THESSALONIKI INTERNATIONAL STUDENT UNITED NATIONS 2015

14 th EDITION-SESSION OF THE INTERNATIONAL LAW COMMISSION

Anniversary Agenda: Regulating Military use of OuterSpace.

Common papers created by participants form the followingGreek, French and Turkish universities during the proceedingsof a conference.

Ecole Polytechnique de Lausanne, Yeditepe Universitesi,National & Kapodistrian University of Athens-Faculties of Lawand Political Sciences, Aristotle University of Thessaloniki -Faculties of Law and Political Sciences, Democritus Universityof Thrace-Faculty of Law, Panteion University of Social &Political Sciences, University of Piraeus.

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TABLE OF CONTEXTSFIRST CHAPTER: Summary of the Commission ’ s Work: p.2.

SECOND CHAPTER: Defining boundaries between air and outer space: p.2.

-State’s Sovereignty: p.2.

-Delimitation of outer space: p.3.

-The sea analogy :p .4.

-The existing criteria of delimitation: p. 5.

-The Spatial approach: p.6

-The Karman Proposal:p.6.

-The Spatial approach and sub-orbital flights: p.7

-The functional approach: p.7

-The diplomatic approach: p. 7

-The legal regime of mesospace: p.8.

-THIRD CHAPTER:Responsibility vs Liability:p 10.

-Space law as a part of general international law:p.12

-Responsibility and Liability as related to environmental aspect:p.12

-Possible problems created:p.13

-FOURTH CHAPTER:MILITARISATION vs WEAPONIZATION: p14

-Peaceful purposes and non-aggressive and non-military approach: p 15

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-The notion of Responsibility & Liability: p.16.

-FIFTH CHAPTER: Outer space Warfare: p.18.

-Types of Warfare: p.19.

-Legal Aspects of Cyber Attack: p.20.

-Espionnage: p.20

-Dual Use of Weapons: p 22

-Measures for the prevention of Space Warfare:p 23.

-SIXTH CHAPTER:The law of War on Outer Space:p.24.

-Jus ad bellum: p.25.

-The law of armed conflict: p 25.

-SEVENTH CHAPTER: Space Debris.p.28

-Legal Status of Copuos guidelines: p.30.

-Precationary Measures: p.31.

-Removal of the existing space debris….p.31

-Conclusion:p.32.

FIRST CHAPTER: Summary of the Commission ’ s work

The International Law Commission (hereinafter ILC) declared

its 14th session opened at 15th of April 2015 which lasted for 5

consecutive days. During this session, the following sub-

topics which fell directly under the general scope were

thoroughly discussed. The commissioners, participating from 18

countries, debated upon the delimitation of outer space, the

differences between the notions of militarization and

weaponization and the possible extensions of the definition

concerning cyber-attacks. Furthermore, the importance of the

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non-military use of outer space was highlighted whilst special

emphasis was given to the environmental aspects as well.

SECOND CHAPTER: Defining boundaries between air & outer space.

-State’s sovereignty

A fundamental notion of international law is state

sovereignty, which requires a definition of state territory

and its boundaries. Specifically, a State in order to be

considered as sovereign must comply to the following criteria:

a permanent population, a defined territory, government, and

capacity to enter into relations with other States1. This is

clearly codified in the Montevideo Convention of 19332, which

include principles of customary international law.

The modern concept of State sovereignty is often traced back

to the Treaty of Westphalia3 which laid down the basic

principles for the recognition of a State as sovereign;

territorial integrity, border inviolability, the supremacy of

the State and a supreme law-making body within the territory.

Sovereignty is the basis for the doctrines of responsibility,

nationality and jurisdiction.4 Article 2(2) of the Charter of

1 Montevideo Convention on Rights and Duties of States of 1933, enacted:1933-12-26 & entered in force: since 1934-12-26, Article 1.2 Montevideo Convention, op cit. article 3.3 Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton: PrincetonUniversity Press,1999),20.See also Benedict Kingsbury, "Review of StephenKrasner, Sovereignty: Organized Hypocrisy, "The American Journal ofInternational Law 94 vol. (2000):591–595.See also Andreas Osiander : TheStates System of Europe,1640-1990:Peacemaking and the Conditions ofInternational Stability (Oxford: Oxford University Press,1994)4 Chinkin, C. (1998) International Law and Human Rights. In T. Evans (ed.),Human Rights Fifty Years On: A Reappraisal, Manchester: ManchesterUniversity Press. See also Crawford, J. (1995) Prospects for an InternationalCriminal Court. In M. D. A. Freeman and R. Halson (Eds), Current LegalProblems 1995, 48, pt. 2, collected papers, Oxford: Oxford University

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the United Nations recognizes that all States are equal and

sovereign because they are all politically independent.5

Accordingly, on an international level it is found that

sovereign States generally refrain from interfering with the

domestic affairs of another State. Whichever political regime

and social institutions a State may have is a matter for it

within its own territorial boundaries.6

-Delimitation of outer-space.

At the end of the First World War though, the international

community realized the need to extend sovereignty to airspace

as well. Customary rules were established recognizing

exclusive State sovereignty over the airspace above their

territory, without any right of innocent passage. These

customary rules were later codified by article 1 of the 1944

Chicago Convention on international Civil Aviation.7 In its

second Article the definition of territory is stated as

follows: “Territory is land areas and territorial waters adjacent thereto under the

sovereignty, suzerainty, protection or mandate of a state.”

However, at that time, no upper boundaries were defined: it

was unclear where airspace ended and outer space begun. During

the Cold War, the need to define the boundaries between

airspace and outer space became apparent. States recognized

Press. See also Crawford, J. and Marks, S. (1998) The Global DemocracyDeficit: An Essay on International Law and Its Limits. In D. Archibugi etal. (Eds), Re-Imagining Political Community: Studies in CosmopolitanDemocracy, Cambridge: Polity Press. See also Dinstein, Y. (1993) Rules ofWar. In J. Krieger (ed.), The Oxford Companion to Politics of the World,Oxford: Oxford University Press.5 Chapter of the United Nations as signed in San Fransisco, 1946 andaccessed through the United Nations Treaty collection.6 H. Steinberger, ‘Sovereignty’, in Max Planck Institute for ComparativePublic Law and International Law, Encyclopaedia for Public InternationalLaw, vol. 10 (North Holland, 1987) p.4147 The Convention entered into force on 4 April 1947.Status: 191 parties.

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that outer space is a global common, as underlined in article

I of the 1967 Outer Space Treaty 8(hereinafter OST). Article II

of the same treaty provides that: “Outer space […] is not subject to

national appropriation by claim of sovereignty”. Furthermore, an

increasing number of hybrid vehicles have been developed in

recent years and have challenged the perception of the

separation between airspace and outer space.9 For example,

suborbital planes are designed to reach outer space for a few

minutes before returning to airspace. Currently there are

three major approaches concerning the delimitation10: the

spatial, the functional and the diplomatic approach, which are

all based on scientific principles.

In order to establish their sovereignty, States tried to

delimit not only the boundaries of their land but also the

Sea, and accordingly the airspace. Concerning the land

boundaries, they have been modified through the years with

several conventions between the nations.

It has to be underlined that every coastal State enjoys

jurisdiction over the oceans and seas, the limits of which are

defined by international conventions and national regulations

must confirm to international law. The law of the sea, in its

essence, divides the seas into zones and specifies the rights

and duties of States and ships flying their flags in those

zones. Maritime boundary delimitation can arguably be viewed

8 The Outer Space Treaty, the Magna Charta of international space law, wasopened for signature by the three depository Governments (the RussianFederation, the United Kingdom and the United States of America) in January1967, and it entered into force in October 1967.9 Indicatively, mentioned the drones, unarmed vehicles, space buses etc.10 U.N. Doc. A AC.105 430 at 4 (1989). Not all states believe, however, thatthere is a need for the legal definition of the boundary between air spaceand outer space.

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as an essential precursor to the full realization of the

resource potential of national maritime zones and the peaceful

management of the oceans and seas. With regard to the seabed

resources, which could prove crucial to the well-being and

political stability of coastal States, extensive overlapping

claims forestall development while maritime boundaries remain

unsettled.11

-The sea analogy.

