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date: 12 December 2019

Use of Outer Space for Peaceful Purposes

Summary and Keywords

The great rise and diversification of the use of outer space raises the question of the limitations to space activities. The ultimate restriction posed by space law is the use of outer space “for peaceful purposes.” Regardless of the semantic approach one adopts with respect to the definition of the term “peaceful purposes” in the text of the Outer Space Treaty, it is the underlying substantive legal normativity which constitutes the determining factor. The applicable international legal rules confirm that the ultimate limit is the prohibition of the use of force laid down in Article 2 (4) of the UN Charter, which applies to outer space along with the exceptions stipulated in the UN Charter and general international law. In addition, the Outer Space Treaty establishes a particular legal regime on celestial bodies, declaring them a demilitarized zone, and bans the stationing of weapons of mass destruction in outer space. Space law, as any other branch of public international law, is of evolutive nature, so future adjustments and developments of its legal normativity in light of the abrupt growth and multiplication of the exploration and uses in the space arena remain open.

Keywords: peaceful uses, peaceful purposes, outer space, use of force, non-aggressive, non-military, demilitarization, celestial bodies, Moon, weapons of mass destruction, United Nations, international law, Outer Space Treaty

Introduction

The great rise in space activities, the multiplication and diversification of the use of space applications and data, the increasing variety of space actors, and global awareness of the potential of space raise the question of the limitations to such use. The ultimate limit imposed by space law is the use of outer space “for peaceful purposes.” What does this concept signify today? How are we to approach this legal barrier in light of current developments in the space arena and with a view to ensure the sustainable use and exploration of outer space? Which elements qualify as “peaceful”? Are any coercive or military measures prohibited in outer space? How far can humankind proceed in its quest for discovery and power beyond our planet in compliance with common rules?

Throughout the Space Era, it has been maintained that the use of outer space has been reserved for peaceful purposes, as stipulated in the preamble and Article IV of the Outer Space Treaty,1 many United Nations documents, and endorsed generally by the international community. But in practice, there is an awareness of the existence of dual-use objects, or multiple-use technology, and direct military measures touching upon outer space, such as reconnaissance satellites, space-based devices like satellite navigation systems, real-time technology improving the situational awareness of both civil and military assets, anti-satellite weapons or ballistic missiles passing through the space zone. Besides the continued consideration of proposals under the agenda item “Prevention of an arms race in outer space” at the Conference on Disarmament, aiming at preventing the placement of weapons in outer space and prohibiting the use of anti-satellite weapons, pioneer initiatives appear at multilateral forums introducing a set of non-legally binding guidelines on transparency and confidence-building measures as well as proposals raising the question of definition of right of self-defense in outer space or circumstances justifying the destruction of a space object.2

The term “peaceful,” the core element of outer space treaties and international space law in general is challenged today or, more precisely, utilized in various perspectives without precise and authoritative definition of its content. The two main, diverging approaches regard the concept either as “non-military” or “non-aggressive.” The discrepancies in common understanding of the term, be it due to its possibly evolving nature or the absence of legal perspective, insert great confusion into the debate on the development of space law, and further puzzles it. Clarifying this central concept of space law aims to shed light on current and ongoing debates and identify fundamental legal pillars for further assessment of the present state of affairs and future progress in the space arena.

Firstly, the concept “use of outer space for peaceful purposes” will be analyzed from the perspective of existing substantive legal norms. Secondly, light will be shed on the semantic discussion regarding the term “peaceful purposes.” Thirdly, the space law regime will be examined as a special legal framework justifying dynamic adaptations in view of new challenges and realities in the space arena.

Legal Regime of the Use of Outer Space for Peaceful Purposes

Space Law

The Outer Space Treaty, laying down the core legal regime of use and exploration of outer space, provides a rather clear concept of the regulation.

The Preamble refers repeatedly to space activities needing to be framed by “peaceful purposes”: “Recognizing the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes” and “[d]esiring to contribute to broad international cooperation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes.”3 The Preamble does not however provide a definition of the key term “peaceful purposes.” Moreover, it does not lay down any legally binding obligations as preambular paragraphs have in principle a non-binding nature serving as an interpretative guidance.

