be considered as the legally relevant "edge of space". 44This means that activities executed and objects placed beyond 100 kilometers above sea level, are space activities and space objects.
Although this delimitation continues to be debated in theory and may constantly vary as a result of new technology, states often in practice refer to this boundary in their national legislation to distinguish activities and objects which fall under their national air laws from others. 45In order to ensure that outer space is indeed used for peaceful purposes as envisaged by the Outer Space Treaty, it is imperative that states reach clear consensus on "the vertical limit of State sovereignty" 46 as a matter of urgency. 47

Use of force in international law
Article III of the Outer Space Treaty determines that states parties to the Treaty shall carry out their activities in the exploration and use of outer space in accordance with international law, including the Charter, in the interest of maintaining international peace and security and promoting international cooperation and understanding.A discussion of the military use of outer space must therefore necessarily be done with (brief) reference to general international law rules on the use of force. 48ch delimitation, as the lawfulness or unlawfulness of space activities should, according to them, be determined solely by the nature of the activity or the vehicle.(iii) The you-don't-need-to-know school who also finds it unnecessary to determine the border between air space and outer space.
See further Neger and Walter "Space Law" 240.He also points out that states may, as they have done with regard to the delimitation of the territorial sea, decide to claim a higher or lower limit, or tacitly or expressly agree on a specific border separating national air space from outer space.
Neger and Walter "Space Law" 241.South Africa's Space Affairs Act 84 of 1993 defines outer space in s 1(xv) as "the space above the surface of the earth from the height at which it is in practice possible to operate an object in an orbit around the earth".
Goodman 2010 Journal of Space Law 112.
47 Also see Lyall and Larsen Space Law 499-500.

48
See further Lyall and Larsen Space Law 501-506 for a concise discussion of the use of force in general international law.In contrast with Lyall and Larsen Space Law 59 who state that it is a fundamental principle that "international law applies to outer space", Soucek "International Law" 321 prefers the formulation that "[i]nternational law applies to human activities in outer space".He explains that the latter formulation would avoid the perception that "human rules of law stretch across the universe.The universe adopts the laws of gravity and relativity, but not international law.States however have to obey, and this stretches as far as they go into outer space".
The maintenance of international peace and security is one of the main objectives of the United Nations and member states are therefore required to settle their international disputes by peaceful means. 49Article 2(4) of the Charter of the United Nations stipulates that all member states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.The Charter recognises the right to resort to force in only two instances: first, under the authority of the Security Council, 50 and second, when states exercise the right of individual or collective self-defence in terms of Article 51.The prohibition on the unauthorised use of force is widely regarded as a rule of customary international law.

Military use 51 of outer space
As has already been mentioned above, outer space has been, and will continue to be, of strategic and military importance to states. 52It has even been contended unequivocally by some that: Space has always been militarised.Military considerations were at the heart of the original efforts to enter space and have remained so to the present day. 53though it could conversely be argued that not all space activities have a purely military purpose, it still holds true that many of these activities at least serve a direct  The Security Council may take action under ch VII of the UN Charter if it determines that a particular situation constitutes a "threat to the peace, breach of the peace, or act of aggression" in terms of a 39 of the Charter.Should this be the case, the Security Council can take appropriate measures as provided for in aa 40, 41 or 42 of the Charter.
Lyall and Larsen Space Law 514 list the following aspects of the military use of outer space: "[T]he employment of military personnel and equipment; the passive or non-aggressive use of outer space; the use of civilian space systems for military purposes; the use of weapons in space; the incursion into space of military weapons; the interference with space located equipment from space; the interference with space located equipment from Earth." 52 Soucek "International Law" 318.53   Sheehan International Politics of Space 2 as quoted in Soucek "International Law" 317.

55
Soucek "International Law" 318.Tronchetti "Soft Law Approach" 365 points out that the number of states using dual-use satellites is increasing.
limitation of their use of satellites for military purposes prevented a total ban on all military activities in outer space. 56 a result, in contrast with the Antarctic Treaty 57 which prohibits "any measure of a military nature", 58 article IV of the Outer Space Treaty determines as follows: 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. 59om the reading of article IV, the following issues present a number of legal challenges which deserve further attention.

Peaceful purposes
In keeping with the terminology employed by the UN Charter, requiring that states settle their disputes by peaceful means, article IV of the Outer Space Treaty stipulates that outer space shall be used for peaceful purposes exclusively. 60The term peaceful is not defined by the Outer Space Treaty, however, and it is consequently not completely clear which activities would be considered as peaceful uses of outer space. 61In addition, depending on an expansive or a restrictive interpretation of article 56 Lyall and Larsen Space Law 513.