The delimitation of the exclusive economic

zone/continental shelf with the opposite or adjacent coasts

shell be effected by agreement on the basis of international

law, as referred to in Article 38 of the Statute of the

International Court of Justice, in order to achieve an

equitable solution. As far as the maritime boundaries are

concerned though; the 1982 UNCLOS12 delimits the Sea and the

rights of States over the sea in the following way:

- The territorial sea can be delimited up to 12 nautical miles

from the baseline. The coastal State has exclusive sovereignty

in this zone. However, under Article 24 of the aforementioned

Convention it has the obligation not to hamper the innocent

passage of foreign ships through the territorial sea13. 11 Prescott V and Schofield C. The maritime political boundaries of the world.2005. P. 216.12 Concluded in New York, 1982 and came into force as a binding treaty in1994.13 Article 24 of the UNCLOS states that: “the coastal State shall nothamper the innocent passage of foreign ships through the territorial seaexcept in accordance with this Convention. In particular, in theapplication of this Convention or of any laws or regulations adopted inconformity with this Convention, the coastal State shall not:(a)  imposerequirements on foreign ships which have the practical effect of denying orimpairing the right of innocent passage; or (b)  discriminate inform or infact against the ships of any State or against ships carrying cargoes to,from or on behalf of any State.” It is further stated in para. 2 of thatthe coastal State shall give appropriate publicity to any danger tonavigation, of which it has knowledge, within its territorial sea.

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- Under Article 33 of the UNCLOS the contiguous zone may

extend up to 24 nautical miles from the baselines of a State.

The coastal State may exercise control in order to prevent

“infringement of its customs, immigration, fiscal or sanitary regulations within its

territory.’’14 Furthermore, it has the right to punish

infringement of the aforementioned regulations15.

- The Exclusive Economic Zone can extend up to 200 nautical

miles from the baseline. Under Article 56 of the UNCLOS, the

coastal State has sovereign rights for the purpose of

exploring and exploiting, conserving and managing natural

resources to the seabed or its subsoil. It further establishes

jurisdiction of the State on the use of artificial islands and

installations within the Exclusive Economic Zone, the

protection and preservation of the marine environment and

marine scientific research16.

In the High Seas there is no State sovereignty and under

Article 141 it should be only used for peaceful purposes. The

High Seas is a global common. Any ship navigating through the

High Seas is subject to the law of its flag State17In airspace,

under Article 1 of the 1944 Chicago Convention on

International Civil Aviation States have complete and

exclusive jurisdiction over the airspace above its territory.14 Article 33 UNCLOS declared that: In a zone of the high seas contiguousto its territorial sea, the coastal statemay exercise the control necessary to: (a) Prevent infringement of itscustoms, fiscal, immigration or sanitaryregulations within its territory or territorial sea; (b) Punishinfringement of the above regulations committed within its territory orterritorial sea.15 T. Hillier, Sourcebook on Public International Law, Cavendish publishingLtd. 1998,p. 369. 16 M. Shaw, International Law, Cambridge 6th edition 2008, p.564-565. 17 A. Aust, Handbook of International Law, Cambridge University Press, New York(3rd ed. 2010), 125, I. Brownlie, Principles of Public International Law,Oxford, Clarendon Press, (3nd edition 1979) 365.

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Any aircraft flying above the territory of a State is subject

to the law of the latter by virtue of the customary

territoriality principle. There is also international air

space, which is the air space above the High Seas or any land

outside the territory of any State such as the Antarctica. In

international air space there is no sovereignty. An aircraft

flying in it is subject to the laws of the State of Registry.

-The existing criteria of delimitation.

Finally, the Outer Space is also a global common, not subject

to any kind of national appropriation or claim of sovereignty

under the provisions of the OST. In order to delimit the

boundaries of outer space, scholars have proposed the

following three approaches, the spatial, the functional and

the diplomatic one18:

-The Spatial approach.

The spatial approach attempts to establish the altitude of

the lower boundary of outer space, and thus the upper limit of

airspace. For this purpose, four different criteria are used:

- Two of them rely on the delimitation between the

different layers of the atmosphere. The first criterium

equates national airspace with the end of the

atmosphere, meaning state sovereignty ends where the

atmosphere ends. Meanwhile, the second one proposes to

use an arbitrarily chosen layer of the atmosphere as

the upper limit of airspace. However, since LEO is

included in residual atmosphere, it would be included

18 Chia-Jui Cheng, The Use of Air and Outer Space Cooperation, Netherlands: KluwerLaw International, (1998), 265.

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in airspace and not in outer space. Regarding

delimitation on the basis of layers, the altitude of

atmospheric layers depends on weather conditions and on

atmospheric heating and cooling; therefore they do not

constitute a reliable limit19.

- The third criterium suggests that the highest altitude

a plane can be flown at should be used to separate

airspace and outer space. However, it does not give an

accurate estimation of this altitude.

-The Karman Proposal.

The fourth criterium, also known as the Karman proposal,

sets the limit at an altitude of precisely one hundred

kilometers above sea level. This criterium roughly corresponds

to the highest altitude a plane can be flown at as estimated

by Von Karman in the 1950’s. It is also slightly below the

lowest possible orbit altitude, making the criterium even more

relevant.

Another criterium that has been proposed is the one of

“effective control” which states that sovereignty should

extend as far as a state can enforce that sovereignty20.

However, it was rejected because sovereignty of different

states would extend to different heights since more

technologically advanced states would be able to exercise

control up to a higher altitude than less developed states.

Furthermore, space objects move extremely fast and, with the

exception of geostationary satellites, do not stay above the

same country for a long period of time.19 R.L.Bridge, International Law and Military Activities in Outer Space, Akron Law Review vol 13:4, 651-65220 F.Lyall, P.B. Larsen, Space Law: A Treatise, Ashgate 2000, 165.

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In the end, the Karman proposal represents the most

appropriate criterium to define the boundary between outer

space and airspace because it establishes an accurate

demarcation point and it fits the problem at hand. Therefore,

any further mention of the spatial approach will refer to the

Karman proposal.

-Spatial approach and sub-orbital flights.

However, the spatial approach does not provide an adequate

solution on the problematic of suborbital flights. It does not

cover the dual use of hybrid planes, able to operate both in

airspace and in outer space. Therefore, a more accurate

delimitation of outer space boundaries would be achieved by

combining elements of the spatial approach with the functional

approach. If the Karman line is used as a general limit of

space boundaries whereas in cases of suborbital flights, it

should be examined under the given circumstances and in

accordance with the functional approach, whether a flight is

conducted through airspace or outer space.

- The functional approach

The functional approach does not use any demarcation points

of the boundaries of airspace and outer space like the spatial

approach21. It rather distinguishes the activities of vehicles

by the nature of their mission. The immediate advantage of

this approach when compared to the previously studied spatial

21 F. G. von der Dunk, National Space Legislation in Europe: Issues of Authorisationof Private Space Activities in the Light of Developments in European SpaceCooperation, Martinus Nijhoff Publishers, 2011, 267-268.

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approach is that it solves the problem of vehicles that can

operate as both aircrafts and spacecrafts.

The activities of spacecrafts must in any case be considered

as “space activities”. Thus, even if a spacecraft launched

never reaches space, its activity is in any case regulated by

space law. However, it does not establish a general rule as to

what a “space activity” or “space flight” is. Thus, each

activity requires to be examined separately. This intensifies

the risk of reaching contradictory decisions on similar cases.

This is considered to be the main disadvantage of the

functional approach.

- The diplomatic approach

The diplomatic approach consists in defining airspace

activities as activities taking place in the area navigable by

aircrafts, and space activities as missions taking place in

the area satellites can be put into orbit in22. There are two

main issues with this approach. The first one derives from the

fact that the density of the atmosphere varies with time and

seasons, and thus the boundary as well. The second one is that

the diplomatic approach defines an in-between zone, which is

unregulated. The height which can be reached by vehicles that

depend on the reaction of the air to maintain flight is lower

than the lowest altitude an object can be placed into orbit at

without falling back to Earth. The transition area is called

22 Rosenfled, Where Airspace ends and Outer Space begins, 7 J. Space L. 137, 141(1979).

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the mesospace or mesosphere and cannot be submitted to either

space law or air law.

For the above mentioned reasons it can be concluded that the

particular approach does not establish a precise criterium for

the delimitation of outer space boundaries thus leaving

ambiguity on whether air or space law do apply.

-The legal regime of mesospace

Distinguished scholars argue that with the leaping progress

of technology the upper limit of the airspace does not

correspond to the lower limit of outer space. There is an

intermediate zone between these two, the mesospace23. Several

scholars have underlined that there is uncertainty on whether

air law or space law is applicable in the aforementioned zone,

thus proposing the establishment of a legal regime applicable

only in mesospace including a right of innocent passage for

spacecrafts24. The ILC proposes that the law applicable in

mesospace should be defined taking into consideration a

combination of the spatial approach with the functional one.

