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Tronchetti, Fabio --- "Legal aspects of the military uses of outer space" [2015] ELECD 252; in von der Dunk, Frans (ed), "Handbook of Space Law" (Edward Elgar Publishing, 2015) 331

Book Title: Handbook of Space Law

Editor(s): von der Dunk, Frans

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781000359

Section: Chapter 6

Section Title: Legal aspects of the military uses of outer space

Author(s): Tronchetti, Fabio

Number of pages: 51

Abstract/Description:

Since space activities from the beginning for a very large part were militarily oriented or related to defence and security issues, special attention has been paid to such aspects also in the legal context. Firstly, from this perspective, the 1967 Outer Space Treaty and 1979 Moon Agreement provided for some broad, albeit rather vague, clauses limiting the use of space for military purposes. Secondly, a few general treaties dealing with disarmament and arms control implicitly or explicitly but prominently included space-related issues, such as the 1963 and 1996 Test Ban Treaties or the 1972 bilateral US–Soviet ABM Treaty. Thirdly, as per Article III of the Outer Space Treaty, also general public international law related to the use of force or threat thereof (jus ad bello), the rights to self-defence, retaliation and countermeasures, and general humanitarian law (jus in bello) in principle apply to outer space and space activities. Fourthly, specific regimes, both international (the Missile Technology Control Regime (MTCR) and Wassenaar Arrangement), and national (the US International Traffic in Arms Regulations – ITARs), and even EU (following Regulation 1334/2000) regulations on the international trade in military or dual-use goods have substantially affected space activities.Military use has been a key feature of space activities since the dawn of the space era. The appearance of the first satellites coincided with their application for the purpose of military intelligence. Nowadays, the utilization of satellites in the military field has widely proliferated among space-faring states. Satellites not only play a crucial role in the context of military operations but also are crucial components of the national security strategies of the most technologically advanced states. The use of outer space for military purposes has been the object of heated diplomatic and academic discussions, mostly focused on the legality of and limits to military activities in space. The controversy over military uses of outer space has been largely related to four factors: (1) the use of outer space for military reasons is a highly sensitive issue and states are often reluctant to accept legal restrictions or prohibitions to such a use; (2) a unitary legal framework governing military operations in space is missing – instead, the applicable rules are distributed among various sources of law, including general public international law, international humanitarian law and international space law; (3) these rules fail, at times, to provide a clear understanding of key terms and concepts; and (4) space technologies (especially as for launch vehicles) and space objects (notably satellites) are usually of a dual-use character, as they have the potential to be used for civil and military applications.