57
Antarctic Treaty (1959), adopted in Washington DC, the United States of America on 1 December 1959.

59
Apart from the Outer Space Treaty, a number of other treaties, declarations and resolutions also deal with the peaceful uses of outer space.For a further discussion on these instruments see Lyall and Larsen Space Law 511; Remuss "Space and Security" 520-525.
Soucek "International Law" 320 points out that the primary concern of the Outer Space Treaty, namely the promotion of peace, is echoed by a number of provisions in the Treaty, for example, a III, which determines that states parties must carry out their outer space activities in the interest of maintaining international peace and security and promoting international cooperation and understanding.
IV, one may argue that the enumerated prohibitions are either a closed list, or merely examples of the type of activities that may be prohibited in outer space. 62cording to the interpretation of the USA and other Western states, the term peaceful means non-aggressive. 63As Lyall and Larsen 64 point out, this interpretation is in accordance with the distinction by the UN Charter between the pacific settlement of disputes under Chapter VI and actions under Chapter VII in instances of threats to the peace, breaches of the peace, or acts of aggression.It is not clear, however, if the use of satellites during military conflict for purposes such as mapping, weather navigation, early warning and reconnaissance could be regarded as an aggressive use of space and thus contrary to the Outer Space Treaty. 65sed on an inclusive reading of the Outer Space Treaty, especially taking into account the provision that the use of outer space should be carried out for the benefit of all mankind, 66 some authors argue that the term peaceful must rather be interpreted to mean non-military, thereby prohibiting all military uses of outer space. 67However, as Bourbonnièrre and Lee 68 point out, this interpretation is not reflected in the practice of states, which includes the placement of military or dual-use communications and remote sensing satellites in orbit around the earth.Moreover, since the lawfulness of the use of dual purpose technologies in outer space has been generally accepted since the beginning of the space era, an attempt to prohibit it now would in all probability be a futile exercise. 69The fact remains, however, that dual-use technology may be modified to threaten or destroy the space assets of other states. 70so the fact that the Outer Space Treaty allows for the use of military personnel in outer space for scientific research or any other peaceful purposes, seems to suggest that the interpretation of peaceful as meaning the completely non-military use of outer space would be too broad for the purposes of the Outer Space Treaty.The wording "scientific research or any other peaceful purposes" implies that scientific research, even though it is conducted by military personnel, is regarded as a peaceful use of outer space.It has therefore been noted that the prohibitions in article IV do not prevent the development of military technologies. 71However, if the results of the scientific research are to be employed for non-peaceful purposes, it is doubtful whether the research activities would fall within the meaning of peaceful purposes in terms of article IV of the Outer Space Treaty.
Due to the shortcomings of defining "peaceful" as meaning either non-aggressive or non-military, Friman 72 proposes that a concilliatory approach should be followed in redefining the term "peaceful" in order to comply with the object and purpose of the Outer Space Treaty, which is "to safeguard the exploration and use of outer space as a perpetual and peaceful province of all mankind". 73She consequently concludes that all lawful non-military uses of outer space would be regarded as peaceful, while military uses of outer space will be considered to be peaceful only if they meet certain treaty-based criteria. 74Since the weaponisation of outer space would fail to meet most Friman 2005 FYBIL 293.Also Park 2006 Hous J Int'l L 884 points out that "space powers have determined that military support activities such as observation, surveillance, communications, and the detection of nuclear explosions on Earth, are 'passive' and thus fall under the umbrella of 'peaceful purposes'".
Friman 2005 FYBIL 303-304 lists these criteria as follows: "Under the proposed reconciling approach, all lawful non-military purposes would thus be peaceful, whereas military purposes would be peaceful only if they: 1) are for the benefit and in the common interest of all mankind (Article I of the Outer Space Treaty); 2) do not restrict the freedom of exploration and use of outer space by all states (Article I of the Outer Space Treaty); 3) are compatible with international law, including the UN Charter (Article III of the Outer Space Treaty); 4) serve the maintenance of international peace and security (Article III of the Outer Space Treaty); 5) promote international cooperation and understanding (Article III of the Outer Space Treaty); 6) do not inequitably exploit of these criteria it would, according to Friman, 75 constitute an unlawful use of outer space.Although it is agreed with Friman that the object and purpose of the Outer Space Treaty should provide the benchmark against which the military action should be measured to determine whether it may be deemed "peaceful" or not, the problem remains that some of the criteria identified by Friman 76 are in themselves not clear.
For example, it is not clear whether action taken in self-defence would be compatible with the maintenance of international peace and security as determined in article III of the Outer Space Treaty. 77

Militarisation versus weaponisation
From the above discussion, it seems that article IV does not place an unqualified ban on military activities in outer space, but that it limits certain military activities. 78A distinction should therefore be drawn between the militarisation and the weaponisation 79 of outer space.
In terms of a strict interpretation of the peaceful principle in article IV of the Outer Space Treaty, the non-militarisation (or demilitarisation 80 ) of outer space would mean "the prohibition of using space-based facilities for any military purpose". 81However, Su 82 points out that state practice indicates that states have not followed this strict interpretation of the non-militarisation of outer space and that outer space was in fact militarised since the launch of the first communication satellites.The militarisation of outer space may therefore be described as the passive military use of outer space.The issue of self-defence in outer space is addressed further here below.

79
In addition to the terms militarisation and weaponisation, Friman 2005 FYBIL 290-291 also employs the term neutralisation, which is defined as "the process whereby a space is excluded from the theatre of war and armed conflict".According to Friman it is clear that all celestial bodies are neutralised under article IV, as its wording clearly prohibits any use which has the immediate or ultimate aim of warfare.Activities such as reconnaissance and surveillance, which are currently performed by a number of states, may thus be described as militarising outer space.Based on the perceived non-aggressive nature of these activities, such activities are accepted as legal by the large majority of states and thus as not contrary to article 2(4) of the United Nations Charter. 83Su 84 therefore submits that: On account of the contribution of passive military uses of outer space to international peace and security, and the interconnection between military activities in outer space and those on earth, demilitarisation of outer space is unlikely. 85us, ironically, military uses of outer space which are in fact not really peaceful (such as the use of satellites to direct bombing raids) are currently accepted by states. 86timately, the lawfulness of these passive military uses of outer space will have to be determined on a case-by-case basis 87 by, for example, referring to the main purpose of the space object. 88e weaponisation of outer space may be described as "the deployment of weapons of an offensive nature in outer space or on the ground with their intended target located in space". 89The large majority of states regard these activities as illegal since they are contrary to the basic principles of public international and outer space law. 90though outer space is currently not weaponised by any state, 91 recent activities such  [w]hile the realm of outer space may be heavily militarized, it is not yet weaponized".He explains this statement as follows: "In other words, although space-based devices such as satellites may be used for aggressive military measures, they lack direct destructive capacity and thus are not considered to be space weapons."as the ASAT test by China, the suspected pursuance of similar capabilities by other states, 92 and the vulnerability of space systems to cyber attacks have created international fear that the weaponisation of space is a real possibility, 93 with obvious implications for space security. 94Such threats may include the destruction of satellites by anti-satellite weapons, the rendering of satellites as temporarily inoperable through jamming or cyber-attacks, as well as the mere placement of offensive or defensive weapons in outer space, regardless of whether they are eventually used or not. 95me experts also argue that weapons that travel through outer space in order to reach their targets (such as hypersonic technology vehicles) also add to the weaponisation of outer space. 96Due to the generation of vast amounts of space debris it generates, the mere testing of space weapons already poses a risk to space security and to the right of other states to use and explore outer space freely. 97art from states, the space arena has evolved to increasingly including non-state entities, which are becoming serious actors in outer space activities themselves. 98though the commercialisation of outer space has a number of advantages, it may 92 Tronchetti "Soft Law Approach" 365 points out that, apart from China, ASAT weapon tests have previously also been performed by the USA and then USSR.According to Tronchetti, it is also suspected that France and India are currently pursuing such capabilities.Lyall and Larsen Space Law 525 describes the four basic modes of anti-satellite technology as follows: "A kinetic weapon destroys and cripples a satellite by collision with either a single missile, or with a number of small objects towards it -the buckshot technique.Launched from the Earth or from a space platform, a kinetic weapon would have the disadvantage of producing a cloud of debris, with all its potential consequences.An alternative is the laser which could be used to knock out a satellite, again from either Earth or from space.A different possibility is the use of radio jamming to either overwhelm a satellite itself or to prevent its signals being used.Last, in a modern age dependent on electronics and the Internet, a less obvious but real possibility is cyber-attack on a perceived enemy, part of which could involve interference with command, control and use of satellite systems." Tronchetti "Soft Law Approach" 365.Also see Su 2010 Journal of Space Law 265 for a discussion of the possible weaponisation of outer space by the United States of America.94 See Tronchetti "Soft Law Approach" 365-366.Tronchetti states that "[i]n the realm of outer space, the idea of security refers to the absence of manmade or natural threats to space assets".Threats to space assets are divided into unintentional and intentional threats.The former include threats arising from space weather, space debris and malfunctioning, while the latter include "premeditated attacks targeting space objects or their respective ground stations" (Tronchetti "Soft   Law Approach" 366).Tronchetti interprets the concept space security in a restrictive manner as the "absence of intentional threats to space objects, specifically those causing their physical destruction" (Tronchetti "Soft Law Approach" 366).Also see Remuss "Space and Security" 519.95   Tronchetti "Soft Law Approach" 366.See further Reaching Critical Will 2014 http://reachingcriticalwill.org/resources/fact-sheets/critical-issues/5448-outer-space.

