Military use of the International Space Station and the concept of "peaceful purposes".
For the first twenty-five years of the "Space Age" (1957-1982), outer space activities were almost exclusively performed by governments, acting individually or in concert through intergovernmental agencies, (2) and, while the potential military utility of space systems intended for civil or commercial uses did not go unnoticed, (3) "the development and use of space technology for military and civil applications... [generally] occurred in parallel" through separate military and civilian agencies. (4) Such was the case in the early 1960s, when the U.S. Air Force undertook development of a military space station--called the Manned Orbiting Laboratory (MOL)--on the basis that the then ongoing National Aeronautic and Space Administration (NASA) "Gemini" project did not provide necessary data on potential military capabilities in space. (5) By the end of the decade, however, the high cost of the continuing war in Vietnam, the onset of detente with the Soviets, and the recognition that the main military objectives of the MOL (i.e., reconnaissance and satellite detection and inspection) could be performed by less costly unmanned satellite systems, spelled the end of the project. (6) And so, with the cancellation of the Air Force's MOL in June 1969, manned spaceflight in the United States became the exclusive province of NASA. (7)
After cancellation of the MOL program, the concept of a military space station garnered remarkably little enthusiasm among American military leaders. (8) A number of factors contributed to this lack of interest, including budgetary considerations, the government's "desire to minimize the visibility and notoriety of [its] military presence in space," and, perhaps most importantly, the lack of any "compelling arguments that having crews in orbit gives a State any particular useful military or strategic advantage." (9) Yet, in a 1983 Department of Defense (DOD) study on the relation of military space activities to space stations, which concluded that there were "no identifiable mission requirements that could be uniquely satisfied by a manned space station" and "no current requirements... [for which] a manned space station would appear to provide a significant improvement to DoD over alternative methods of performing a given task," the Department nonetheless recognized the possibility that the situation could ch ange over time and, accordingly, espoused its commitment "to developing a better understanding of the potential future uses for the role of man in space." (10) In fact, the concept of "Military Personnel-in-Space" remains, to this day, a part of official DoD policy:
Military Personnel-in-Space. The unique capabilities that can be derived from the presence of humans in space may be utilized to the extent feasible and practical to perform in-space research, development, testing, and evaluation as well as enhance existing and future national security space missions. This may include exploration of military roles for humans in space focusing on unique or cost-effective contributions to operational missions. (11)
Thus, the "coolness" of the U.S. military toward the notion of stationing personnel in space notwithstanding, manned spaceflight continues to have significant military implications, if for no other reason than "the capacity to place personnel in orbit... allows for the active management by the crew on orbit of various technological capabilities that can be used for military applications." (12) Furthermore, a State does not have to launch a military crew into Earth orbit in order to obtain militarily useful information from a crewed mission. (13) For example, in the case of photoreconnaissance: [d]epending upon the sensing or photographic equipment onboard a space mission, even a civil crew... could obtain and deliver highly valuable military information... [and,] [w]ithout access to flight telemetry and flight data products it would be impossible to know to what extent the crewed mission was or was not involved in information gathering of a military nature or of military value. (14)
What's more, recent developments vis-a-vis the multi-billion dollar partnership of the United States, Russia, Europe, Japan and Canada, otherwise known as the International Space Station (ISS) (designated "Alpha"), have also given the notion of the "military man-in-space" renewed relevance in the context of current international law. Specifically, in March 2001, Russia's Mir space station circled the earth for the last time and, after a controlled decent, plunged into the Pacific Ocean. As a result, the ISS is now the only space station currently occupying outer space, and is therefore one of only two operational space platforms available for evaluating the military capabilities that can be derived from a human presence in space and performing in-space research, development, testing, and evaluation in support of national security' (15)--the other being the Space Shuttle. (16)
Meanwhile, the newly appointed NASA administrator (17) has called for closer ties between his agency and DoD. (18) Additionally, the United States and its partners are currently formulating plans for commercialization of the ISS, (19) and insofar as these plans allow nonmilitary crews to perform ostensibly "commercial" activities with direct military applications for or on-behalf of national defense industries, there will inevitably be activities of a military nature or of military value taking place onboard the Space Station in the near future.