The only provision in the Outer Space Treaty addressing directly the topic of “peaceful purposes” in a legally binding mode is Article IV. In paragraph 1 it unambiguously imposes a ban on stationing weapons of mass destruction in outer space: “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.”

Paragraph 2 establishes a more stringent legal regime with respect to celestial bodies. It stipulates that “[t]he 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.” It permits, however, “[t]he use of military personnel for scientific research or for any other peaceful purposes” and “[t]he use of any equipment or facility necessary for peaceful exploration.” Such restrictions actually proclaim celestial bodies to be demilitarized zones. The legal regime laid down in paragraph 2 is introduced by an overarching rule contained in its first phrase: “The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes.”4

The regime of demilitarization is in line with the internationalized regime established at Antarctica. The Antarctic Treaty adopted in 1959, which inspired the authors of the Outer Space Treaty, stipulates in Article I:

“1. Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military maneuvers, as well as the testing of any type of weapons.

2. The present treaty shall not prevent the use of military personnel or equipment for scientific research or for any other peaceful purposes.”5

While the Antarctic Treaty imposes a total demilitarization of the continent, Outer Space Treaty demilitarizes only celestial bodies.

The following logically derives from Article IV: only stationing of weapons of mass destruction in outer space is prohibited and the celestial bodies are demilitarized zones. The substantive normative restrictions on the conduct in outer space are clear and the resulting liberty of action will be now examined in light of other relevant international rules.

General International Law

General international law, be it conventional or customary, does not provide an express definition of the term “peaceful purposes.” The maintenance of international peace and security constitutes, however, one of the central principles of public international law, anchored in the UN Charter, and applies erga omnes. The Charter rules bind UN Member States in all their activities be it on the Earth or in outer space.

The Preamble of the UN Charter refers to the need to “unite our strength to maintain international peace and security” and Article 1 defines the first Purpose of the United Nations “[t]o maintain international peace and security.” In pursuit of the Purposes “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” (Art. 2 (3)). The core provision laying down the ultimate guarantee to protect international peace is Article 2 (4) which legally binds all Member States to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” The UN Charter expressly provides only two exceptions to this international legal ban on the use of force: the right of a State to self-defense if it becomes a victim of an armed attack (Art. 51) and the use of force authorized by the UN Security Council (Art. 42). Any aggressive use of force is thus prohibited in international relations, this ban being deemed to be of peremptory nature and non-derogable.

These UN Charter provisions, corroborated by general international custom, enjoy legal superiority over any space law rule in view of the prevalence of the UN Charter over other international legal rules in line with Article 103 of the Charter. Lex specialis, be it a space rule or other, cannot override such an international ban as that laid down in Article 2(4). In line with general international law, only defensive military operations (in individual or collective self-defense) and recourse to the use of force under the auspices of the United Nations which aims to maintain or restore international peace in line with Article 39 of the UN Charter are lawful, be they on Earth or in outer space.

Meaning of the Term “Peaceful Purposes”

The substantive rules of applicable international law introduced above, help to clarify the contours of the ongoing semantic discussion regarding the scope of the use of outer space for peaceful purposes.

“Non-Military” Versus “Non-Aggressive” Approach

The core of the doctrinal debate concerns the two antagonistic views of the concept “use of outer space for peaceful purposes”: one part of the space community regards the term as “non-military” while the other advocates the “non-aggressive” perspective.6

Peaceful as “Non-Military”

If we attribute to the term “peaceful” the meaning “non-military,” it only confirms the above outlined substantive legal regime:

The Preamble of the Outer Space Treaty referring to the common interest and international cooperation in the “exploration and use of outer space for peaceful purposes” is in line with general aim to “maintain international peace and security” and the principle of peaceful settlement of international disputes. Such interpretation does not anyhow modify or restrict existing international legal rules. Article 4 (2), while perfectly in compliance with such general principle, only introduces an express restricted regime of demilitarization of celestial bodies: understanding the term “peaceful” as “non-military” the first line of paragraph 2 would read “[t]he Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for non-military purposes” which would be in perfect harmony with the regime of demilitarization detailed in the subsequent lines.