96
See further Reaching Critical Will 2014 http://reachingcriticalwill.org/resources/fact-sheets/criticalissues/5448-outer-space.97   Tronchetti "Soft Law Approach" 362.also bring with it certain threats to space security. 99In this regard Goodman 100 cautions that, even though it is not yet a commonly predicted threat, the possibility of space terrorism should not be overlooked.According to Goodman, 101 the threat posed by space terrorism could be much graver than any terrorist acts already known to the world.Therefore, control of private space actors, may eventually become a matter of national (and even international) security. 102ecifically satellite technology is an attractive target for space terrorists, as interference with a state's satellites could disrupt military operations and essential daily activities such as financial transactions and telecommunications. 103These possible attacks will increasingly provide the incentive for states to develop the ability not only to protect their own space assets but also to neutralise the space assets of their enemies. 104is leads to the question whether the right to self-defence may be exercised by states in order to protect their assets in outer space.Article 51 of the United Nations Charter makes provision for the inherent right to self-defence of all states and reads as follows: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.Measures taken by members in the exercise of this right to self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
In the instance of anticipatory self-defence, an armed attack has not yet occurred, but the defensive action is taken in anticipation of an armed attack.The attack must, however, be imminent, and the defensive action must be proportionate to the anticipated attack. 105Although there is divided opinion amongst scholars on whether article 51 allows for anticipatory self-defence, states have invoked such action on a number of occasions. 106Recently a "wider notion of self-defence" 107 called pre-emptive self-defence emerged in the practice of states.In this instance a state will act preemptively due to the mere possibility of being attacked.The United States under the Bush administration justified this form of self-defence as a means to counter potential terrorist attacks and the use of weapons of mass destruction. 108Although the International Court of Justice determined that states could not act in self-defence based on believing attacks to be likely or on wishing to protect perceived security interests, 109 there is still a real concern that states may militarise outer space as a preemptive measure, 110 even more so in view of the potential risk of space terrorism. 111ticle 51 of the United Nations Charter requires that self-defence measures must be immediately reported to the Security Council, which may take action it deems necessary to restore international peace and security.The question arises, however, whether the Security Council may take or authorise military action which may be prohibited in terms of the space law proscription in article IV that outer space may be used for peaceful purposes only. 112cording to Bourbonnière and Lee,113  Dugard International Law 506 points out that although the International Court of Justice has been reluctant to extend a 51 to also cover self defence against attacks by non-state actors, there is nothing in a 51 that indicates that the right to self-defence may be invoked only after an attack by a state.However, he cautions that "[t]errorism is a serious threat to the international peace and security, but it is one that must be contained and confronted by multilateral action under the auspices of the Security Council and not by unilateral action under the guise of self-defence".Also see the discussion by Bourbonnière and Lee 2007 EJIL 889 on the deployment of conventional weapons in outer space by private actors.112   Lyall and Larsen Space Law 506.
[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. 114nsequently, Bourbonnière and Lee 115 argue that the obligations in the United Nations Charter would prevail over any of the rights and obligations in the Outer Space Treaty.As was pointed out earlier, article 2(4) of the Charter of the United Nations stipulates that all member states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any other state.According to Bourbonnière and Lee 116 an obligation to use force arises under article 42 of the Charter as states are under an obligation to abide by the decisions of the Security Council, including a decision to "take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security".The authors therefore submit that [t]o the extent that Article IV of the Outer Space treaty does not constitute jus cogens, a decision made by the Security Council to use military force in outer space would prevail over any prohibitions or obligations under Article IV of the Outer Space Treaty. 117nce the right to self-defence is formulated as a right instead of an obligation, article 103 of the Charter would, according to Bourbonnière and Lee's construction here above, not apply to article 51.Hence, in terms of the general rule regarding the application of successive treaties, which determines that later treaties prevail over earlier ones, 118 the prohibitions in article IV of the Outer Space Treaty would prevail. 119wever, Bourbonnière and Lee120 argue that, based on the wording "inherent right" in article 51, the right to self-defence has attained the status of jus cogens and therefore prevails over article IV of the Outer Space Treaty (unless it is in itself a jus  The authors' viewpoint gives rise to a number of concerns: First, the assertion that article 51 has attained the status of jus cogens has not been unequivocally established in international law.Second, if one accepts that both article 51 of the Charter and article IV of the Outer Space Treaty are jus cogens norms, the question immediately arises how these competing norms should be balanced. 123Third, the authors seemingly argue that the deployment of nuclear weapons and weapons of mass destruction, and the construction of military installations on the moon and other celestial bodies, would form part of the lawful use of force in terms of articles 41 and 52 of the Charter.In its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, 124 the International Court of Justice did not conclusively answer the question whether the threat or use of nuclear weapons was prohibited in all circumstances.125 The court however inter alia decided unanimously that [a] threat or use of nuclear weapons should be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with the specific obligations under treaties and other undertakings which expressly deal with nuclear weapons … 126 In view of this statement by the court, it is submitted that a threat or use of nuclear weapons in outer space (even in the instance of self-defence) would not be compatible with article IV of the Outer Space Treaty, which expressly prohibits the use of nuclear 121 Bourbonnière and Lee 2007 EJIL 880 point out that if art IV of the Outer Space Treaty also has the status of a jus cogens norm, "the right to individual and collective self-defence could perhaps conceivably be confined by its terms".weapons in outer space.It is furthermore difficult to conceive of the use of nuclear weapons in outer space, in the light of the current nuclear disarmament efforts by states. 127all and Larsen 128 also reach the conclusion that the right to self-defence applies to outer space, but they hold a more cautionary viewpoint.They also motivate their viewpoint with reference to article 30(1) of the Vienna Convention, which subjects the general rule regarding the application of successive treaties to article 103 of the United Nations Charter, and argue that a state would be permitted to act in self-defence in order to defend its personnel and space technologies if the action taken is within the boundaries set by article 51 of the Charter. 129This includes that the defence must be proportionate to the attack. 130They therefore caution that: Precision weapons should be used properly, 'harmful interference' with the activities of others be avoided as far as possible, and the creation of debris should be minimised in the general interest. 131e authors furthermore point out that the decision to act in self-defence is complicated by the speed and density of modern communications.As a result, a swift military decision needs to be taken by a state 132 by relying on conflicting data which may be received simultaneously.Moreover, an act of self-defence by one state may lead to other states taking responsive action, which will inevitably result in the 127 See further Reaching Critical Will 2014 http://reachingcriticalwill.org/resources/fact-sheets/criticalissues/5448-outer-space on the effects of the weaponisation of outer space on arms control and nuclear disarmament.Lyall and Larsen Space Law 527.In this regard Duberti 2011 Proceedings of the International Institute of Outer Space Law 86 argues that, due to the grave effects of space debris, the destruction of a satellite should be regarded as unlawful.He therefore suggests that in exercising its legitimate right of self-defence, a state may attack a satellite that was used for military purposes by another state by using technical means that would merely complicate or disable its operation.