The prospect of military use of the ISS undoubtedly raises questions about the permissibility of military activities within the confines of the 1998 Intergovernmental Agreement (1998 IGA) that established the ISS partnership; (20) moreover, it rekindles an old debate about the lawfulness of military activities in outer space under international law generally. This latter dispute centers on the scope and applicability of the 1967 Outer Space Treaty, and, specifically, the meaning of the language in Article IV relating to the use of space for "peaceful purposes," (21) with some arguing that peaceful purposes should be understood to be "nonmilitary," and others, including the United States, interpreting it as meaning "nonaggressive." (22) Thus, the extent to which military-related activities may be lawfully carried out onboard the ISS has significant implications for the fifteen Partner States that are party to the 1998 IGA (the United States, Russia, Canada, Japan, and the eleven member states of the ESA (23)), as well as for other spacefaring States and international community as a whole.
The purpose of this article is to examine the permissibility of military activity (including commercial activities with military ends) onboard the ISS. The article is divided into four parts: Part I looks at the 1998 IGA framework and discusses significant provisions of the Agreement and implementing documents; Part II provides a brief overview of the body of public international law governing outer space, the "corpus juris spatialis"; Part III analyzes the issue of the military use of the ISS, focusing primarily on the meaning of the term "peaceful purposes" as it applies to outer space and its relevance to ISS activities, while also considering other legal and contextual issues, such as the significance of the characterization of the ISS as a "civil" facility; and, finally, Part IV provides some concluding comments. In the end, the piece makes clear that, although "peaceful purposes" as generally applied to outer space has taken on a meaning which allows for some extraterrestrial military activities, the IS S Partners are divided on what the phrase means with respect to utilization of Alpha. Moreover, the piece shows that because of the ambiguity of the 1998 IGA with respect to the ability of any given Partner to restrict military use of the ISS by its counterparts, the meaning of "peaceful purposes" is a potential source of future discord, especially as commercialization opens up the facility for uses by private industry that could have military significance.
II. THE INTERGOVERNMENTAL AGREEMENT OF 1998
The development and construction of an International Space Station (ISS) began in the mid-1980s, with the U.S. plan to place a permanently inhabited civil space station (known as "Space Station Freedom") into low-earth orbit through a partnership with Canada, Japan, and a number of European countries. (24) This "Space Station Freedom" initiative eventually culminated in the establishment of the 1988 Intergovernmental Agreement (1988 IGA) (25) among the United States, the state partners of the European Space Agency (ESA), (26) Japan and Canada. Under the 1988 IGA, the United States (NASA) would produce a "core U.S. Space Station," which would then be enhanced with elements produced by the ESA, the Government of Japan (GoJ), and Canada Space Agency (GSA), to create an "international Space Station complex." (27) In addition to emphasizing the "civil" character of the space station, the 1988 IGA also specified that the station be used 'for peaceful purposes, in accordance with international law," in order to "en hance the scientific, technological, and commercial use of space." (28)
The demise of the Soviet Union brought about a dramatic warming of the world political climate in the early 1990s and ushered in a new era of unprecedented cooperation among nations in outer space matters. In this new spirit of cooperation, the Russian Federation was extended an invitation to join the ISS project in December 1993. (29) In addition to possible "political" considerations, (30) Russian involvement in the program was expected to bring significant cost savings, experience in space station management and prolonged human spaceflight, and access to reliable heavy-lift launch vehicles. (31) Formal negotiations on a protocol to amend the 1988 IGA to add the Russian Federation to the ISS partnership commenced in April 1994, (32) and on June 23, 1994, NASA and the Russian Space Agency (RSA) reached an interim agreement on Russian participation in "the Space Station Program" pending the conclusion of a protocol to the 1988 IGA. (33) Although Russia became a full partner in the ISS in July 1996, renegotiat ion of the terms of the 1988 IGA continued, until finally, after almost five years of negotiating, the representatives of the United States, Russia, Canada, Japan, and the eleven member states of the ESA, concluded the Intergovernmental Agreement of 1998 (1998 IGA) on January 29, 1998. (34)
Upon entering into force on March 27, 2001, the 1998 IGA replaced the 1988 agreement. (35) Like its predecessor, the object of the 1998 Agreement -- is to establish a long-term international cooperative framework among the Partners, on the basis of genuine partnership, for the detailed design, development, operation and utilization of a permanently inhabited civil international Space Station. (36)