The plain meaning of the word “peaceful” as “non-military” has been confirmed in other particular international treaties. The Antarctic Treaty, issuing a regime of complete demilitarization of the continent, adopted almost literally by Article 4 (2) of the Outer Space Treaty, confirms that “Antarctica shall be used for peaceful purposes” (Art. I). The Statute of the IAEA refers repetitively to the Agency’s function in “research on, and development and practical application of, atomic energy for peaceful purposes” and stresses that the Agency “shall ensure […] that assistance provided by it […] is not used in such a way as to further any military purpose.”7The Chemical Weapons Convention refers to “[i]ndustrial, agricultural, research, medical, pharmaceutical or other peaceful purposes” in the domain of chemical activities as not being prohibited by the Convention.8 Although it does not provide exhaustive enumeration of what “peaceful” purposes mean, the exclusion of military activities is a logical outcome as confirmed expressly, inter alia, in the “Brief of Amici Curiae Chemical Weapons Convention negotiators and experts” in 2013: “The ordinary meaning of the word ‘peaceful’ […is…] ‘devoid of violence or force’. […] The context in which the phrase ‘other peaceful purposes’ occurs [in the Chemical Weapons Convention]—as well as the use of identical language elsewhere in the Convention and the recitals in the Convention’s preamble—further demonstrates that it is intended to encompass beneficial purposes only [and not all ‘nonwarlike’].”9 The term “peaceful purposes” also appears in other arms control treaties, for example the Treaty on the Non-Proliferation of Nuclear Weapons, which refers to nonviolent uses of nuclear energy in contrast with “nuclear weapons or other nuclear explosive devices”.10

This semantic perspective corresponds perfectly to the normative substance laid down in existing international legal rules. It does not imply that all military uses of outer space are banned, as often erroneously misinterpreted. In fact, it only confirms the regime of demilitarization of celestial bodies—which are to be used for exclusively non-military purposes—and supports, in the preamble, the global aim to promote peaceful relations and cooperation in the world. It does not challenge—as mistakenly advanced by some proponents of the “non-aggressive” approach—the legal regime of the UN Charter regulating the lawful uses of force.

Peaceful as “Non-Aggressive”

On the contrary, vesting the term “peaceful” in Outer Space Treaty with the meaning “non-aggressive” brings no added value to the space legal regime and, inversely, it introduces needless confusion.

In fact, UN Charter and general international law already impose the ban on aggressive use of force so such space law prescriptions would only duplicate the existing rule and be redundant. Moreover Article 4 (2) would face important inconsistencies and illogical absurdities: If the first phrase read “The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for non-aggressive purposes,” it would imply that the void space might be potentially utilized also for other than non-aggressive purposes (which would be in contradiction to the UN Charter and the peremptory norm of general international law). In addition to that, it would be contrasted with the second phrase of the paragraph, introducing a ban on all military activities on celestial bodies11.

Normative Convergence

In conclusion, it is possible to affirm that primarily the legal regime of use of outer space for peaceful purposes derives from the normative substance, not semantic labels, often politically impregnated. In reality, both approaches aim at the same core objective—prohibition of aggressive use of outer space, which is in line with existing international legal rules. Complementary deviations and alternative arguments are not legally substantiated. If some proponents of the “non-military” approach advance an extended argument that it entails a total ban on military activities in outer space, such legalistic perspective is not correct, as only celestial bodies are demilitarized and stationing of weapons of mass destruction in outer space is banned as analyzed above. Similarly, directly substituting the term “peaceful” in the Outer Space Treaty by “non-aggressive” leads to twisted results. Mixing normative substance and semantic plays produces inadvertent confusion and misinterpretation. A simple lecture on the Outer Space Treaty referring to “exploration and use of outer space for peaceful purposes” in the sense of “non-military” suffices completely to accommodate the proponents of both “non-aggressive” and “non-military” theories within the realms of the existing international legal framework.