132
According to Christol 2009 Proceedings of the International Institute of Space Law 106, the possession of nuclear weapons in the case of an identified threat would justify a more immediate response than occurred in the Caroline incident.Consequently, the limits on the use of force as prescribed in the Caroline case would not be applicable in the event of such a threat.He asserts that "[t]he magnitude of the probable harm and the resultant shortness of time within which a responsive decision would have to be taken would require extreme protective measures owing to the threat produced by such weapons".undermining of international peace and security. 133Lyall and Larsen 134 therefore caution that states should be reluctant to engage in pre-emptive self-defence in outer space.
This cautionary statement by the authors should also be extended to anticipatory selfdefence, as it would be difficult to reconcile the potential ongoing damage caused by space debris as the aftermath of the defensive action with the proportionality principle. 135In a contribution on the environmental dimension of space arms control, Su and Zhu 136 point out that the space environment is significantly more fragile than earth due to its "poor capability regeneration" and that the "overproliferation of space debris would render the Earth orbit unusable" for future generations. 137They therefore regard a weapons-free outer space (which would include the banning of the testing, deployment and use of space-based weapons and ASATs) as a prerequisite for the sustainable use of outer space. 138e to the legal uncertainties relating to the use and control of the right to selfdefence in outer space, the submission by Filho 139 that this right should preferably not be used in outer space and that states should reach an agreement to ban preventative or pre-emptive self-defence in outer space is supported.The grave consequences that the application of the right to self-defence may have in outer space require a sui 133 Lyall and Larsen Space Law 528.134 Lyall and Larsen Space Law 528.135   As Filho 2011 Proceedings of the International Institute of Space Law 482 points out, "it is practically impossible [to] make a proportional defense without knowing yet which and how will be the presumed attack".Also Maogoto and Freeland 2008 Air and Space Law 26 observe that "[t]he use of space weapons, with the capability to render massive destruction and injury (either directly or indirectly), may well violate the principles of proportionality".research indicating that "space debris in orbits higher than about 800 km above the Earth's surface will be up there for decades, above 1,000 km for centuries, and above 1,500 km effectively forever.… The last few decades have witnessed dramatic proliferation of space debris.Now over 21,000 orbiting debris larger than 10 cm in diameter are tracked; and as estimated there are over 100,000 pieces larger than a marble".Duberti 2011 Proceedings of the International Institute of Space Law 85 regards space debris (for example, caused by the destruction of satellites) as one of the most important threats to space security.For a further discussion on the legal implications of space debris see Ferreira-Snyman 2013 CILSA 19-51.generis interpretation of article 51 in the context of outer space.The unique circumstances in outer space make it difficult to apply article 51 (which was formulated with reference to earth-based circumstances) in space.It is therefore suggested that peaceful uses of outer space should be interpreted to mean a prohibition on the use of all forms of force in outer space, similar to the prohibition in the Antarctic Treaty referred to earlier.
It is doubtful, however, if states will be willing to merely waive their right to selfdefence in outer space.It is inconceivable that a state will not exercise this right in the event of an armed attack against its space assets (or even the threat of such an attack).The importance that states attach to this right is evident, for from Because of the difficulties in reaching international consensus on the military uses of outer space (including issues such as self-defence), it is proposed that as an interim measure the United Nations Security Council should adopt a binding resolution in this regard.The increasing potential for conflict concerning the security of space assets, and the consequent weaponisation of outer space, is becoming a real concern.The result will inevitably be "a less secure outer space" 142 with serious implications for the freedom of all states (including future generations) to use and explore outer space.
Moreover, the conflict will in all probability not be confined to outer space, but may escalate to earth-based armed conflict, which will be a serious threat to international peace and security.In order to avoid this, the Security Council should adopt a resolution in terms of Chapter VII of the Charter to reaffirm the prohibition of all forms of armed conflict in outer space (including the use of self-defence). 143e adoption of such a resolution will inevitably depend on the political will especially of the major space powers such as the United States, Russia and China.It is encouraging to note, however, that specifically Russia and China have in the past supported the prohibition of the deployment of weapons in outer space. 144As early as in the 1980s Russia (as the then Soviet Union) made specific proposals to the United Nations General Assembly on the banning of space weapons (including earth-based weapons targeting space) in order to facilitate the conclusion of a treaty on the prohibition of the use of force in outer space. 145On its part, China in 2003 made a public declaration against the militarisation of space and calling for the use of space technologies for peaceful purposes. 146Yet in view of the current space policy of the USA which provides for the use of space weapons in support of its defence and national security objectives, 147 it would be premature to regard these actions as reflecting the collective viewpoint of all the space powers. 148As pointed out here below, the motives of China and Russia for supporting the non-weaponisation of outer space are also questioned by some.

