The European Journal of International Law Vol. 18 no. 5 © EJIL 2008; all rights reserved
Legality of the Deployment of Conventional Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict
Principal, Ricky Lee & Associates (Adelaide); Lecturer, School of Law, Flinders University of South Australia; and Managing Director, Activer Consulting Pty. Ltd., Australia. Member of the International Institute of Space Law and the space law committees of the International Bar Association and the International Law Association. The opinions expressed in this article are those of the authors personally and do not necessarily reflect those of any government, organization, or individual with which the authors, individually or together, are associated. The authors would also like to express their thanks to Colonel Patrick H. Rayermann, Chief of Space and Missile Defense Division, US Army HQDA G-35, and Bruno Legendre, Legal Counsel, DOJ-CSA for their comments in the preparation of this article
* Legal Counsel, Department of Justice, Canada, Canadian Space Agency (CSA); Professor of Law, Royal Military College of Canada, Kingston, Ontario; Professor, International Institute of Humanitarian Law, San Remo, Italy. Fellow of the Center for Hemispheric Defense Studies (CHDS), National Defense University, Washington, DC. Email: Michel.Bourbonniere{at}space.gc.ca.
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Abstract |
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The Bush Administration of the United States recently released a revised National Space Policy. Although the revised National Space Policy can be interpreted as a step towards the weaponization of space, it does not necessarily weaponize space. It nonetheless brings to the forefront important legal issues concerning the basing of conventional weapons in space. The present international law matrix on the issue of space-based weapons is to be found in international space law, principally in the Outer Space Treaty, where certain prohibitions apply to nuclear weapons and to weapons of mass destruction. Space must also be used for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Space objects must be registered in accordance with the Registration Convention. The UN collective security system and the customary right of self-defence govern the use of force or jus ad bellum. The means and methods through which self-defence is exercised are in turn governed by international humanitarian law. Should space be weaponized the basing of these weapons and their use will be subject not only to international space law but also to the UN Charter and to international humanitarian law. The interface between these legal regimes consequently gains in importance, possibly forcing a reinterpretation of certain space treaties along with a correction in state practice.