Such perspective is corroborated by Article 31 (1) of the Vienna Convention on the Law of Treaties which stipulates that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”12 It also complies with Article 31 (3) which lays down that “any subsequent practice in the application of the treaty” shall be taken into account.13 In the 21st century, it would seem hypocritical to pretend that outer space is immune to any uses for military purposes. As Steven Freeland aptly states:

Outer space is increasingly now being used as part of active engagement in the conduct of armed conflict. Not only is information gathered from outer space – through, for example, the use of remote satellite technology and communications satellites – used to plan military engagement on earth but also space assets are now used to direct military activity and represent an integral part of the military hardware of the major powers. It is now within the realms of reality that outer space may itself become an emerging theatre of warfare.”14

State practice is in compliance with Article IV of the Outer Space Treaty as it is not known that a State would orbit or station weapons of mass destruction in outer space or engage in military maneuvers or other military uses on celestial bodies.

The semantic confusion seems to originate in the political discourse at the beginning of the Space Era during the Cold War that simulated the strategic policies of both spacefaring nations with politico-legal concepts satisfying the then prevailing global attitude not to militarize outer space. Immediately after the launch of the first artificial Earth satellite, Sputnik, in 1957, the United Nations General Assembly adopted several resolutions appealing that “the sending of objects through outer space shall be exclusively for peaceful and scientific purposes”15 and that “it is the common aim that outer space should be used for peaceful purposes only” and to “avoid the extension of present national rivalries into this new field”16. In practice, “the motive and incentive of the space powers” to building space programs “were first and foremost military”17 and “[i]t is now clear that space has been utilized for military activities almost from the commencement of the space age.”18 The United States proposed the following open justification of activities in outer space in 1962 before the First Committee of the UN General Assembly:

“It is the view of the United States that outer space should be used only for peaceful – that is, non-aggressive and beneficial – purposes. The question of military activities in space cannot be divorced from the question of military activities on earth. To banish these activities in both environments we must continue our efforts for general and complete disarmament with adequate safeguards. Until this is achieved, the test of any space activity must be not whether it is military or non-military, but whether or not it is consistent with the United Nations Charter and other obligations of international law.”19

The Soviet Union, on the contrary, maintained publicly opposing view rejecting any military usage of outer space and presented in 1958 a proposal to ban use of outer space for military purposes.20 In all cases, travaux preparatoires of the Outer Space Treaty, as a supplementary means of interpretation, do not contain any official record of the confirmation of the agreed definition of the term “peaceful,” although the restriction of the demilitarization only to celestial bodies has been carried through. Several states, for example Argentina, India, and Iran, expressly regretted that both US and Russian draft proposals for the Outer Space Treaty “omitted the concept of the use of outer space as well as the celestial bodies for peaceful purposes only.”21

Peaceful “Purposes,” Not “Uses”

It is essential to note that the Outer Space Treaty refers to exploration and use of outer space for peaceful “purposes,” not to “peaceful means,” “peaceful activities” or “peaceful uses.” In other words, it is the “objective,” “aim” of the exploration and use of outer space which is to be peaceful, not the actual operational tools and measures. Although, in practice, such nuance might not be fundamental, as in principle the objective and means are intimately interlinked—and the terms are frequently interchanged22—in the legalistic perspective under study, such distinction merits particular interest. It shifts the object of the legal restriction further away, i.e. to the objective of the activities. It does not directly delimit the activity as such. As a result, it confirms the free submission of the sphere of measures to be used to the realm of general public international law and the UN Charter as affirmed above.

In this light, the question arises whether the dichotomy “non-military/ non-aggressive” is actually appropriate for the delimitation of the “purpose” of the conduct of international community. Or is it more suitable to the material domain, that is to say the means employed? What do “peaceful purposes” in the international arena signify?

The Concept of “Peace” lato sensu

“Peace,” maintenance and restoration of international peace, runs like a red thread through all public international law, space law included. This key term of global coexistence, and one of the main purposes of the United Nations, has itself undergone a cardinal transformation in the modern era of international relations.

