The Incremental Militarization of Outer Space: A Threshold Analysis

Abstract

The overarching theme of this article is not to revisit existing debates surrounding the application of jus ad bellum or jus in bello parameters to the "peculiarities" of outer space. Rather, this article examines the major treaties that regulate a States' military activities in outer space (including, for example, the Outer Space Treaty, Limited Test Ban Treaty, Liability Convention and, PPWT), alongside Charter norms, such as Article 2(4) of the UN Charter, to pinpoint the threshold of breach, violation and incremental militarization of outer space. With respect to the PPWT, it is important to note at this juncture that it remains a "proposal", and at best, lex ferenda. A natural consequence from this analysis will be to underscore the extent to which "toleration" of such violations by States, and the international community as a whole, has resulted in the incremental militarization of space.I feel that in the future whoever has the capability to control space will likewise possess the capability to control the surface of the earth. -General Thomas D. White, USAF Chief of Staff,

The Cyber-ASAT: On the Impact of Cyber Weapons in Outer Space

“…This de-facto codification was dramatically demonstrated in 2005 when the US found itself on the short end of a 160-1 UN vote after opposing a non-binding resolution on space weaponization. Although states have occasionally pushed the boundaries of these norms, this has typically occurred through incremental legal re-interpretation, rather than outright opposition [27]. Even the most notable incidents, such as the 2007-2008 US and Chinese ASAT demonstrations, were couched in rhetoric from both the norm violators and defenders depicting space as a peaceful global commons [27, p. 56].…”

Ambiguities in Space Law as Path towards Weaponization of Space: the Case of the Outer Space Treaty. Remarks on Regulation of Weaponization of Outer Space by Space Law

“…The ongoing militarization of outer space has led to the complexity of space management, and the ambiguity of the relevant regulations has further complicated the management of space, added threats to space security, affected human use and exploration of space, and benefited all of humanity. Therefore, scholars such as Grimal and Sundaram (2018), Gonçalves and Silva (2019) and Henry et al (2008), are pushing for a further law regulation of the use of space for military purposes, which, in its turn, will dramatically increase the complexity of managing space activities.…”

“…Also it is necessary to clarify, which international multilateral treaties and agreements form legal mechanism of the outer space law. Grimal and Sundaram (2018) define key legal instruments, that regulate the use of outer space: the 1967 Outer Space Treaty, the 1968 Rescue and Return Treaty, the 1972 Liability Convention, the 1976 Registration Convention, and the 1979 Moon Agreement. The main objective of these legal instruments was to provide legal framework for achieving compromise between all geopolitical actors in order to achieve equality and transparency regarding space exploration and military use as well as to prevent military dominance of any geopolitical actor in outer space realm.…”