International Law and the Military Uses of Outer Space

AuthorSylvia Maureen Williams
Published date01 May 1989
Date01 May 1989
DOIhttp://doi.org/10.1177/004711788900900503
Subject MatterArticles
407
INTERNATIONAL
LAW
AND
THE
MILITARY
USES
OF
OUTER
SPACE*
Sylvia
Maureen
Williams
The
question
of
the
military
uses
of
outer
space
is
attracting
increasing
atten-
tion,
and
the
problems
it
gives
rise
to
are
becoming
ever
clearer.
There
is
now
a
clear
need
for
immediate
and
concerted
action
by
law-makers
and
politicians
to
ensure
that
the
military
uses
of
outer
space
are
regulated
within
the
framework
of
international
law.
The
principle
of
self-defence,
enshrined
in
article
51
of
the
UN
Charter,
but
which
would
still
be
valid
in
the
absence
of
such
a
written
rule,
is
at
the
core
of
the
question.
More
controversial
in
their
application,
but
just
as
relevant,
are
Article
IV
of
the
1967
Space
Treaty
and
article
III
of
the
1979
Moon
Agree-
ment.
Bearing
in
mind
the
importance
of
extending
the
force
of
the
1972
Antiballistic
Missile
(ABM)
Treaty,
a
clear,
unbiased
interpretation
of
these
provisions
is
essential
to
any
greater
understanding
of
the
difficulties
arising
out
of
the
increasing
use
of
outer
space
for
military
purposes.
All
these
sources
of
law
should
be
looked
at
in
the
light
of
present
state
practice
and
the
over-
whelming
development
of
sophisticated
space
technologies,
inter
alia
the
Stra-
tegic
Defence
Initiative
(SDI)
Programme
envisaged
by
the
United
States
and
the
possibilities
emerging
from
the
use
of
anti-satellite
weapons
(ASATs).
Self-defence
clearly
comes
under
article
38,1
of
the
International
Court
of
Justice
Statute,
either
as
customary
international
law
(b),
or
as
a
general
principle
of law
(c).
It
might
even
be
argued
that
it
is
a
peremptory
norm
of
international
law
from
which
states
cannot
depart
either
by
custom
or
treaty,
pursuant
to
Article
53
of
the
1969
Vienna
Convention
on
the
Law
of
Treaties.
As
to
the
above-mentioned
articles
contained
in
the
1967
Space
Treaty
and
the
1979
Moon
Agreement,
concerning
the
military
uses
of
those
areas,
these
can
be
seen
as
rules
of
progressive
development
of
the
law.
Both
these
Treaties
are
now
in
force
although
it
should
be
noted
that
the
latter
has
been
ratified
by
very
few
countries,
notably
excluding
the
United
States
and
the
Soviet
Union.
If
it
is
true,
as
the
American
expert
John
Cobb
Cooper
used
to
affirm
in
the
1950s,
that
treaties
are
valid
only
so
long
as
they
are
being
observed, -
or,
it
might
be
added,
so
far
as
they
being
complied
with
in
good
faith -
then
what
is
the
situation
following
President
Reagan’s
television
address
on
23
March
1983
which
has
been
called
the
’Star
Wars
Speech’?
This
gave
rise
to
a
very
important
debate
on
the
interpretation
of
the
1972
ABM
Treaty
and
Agreed
Statement
D
annexed
thereto.
In
his
speech
President
Reagan
outlined
a
plan
to
build
antiballistic
missile
systems
which,
under
the
1972
Treaty
subscribed
to
by
both
the
United
States
and
the
Soviet
Union,
are
systems
to
counter
strategic
ballistic
missiles
or
their
elements
in
flight
trajectory,
currently
consisting
of
ABM
intercepting
mis-
siles,
ABM
launchers
and
ABM
radars
(article
II,1).
This
move
by
the
United
*
Some
of
the
ideas
contained
in
this
article
were
discussed
by
the
present
writer
in
a
paper
entitled
Arms
Control,
Verification
and
the
Law,
submitted
to
the
Symposium
on
’Space
Surveillance
for
Arms
Control
and
Verification -
Options’,
organised
by
the
Institute
of
Air
and
Space
Law
of
McGill
University
on
21-23
October
1987.

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