The express purpose of the Space Station likewise remained unchanged under the 1998 agreement; i.e., the ISS is to be a "civil space station" used for "peaceful purposes," in order to "enhance the scientific, technological, and commercial use of outer space." (37) However, under the new agreement, the Russian and American space station programs are merged; (38) therefore, the ISS is no longer to be based on a "core U.S. Space Station." Instead, the 1998 agreement provides for the United States and Russia to co-produce the "foundational elements" of the facility, which will then be significantly enhanced by additional elements produced by "the European Partner," Japan, and Canada, to create "an integrated international Space Station." (39)
Although the 1998 IGA gives the United States "the lead role" in overall management of the ISS, (40) the agreement provides for participation of all five Partners in the management of the integrated facility, (41) with "decision-making by consensus" being the goal. (42) This multilateral management function is performed by the ISS Multilateral Coordination Board (MCB), which is comprised of representatives of NASA, ESA, CSA, RSA and Japan's Science and Technology Agency (STA), with the NASA representative serving as Chairman. (43)
The MCB meets periodically, or at the request of any Partner, to coordinate on matters "affecting the safe, efficient and effective utilization" of the Space Station." (44) In cases where consensus cannot be reached on a matter within the MCB's purview, the Chairman may unilaterally render a decision. (45) However, the decision of the MCB Chairman does not affect the right of any Partner to submit the matter for consultations; (46) moreover, pending resolution of the issue through consultations, a partner has the right not to implement the Chairman's decision with respect to its space station elements. (47) The MCB Chairman may not, however, issue a unilateral decision where the lack of consensus relates to a matter outside the MCB's purview, e.g., "an issue not primarily technical or programmatic in nature, including such issues with a political aspect." Rather, resolution of such matters is to be pursued through consultation among the designated officials of the Partners concerned. (48)
In addition to the formal procedures for multilateral management of the Space Station set forth in the Memoranda for Understanding (MOU), Article 23 of the 1998 IGA gives Partners (acting through their Cooperating Agencies) the right to request consultations with each other on "any matter arising out of Space Station cooperation" and exhorts the Partner of whom consultations are requested to "accede to such request promptly." (49) Partners are further directed to use their "best efforts" to settle disagreements, either through the MOU procedures for multilateral management or consultation. (50) If an issue cannot be resolved through consultations, Article 23 authorizes, but does not require, Partners to submit the matter to "an agreed form of dispute resolution such as conciliation, mediation, or arbitration." (51)
The basic principles for utilization of the Space Station are laid down in Article 9.1 of the 1998 IGA:
Utilization rights are derived from Partner provision of user elements, infrastructure elements, or both. Any Partner that provides Space Station user elements shall retain use of those elements, except as otherwise provided for in this paragraph. Partners which provide resources to operate and use the Space Station, which are derived from their Space Station infrastructure elements, shall receive in exchange a fixed share of the use of certain user elements." (52)
In other words, under Article 9.1, each Partner retains use of the "user elements" (i.e., the modules containing laboratory workspace or crew member accommodations) (53) that it provides, plus, in exchange for providing "infrastructure elements" that supply resources necessary for space station operations as a whole, (54) a Partner also receives a share of the use of "user elements" provided by the other Partners. (55) Accordingly, each Partner's share of the use of the Space Station's "user elements" (or "user accommodations") is expressed in fixed percentage in the MOU, as follows:
* NASA retains the use of 97.7% of the user accommodations on its laboratory modules and 97.7% of the use of its accommodation sites for external payloads, and receives the use of 46.7% of the user accommodations on the European pressurized laboratory and 46.7% of the user accommodations on the Japanese Experiment Module (JEM);
* RSA retains the use of 100% of the user accommodations on its laboratory modules and 100% of the use of its accommodation sites for external payloads;
* ESA retains the use of 51% of the user accommodations on its laboratory module;
* the GoJ retains the use of 51% of the user accommodations on its laboratory module; and
* CSA will have the equivalent of 2.3% of the Space Station user accommodations provided by NASA, ESA and the GoJ. (56)
Within these limits, each Partner determines for itself how to best utilize its respective allocation, (57) and, under Article 9.3, each Partner is generally free to use and/or select users for its allocation for any purpose which is not inconsistent with the terms of the IGA. (58) However, there are two significant limitations on the freedom of ISS Partners in this regard. First, Article 9.3(a) prohibits use of a user element by a non-Partner or a private entity under the jurisdiction of a non-Partner without prior notification to and timely consensus of all of the Partners. (59) Second, Article 9.3(b) provides that the decision as to whether a contemplated use of an element of the Space Station is for "peaceful purposes" shall be made by the Partner that is providing the element in question. (60) In the context of the present discussion, this second caveat is clearly important, because it places the decision of whether a particular use of the Space Station is for "peaceful purposes" outside the scope of the ISS "consensus management" regime.