Space weapon
143 Maogoto and Freeland 2008 Air and Space Law points out that the United Nations should make a shift from its current strategy of issuing regular calls for the prevention of an armed race in space, to "the establishment of rigorously enforced moratorium on the deployment of weapons in outer space, which might offer a window of opportunity to negotiate a total ban of weapons in outer space.Naturally, this would require a significant shift in political will among the major space-faring nations, which although a difficult task, should be encouraged through negotiation and broader political pressure".
As Maogoto and Freeland 2008 Air and Space Law 28 point out "the future of space security will depend on how effectively all States strive for the 'de-weaponization' of outer space and pressure the major space-faring nations, and how those nations are able to set aside their differences".
Tronchetti "Soft Law Approach" 364.Lyall and Larsen Space Law 516-517 states in this regard as follows: "Military satellites are permitted, and in practice some of these may be 'active' weapons.This could include the kinetic, laser and radio possibilities that might be used in anti-satellite measures (ASATs)." [a]ny device, whether in space or on Earth, created or modified to cause permanent or temporary physical or operational damage to an object in outer space by means of physical contact, projection of energy, or any kind of voluntary interference. 155though the advantage of this definition is that it is broad enough to include both space and earth-based systems, and that it refers to the destruction as well as the temporary inoperability of space objects as a result of an attack, 156 it is not clear whether it refers only to devices which have the specific purpose of being used as a weapon or whether it also includes a space object which has the potential to cause damage to assets in outer space.
An attempt to provide a treaty-based definition of the term "space weapon" may be found in the 2008 Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects. 157The draft document defines a "space weapon" as any device placed in outer space, based on any physical principle, which has been specially produced or converted to destroy, damage or disrupt the normal functioning of objects in outer space, on the Earth or in the Earth's atmosphere, or to eliminate a population or components of the biosphere which are important to human existence or inflict damage on them … 158 Several concerns have been raised with the Draft Treaty, however, including the following. 159The draft document does not explicitly prohibit the testing and development of anti-satellite weapons, but allows for their research, development, production and terrestrial storage.Only the threat or use of such weapons against space objects for hostile purposes is prohibited. 160The Draft Treaty thus places the emphasis only on space-based weapons.As a result, dual-use systems, which are not specifically produced to destroy space-objects, do not fall within the Draft Treaty's definition of a "space weapon". 161ronchetti "Soft Law Approach" 364.The definition of a "space object" in a 1(d) of the Convention on International Liability for Damage Caused by Space Objects (1972) is equally vague.It defines a "space object" as including the "component parts of a space object as well as its launch vehicle and parts thereof".space suggests that the use of such weapons is implicitly permitted. 165In this regard, Bourbonnière and Lee 166 argue that the deployment of conventional weapons in earth orbit for peace-keeping purposes under articles VI and VII of the Charter of the United Nations will be permissible under article IV of the Outer Space Treaty.
In contrast with nuclear weapons, which are "a defined technology", the legal meaning of the term weapons of mass destruction (which may include radiological, biological and chemical weapons) 167 within the context of the Outer Space Treaty, is not clear. 168 addition, the prohibition in article IV on the testing of any type of weapon specifically on celestial bodies may, according to some, imply that the prohibition does not apply to such tests in outer void space itself. 169Friman 170 however, argues that in view of the title of the Outer Space Treaty and its preamble, which sets out the legal boundaries within which the treaty articles must operate, as well as the wording of articles IX and XI of the Outer Space Treaty, 171 the prohibition on the non-peaceful uses of outer space should extend to outer void space.Moreover, as was already pointed out earlier, due to the generation of vast amounts of space debris, the mere testing of space weapons (irrespective of whether it is done on a celestial body or in outer void space) already poses a risk to space security and to the right of other states to use and explore outer space freely.
Due to the explicit prohibition on nuclear weapons and weapons of mass destruction, it is widely accepted that the use of military support systems is not incompatible with the Outer Space Treaty. 172The use of nuclear power sources (which are often utilised  Friman 2005 FYBIL 307 points out that both aa IX and XI refers to the "peaceful exploration and use of outer space" and a IX clarifies that such peaceful exploration and use extends to outer void space by stating that outer space includes the moon and other celestial bodies. by the USA and Russia) is also not prohibited. 173Also intercontinental ballistic missiles carrying nuclear warheads are not prohibited by the treaty, since they are not placed in (a full) orbit around the earth and therefore fall outside the prohibition in article IV. 174 The ballistic missile defence shield developed by the United States to protect itself and its allies against missile attacks is, however, a more contentious issue, since the kinetic energy interceptors launched into space to destroy enemy missiles also have the potential to be used as anti-satellite weapons. 175 dealing with the lacunae in article IV, some authors have suggested that, based on the reasoning of the Permanent Court of International in the Lotus-case, 176 it may be argued that what is not expressly prohibited under article IV, may be permitted in law.177 It is agreed with the submission by Su,178 however, that due to the grave consequences of the weaponisation of outer space (which could eventually lead to an arms race in outer space and even armed conflict on earth) the Lotus principle should not be applicable to outer space.179