Firstly, the most adequate demarcation point of the

boundaries between airspace and outer space is the Von Karman

Line of 100km above the surface of the Earth25. According to

this delimitation, any activity under said limit is regulated

23 P.P.C. Haanappel, The Law and Policy of Airspace and Outer Space: A Comparativeapproach, 26-27. 24 P.P.C. Haanappel, Air Space, Outer Space and Mesospace in Proceedings of the 19th

Colloquim of the Law of Outer Space (1977) Rothman and Co, 160-163. 25 I.H.P.D. Vershoor, V.Kopal, An Introduction to Space Law, Kluwer Law International (2008) 17

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by the rules of air law, whereas any activity taking place

above said limit is subject to space law and the five UN Space

treaties26. However, the Von Karman Line as a general rule of

delimitation of space boundaries does not resolve the problem

of mesospace, the area that cannot be defined neither as

airspace nor as Outer space. Therefore, it remains rather

unclear on whether air law or space law is applicable to

activities conducted in this specific area, such as suborbital

flights. A sub-orbital flight is a flight up to a very high

altitude. However, the vehicle is not put into orbit27.

Recognising that, the functional approach could provide

an adequate solution to the problem of the legal regime of

mesospace. Under this approach, in order to define the law

applicable to activities taking place in mesospace, one should

take into consideration the nature of said activities.

However, since no adequate definition of the term “space

activity” exists, a more precise criterium to decide whether

an activity is regulated by air or space law is, to examine

whether said activity is conducted by an aircraft or a space

object.

26 The Outer Space Treaty, formally the Treaty on Principles Governing theActivities of States in the Exploration and Use of Outer Space, including the Moonand other Celestial Bodies, entered into force on 10 October 1967, 610 U.N.T.S. 205[hereinafter OST]; The Rescue Agreement, formally the Agreement on the Rescue ofAstronauts, the Return of Astronauts and the Return of Objects Launched into OuterSpace, entered into force on December 3, 1968, 672 UNTS 119, (Hereinafter ARRA);The Registration Convention, formally the Convention on the Registration of ObjectsLaunched into Outer Space, entered into force on 15 September 1976, 1023 U.N.T.S.15; The Liability Convention, formally the Convention on International Liabilityfor Damage Caused by Space Objects, entered into force on 1 September 1972, 961U.N.T.S. 187[hereinafter LIAB]; Agreement Governing the Activities of States onthe Moon and other Celestial Bodies, entered into force on 11 July 1984, 1363 UNTS3. 27 R. Abeyratne, Air Navigation Law( 2012), Springer, 231.

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On the one hand, if the object flying in mesospace falls

under the notion of aircraft, the 1944 Chicago Convention on

International Civil Aviation along with other rules of air law

apply. Annex 7 of the Chicago Convention defines aircraft as

“any machine that can derive support in the atmosphere from

the reactions of the air other than reactions of the air

against the Earth’s surface28.

On the other hand, if an activity is conducted by a space

object, the activity will be regulated by the 5 UN space

treaties and international customary space law. There is no

specific definition of space object in Outer Space Treaties,

however all scholars seem to rather agree that the definition

proposed by Prof. Kopal and later by Prof. Cheng is the most

accurate one. Professor Gorove stated that a space object is

“any object that human beings launch into outer space

including its component parts and fragments thereof”29.

A vivid example of the use of the aforementioned approach

in order to define whether suborbital flights are subject to

air law or space law is ‘’SpaceShipOne’’, which does not

operate as an aircraft when it is launched in mesospace and

therefore air law cannot apply. It should be considered as a

space object.30

Finally, the customary rule of innocent passage of space

objects through the airspace of States is also applicable in

the area of mesospace. The right of innocent passage firstly

28 Annex 7 is binding upon any State Party to the 1944 Chicago Convention under theprovisions of Article 37 of said legal instrument. 29 F.Lyall, P.B. Larsen, Space Law: A Treatise, Ashgate 2000, 81; Stephen Gorove,Toward a Clarification of The Term ″Space Object″- An International Legal and Policy Imperative?, Journal ofSpace Law, vol.21, n.1 (1993)30 R. Abeyratne, Air Navigation Law, Springer 2012, 231.

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appeared in customary maritime law and relied on the fact that

a vessel could navigate through the territorial Sea of a State

without the permission of the coastal State31. Later, this has

evolved as an instant customary rule of space law. There is no

need for the launching State of an object to ask the

permission of every State, through the national airspace of

which, the object is launched32. This rule of customary nature

is also applicable to mesospace.

Therefore, the conclusion is that the Von Karman line

should be adopted as a rule of delimitation of the boundaries

between air space and outer space. However, in cases where

there is ambiguity on the law applicable, the functional

approach could be used to define the applicability of air law

or space law, taking into consideration whether an activity is

conducted by an aircraft or a space object respectively.

THIRD CHAPTER: RESPONSIBILITY VS LIABILITY.

-Introductory comments.

The differentiation between the terms ‘responsibility’ and

‘liability’ is of special importance in respect of the wording

of the authentic Treaty languages (hereinafter Outer Space

Treaty33 and Liability Convention34) that use the same term for31 M.Shaw, International Law, Cambridge 6th edition 2008, 557-558. 32 B. Cheng, United Nations Resolutions On Outer Space: "Instant" InternationalCustomary Law?, 5 Indian J. Int'l l. 36, (1965). V.S. Vereshchetin, G. Danilenko,Custom as a Source of International Law of Outer Space, 1-35 at 25, 33 Treaty on Principles Governing the Activities of States in theExploration and Use of Outer Space, including the Moon and Other CelestialBodies, adopted by the General Assembly 19 December 1966(resolution2222(XXI), opened for signature 27 January 1967 in London, Moscow andWashington D.C. ,entered into force 10 October 1967, depositaries: RussianFederation, United Kingdom of Great Britain and Northern Ireland and UnitedStates of America (Hereinafter OST)34 Convention on International Liability for Damage Caused by Space Objects,adopted by the General Assembly 29 November 1971(resolution 2777 (XXVI),

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the two different concepts of ‘liability’ and

‘responsibility’. This is the case in the French legal system

(‘responsabilité’ in both articles) and Spanish

(‘responsabilidad’ in both articles) texts35, which are equally

authentic according to article XVII para. 1.

Possible methods of interpretation and application of

successive treaty provisions are contained in Articles 30

through 32 of the Vienna Convention on the Law of Treaties36,

whereas the principles relating to responsibility and

liability are contained in the corpus juris spatialis. While a number

of opinions were expressed as to the application of successive

treaties, the regime which found its expression in Article 30

of the VCLT can be summarized as follows:

1) If a later treaty says it is subject to, or not

incompatible with, another, earlier treaty, the other treaty

will prevail;

2) As between two parties of a treaty and a later,

inconsistent treaty, the earlier treaty will apply only to the

extent that it is not incompatible with the later treaty;

3) As between a party to both treaties and a party to only one

treaty, the treaty to which both are parties shall apply.

The mere fact that there was a difference between the

provisions of a later treaty and those of an earlier treaty

did not necessarily mean that there existed an incompatibility

between them. The meaning of the ‘earlier’ and ‘later’ treatyopened for signature 29 March 1972 in London, Moscow and Washington D.C. ,entered into force 1 Sept. 1972, depositaries: Russian Federation, UnitedKingdom of Great Britain and Northern Ireland and United States of America(Hereinafter LIAB)35 Cocosl, Cologne Commentary on Space Law, Volume 1, 2009, p. 103-12336 Vienna Convention on the Law of Treaties, opened for signature on 23 May1969, entered into force on 27 January 1980, 1155 U.N.T.S 33.

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is to be determined by the date of adoption of the text and

not by the date of its entry into force37. Furthermore,

Articles 31 and 32 VCLT provide the set of rules for the

interpretation of the treaty.

More specifically, Article 31 VCLT sets out the rule of

interpretation of the treaty itself. It is based on what is

presumed to be the authentic expression of the intentions of

the parties and that, in consequence, is the starting point of

interpretation. In particular, the base is the elucidation of

the meaning of the text, not an investigation ab initio into the

intentions of the parties38. Article 32 defines the

relationship between the treaty and supplementary means of

interpretation, including the travaux préparatoires.

Therefore two reasons39 concerning the means of

interpretation can be identified in article 32. First, whereas

the elements in article 31 ‘all relate to the agreement

between the parties at the time when or after it received

authentic expression in the text, the travaux préparatoires does

not. Second, in many instances the travaux themselves are

“incomplete or misleading”.