C. Jurisdictional Framework
While the Outer Space Treaty bars the extraterrestrial extension of State sovereignty, (61) certain functional aspects of sovereignty nevertheless do apply in outer space. (62) Accordingly, the 1998 IGA allocates jurisdiction and control of the individual elements of the ISS to the Partner that provides the element based on the customary international legal principles of territoriality and nationality. (63)
Under Article 5 of the agreement, each Partner registers the Space Station elements it provides as space objects, in accordance with the 1976 Registration Convention. (64) Article 5 further provides that--each Partner shall retain jurisdiction and control over the elements it registers... and over personnel in or on the Space Station who are its nationals. The exercise of such jurisdiction and control shall be subject to any relevant provisions of this Agreement, the MOUs, and the implementing arrangements, including relevant procedural mechanisms established herein. (65)
The 1998 IGA, thus, allows each Partner to treat the Space Station elements carried on its registry as extensions of its territory for jurisdictional purposes and ensures that its national laws can apply to elements and personnel that it provides to the project. (66)
D. Applicability of International Law
The Preamble to the 1998 IGA specifically refers to the four multilateral treaties that give force to the fundamental principles of public international space law: namely the 1967 Outer Space Treaty,(67) the 1968 Rescue Agreement,(68) the 1972 Liability Convention,(69) and the 1975 Registration Convention.(70) Article 1 decrees that the "design, development, operation and utilization" of the ISS shall take place "in accordance with international law."(71) In addition, Article 2 of the Agreement provides that space station activities must comply with the treaties governing the use of outer space, as well as with general principles of international law (including customary law), wherein it states:
The Space Station shall be developed, operated, and utilized in accordance with international law, including the Outer Space Treaty, the Rescue Agreement, the Liability Convention, and the Registration Convention.(72)
Utilization and operation of the ISS must therefore be "seen and interpreted in the light of the aforementioned international agreements, treaties and conventions--the current law of Outer Space."(73)
III. THE LAW OF OUTER SPACE (CORPUS JURIS SPATIALIS)
The fundamental principles of public international space law can be found in six multilateral treaties: 1963 Limited-Test-Ban Treaty,(74) 1967 Outer Space Treaty,(75) 1968 Rescue Agreement,(76) 1972 Liability Convention,(77) 1975 Registration Convention,(78) and 1979 Moon Treaty.(79) As previously mentioned, only four of these are expressly referenced in the 1998 IGA; (80) however, as reflected in Articles 1 and 2 of the agreement, the ISS is subject to international law. Moreover, to the extent that an ISS Partner is a party to any of these treaties, such treaties will, pursuant to Article 5 of the IGA, govern the elements and personnel that are provided to the project. (81) Therefore, a brief discussion of each of the treaties governing the use of outer space is appropriate.