5
The way forward?
After the conclusion of the space treaties in the 1960s and 1970s, it became apparent that states were no longer willing to adopt further binding obligations regulating space activities and that international space law could, therefore, be developed only by adopting soft law instruments.undermine the international legal framework and instigate a laissez-faire attitude in the international community".treaties. 181Hence, soft law 182 documents are currently the main instruments for further developing and defining outer space norms. 183oponents of a hard-law approach to prevent the weaponisation of outer space, however, maintain that the adoption of a legally binding treaty will be the most effective measure to ensure the non-weaponisation of outer space, as a violation of the treaty would make a state legally responsible towards the other states parties. 184twithstanding the fact that most states are (theoretically) in agreement that the weaponisation of outer space should be prevented, 185 all attempts to conclude legally binding treaty prohibiting the placement and use of all kinds of weapons in outer space have, up to the present, been very challenging. 186The most recent attempt to achieve Although the Draft Treaty may be regarded as a point of departure in the formulation of a treaty prohibiting the weaponisation of outer space, the criticism that has been raised by governments against the draft document makes it unlikely that it would be easily accepted by the majority of states. 187The 2008 Draft Treaty was rejected by 181 Tronchetti "Soft Law" 625-626.182   Dugard International Law 33 describes soft law as "imprecise standards, generated by declarations adopted by diplomatic conferences or resolutions of international organizations, that are intended to serve as guidelines to states in their conduct, but which lack the status of 'law'".Tronchetti "Soft Law" 624 summarises the role of soft law in the general system of international law as follows: "1) it can give guidance on how to interpret and implement existing treaty provisions; 2) it may represent the beginning of a process leading to an international treaty; 3) it may contribute to the formation of customary law; 4) it may be declaratory of existing unwritten rules."Klabbers Introduction to International Institutional Law 202 is of the opinion, however, that the concept soft law should be discarded mainly because it is premised on the jurisprudentially dubious notion that legal rules can be more or less binding, which is not really supported by international tribunals.In addition, there also seems to be still some concern regarding Russia and China's motives with the Draft Treaty, which are considered by some observers as an attempt to limit their adversaries' military capabilities. 190e to the difficulties in creating a binding treaty, the appropriateness of soft law to prevent an arms race in outer space and to protect space assets is also increasingly supported in the area of space security. 191These soft law guidelines could be drafted in various forms, for example as guidelines or rules of the road, with the purpose of creating transparency in order to avoid "accidental military engagement in outer space", 192 or as codes of conduct which provide certain behavioural and operational rules to be followed by states when conducting space activities, 193 or as transparency and confidence-building measures (so-called TCBMs) 194 with the purpose of sharing information on the location and scope of space launches and activities, among other things, or information on domestic space policies programmes, in order to improve international relations. 195In this regard Tronchetti 196 submits as follows: First and utmost soft law provisions, and in particular TCBMs, are being recognised as a useful tool to enhance space security because they contribute to create mutual understanding and to reduce tensions among States.In particular, these measures diminish and even eliminate the cause for mistrust, fear and miscalculation concerning military activities in outer space and intentions of other States, factors which may generate the perception of an impaired security of national space objects and provide justification for the placement and use of weapons in outer space.
The question obviously remains whether states will be willing to share such information, as the military use of outer space is usually closely linked to national security issues. 197 with the non-binding space debris mitigation guidelines, it could be argued that soft law rules will have a moral and political value, as there is an expectation that states will comply with its provisions. 198Non-compliance may be viewed in a negative light by a state's international partners and thus damage the political reputation of the state. 199Especially in instances where there is an urgent need for legal clarity, a soft law instrument offers a solution as it can be negotiated in a relatively short period of time and implemented immediately, because its applicability is not dependent on ratification by states. 200It could thus furthermore be argued that soft law guidelines have a legal value, as they impact on the international law-making process by providing the premise on which customary international law may develop, and which Tronchetti "Soft Law Approach" 372.
196 Tronchetti "Soft Law Approach" 373.197   In this regard Tronchetti "Soft Law Approach" 375 points out that, similarly, a state's decision to comply with a treaty is also influenced by security and strategic interests.Should a state deem a treaty to be no longer in its interest, it may breach the treaty and bear the consequences or if possible withdraw from it.
may eventually lead to the conclusion of a binding treaty. 201In addition, propositions for the creation of an outer space inspection system or even a world space organisation to ensure the continued peaceful use of outer space should also be revisited. 202e European Union's draft Code of Conduct for Outer Space Activities 203 is a good example of an attempt to regulate the military use of outer space by means of a softlaw instrument.The Code, which will not be legally binding, aims to improve safety and security in outer space by means of principles and guidelines voluntarily agreed upon by states. 204A number of states, such as Australia, Canada and Japan, have already indicated their support for the Code.Also, the USA seems to be inclined to accept the Code due to its non-binding nature. 205However, some countries, including Brazil, Russia, India and China, have expressed concerns that the Code could be used as a means to constrain their capacity to undertake future space activities and that the language on self-defence in the Code could encourage an arms race in space.
Specifically Brazil, India and some Latin-American countries have expressed their disappointment at not being consulted properly in the development of the Draft Code. 206art from the obvious politically motivated difficulties and time-constraints involved in reaching an international agreement on the militarisation of outer space, it seems that there is divergent opinion amongst states on the correct forum where this issue should be addressed.states have disputed the appropriateness of such negotiations within the realm of the United Nations. 207 its 2013 Report 208 the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) states that the Committee agreed that due to its work in scientific, technical and legal fields, as well as its facilitation of international dialogue on issues relating to the exploration and use of outer space, "it had a fundamental role to play in ensuring that outer space was maintained for peaceful purposes". 209The view was furthermore expressed by some delegates that the Committee should commence with analysing the "legal basis for and modalities of the exercise of the right to self-defence in accordance with the Charter of the United Nations, as applied to outer space". 210Some delegates submitted that the Committee was the only United Nations body aimed at promoting the peaceful use of outer space and therefore any concept that violated the legal principles relating to the peaceful use of outer space, such as the concept of the right to self-defence or the use of weapons in outer space, should not be accepted in the Committee, as this would be in contradiction of its fundamental tasks. 211e view was further expressed that the current outer space legal regime was not adequate to prevent the placement of weapons in outer space and that, in order to ensure the peaceful use of outer space and prevent its militarisation, a binding legal instrument had to be prepared.While some delegates recommended that the Committee cooperate and coordinate in this regard with other United Nations bodies such as the Conference on Disarmament, others were of the opinion that it would be more appropriate if disarmament issues be dealt with exclusively in forums such as the Conference on Disarmament.One delegation even expressed the view that "no actions by the Committee were needed regarding the weaponisation of outer space and that there was no scarcity of appropriate multilateral mechanisms where disarmament could be discussed".Although it could be argued that a change in forum would not change the national stances of states, Park 212 suggests that the creation of a new discussion forum on space security (that would include diplomats, academics, military officers and industry representatives) might place additional, unified pressure specifically on the USA to change its position on space security and the weaponisation of outer space.

Conclusion
It should be apparent from the above exposition that article IV of the Outer Space Treaty cannot adequately deal with the current issues relating to the military use of outer space.The legal vacuum in this area may have grave consequences for maintaining peace and security not only in outer space but also on earth. 213The legal uncertainty surrounding the military use of outer space is further exacerbated by the unique nature of outer space issues, they should not be dealt with in a forum which primarily focuses on earth-based situations.
Although it is agreed with the proponents of a hard law approach that a legally binding instrument should be adopted to regulate the military use of outer space, it is submitted that, as an interim measure, soft law guidelines should be developed to provide a framework for the eventual creation of a consolidated and binding legal instrument on all aspects relating to the use of outer space.In this regard the United Nations Convention on the Law of the Sea could serve as a valuable example. 215 Lyall and Larsen216 observe: Once one state begins to assert unilateral authority to weaponise outer space with the implicit threat of the use of those weapons, other states will use that precedent to assert their own unilateral authority.Should this happen, the "point of no return" referred to by President Eisenhower in 1960 may be reached much sooner than anticipated.