-Space law as a part of general international law.

Having identified the various possible ways in which

sequences of treaties can create conflict or divergence inter se,

and having outlined the means of application and

interpretation of treaties, we now turn to a particular

37 Ian Brownlie, Principles of Public International Law, 1979, ThirdEdition, Oxford: Clarendon Press, 111-11238 Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law ofTreaties, Martinus Nijhoff Publishers, 2009, 415-44939 Tim Hillier, Sourcebook on Public International Law, 1998, 141-144

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sequence of treaties: the corpus juris spatialis. As the name

suggests, the corpus, while comprised of five individual

treaties, is generally regarded as a single body of law. The

relationship between treaties is one between a primary treaty

of comprehensive general treatment (the Outer Space Treaty)

and those providing more specific treatment of a general issue

(each of the subsequent treaties, including the Liability

Convention).While each specific treaty relates back to an

issue generally covered under the Outer Space Treaty, the

content between the more specific treaties often overlaps as

well40.

As discussed above, the application of successive

treaties is a fairly mechanical task. In the case of the Outer

Space Treaty and Liability Convention succession is determined

by Article XXIII para.1 LIAB, which provides that ‘the

provisions of this Convention shall not affect other

international agreements in force insofar as relations between

the States Parties to such agreements are concerned’. Thus, in

case of conflict, the provisions of the Outer Space Treaty

should prevail41.

-Responsibility & Liability as related to environmental

activities.

The protection of the environment consists of two

perspectives: restoration of the existing damage and

prevention of future one. States are expected to restore the

violation caused by a space object under their supervision,40 Malcolm N. Shaw, International Law, 2008, Sixth Edition, CambridgeUniversity Press, 93-9841 Draft Articles on the Law of Treaties with Commentary, 1966, available atthe UN documentation collection.

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due to the responsibility declared in Art.9 OST. Co-operation

among states is proposed according to the aforementioned

neighboring principle. However, regarding second perspective

of the environmental protection, states cannot be obliged to

co-operate. Such a promotion of co-operation is however highly

encouraged, therefore guidelines can be proposed and expected

to be implemented on a voluntary basis.

In the case of Advisory Opinion on responsibilities and obligation of

States sponsoring and entities with respect to activities in the Area, the Judges

of ITLOS recognized that the precautionary approach has been

incorporated into a growing number of international and other

instruments, many of which reflect the formulation of

Principle 15 of the Rio Declaration. This has initiated a

trend towards making this approach part of customary

international law. The Chamber also remarked that this

approach ‘is also an integral part of the general obligation

of due diligence, applicable even outside the scope of the mining

regulations adopted by the International Seabed Authority’.

An important aspect which needs to be taken under

consideration when discussing over space activities is the

environmental one. State responsibility in cases of harmful

consequences on the environment is declared in Art.9 OST. In

the respective article the ratio is to avoid harmful

contamination and changes in the environment of the Earth.

Art.6 OST declares State responsibility in case of breach of

an international obligation, however in the specific case of

environmental problems; applicable is Art.9 as lex specialis. As

it has already been mentioned, liability of the launching

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State occurs when this breach of international obligation

results in damage.

-Possible problems created.

The harm of environment is a serious consequence of space

activities, causing numerous problems. The States are

responsible for these problems, such as the creation of space

debris, radioactive ways or contamination of the Earth.

According to the Principle 21 of the Stockholm Declaration of

1972, states have a responsibility to ensure that activities

within their control do not cause damage to the environment of

areas beyond the limits of national jurisdiction. ILC has in

the past been in favor of considering damage to the

environment beyond national jurisdiction.

As outer space is declared as a res communis (Art.1 OST),

each State shall be responsible for its own objects. This

thought can be established upon the notion provided by a

subsidiary source of public international law, immediately

applied to environmental activities, the principle of good

neighborhood. This means that damage caused by a space object,

under the authorization of a particular State, is not to be

considered as damage limited to the territory of the

respective State, but in a broader area, probably affecting

the neighboring states as well. Therefore, this principle

encourages States to co-operate on a bilateral or a

multilateral basis for a joint protection of the environment.

An example to clarify the distinction between the

responsibility and liability is the question of space debris.42

42

21

A State bears responsibility from the moment of creation of

the space debris produced by a space operation it supervises,

whereas from the moment that space debris will cause damage,

the respective State is liable.

In the Advisory Opinion on responsibilities and

obligation of States sponsoring and entities with respect to

activities in the Area, the Judges of ITLOS recognized that

the precautionary approach has been incorporated into a

growing number of international and other instruments, many of

which reflect the formulation of Principle 15 of the Rio

Declaration.43 This has initiated a trend towards making this

approach part of customary international law. The Chamber also

remarked that this approach ‘is also an integral part of the general

obligation of due diligence, applicable even outside the scope of the mining

regulations adopted by the International Seabed Authority’.

The protection of the environment consists of two

perspectives: restoration of the existing damage and

prevention of future one. States are expected to restore the

violation caused by a space object under their supervision,

due to the responsibility declared in Art.9 OST. Co-operation

among states is proposed according to the aforementioned

principle. However, regarding second perspective of the

environmental protection, states cannot be obliged to co-

operate. Such a promotion of co-operation is however highly

encouraged, therefore guidelines can be proposed and expected

to be implemented on a voluntary basis.

43 Rio Declaration on the protection of environment, June 1992, accessible at the UN documentation collection.

22

FOURTH CHAPTER: Militarization vs Weaponization.

In general, weaponization of space concerns the placement

in orbit of space-based devices of destructive capacity. It is

esteemed to be a very specific notion as far as the use of

weapons is perceived in extra-atmosphere’s space. There are

currently, certain weapon treaties which have direct

application to military activities in outer space and

chronologically are as follows: Nuclear Test Ban Treaty44,Anti-

Ballistic Missile Treaty (hereinafter ABM Treaty45), and

Interim Strategic Arms Limitation Talks (hereinafter Interim

SALT)46 .

-Militarization; weaponization: definitions.

Militarization on the other hand, is a more general notion

concerning military activities. It lies on the fact that space

has been militarized since the very beginning of space

launches namely Sputnik I launched by the Soviets in 195747.

Most of satellites and other man-made objects into space are

handled by military personnel. Weaponization of space could

end up in a general warfare between Earth and Space. Thus, the

OST –known as the constitution of space law- clearly prohibits (under

the provisions of the article IV) the placement into orbit44 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space,and Under Water, Aug. 5, 1963, 14 U.S.T. 1313, T.I.A.S. No. 5433, 480U.N.T.S. 43 (effective Oct. 10, 1963).45 Treaty With the Union of Soviet Socialist Republics on the Limitation ofAnti-Ballistic Missile Systems, May 26, 1972, 23 U.S.T. 3435, T.I.A.S. No.7503 (effective Oct. 3, 1972).46 Interim Agreement With the Union of Soviet Socialist Republics onCertain Measures with Respect to the Limitation of Strategic Offensive Armswith Protocol, May 26, 1972. 23 U.S.T. 3462, T.I.A.S. No. 7504 (effectiveOct. 3, 1972). Note: By its terms the Interim Agreement expired in October1977. Both parties, however, made unilateral declarations of their intentto continue to be bound by the Interim Agreement pending conclusion of SALTII negotiations.47 Provost, Law of Outer Space - Summarized, 19 CLEV. STATE L. REV. 595, 599(1970)

23

around the Earth “any objects carrying nuclear weapons or any other kinds of

weapons of mass destruction”.

-Peaceful approaches, non-aggressive, non-military

approach.

On the other hand, peaceful purposes are being promoted in

outer space. Such peaceful purposes are the exploration and

use of outer space for the sake of all countries as it is

referred at the Article I of the OST (irrespective of whether

they are developed, developing or least-developed). It is

argued that the term “peaceful purposes” (mentioned in Art.

4§2 of the OST) should be subject to the non-aggressive approach

and not the non-military approach. The militarization of space is

the placement and development of military technology in outer

space48, whereas the weaponization49 consists on the placement

in orbit of space-based devices that have a destructive

capacity. Both incidents in outer space are connected with the

terms of responsibility and liability in outer space.

Article VI of the Outer Space Treaty50 establishes an

international responsibility for national activities

(sentences 1 and 2) and activities of international

organizations (sentence 3).

