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TIPS & EXPERT ADVICE ON ESSAYS, PAPERS & COLLEGE APPLICATIONS

SI: Opening Gambit
The international legal regime governing
issues of space security is fairly general and
broad. The first paragraph of Article I of the
Outer Space Treaty determines that the
exploration and use of outer space “shall be
carried out for the benefit and in the interests
of all countries, irrespective of their degree of
economic or scientific development, and shall
be the province of all mankind.” The second
paragraph guarantees freedom of access to all
celestial bodies. In combination with Article II
of the Outer Space Treaty, which determines
that outer space, the Moon, and all celestial
bodies are free from being subject to any claim
of appropriation and national sovereignty, the
Outer Space Treaty regime was designed to
establish freedom of use and access, and to
prevent space from becoming subject to
territorial competition that can lead to
conflict. However, there is no definition of the
operative term “province of all mankind,” and
it differs from the terminology used in other
legal regimes, such as the law governing the
high seas, deep seabed, and Antarctica Hobe,
2009, pp. 28–29. Thus, while the drafter’s
intention was to ensure that activities in space
do not jeopardize international peace and
security, the treaty’s vague language due to the
political reality in which it was drafted mean
that it is limited as an instrument to guarantee
security in outer space. Article III of the Outer
Space Treaty provides that all activities in
outer space must be conducted “in accordance
with international law, including the Charter
of the United Nations.” Although this
stipulates that any relevant international law
applies to military and security activities in
outer space, it does not mean that all
international law can be applied to activities in
outer space. The challenge is to distinguish
between specific rules that apply and those
which do not. In any case, there is a vast body
of international law that applies, including
interpretation of the law of treaties, State
responsibility, environmental law, the law on
the use of force, the law of armed conflict,
human rights, and more. The special
importance given to the U. N. Charter in
Article III of the Outer Space Treaty was due in
large part to the Cold War politics in the
context of which the treaty was drafted. There
was a fear that the arms race would extend
into space and an overriding concern for the
maintenance of peace and security, which is
the founding principle of the Ribbelink, 2009,
p. 65. Of particular importance is Article 2(4)
of the U. N. Charter, prohibiting the threat or
use of force. There are only two exceptions to
this prohibition. One of these exceptions is
encompassed in Article 51 of the charter,
allowing a State to lawfully use force if it is
exercising its right to self-defense – i.e., if it has
suffered an armed attack by another State and
is retaliating in order to protect itself. Thus, the
threat or use of force in space is prohibited,
unless doing so constitutes an act of selfdefense.
Such a use of force must fulfill the
requirements under international law, namely
that it is both necessary and proportionate as a
response to the armed attack, in accordance
with the decision of the International Court of
Justice in the Nicaragua case. The law on the
use of force is important if we consider the
current proliferation of ASAT technology and
the ways in which space is already implicated
in terrestrial warfare, leading to potential
targeting of satellites. The only other lawful
exception to the prohibition on the use of force
in the U. N. Charter is if the Security Council
was to authorize such use by way of exercising
its power under Article 42 of the charter. The
Security Council may adopt a resolution in
which it allows a State, or multiple States, to
use force as a last resort to resolve a situation
that threatens international peace and
security.

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