215
United Nations Convention on the Law of the Sea (1982).
Lyall and Larsen Space Law 511-512; Goodman 2010 Journal of Space Law 108.In this regard Goodman refers to the 2001 Report of the Commission to Assess United States National Security Space Management and Organisation (Commission to Assess United States National Security Space Air and Space Law 15.For further examples of recent developments towards space militarisation, see Gopalakrishan, Murthi and Prasad 2008 Proceedings of the International Institute of Space Law 254. or indirect military interest, 54 especially in view of the dual-use character of space technologies.55 At the time of the negotiation of the Outer Space Treaty, both the USSR and the USA already had military satellites in orbit and their rejection of any 49 See aa 1 and 2(3) of the Charter of the United Nations (1945) (UN Charter). 50

99
In this regard Park 2006 Park 2006 Hous J Int'l L points out that commercial entities have enjoyed a certain degree of independence in their space activities, which complicates the space security regime.100 Goodman 2010 Journal of Space Law 110.101 Goodman 2010 Journal of Space Law 110.102 Goodman 2010 Journal of Space Law 109.103 Goodman 2010 Journal of Space Law 110-111.104 Goodman 2010 Journal of Space Law 111.
of the Vienna Convention on the Law of Treaties (1969) subjects the general rule regarding the application of successive treaties, which determines that later treaties prevail over earlier ones, to a 103 of the UN Charter.
Bourbonnière and Lee 2007 EJIL 879 explain as follows: "In this context, the prohibitions in Article IV of the Outer Space Treaty would arguably prevail in all circumstances except where the Security Council decided expressly or impliedly that military action, including the deployment and the use of force in contravention of Article IV of the Outer Space Treaty, was sanctioned in terms of Article 51." cogens norm.) 121Therefore, according to the authors, in the case of the lawful use of force under articles 42 and 51 of the Charter, states would not be bound by the prohibitions in article IV of the Outer Space Treaty, including the prohibitions on the deployment of nuclear weapons and weapons of mass destruction and the construction of military installations on the moon and other celestial bodies.Conversely, in the case of the unlawful use of force in the form of aggression, article IV of the Outer Space Treaty would, according to Bourbonnière and Lee, 122 prevail.
2008 IRRC 973 points out, there is seemingly no clear answer to this question in international law.124 Legality of the Threat or Use of Nuclear Weapons 1996 ICJ Reports 226.125 Legality of the Threat or Use of Nuclear Weapons 1996 ICJ Reports 226 266-267.126 Legality of the Threat or Use of Nuclear Weapons 1996 ICJ Reports 226 266.My emphasis. 131

136
Su and Zhu 2011 Proceedings of the International Institute of Space Law 50-51.137 Su and Zhu 2011 Proceedings of the International Institute of Space Law 51.The authors refer to