-The notions of Responsibility & Liability:

48 Galloway, International Institutions to ensure peaceful uses of OuterSpace, (1984), 303-323.49 Gopalakrishnan & Bhaskaranarayana,Peace in Space: A pragmatic approach, IndianSpace Research Organization, (2009), 7-1250 Treaty on Principles Governing the Activities of States in theExploration and Use of Outer Space, including the Moon and Other CelestialBodies, adopted by the General Assembly 19 December 1966(resolution2222(XXI), opened for signature 27 January 1967 in London, Moscow andWashington D.C. ,entered into force 10 October 1967, depositaries: RussianFederation, United Kingdom of Great Britain and Northern Ireland and UnitedStates of America (Hereinafter OST)

24

Responsibility shall be borne especially for assuring that

such activities that are carried out in conformity with the

other provisions set forth in the Outer Space Treaty, in

particular with the principles enshrined in Articles II-XII.

Therefore, Article VI OST limits the freedom of exploration

and use of outer space, as established by article I paragraph

2.

International state responsibility in space law arises in

case of activities being in violation of primary legal

obligations51. The second criterion necessary for state

responsibility is also included in the aforementioned article:

the question of accountability. States are directly

responsible for non-state activities, instead of merely due

care, as no difference is made in respect of the kind of

responsibility to be applicable in the case of ‘governmental

agencies’ on the one, respectively ‘non-governmental entities’

on the other hand.

Responsibility can arise for the appropriate state to the

extent that those activities that fall under its jurisdiction,

for which authorization and continuing supervision as provided

for by Article VI OST are a sort of minimum requirements. The

third element of analysis is the consequences of State

responsibility. A lacuna exists in Article VI concerning this

issue; therefore general international law gives the

explanation. In particular, there is the doctrine of

reparation: whenever the violation of space law invokes the

responsibility of a State, this responsibility can only be

taken care of by restitutio in integrum, compensation and/or satisfaction.51 Lyall Larsen, Space Law: A treatise, (2009), 499-532.

25

Actually, the right form of reparation depends on the content

of the primary rule violated and the extent of the violation52.

On the contrary, as to the necessary criteria for space

liability, damage is the only, nor breach of an international

obligation (objective fault), nor subjective fault in the

sense of intent or negligence are necessary to invoke

liability - in respect of damage on the earth or to an

aircraft53. States are internationally liable for damage to

other States, their property or persons, as far as caused by

the former States' space objects. Article III of the Liability

Convention54 says that liability exists ‘only if the damage is

due to the fault of a State or the fault of persons for whom

it is responsible’. However, in case of ‘shared’ fault, for

instance in accidents in outer space, the liability exists to

the extent of the share. Liability under Article III becomes a

measure of quantity instead of a qualitative principle55.

Likewise, the absolute liability of Article II of the

Liability Convention can be exonerated and changed into

liability based on fault when it can be established under

Article VI para. 1 LIAB that ‘the damage has resulted either

wholly or partially from gross negligence or from an act or

omission done with the intent to cause damage on the part of a

52 Chia-Jui Cheng, The Use of Air and Outer Space Cooperation, (1998), 160-161.53 Frans von der Dunk, Liability Versus Responsibility in Space Law:Misconception or Misconstruction? , 1991, University of Nebraska-Lincoln,page 364.54 Convention on International Liability for Damage Caused by Space Objects,adopted by the General Assembly 29 November 1971(resolution 2777 (XXVI),opened for signature 29 March 1972 in London, Moscow and Washington D.C. ,entered into force 1 Sept. 1972, depositaries: Russian Federation, UnitedKingdom of Great Britain and Northern Ireland and United States of America(Hereinafter LIAB) 55 Ph. Diedericks-Verschoor, V. Kopal, An introduction to space law, (2008), 32-40,S. Gorove, Studies in Space Law: its Challenges and Prospects, (1977).

26

claimant state or of natural or juridical persons it

represents’. As a consequence, the State found liable for the

damage will have to pay for it, ‘in accordance with

international law and the principles of justice and equity, in

order to provide such reparation in respect of the damage as

will restore the person, State or international organization

to the condition which would have existed if the damage had

not occurred’. This formula presupposes full compensation for

the damage. The term ‘due care’ seems to be not really

appropriate.

The origin of international liability derives from Roman

law56, as evidenced by the Latin maxim: sic utere tuo ut alienum non

laedas, which means ‘use your property in such a way as not to

harm others’. This concept of liability is based on

restrictive enjoyment of one's own property, or limited and

regulated use of proprietary rights subject to the prevention

of harm to one's neighbors. The theory of international

liability finds expression in State practice, as exemplified

in the Trail Smelter Case57, the Lake Lanoux Arbitration58, the Corfu Channel

Case59 and the Settlement of Gut Dam Claims60. In those cases, the

primary rule, which provides that a State must refrain from

harming its neighbors, received further application with far

wider implications. A State must not only refrain from harming

56 Christol internatiοnal liability for damage caused by space objects(1980) 74 AM.J.INT’L.L, p.359.57 Trail Smelter Case (United States v. Canada), (1938 and 1941), VolumeIII, pp. 1905-1982.58 Lake Lanoux Arbitration (France v. Spain), (1957), 12 R.I.A.A. 281, 24I.L.R. 101, Arbitral Tribunal.59 Corfu Channel Case (United Kindgom of Great Britain and Northern Irelandv. Albania), (1949).60 Settlement of Gut Dam Claims (Canada v. United States of America),(1968), Lake Ontario Claims Tribunal.

27

or hurting neighboring States, but also prevent harm in the

territories of neighboring States. The ILC also reviewed a

study prepared by the Secretariat that surveyed State practice

relevant to international liability for injurious consequences

arising out of acts not prohibited by international law61.

Summarizing, responsibility of States for national

activities must be strictly differentiated from the liability

of States for damages caused by a space object according to

article VII: Responsibility is borne for activities, whereas

liability is given for damages caused by space objects.

Responsibility is attributed to the appropriate State, whereas

liability is attributed to the State(s) involved in the

launching of a space object.

Space law is applicable to outer space and the

relationship between general public international law and

space law is considered to be as a lex specialis. Outer space

treaties, Declaration on the principles governing the outer

space62 and the Charter of the United Nations63 promote the

peaceful purposes of the use of outer space for scientific

research and also prohibit any use of force or threat of use

of force, as it is a res communis.

FIFTH CHAPTER: OUTERSPACE WARFARE.

Concerning the non-aggressive, once again by employing

linguistics it is realized that the absence of the tendency

61 J. Pfeifer, “International Liability for Damage Caused by Space Objects”,German Journal Of Air and Space Law, vol.30, issue 3, 1981, pp.215-25762 Treaty on Principles Governing the Activities of States in theExploration and Use of Outer Space, Including the Moon and Other CelestialBodies,Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N. TS. 20563 Charter of the United Nations, 24 October 1945, 1 UNTS XVI

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toward the participation in aggression and comparative

readiness, is meant. This term includes the possibility to

apply military activities in outer space lawfully as long as

those activities do not aim at direct attack in the UN’s

definition of aggression. Therefore, from a political locus

standi permits among other things almost all present

activities in outer space with the respective results. This is

because all military activities in outer space are permissible

unless specifically prohibited by treaty or customary

international law.

The most efficient approach to adopt is the non-

aggressive and not the non-military as it is concluded by

state practice. Peaceful purpose is nothing more than the

disposed to peace and not contentious or quarrelsome which

will be marked by freedom from strife or disorder, completely

untroubled by conflict, agitation or commotion of or relating

to a state or time of peace and of course devoid of violence

or force. In political terms, we are talking about ‘non-

military’ and ‘non aggressive use’64.

Modern technology can provide us and will continue to

provide us with many types of warfare considering the fast

paces of technological development. In any case we find that a

space warfare is indeed feasible but it is prohibited by the

Art.2§ 4 of the Charter of the United Nations and the Art. IV

of the Outer Space Treaty.

-Types and examples of warfare.

64 http://legal.un.org./avl/ha/da/da.html

29

It would be really useful to enumerate types and examples of

warfare in space. However, the list is not exhaustive because

another type of warfare may appear in the near future.

Therefore, we should mention the following types of space

warfare. First of all, the primary distinction that should be

made is the place of conduct, namely space-to-space warfare,

ground-to-space warfare and space-to-ground warfare.

Space-to-space warfare can be conducted for instance in

cases of attacks among satellites or kinetic weapons

to satellites (either among them or against

satellites).

Ground-to-space warfare has to do mainly with inter-

continental ballistic missiles or also anti-

satellite missiles against a target.