A. Limited-Test-Ban Treaty (1963)
The Limited-Test-Ban Treaty was the first treaty concerning the legal regulation of the activities of states in the exploration and use of outer space. (82) The treaty is not concerned with outer space per se, but rather addresses activity in outer space as part of a more general subject--i.e., the prevention of global nuclear contamination. (83) It is perhaps for this reason that the treaty is sometimes over-looked as a part of the "corpus juris spatialis." (84) In any case, the Limited-Test-Ban Treaty forbids State parties from carrying out the explosion of nuclear devices in the oceans, atmosphere, or outer space. (85) Notably, the two powers that lead the world in both nuclear weapons and space technology, namely the United States and the Russian Federation, are both party to the treaty, together with Great Britain and more than 120 other nations. Conversely, other nuclear powers, most notably France and China, have rejected the treaty as the "selective rapprochement" of the two former Cold War adversari es and have continued their altitude nuclear tests. (86) As a result, the impact of the Limited-Test-Ban Treaty is somewhat limited and, as the International Court of Justice (ICJ) decision in the Nuclear Test Case (87) suggests, the treaty's prohibitions likely cannot be regarded as declaratory of general international law. (88) Nevertheless, the Limited-Test-Ban Treaty stands as the first legally binding document renouncing a military use of outer space, (89) and was also the first step towards the "denuclearization of outer space." (90) The provisions of the Limited-Test-Ban Treaty apply to Space Station activities inasmuch as all ISS Partner States, apart from France, are parties to the treaty. (91)
B. Outer Space Treaty (1967)
In 1958, shortly after the launching of Sputnik I, the United Nations General Assembly formed an ad hoc Committee on the Peaceful Uses of Outer Space (COPUOS), (92) and, the following year, COPUOS was established as a permanent body. (93) Since its inception, COPUOS has overseen the development of five international space treaties which have all entered into force. (94) The first and, by far, the most significant of these treaties was the 1967 Outer Space Treaty. This agreement is considered to be the foundation for international legal order in outer space, (95) and it is binding on all of the ISS Partner States as public international law. (96) The first three articles of the Outer Space Treaty establish the framework for the peaceful exploration and use of outer space, from which the basic elements of space law are derived: the common interest principle (Article 1), the freedom principle (Article I), the nonappropriation principle (Article II), and the application of international law and the U.N. Charter t o outer space (Article III). (97)
1. Article I
Like many of the principles set forth in the Outer Space Treaty, the common interest principle had been previously advanced in a variety of forms. (98) By 1951, developments in high altitude rocket flight were such that the launching of earth satellites was imminent; thus, there was increased discussion among legal scholars about the notion of an upper boundary in space to the territory of the subjacent State. (99) In 1952, Oscar Schachter predicted that-
outer space and the celestial bodies would be the common property of all mankind, over which no nation would be permitted to exercise domination... [and] a legal order would be developed on the principle of free and equal use, with the object of furthering scientific research and investigation. (100)
Subsequently, in 1958, in its first resolution dealing specifically with outer space, the United Nations General Assembly expressly recognized the principle of "the common interest of mankind in outer space." (101) This notion was thereafter carried forward into Article I of the Outer Space Treaty, (102) which reads:
The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.
There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation.
The legal significance of the "common interest" principle is subject to debate. One view equates the "common interest" principle to "the equitable sharing of whatever benefits may be gathered from the exploration and use of outer space--equitably, that is, not only between States operating in outer space, but also taking into account those states not so technologically advanced." (103) So, for example, under this theory a State whose economy is not adequate to finance a space program may, nevertheless, rightfully share in the benefits of the use of outer space by registering orbital positions in the geostationary orbit (a limited resource) (104) and then gaining revenue by leasing the positions. (105) The principle of "equitable sharing of the benefits" of the exploration and use of outer space might also be interpreted so as to require international taxation on profits made from the commercial extraction of natural resources from the Moon, Mars and asteroids (once such exploitation becomes possible), or a ma ndatory transfer of the technology used to exploit these resources to the so-called "space have-nots." (106)
In practice, however, the common interest principle has predominantly been interpreted as assuring only "equitable access" to outer space and its benefits for those States having the requisite technology and financial resources. (107) The International Telecommunications Union (ITU) Convention, for instance, states that radio frequencies and the geostationary orbit "must be used efficiently and economically so that countries or groups of countries may have equitable access to both." (108)
Similarly, in the case of remote sensing, the U.N. declaration of Principles Relating to Remote Sensing of the Earth from Outer Space (1986) (109) basically repeats the language of Article I, paragraph 1, of the Outer Space Treaty, wherein it provides that-
[r]emote sensing activities shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic, social, or scientific and technological development, and taking into particular consideration the needs of the developing countries.