The term “international peace” evolved from a negative (narrow) concept to a positive (wide) concept. Originally “peace” was conceived as purely “absence of war,” absentia belli. Activities and maneuvers conducted out of wartime were embraced by the term “peace,” “peaceful.” Today, in a globalized world with enhanced awareness of shared values and global needs, solidarity and collective responsibility for the well-being of humankind, the concept of peace is understood in a broader sense as a state of widely ensured reasonable living standards. In order to achieve a state of peace, it is no longer sufficient to divert from waging a war; one is required to ensure human rights and the action of the international community in the development and protection of the environment in general.23

The new concept of peace was well expressed by the UN Security Council in 1992 in the Presidential Statement of 3046th meeting:

“The absence of war and military conflicts among States does not in itself ensure international peace and security. The non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security.”24

Applied to the Space arena, outer space can be utilized to ensure the state of peace in its broad sense. It means that the exploration and use of outer space is destined to support and enhance the reasonable living standards and well-being of international society. This includes both the elimination of the scourge of war and the adoption of positive measures enhancing economic, social, humanitarian, ecological and other standards of life.

This broad range of action is indeed confirmed by practice. Space policy has evolved to encompass a great array of human activities, ranging from communication, navigation, transportation, research and development, environment, and human settlements to global health, education, agriculture, humanitarian assistance, disaster relief, and international peace and security. The space sector serves the needs of the whole international community and incites progress in the use of new technologies, cognition and rise of living standards. The United Nations noted in its 2016 annual resolution on “International cooperation in the peaceful uses of outer space” that the use of space science and technology and their applications contribute to achieving the global objectives in the domain of “economic, social and cultural development, particularly poverty eradication.”25 It stresses “the need to harness the benefits of space technology towards implementing the 2030 Agenda for Sustainable Development,” namely of “satellite communications, Earth observation systems and satellite navigation technologies.26 This confirms the great potential of space applications and data for the enhancement of the well-being of our planet.

Today, the exploration and use of outer space for “peaceful purposes” thus progressively fulfills its mission. The means employed to achieve this aim are restricted and defined in various space law rules and other relevant legal regimes. They can take multiple forms and nature and involve both civil and military elements. The ultimate limit is imposed by the UN Charter and general international law with regards to the use of force.

Space Law as Regime Sui Generis

Outer space, zone with its great strategic importance and multifaceted potential as well as its particular physical conditions, may require the standard terrestrial legal regime to be specially adapted. What impact would this have on the scope of the use of outer space for peaceful purposes? Can we potentially deviate from Article 2(4) of the UN Charter and adopt a special space legal regime of military interference in view of the extraordinary nature of the space zone? Is it lawful to requalify and extend the notion of “weapon” or “armed attack” for the space environment? What is the margin of legal elasticity and special nature of a space law regime pro futuro in view of the continuing progress in space exploration and use and its inestimable future potential?

Space law, lex specialis and subordinated to the UN Charter, may well develop more stringent regulations while in full conformity with the UN document. Article IV of the Outer Space Treaty confirms such legal discretion while it bans military actions on celestial bodies and so restricts more extensively the liberty of States to resort to the use of force. Similarly, the Antarctic international legal regime even proceeds to full demilitarization of the continent. Legally speaking, nothing prohibits UN Member States advancing stricter limits on militarization or weaponization of outer space in addition to the current Outer Space Treaty legal regime and the UN Charter’s rules. Indeed, this has been the aim of attempts in the domain of space disarmament.