Space-to-ground warfare can include cases of laser

beams from space stations to targets on earth. As far as

cyber-attack is concerned, there is no definition widely

accepted. However, both NATO (in Tallin Manual65) concerning

the international codification of this notion and Yale

University66 (which represents the private codification of

international law) have proposed definitions for cyber -

attack: “Cyber- attack is a cyber -operation, whether offensive or defensive,

which is reasonably accepted to cause injury of death to persons or damage or

destruction to objects.” According to Yale jurists, “Cyber- attack is an

attack on or through “cyber space”. It is another word for Information

65 Tallin Manual on the International Law Applicable to cyber warfare, NATO,published by Cambridge University Press in 2013.66 The law of cyber-attack, Oona A. Hathaway, Rebecca Crootof, Philip Levitz, Haley Nix, Aileen Nowlan, William Perdue, Julia Spiegel Available at :http://www.law.yale.edu/documents/pdf/cglc/LawOfCyberAttack.pdf

30

Warfare or Information Operations. Information Operations are

defined as those actions which aim to affect an adversary’s

information and information systems, while defending one’s own

information and information systems. It also includes actions

in a non-combatant situation which are taken to protect one’s

own information or influence target information”.

-Legal Aspects of Cyber-Attack.

First of all, when a cyber-attack occurs both its purpose .It

is undeniable –even if from the term “attack”- that the

purpose of the attack is an aggressive one.

Concerning the results of a cyber-attack and its escalation,

it should be considered as an armed conflict, which could even

have a devastating impact on a whole nation, as happened in

Estonia in 2007. This is because of the fact that to spot a

cyber- attacker who attempts to send a virus to millions of

computers from all the normal cross-border data flows in

combination with telecommunications satellites would be like

picking out a single person with more luggage than usual from

the thousands of passengers that pass through an airport

daily! It could be argued that the effects of such an assault

are potentially just as disastrous as a conventional attack.

Since article 2 (4) of the UN Charter is already at our

disposal, the next step is the Article 51 of the Charter to be

invoked, as far as the inherent right to self-defense of States

is concerned.

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For this purpose, the “Definition of Aggression”, which

was adopted by the GA through Resolution 331467, is of great

significance. Nevertheless, the “Definition of Aggression”

itself cannot illustrate the circumstances under which the

right to self-defense can be exercised. On the contrary, in

order for a cyber-attack to fall within the meaning of “armed

attack” in Article 51, it needs “to be commensurate with the use of

weapons by a State, not to be justified as either self-defense or collective security and

not to be de minimus in scope or effect”68. Therefore, by analogy to some

kinds of weapons, cyber-attack is often referred to as a

“weapon” in the field of Information Warfare. Besides,

irrespective of whether a satellite is attacked by an ASAT

weapon or a computer virus, the effect – the crippling of the

satellite- is the same. As a result, cyber-attack could be

indeed considered as an armed attack.

Nevertheless, it is often argued that cyber-attack does

not constitute an armed attack. In particular, a great many

publicists are of the opinion that neither the type of the

attack nor the effects are the same on every occasion. For

instance, a cyber-attack against a national banking system

would undoubtedly result in many problems especially the

clients’ service, but under no circumstances would it have a

direct effect on the civil population, so as to invoke norms

by international humanitarian law.

67 http://legal.un.org/avl/ha/da/da.html68

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All things considered, if the effects are not widely

escalated, a cyber-attack should not considered to be an

armed-attack. However, when a cyber-attack has a profound

effect on the civil population which happens in most of the

cases, it is indeed an armed-attack. The cyber-attack in

Estonia is a case in point. Another episode involved cyber -

attack is the so called “Titan Rain” series of cyber -attacks

on several US computer systems ongoing since 200369.

-Espionage.

In terms of espionage, it could not be any solid definition as

this field is vastly developing. But in general, espionage or,

casually, spying involves a “spy ring”, government and

company/firm or individual obtaining information

considered secret or confidential without the permission of

the holder of the information. Espionage is

inherently clandestine, as it is taken for granted that it is

unwelcome and in many cases illegal and punishable by law. It

is a subset of "intelligence gathering", which otherwise may be69 Cyber Attacks, Self-Defense and the Problem of Attribution,Nicholas Tsagourias, University of Sheffield. Faculty of Law, July24, 2012, Journal of Conflict & Security Law (2012), Vol. 17 No. 2,229–244 Available by : http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2538271

33

conducted from public sources and using perfectly legal and

ethical means. It is crucial to distinguish espionage from

"intelligence" gathering, as the latter does not necessarily

involve espionage, but often collates open-source

information.70

The Hague Convention of 1907 addresses the status of

wartime spies, specifically within "Laws and Customs of War on Land"

(Hague IV); October 18, 1907: CHAPTER II Spies”. Article 29 states that a

person is considered a spy who, acts clandestinely or on false

pretenses, infiltrates enemy lines with the intention of

acquiring intelligence about the enemy and communicate it to

the belligerent during times of war. Interception of data

could also happen in cyber space by using telecommunications

satellites. The method of interception is about the same

regarding the aforementioned espionage.

-Dual Use Weapons.

In terms of the dual use of weapons, there are some which can

be converted from peaceful to aggressive ones, such as

telecommunications satellites or satellites for scientific

purposes to weapons. In that case, the state of registry

should be considered responsible on the grounds of state

responsibility and liability. For this purpose, the Convention

on Registration of Objects Launched into Outer Space71 and

especially the Articles II and III should be invoked.

70 Harvard Journal on International Security, http://belfercenter.ksg.harvard.edu/project/58/quarterly_journal.html71 Convention on Registration of Objects Launched into Outer Space, 1974, 18U.S.T. 2410,610 U.N. TS. 205, Art II,III

34

In the light of the foregoing, in the event of armed

conflicts attention should be drawn to the losses that occur.

In that case attention should be drawn to the applicable law,

namely both International Humanitarian Law (hereinafter IHL)

and International Human Rights Law (hereinafter IHRL).IHRL

applies during armed conflicts, as the ICJ decided in the

Nuclear Weapons Advisory Opinion,72 whereas the IHL, as lex

specialis, determines any arbitrary deprivation of the right to

life. IHL, on the other hand, applies to both international

and certain domestic armed conflicts.

-Measures for the prevention of space warfare

In order for this thorny problem to be tackled, some

general measures for the prevention of space warfare can be

proposed. Over the past few years, scientists have proposed

many measures both from a technological and legal viewpoint.

Nevertheless, it is often argued that those measures should be

implemented in conjunction with general public international

law and international space law. Deterrence could be

analogically applicable to space law. In particular,

deterrence is the strategy intended to dissuade an adversary

from taking an action not yet started or to prevent them from

doing something that another state desires73. The concept of72 International Court of Justice, Advisory Opinion regarding the legality of the threat or use of nuclear weapons, 8th July 1996 Available by : http://www.icj-cij.org/docket/index.php?sum=498&code=unan&p1=3&p2=4&case=95&k=e1&p3=573 https://books.google.gr/books?id=HS8sBQAAQBAJ&pg=PT65&lpg=PT65&dq=deterrence+is+the+strategy+intended+to+

35

deterrence is based on three principles deriving from public

international law: proportionality, reciprocity and coercive

credibility.

Also, article IV of the OST should be interpreted in

conjunction with article 2(4) of the charter of the UN.

Attention should be drawn to the non-weaponisation principle

which is being crystallized by the article in question.

Furthermore, the precautionary principle might as well be

applied to space law. According to the principle in question,

during military operations, constant care must be taken to

spare the civilian population, civilians and civilian objects.

All feasible precautions must be taken to avoid, and in any

event to minimize, incidental loss of civilian life, injury to

civilians and damage to civilian objects.74

Since the already existing treaties are non-mandatory for

many States, amendments may be proved to be useful. For

instance, there is the “Convention on Cybercrime”, also known asthe Budapest Convention on Cybercrime or the Budapest Convention75. It is

the first international treaty seeking to

dissuade+an+adversary+from+taking+an+action+not+yet+started+or+to+prevent+them+from+doing+something+that+another+state+desires&source=bl&ots=DbdofWD5Z5&sig=ijFappSimuYaMLqP-7Sp07FQfsM&hl=el&sa=X&ei=_mEzVeOnC6OC7gajyIGACQ&ved=0CCcQ6AEwAQ#v=onepage&q=deterrence%20is%20the%20strategy%20intended%20to%20dissuade%20an%20adversary%20from%20taking%20an%20action%20not%20yet%20started%20or%20to%20prevent%20them%20from%20doing%20something%20that%20another%20state%20desires&f=false 74 https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter5_rule15?OpenDocument&highlight=precautionary75 The Convention on Cybercrime, also known as the Budapest Convention on Cybercrime or the Budapest Convention, was drawn up by the Council of Europe in Strasbourg, France, with the active participation of the Council of Europe's observer states Canada and Japan. It was opened for signature in Budapest, on 23 November 2001 and it entered into force on 1 July 2004 Available by: http://conventions.coe.int/Treaty/en/Treaties/Html/185.htm

36

address Internet and cyber-crime by harmonizing

national legislative improving investigative techniques, and

increasing cooperation among nations. Via the possible amendments

on treaties such as the Budapest Convention the framework should be

stricter in order to combat cyber- crime during space warfare.