138
Su and Zhu 2011 Proceedings of the International Institute of Space Law 51. 139 Filho 2011 Proceedings of the International Institute of Space Law 480, 482.Filho points out that in the area of outer space "[t]here is no clarity on how to use [self-defence], how to employ proportional means in the operation, how to reach a minimally fair outcome, and how to stop it" (Filho 2011 Proceedings of the International Institute of Space Law 480).
the fact that the 2008 Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and the Threat or Use of Force against Outer Space Objects guarantees the right to self-defence by determining that nothing in the treaty "may be interpreted as impeding the exercise by the States Parties of their right of self-defence in accordance with Article 51 of the Charter of the United Nations". 140The right to selfdefence is even construed wider in the 2014 draft of the Treaty, which now makes provision for both the right to individual and collective self-defence by the states parties. 141 the Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (2008).The fifth revised Draft International Code of Conduct for Outer Space Activities (2014) proposed by the European Union, also guarantees the inherent right of states to individual and collective self-defence as recognised in a 26 of the UN Charter.The text of the revised Code is available at Reaching Critical Will 2014 http://reachingcriticalwill.org/resources/fact-sheets/critical-issues/5448-outer-space.141 A IV of the Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (2008) now reads as follows: "The Treaty shall by no means affect the State's Parties inherent right to individual or collective self-defense, as recognized by Article 51 of the UN Charter".
c) of the Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (2008).158 A I of the Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (2008).
and Larsen Space Law 515 for the attempts to define this term.168Lyall and Larsen state that, although the specific legal content of the term is unclear, "[t]he basic element of the concept of WMD [weapons of mass destruction] appears to be … that a weapon of mass destruction indiscriminately kills a large number.Whether that is a large number of innocent persons or a large number of persons simpliciter (i.e.including military personnel) remains obscure …" (Lyall and Larsen Space Law 515 fn 76).Lyall and Larsen Space Law 517.Wilson 2001 LJIL 801 submits that states are allowed to use outer void space for a range of military purposes, excluding the stationing of nuclear weapons and weapons of mass destruction.Friman 2005 FYBIL 310. 171 this, is the Russia/China Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects, submitted to the Conference on Disarmament in 2008 and 2014 referred to earlier.
legacy.armscontrol.org/act/2014_0708/News/Fate-of-Space-Code-Remains-Unclear%20.208 Report of the Committee on the Peaceful Uses of Outer Space 56th session (12-21 June 2013).209 Ch II para 36 of the Report of the Committee on the Peaceful Uses of Outer Space 56th session (12-21 June 2013).210 Ch II para 39 of the Report of the Committee on the Peaceful Uses of Outer Space 56th session (12-21 June 2013).Ch II para 41 of the Report of the Committee on the Peaceful Uses of Outer Space 56th session (12-21 June 2013).
lack of coordination in relation to arms control initiatives.Apart from the Draft EU Code of Conduct and the Russia/China Draft Treaty, there are currently a number of individual UN initiatives in this regard, such as the Group of Government Experts on Transparency and Confidence Building Measures in Outer Space Activities, the United Nations Committee on Peaceful Uses of Outer Space and the standing debate on the prevention of an arms race in outer space within the Conference on Disarmament. 214It is therefore imperative that an international dialogue on the military use of outer space is facilitated under the auspices of a consolidated forum to address the legal uncertainties which may impair the peaceful use of outer space.It is submitted that since the UNCOPUOS has been specifically established to address issues relating to outer space, it is best suited to address the military use of outer space.Due to the Park 2006 Hous J Int'l L 906-907.Park refers to a statement by a representative of the US State Department in 2002, that a change in venues "would not change national positions.States would still have the same concerns that they have in existing fora" (Park 2006 Hous J Int'l L 906).213 This is supported by the General Assembly Resolution on the Prevention of an Arms Race in Outer Space A/RES/62/20 (10 January 2008) which recognises that the "prevention of an arms race in outer space would avert a grave danger for international peace and security".Farnsworth 2014 http://legacy.armscontrol.org/act/2014_0708/News/Fate-of-Space-Code-Remains-Unclear%20.
Lyall and Larsen Space Law 500.The use of telecommunications systems is subject to the rules Lyall and Larsen Space Law 521-522.Also see Soucek "International Law" 317; Ospina 2009 Proceedings of the International Institute of Space Law 178.Lyall and Larsen Space Law 519; Ospina 2009 Proceedings of the International Institute of Space Law 180.Goodman 2010 Journal of Space Law 110.
Clear international consensus on the definition of outer space has, however, not yet been reached.36Anattempttoformallydefinethe term can be found in the first Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force Against Outer Space Objects, which was developed by two major space superpowers, China and Russia, and presented in 2008 at the Plenary Meeting of the United Conference on Disarmament in Geneva.37Article1(a)definedouter space as the "space beyond the elevation of approximately 100km above ocean level of the Earth".The use of the word approximately, however, resulted in the definition lacking a clear and decisive indication of the borderline between air space and outer space.38The"disputable definition" 39 was therefore removed from the second draft of the Treaty 40 in order "to be addressed, if necessary, in the future".
41The failure of the drafters of the Draft Treaty to formulate a clear definition of outer space is regrettable.It is not clear how outer space activities can be regulated in terms of the Draft Treaty without a clear indication of what it regards as the borderline between earth and outer space.
Park 2006 Hous J Int'l L supports a narrow definition of peaceful purposes in order to mitigate the potential of space weaponisation.See further in this regard Bourbonnière and Lee 2007 EJIL 880-881.They note, however, that "states are generally reluctant to give expansive interpretations to normative dispositions that could restrict their scope or freedom of action on issues of national security" (Bourbonnière and Lee 2007 EJIL 881).Lyall and Larsen Space Law 524.Also see Su 2010 Journal of Space Law 260-265.
64Lyall and Larsen Space Law 524.65 Golroo and Bahrami 2008 Proceedings of the International Institute of Space Law 247.With reference to the argument by Cheng Studies in International Space Law 515, Friman 2005 FYBIL finds that peaceful purposes cannot merely be defined as "non-aggressive".66 A 1 of the Outer Space Treaty.67 Lyall and Larsen Space Law 524.68 Bourbonnière and Lee 2007 EJIL 877.
outer space, but have due regard for the corresponding interests of other states (Article IX of the Outer Space Treaty); and 7) do not subject outer void space or the celestial bodies to national appropriation (Article II of the Outer Space Treaty)." Friman 2005 FYBIL 291 states that "[o]uter void space is already militarised by both military and non-military space assets.Demilitarizing outer void space would necessitate a ban on, inter alia, reconnaissance, surveillance, and communication assets since these may be of a 'dual use' that is exploited for both military and non-military purposes.Seeing as it is virtually impossible to discriminate between the peaceful and non-peaceful military exploitation of the advantages gained by such dual use space assets, the boundary between partial and total militarization of outer void space is obscure at best".
Tronchetti "Soft Law Approach" 364; Ospina 2009 Proceedings of the International Institute of Space Law 184; Maogoto and Freeland 2008 Air and Space Law 25.Su 2010 Journal of Space Law 258 points out that even activities such as espionage, which are disliked by many states, are seldom protested about.Also see Christol 2009 Proceedings of the International Institute of Space Law 106.84 Su 2010 Journal of Space Law 259.85 In a similar vein, 90 Tronchetti "Soft Law Approach" 365.91 Park 2006 Park 2006 Hous J Int'l L 873 states that " article IV of the Outer Space Treaty should be interpreted in the context of Chapter VII of the United Nations Charter, since article See in this regard Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 2004 ICJ Reports 136 para 139; Armed Activities in the Territory of the Congo 2005 ICJ Reports 168 paras 143, 148.Also see Dugard International Law 502-503.
109 111 180As a result of their non-mandatory character, these instruments are generally more easily negotiated by states than is the case with International Law" 320; Filho 2011 Proceedings of the International Institute of Space Law 478-479.In this regard Lyall and Larsen Space Law 519 explain as follows: "[b]allistic and anti-ballistic missiles remain a potential military use of space.However, ballistic missiles are not vehicles in Earth or other orbit although they may briefly intrude into space.This means, inter alia that ballistic missiles with nuclear or WMD warheads are not covered by the prohibition on the stationing of such weapons in space under OST Art.IV though other space treaties may apply."Su2010 Journal of Space Law 272 states that "[t]he lack of a specific prohibition does not mean space weaponization is permitted under international law.Relying on the Lotus principle would 174Soucek " Bush administration from the onset inter alia by characterising it as an attempt by Russia and China to gain a military advantage, and the dismissal of the Draft Treaty has continued under the Obama administration. 188After the revised draft of the Treaty was submitted by Russia and China to the Conference on Disarmament on 10 June 2014, Frank Rose, the US Deputy Assistant Secretary of State, Arms Control, Verification and Compliance informed the Conference that the revised Draft Treaty fails to address "significant flaws" already identified in the 2008 version.According to Rose, some of the fundamental problems with the 2014 Draft Treaty are the lack of an "effective verification regime to monitor compliance", and the fact that "terrestrially based anti-satellite systems posing the greatest and most imminent threat to space" are not covered by the Draft Treaty.A former Pentagon strategic analyst, Mike Schneider, has added that the serious definitional problems (such as that of a "space weapon") in the Draft Treaty have contributed to the United States' rejection of the Treaty.
186Tronchetti "Soft Law Approach" 368-369.187Tronchetti"SoftLaw Approach" 370-371.Su and Zhu 2011Proceedings of the International Institute of Space Law 51 submit that, notwithstanding the criticism against the draft treaty, it provides a "constructive basis for a more solid space security regime", as it has been taken note of in a number of UN General Assembly resolutions.the

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See further on TCBMs, Takaya-Umehara 2009 Proceedings of the International Institute of Space Law 123-132; Kapustin 2009 Proceedings of the International Institute of Space Law 186-190; Gopalakrishan, Bhaskaranarayana and Murthi 2009 Proceedings of the International Institute of Space Law 140-142.
While some countries such as Egypt, Pakistan and Russia have argued that the United Nations General Assembly is the appropriate body to debate and vote on the Draft Code of Conduct, the USA and some European Union member 201 Tronchetti "Soft Law" 621; Tronchetti "Soft Law Approach" 375; Welly 2010 Journal of Space Law 311.See further Tronchetti "Soft Law Approach" 373-376 for a discussion of the advantages of a soft-law approach.Also see Walter "Privatisation and Commercialisation of Outer Space" 503.202 Maogoto and Freeland 2008 Air and Space Law 24.203 The fifth revised Draft International Code of Conduct for Outer Space Activities (2014) was made public by the EU on 31 March 2014.Text available at Reaching Critical Will 2014 http://reachingcriticalwill.org/resources/fact-sheets/critical-issues/5448-outer-space.