The delicate question is rather reversed: Can space law extend the existing international rules on the maintenance and restoration of international peace and security, namely the recourse to the use of force? More precisely, do the special extraterrestrial conditions of the space arena justify, for example, the legalization of new forms of use of force beyond the existing valid exceptions to Article 2(4)? A sign of such a tendency might be noticed, for example, in the draft International Code of Conduct for Outer Space Activities which proposed in draft Article 4.2. a list of conditions justifying the recourse to an “action which brings about, directly or indirectly, damage, or destruction, of space objects.”27

In line with procedural rules of international law, no international rule is immutable—even the non-derogable, peremptory norms, can be, in line with Article 53 of the Vienna Convention on the Law of Treaties modified by a subsequent norm of general international law having the same character. In order to overcome the current limitations of Article 2(4), the international community of States as a whole would, however, need to consent to such modifications. One State or a group of space-faring nations would not possess sufficient legitimacy to modify unilaterally the fundamental international norms of maintenance of international peace and security. The willingness of States is the decisive factor; it can catalyze a new international treaty, a simple modification of existing conventional norms, or a general international custom.

A separate question concerns the adaptation of existing legal terms, originally shaped to terrestrial geodynamic conditions, to specificities of outer space. The issue at stake is not the modification of existing international norms but the vesting of current legal terms with appropriate practical meaning reflecting the particular factual context. Such a process can either take the form of a gradual reinterpretation incited in State practice or of an institutionalized policymaking process aiming to attain a collective consensus on the meaning of the terms. The latter could materialize in a non-binding document, such as a UN General Assembly resolution or a code of conduct. An example of a legal concept requiring such a review is the space “weapon,” the meaning of which might consequently modify the scope of application of the right of self-defense against an “armed attack” in space.28

These possible adaptations might impact on the scope of the uses of force in outer space for peaceful purposes in the future.

Conclusion

The space arena is undergoing turbulent era in view of the abrupt growth and diversification of its exploration and uses and the rising awareness of its potential. Still, it remains the object of regulation by international legal rules. The overarching framework of the use of outer space lato sensu is the “peaceful purpose,” meaning aiming to enhance the well-being of international society and to achieve reasonable living standards. This can be attained by a great array of measures, both civilian and military, as long as they comply with applicable international legal rules. The ultimate limit is the prohibition of the use of force laid down in Article 2 (4) of the UN Charter, which applies to outer space along with the exceptions stipulated in the UN Charter and general international law. In addition, the Outer Space Treaty imposes a special legal regime on celestial bodies, declaring them a demilitarized zone and banning the stationing of weapons of mass destruction in outer space. Regardless of the semantic approach one adopts with respect to the term “peaceful purposes” in the text of the Outer Space Treaty, it is the underlying substantive legal normativity which constitutes the determining factor.

The space legal order is fully in hands of States. New challenges such as the quest for discovery and threats in the extraterrestrial arena may well inspire a route to a special international legal regime pro futuro.

Glossary

peremptory norms (ius cogens)—“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” (Vienna Convention on the Law of Treaties, 1969, Art. 53). Examples include a treaty contemplating an unlawful use of force contrary to the principles of the Charter, a treaty contemplating the performance of any other act criminal under international law, and a treaty contemplating or conniving at the commission of acts, such as trade in slaves, piracy, or genocide.29

obligations erga omnes—“Obligations of a State towards the international community as a whole” which are “the concern of all States” and “all States can be held to have a legal interest in their protection” in view of „the importance of the rights involved.” „Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.”30 These obligations are contrasted to those existing vis-à-vis another State.

lex specialis -“Special law.” Law unique to a particular regime or applicable in specific scenarios, such as international trade law disciplines or international humanitarian law, as opposed to law generally applicable in a variety of international relations, such as general rules of treaty interpretation or state liability for wrongful acts (Fellmeth & Horwitz, 2009).

lato sensu—“In the broad sense.” Speaking or writing approximately, broadly, or generally. Contrast with stricto sensu.31

travaux préparatoires—Preparatory work of a treaty used as a means of interpretation. Vienna Convention on the Law of Treaties refers to “supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable.”32

Disclaimer

The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of Sciences PO or the Government of the Czech Republic.

Bibliography

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Carol Ann Bond (Petitioner) v. United States of America (Respondent), Brief of Amici Curiae Chemical Weapons Convention Negotiators and Experts in Support of Respondent, Case No. 12–158, US Supreme Court, August 16, 2013.