SIXTH CHAPTER :The Law of War in Outer Space

It is a fact that outer space has become another field of

military operations, following land, sea and air. The effects

of a possible space combat, even if it seems unlikely, could

be multi-dimensional. In this chapter we will examine the

effects which could be caused due to a war in space and the

legal framework that can be applied in order to regulate space

warfare.

It is evident that military activities occurring in outer

space is not an area outside the field of international law76.

To date, there have been five international treaties adopted

by States regarding space law. Many provisions of these

treaties regulate in a limited manner certain aspects of

militarization and space warfare in outer space.

More specifically, par. 1 of Article IV of the “Outer

Space Treaty”77 states that: “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.” 76 Space Warfare: Strategy, Principles and Policy, John J. Klein, Routledge, 2012, page 1177 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, signed 27 January 1967, entered into force 10 October 1967

37

In addition, par. 2 prohibits the establishment of

military bases and the testing of any types of weapons on the

Moon and other celestial bodies, stating that they “shall be used

[...] exclusively for peaceful purposes”. At the same time, the treaty

does not prohibit the use of military personnel for scientific

research or for any other peaceful purpose. The context of

“peaceful purposes” has been the subject of extensive

discussion regarding its meaning78 in the theory of

international space law.

The “Moon Agreement”79 of 1979 also contains provisions

related to military activities. However, it is of concern that

as of 2015 it has been ratified only by 16 States, meaning

that it does not have a significant effect in the activities

of States in outer space. In par. 2 of Article III it

prohibits any threat or use of force or any other hostile act

or threat of hostile act on the moon or the use the moon “in

order to commit any such act or to engage in any such threat in relation to the

earth, the moon, spacecraft, the personnel of spacecraft or man- made space

objects”.

-Jus ad bellum

Engaging in war is not permitted under international law,

except in cases where certain criteria are fulfilled. These

criteria, which have to be consulted before entering war, are

78 International Law and Military Operations in Space, Michael N. Schmitt, page 10179 The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, signed on 18th December 1979, entered into force 11th July 1984

38

derived from Articles 2(4) and 51 of the Chapter of the United

Nations. Article 2 prohibits the threat or the use of force

against the “territorial integrity or political independence”

of another State, whereas Article 51 allows the initiation the

use of such force in the case of self-defense against an

“armed attack”. Article III of the ‘Outer Space Treaty’

clearly states that: ‘’States Parties to the Treaty shall carry on activities in

the exploration and use of outer space […] in accordance with international law,

including the Charter of the United Nations.[…]’’. The most crucial

articles, regarding military activities in outer space and

celestial bodies, are the aforementioned Articles 2(4) and 51

of the UN Charter. There is no doubt that these Articles are

applicable to the military activities in outer space80.

-Law of Armed Conflict

The principles of international humanitarian law, as an

integral part of international law, are applied in the case of

military use of outer space. As it is usually stated, space is

now the fourth operational arena for military forces,

alongside land, sea and air. After all, Space warfare is a

topic that has been heavily discussed by scholars since the

earliest days of the space age81. It is a reality that the way

States operate in outer space bears great resemblance to their

activities on Earth. However, is it possible to use the

principles or even the provisions that govern the Law of Armed

Conflict into Space Law?80 Akron Law Review, Volume 13, Issue 4, International Law and MilitaryActivities in Outer Space, Robert. L. Bridge, 1980, pages 659-66081 Space Warfare and Defense: A Historical Encyclopedia and Research Guide, Bert Chapman, 2008, page 356

39

The principles of international humanitarian law have put

a number of certain legal constraints in the conduct of armed

conflict. These regulations set minimum international

standards which States have to respect. The beginning was made

with the Hague Peace Conferences of 1899 and 1907, which

introduced many important Conventions related to the conduct

of warfare. These Conventions still remain in force today.

Moreover, greater progress in this field of international law

was made with the four Geneva Conventions of 194982, which were

strengthened by the 1977 Additional Protocols.

Combat in space is not regulated directly, as there are

no specific principles concerning space warfare, let alone

treaties. However, the aforementioned conventional and

customary principles can be a source which could be applied in

similar space activities. In this context, the so called

‘Martens Clause’83, proposed at the 1897 Hague Conference, is

of great importance. The clause states that: “Until a more complete

code of the laws of war has been issued, the high contracting parties deem it

expedient to declare that, in cases not included in the Regulations adopted by them,

the inhabitants and the belligerents remain under the protection and the rule of the

principles of the law of nations, as they result from the usages established among

civilized peoples, from the laws of humanity, and the dictates of the public

conscience”. This clause found its way into the preamble of the

82 The Geneva Conventions include four treaties, as well as three additional protocols, which establish the standards of the law of armed conflict. 83 This clause so named for the Russian delegate who articulated and proposed its inclusion, was inserted into the preamble of the 1899 Second Convention and the 1907 Fourth Convention.53

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Second 1899 Convention and many other war related conventions

afterwards. Due to the dynamic nature of the clause, it can

operate as a way to set limits in space combat.

A number of principles have also been established

regarding the conduct of warfare, complementing the above

treaties84. These are the principle of military necessity, the

principle of proportionality and the principle of distinction.

Military necessity implies that an attack is lawful when there

is a connection between the attack and the suppression of the

enemy’s military capability. Distinction means that those

engaged in an armed conflict must distinguish between

combatants and non-combatants/civilians and not make

deliberate attacks against the latter. Proportionality means

that the extent of military force used and any damage

inflicted upon civilians and civilian property must not be

disproportionate to the expected military advantage.

It is a fact that establishing legal principles is a hard

task when there is little or even absence of State practice.

To date, there has been no reported incident of actual combat

in space. That was the case with warfare in airspace as well,

since in early 1900s it was of question what would be the

future of air warfare. Taking this under consideration,

setting legal limitations to space warfare should be done in a

tentative manner.

It is a general proposition of international law that the

international responsibilities of each State are not

84 The final frontier: The laws of armed conflict and space warfare: J.Maogoto and S. Freeland, pages 15-18

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implemented only in specific geographical areas, except in

cases where this is clearly stated. As a result, this means

that the law of armed conflict can be applied to space warfare

as well. However, in order to make such an application, strong

legal argumentation is required. There has to be a basis

through which this application is made.

The absence of a system of prohibitions based on a

treaty, in regards to space warfare is evident. However, as

mentioned, Article III of the OST provides such a basis85. This

article applies restrictions of general international law to

activities conducted in outer space. This includes of course

the jus in bello. Moreover, the use of the doctrine expressed

in the Marten’s clause can be used to regulate means of space

warfare not yet known or established.

In that context, taking into account the current absence

of actual space warfare examples and the lack of a coherent

regulatory framework, the ILC believes that the three

customary principles of “jus in bello” can be applied into

space warfare, should space combat ever occur86. What this

means in real terms is that a State invoking Article 51 of UN

Charter in order to defend itself from an armed attack, can

conduct armed attacks in outer space legally only if these

attack respect the three principles. For example, if an attack

targets civilian satellites with no strategic importance, this

attack would not be considered necessary in a military sense,

while also acting contrary to the principle of distinction. In85 Targeting in Outer Space: Legal Aspects of operational military actions in space, P.J. Blount, Harvard Law School National Security Journal, 201286 http://www.space4peace.org/slaw/lawofwar.htm#threeb

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addition, should an attack create an unmanageable amount of

space debris, that attack would be deemed unlawful as

disproportionate.

To conclude, due to the unique nature of space, the

existing principles of the law of armed conflict and

regulations of the existing treaties cannot be considered as

sufficient. Instead, more specific regulation is required in

order to form a framework that would prevent outer space from

becoming yet another field of military and war operations.

However, until this regulatory framework is created, outer

space cannot be a military arena with no restrictions.

Consequently, Article III serves to this day the legal basis

in which space warfare can be regulated.

