Selected Legal Challenges Relating to the Military use of Outer Space, with Specific Reference to Article IV of the Outer Space Treaty

A Ferreira-Snyman

doi:10.4314/pelj.v18i3.02

Abstract

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 It is concluded that article IV is in many respects outdated and that it cannot address the current legal issues relating to the military use of outer space.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.

Highlights

In an address to the United Nations General Assembly on 22 September 1960, the 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 an area of dangerous and sterile competition? The choice is urgent
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 might place additional, unified pressure on the USA to change its position on space security and the weaponisation of outer space. 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 uncertainty surrounding the military use of outer space is further exacerbated by the lack of coordination in relation to arms control initiatives

Summary

Introduction

The race to the moon dominated the attention of the two major space powers, the () 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. 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. As space assets become increasingly integrated into national and economic systems and military defences, space will become an increasingly attractive battleground

Delimiting outer space

Military use51 of outer space

Peaceful purposes

Militarisation versus weaponisation

Space weapon

The way forward?

Conclusion

Literature