International Court of Justice, Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v. Spain) Second Phase, Judgment of February 5, 1970.

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Hobe, S., & Hedman, N. (2017). Preamble. In S. Hobe, B. Schmidt-Tedd, & K.‑U. Schrogl (Eds.), Cologne Commentary on space law, Volume 1: Outer Space Treaty (pp. 19–24). Berlin: Berliner Wissenschafts-Verlag (BWV).Find this resource:

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Schrogl, K.‑U., & Neumann, J. (2017). Article IV of the Outer Space Treaty. In S. Hobe, B. Schmidt-Tedd, & K.‑U. Schrogl (Eds.), Cologne Commentary on space law, Volume 1: Outer Space Treaty (pp. 70–93). Berlin: Berliner Wissenschafts-Verlag (BWV).Find this resource:

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Notes:

(1.) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, United Nations, January 27, 1967, London, Moscow, Washington, DC, Treaty Series, vol. 610, No. 8843 (referred to throughout this article as the Outer Space Treaty).

(2.) See, for example, the Report of the Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities, UN Doc. A/68/189, July 29, 2013; *Draft International Code of Conduct for Outer Space Activities (ICoC), last official version dated March 31, 2014; or the Long-Term Sustainability Guidelines discussed in the UN Committee on the Peaceful Uses of Outer Space (UN-COPUOS), especially at its Working Group on the Long Term Sustainability of Outer Space Activities. See also the discussion in UN COPUOS under the agenda item “Ways and means of maintaining outer space for peaceful purposes”, for ex. UN Doc. A/72/20, Report of the Committee on the Peaceful Uses of Outer Space, 27 July 2017 and the working paper submitted by the Russian Federation at the 58th session of the UN COPUOS in 2015 entitled “Achievement of a uniform interpretation of the right of self-defence in conformity with the Charter of the United Nations as applied to outer space as a factor in maintaining outer space as a safe and conflict-free environment and promoting the long-term sustainability of outer space activities,” UN Doc. A/AC.105/L.294, 29 April 2015. Cf. the draft ICoC Art. 4.2, infra 27.

(3.) Emphasis added.

(4.) Emphasis added.

(5.) The Antarctic Treaty, 1 December 1959, Washington, DC, Art. I.

(6.) For the debate see, for example, B. Cheng (2000). Properly speaking, only celestial bodies have been reserved for use exclusively for peaceful (non-military) purposes, but not outer void space. In M. N. Schmitt (Ed.), International Law across the Spectrum of Conflict: Essays in Honour of Professor L.C. Green on the Occasion of his Eightieth Birthday, 81–117. Newport, RI: Naval War College; S. Freeland (2016. Peaceful purposes? Governing the military uses of outer space. European Journal of Law Reform, 18, 35–51; J. B. Gantt (2003), The concept of “Peaceful Purposes”/ “Peaceful Uses” in the exploration and use of outer space. In Proceedings of the Colloquium on the Law Of Outer Space,46, 107–112. Reston, VA: ARC; S. Hobe, & N. Hedman (2017). Preamble. In S. Hobe, B. Schmidt-Tedd, & K.‑U. Schrogl (Eds.), Cologne Commentary on space law, Volume 1: Outer Space Treaty. Berlin: Berliner Wissenschafts-Verlag (BWV); B. Jasani, B., & M. A.Lunderius (1980). Peaceful uses of outer space – legal fiction and military reality. Bulletin for Peaceful Proposals, 11, 57–70; K.‑U. Schrogl, & J. Neumann (2017). Article IV of the Outer Space Treaty. In S. Hobe, B. Schmidt-Tedd, & K.‑U. Schrogl (Eds.), Cologne Commentary on space law, Volume 1: Outer Space Treaty. Berlin: Berliner Wissenschafts-Verlag (BWV); J. Su (2010). Use of outer space for peaceful purposes: Non-militarization, non-aggression and prevention of weaponization. Journal of Space Law, 36, 253–272.

(7.) Art. II, The Statute of the IAEA, October 23, 1956.