SEVENTH CHAPTER:SPACE DEBRIS

Currently, about 22,000 large pieces of space debris

circling the globe, are posing a serious threat to functioning

satellites and spacecrafts and occasionally jeopardizing the

lives of the astronaut inhabitants of the International Space

Station. Space debris is defined as all man-made objects,

including elements and fragments in Earth orbit or re-entering

the atmosphere, that are non-functional. Unfortunately, no

State has a concrete plan for cleaning the already existing

space debris and preventing the upcoming. If effective

measures are not taken immediately, the international

community will face severe consequences, such as the

limitation of the outer space use.

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On 22 December 2007, the UN General Assembly, by resolution

Res. 62/21787, approved the seven voluntary guidelines of the

Committee on the Peaceful Uses of Outer Space (COPUOS)88

regarding the mitigation of space debris. These seven

guidelines are applicable to mission planning and operation of

spacecrafts and orbital stages. In order to delimit space

debris, the enforcement of the COPUOS guidelines seems

necessary. They should be taken into account for all the

phases of spacecraft and launch vehicle orbital stage, due to

the fact that there are many problems that can arise. For

example, there are dual-use objects even a vehicle used in

sub-orbital flights that can collide both during the launching

and the return and consequently create huge amounts of space

debris.

Specifically, the first guideline suggests the limitation

of the debris during normal operations. Space systems should

be designed so as to avoid releasing debris. Minimization of

the potential for break-ups89 during operational phases is a

crucial issue mentioned in the second guideline. A spacecraft

or orbital stage should be periodically monitored to detect

malfunctions that could lead to a break-up or loss of control

function and since a malfunction is detected recovery measures

are necessary. Guideline number three aims to limit the

87http://www.unoosa.org/pdf/gares/ARES_62_217E.pdf 88 COPUOS is the primary international forum for the development of laws andprinciples governing activities in outer space. 89 A break-up is any event that generates fragments, which are released into Earth orbit, such as an explosion caused by the chemical or thermal energy from propellants, pyrotechnics etc.

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probability of accidental collision in orbit, which should be

estimated and delimited during the system’s launch phase and

orbital lifetime. Mission controllers should screen the

predicted post-launch orbit for potential collisions in order

to avoid as much damage as it is possible. Certainly,

according to Art. VI of the Outer Space Treaty90 a State is

always responsible for the monitoring of its outer space

activities. Furthermore, the adjustment of launch time since a

large object approaches should also be considered for the

avoidance of a possible collision. For example, if a vehicle,

which is an object of dual-use, crashes while descending, then

a difficulty related to its legal status occurs.

Apart from the aforementioned guidelines, the avoidance

of intentional destruction, even self-destruction, and other

harmful activities is essential and predicted in fourth

guideline.Even if intentional break-ups are conducted, they

should be at sufficiently low altitudes so that orbital

fragments are short lived. The fifth guideline aims to

minimize potential for post-mission break-ups resulting from

stored energy. In order to limit accidental break-ups

resulting from stored energy, when on-board sources of stored

energy are no longer required for mission operations or post-

mission disposal, they should be depleted or made safe.

Residual propellants, batteries, high-pressure vessels, self-

destructive devices, flywheels and momentum wheels are basic

sources of stored energy. Additionally, the sixth guideline

proposes the limitation of the long-term presence of90op.cit,see footnote 1

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spacecraft and launch vehicle orbital stages in the low-Earth

orbit (LEO) region after the end of their mission. LEO region

is a spherical region that extends from the Earth’s surface up

to an altitude of 2,000 km .As long as guideline seven is

concerned, the limitation of the long-term interference of

spacecraft and launch vehicle orbital stages with the

geosynchronous Earth orbit (GEO) region after the end of their

mission is of great importance. GEO region is a segment of the

spherical shell defined by a lower altitude (geostationary

altitude minus 200 km), an upper altitude (geostationary

altitude plus 200 km), a latitude from -15 degrees to +15

degrees and a geostationary altitude ( 35,786 km).

-Legal status of COPUO’s Guidelines.

COPUOS guidelines are not legally binding under

international law; it is a matter of soft law. They could be

applied by international organizations, non-governmental

entities, individual States and States acting jointly. It is

evident that mitigating space debris is more a matter of

voluntary practice by the States rather than legal duty. At

this point it is extremely important to clarify the definition

of soft law. Soft law refers to rules that are neither

strictly binding in nature nor completely lacking legal

significance. French scholar Prosper91 Weil in his article of a

cornerstone content, “Towards Relative Normativity in

International Law”, believes that before the use of the

91http://heinonline.org/HOL/LandingPage?handle=hein.journals/ ajil77&div=36&id=&pag

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adjectives “soft and “hard”, we should first ensure that we

have a stricto sensu law and since we have a normative act it

is possible to discuss upon the softness or strictness of the

context.(International Investment law and soft law, Andrea K.

Bjorklund, August Reinisch)

Nevertheless, should the creation of space debris be

considered a “potentially harmful interference”, then Art. IX

of the Outer Space Treaty92 could be applicable. The context

of “potentially harmful interference”93 is of course subject

to interpretation. Regarding this context, harmful

interference is an interference which endangers the

functioning of a radionavigation service or of other services

or serious degrades, obstructs or repeatedly interrupts a

radiocommunication service operating in accordance with the

Radio Regulations. Unfortunately, State practice does not seem

eager to consider the creation of space debris, as a breach of

any international obligation under the OST. A framework could

be created towards that direction in order for a soft and in

continue customary law to be established.

It appears that the current legal framework concerning the

elimination of space debris is inadequate. An effective legal

framework would have to be twofold, in regards both to the

removal of existing space debris, as well to the prevention of

new ones. 92op.cit,see footnote 1 93http://www.itu.int/net/about/basic-texts/constitution/annex.aspx

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-Precautionary measures

As far as prevention is concerned, state practice has

shown some effective measures in order to combat the issue.

More specifically, the Swiss Space Center94 currently plans to

launch a janitor satellite into space to grab an aging

Satellite, pulling it to a fiery death in the Earth’s

atmosphere. Such an act would prevent the aging satellites

from transforming into space debris. Moreover, Guideline 3

provides, as it has already been mentioned, a precautionary

measure for the prevention of collision between satellites,

thus preventing the creation of debris. Other solutions

include satellite servicing and repair and satellite recycling

in orbit. This practice should be our compass in creating a

legal framework, where States are obliged to retrieve their

satellites, before transforming to space debris. In that

sense, the States would bear international responsibility for

the aforementioned act.

-Removal of the existing space debris

Nevertheless, taking into account the fact that the

existing amount of space debris poses a serious threat to

environmental stability, the cleaning of the current debris

should be regulated, too, even if it is not a cost-effective

investment. In that direction, initiatives such as the Inter-

Agency Space Debris Coordination95 should be enhanced. This

94http://space.epfl.ch/page-39439-en.html95http://www.iadc-online.org/

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intergovernmental agency, where and almost all National Space

Agencies participate, deals with the coordination of efforts

that deal with the addresses of debris in orbit around the

earth. The creation of a legal framework within Agencies of

such kind, can promote transparency and cooperation between

all States, leading to the expansion of appropriate and

affordable strategies for the mitigation of space debris.

Understanding the current environmental trends of sharing

information and coordination, there is a need to establish a

debris mitigation mechanism. Mitigation techniques can include

physical contact between debris and a spacecraft in the form

of “catcher” spacecrafts, equipped with catching devices, like

a net or a robotic arm, that will intercept or catch the

debris. In addition, although still in concept stage, the

Space Debris Elimination System by NASA96 provides an example

of the use of different technologies, such as Laser Broom,

Sail Away and catching devices. The Sail Away technique uses a

vehicle that flies around space and attaches solar sails to

pieces of debris. Solar sails capture the physical pressure of

sunlight and create extra drag that would slow the junk’s

motion, causing it to fall into the Earth’s atmosphere.

Additionally, electromagnetic deflection, a technique used by

the International Space Station, sends a beam of electrons to

deflect debris towards the Earth. Of course, having in mind

the absolute necessity in removing space debris, these

techniques should not be left just to the good will of States,

96http://www.nasa.gov/directorates/spacetech/niac/ gregory_space_debris_elimination.html

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but instead there should be an intergovernmental legal

framework guiding them.

-Conclusion.

In the spirit of international cooperation States and

international organizations should support a collaborative

space situational awareness. Maximizing the benefits of space

debris mitigation initiatives should be a key priority, due to

the increased need to address the existing problem.

International community should also prevent the cascading of

derelict collisions from increasing exponentially over the

next decades.

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