From satellites to battlegrounds : Use of outer space for peaceful purposes, the use of force and the right to self-defence in the modern space landscape

Abstract

The Outer Space Treaty primarily focus on the use of outer space for ‘peaceful purposes’. The term ‘peaceful purposes’ can be interpreted in different ways, but as a minimum prohibits the placement of weapons of mass destruction in space and the threat of use of force. It can also be argued that outer space can be used for military purposes, but the exact scope is however unclear. The emergence of new space weaponry and technology raises complex issues regarding the application of force and the right to self-defence under jus ad bellum. The international regulation of militarization and military activities in outer space focuses mostly on the regulation and demilitarization of outer space, and the issue of use of force in self-defence by states is rarely touched upon. The specific targeting of satellites, and invoking the right to self-defence in response to an armed attack in outer space requires examination whether peaceful purposes allows for the use of force in self-defence can be applied in outer space, and how it is applied in outer space and the scope of the use of force in self-defence in outer space. The thesis finds that he right to self-defence under international space law is intricate, especially when compared to the notion of utilizing outer space solely for peaceful purposes. Article 51 of the UN Charter acknowledges the inherent right to self-defence in response to armed attacks, although there is ongoing debate on the interpretation and use of 'force' in the realm of space operations. The evolving nature of warfare, including the emergence of non-kinetic methods, presents challenges in interpreting what constitutes a permissible action of use of force in self-defence in outer space. Despite the intent to maintain outer space for peaceful purposes, the reality of increasing militarization and defensive measures underscores the need for nuanced legal frameworks that align with the unique context of outer space. The application of Article 51 to outer space raises critical questions regarding the threshold for justifying self-defence in response to space-related threats. While the physical destruction of satellites is unequivocally recognized as an armed attack, advancements in technology introduce complexities such as non-kinetic offensive operations and dual-use satellite capabilities. However, traditional interpretations of Article 51 may not fully address the evolving challenges of space-based operations and the diverse nature of potential threats. The permissible forms of self-defence in response to space-related threats are subject to specific limitations and conditions. The principles of necessity and proportionality govern the lawful use of force, emphasizing the importance of distinguishing between minor incidents and significant armed attacks. The development of soft-law instruments, such as the Draft Code of Conduct and the draft PPWT, reflects ongoing efforts to regulate space activities and enhance international cooperation. Nonetheless, challenges persist in applying traditional legal frameworks to the dynamic and technologically complex domain of outer space.