(10.) See the Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, London, Moscow, Washington, DC, Arts. III and IV and the Preamble. See also the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, the Treaty for the Prohibition of Nuclear Weapons in Latin America and bilateral treaties concluded by USA and the Soviet Union such as the Threshold Test Ban Treaty (1974) and the Peaceful Nuclear Explosions Treaty (1976). The European Space Agency Convention refers in preamble to European cooperation “for exclusively peaceful purposes” and Article II lays down that “[t]he purpose of the Agency shall be to provide for and to promote, for exclusively peaceful purposes, cooperation among European States in space research and technology and their space application.” It is in the discretion of the founding Members of the Agency to restrict its functions and mission to “exclusively peaceful purposes” as well as to possibly define the precise scope of the term in view of future developments for the objective and within the framework of ESA activities. As concerns the United Nations Convention on the Law of the Sea (UNCLOS), it refers in the Preamble to the promotion of “the peaceful uses of the seas and oceans,” reserves “the high seas for peaceful purposes” (Art. 88) and restricts the “[u]se of the Area exclusively for peaceful purposes” (Art. 141), without however providing any further direct or indirect definition of these terms, United Nations Convention on the Law of the Sea, 10 December 1982, Montego Bay, Jamaica; for a detailed analysis of the legal regime of UNCLOS see, for example, Proelss, 2012.

(11.) The confusion being even more multiplied by the resulting permission in the third and fourth phrase of Article 4(2) to use military personnel (and equipment and facilities) for scientific research or for any other non-aggressive purposes within the context of demilitarized zone established on celestial bodies in the second phrase.

(12.) Vienna Convention on the Law of Treaties, May 23, 1969, Vienna, Art. 31 (1).

(13.) More precisely, Article 31 (3b) refers to “[a]ny subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation,” ibid.

(14.) Freeland, 2016, 37.

(15.) UN Doc. UN GA Res. 1148 (XII), November 14, 1957, para. 1(f).

(17.) Cheng, 2000, 87.

(18.) Freeland, 2016, 37.

(19.) UN Doc. A/C.1/PV.1289, 3 December 1962, p. 13.

(21.) Indian statement, UN Doc. A/AC.105/C.2/SR.65, 24 October 1966, p. 11 (emphasis added). See also the summary record of the sixth meeting UN Doc A/AC105/C2/S66, October 21, 1966. Hungary, for example, noted: “The United States delegation would render a useful service by making clear what it meant by ‘peaceful use’,” UN Doc. A/AC.105/C.2/SR.65, p. 4. In view of the calls for the extension of the future treaty to outer space as a whole, not only celestial bodies, the United States agreed, noting, however, that “certain restrictions on military activities included in Antarctic Treaty should be applied to activities on celestial bodies” and “the treaty should clearly state that celestial bodies should be used for peaceful purposes only,” UN Doc. A/AC.105/C.2/SR.65, p. 9. In light of the discussion, the Soviet Union for its part noted: “A number of questions would of course remain to be dealt with after the elaboration of the Treaty, particularly the use of outer space for exclusively peaceful purposes. The problem was in part solved by the ban on placing in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction. The Soviet Union like many other peaceful countries, was naturally in favour of a total ban on the use of outer space for military purposes,” UN Doc. A/AC.105/C.2/SR.66, pp. 6–7.

(22.) Note for example, the title “UN Committee on Peaceful Uses of Outer Space.”

(23.) See for example Skordas (2012), 139; Salmon (2001), 750.

(25.) UN Doc. A/RES/71/90, December 22, 2016, preamble.

(27.) Draft International Code of Conduct for Outer Space Activities (ICoC), last official version dated March 31, 2014, p. 2. The explicit conditions formulated are the following: “imperative safety considerations, in particular if human life or health is at risk”; “in order to reduce the creation of space debris”; or if such action is justified “by the Charter of the United Nations, including the inherent right of individual or collective self-defence.”

(28.) See references supra 2.

(30.) International Court of Justice, Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v. Spain) Second Phase, Judgment of February 5, 1970, paragraphs 33 and 34, p. 32.