But under Principle XII, the sensed State is again only assured of access to the remote sensing data, albeit "on a non-discriminatory basis and on reasonable cost terms." (110) In practical terms, this means that (at a minimum) the data will be made available to the sensed State at "market rates," though without any guarantee of uniform pricing." (111)
Article I of the Outer Space Treaty also establishes the freedom principle, which is at once a corollary to, but also limited by, the common interest principle. (112) Pursuant to Article 1, paragraph 2, three positive" aspects of the principle of freedom of outer space are established: (1) freedom of access, (2) freedom of exploration, and (3) freedom of use. (113) As in the case of the common interest principle, the freedom principle was also initially put forward in the form of a General Assembly Resolution; first in Resolution 1721, which was adopted on December 20, 1961, (114) and then again in Resolution 1962, which was adopted, on December 13, 1963. (115) Because these resolutions are viewed as having enunciated preexisting legal principles based on the practice of States dating back to the launching of the first satellite, (116) the freedom principle that is incorporated into the Outer Space Treaty is generally considered to be part of customary international law, binding on all States, regardless of whether they are actually a party to the agreement. (117)
2. Article II
Closely linked to the concepts of the common interest of mankind and the freedom of exploration and use of outer space is the principle of nonappropriation under Article II of the Outer Space Treaty. (118) It states:
Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
This restriction is a logical extension of the fundamental principles pronounced in Article I. Indeed, if outer space is to serve the common interest of all of mankind and be free for use and exploration, it obviously cannot be appropriated and, thereby, subjected to exclusive claims of sovereignty by select States. (119) Together, the principles reflected in Articles I and II of the Outer Space Treaty establish outer space as a res communis under international law, (120) that is to say, "space is owned by no one but is free for use by everyone." (121)
However, the scope of applicability of the nonappropriation principle has at times been disputed, due to the lack of a precise boundary between air space (which is subject to the sovereignty of the subjacent State) (122) and outer space (which, under Article II of the Outer Space Treaty, is not). (123) To resolve this ambiguity, some (known as "spacialists") have argued for the establishment of a legal boundary delineating national air space from outer space. (124) Nevertheless, throughout the space age, the prevailing view has been that there is no real need to establish any boundary between air space and outer space, since the absence of such a boundary has, thus far, not created any major problems, and the utmost freedom of action in the peaceful exploration and use of outer space is both necessary and desirable. (125) According to this latter school of thought, activities in the aerospace continuum (made up of air space and outer space) should be governed according to their nature, i.e., aeronautical acti vities by aeronautical law and space activities by aerospace law. (126) Ergo, advocates of this second approach are referred to as "functionalists." (127)
The dominance of the functionalist approach at the U.N. has, at least to date, forestalled efforts to fix a definite, though seemingly arbitrary boundary between air space and outer space. (128) At the same time, through state practice, the functionalist approach has led to the establishment of "functional" criteria for defining "outer space" and "space objects" which, according to Professor Bin Cheng, can be said to reflect current international law. (129) First, since no State has ever claimed that a satellite orbiting the earth was infringing its national airspace, it is possible to say that in international law, outer space begins at least from the height above the earth of the lowest perigee of any existing or past artificial satellite that has orbited the earth without encountering any protest. (130) Secondly, for purposes of international law, a ''space object" can be defined as "an object designed and intended to penetrate into outer space [as previously defined]... whether or not in any orbit, and fo r whatever length of time"--correspondingly, "[o]bjects which are not designed and intended to enter outer space and which do not penetrate into outer space are not space objects." (131)
3. Article III
The last of the aforementioned "basic legal elements of space law" established by the Outer Space Treaty is embodied in Article III. It provides that--
States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding. (132)
Article III thus makes the general principles of international law (lex generalis)--including rules of customary law-and the United Nations Charter (133) applicable to outer space. (134) However, because certain rules of international law and/or provisions of the Charter cannot, by definition, apply to outer space, or are of a nature of lex specialis for certain environments, Article III is not an automatic extension to outer space and celestial bodies of 'international law, including the Charter of the United Nations' in toto. (135) Yet, there are those that have gone further and argued that since the Outer Space Treaty does not enumerate exactly which "general principles" apply to outer space, certain fundamental provisions of international law, specifically those concerning the use of force in self-defense, cannot and should not be made applicable to outer space, on the basis that they are inconsistent with the principles of the Outer Space Treaty itself. (136)
But while the right to use force in self-defense in outer space is perhaps not universally accepted, (137) the prevalent view is that Article 2(4) of the U.N. Charter (138) applies in outer space, and it is, therefore, unlawful for a State to interfere in a hostile manner with the assets in outer space of another State, (139) and that the exception to the bar on the use of force under Article 51 likewise applies in outer space, so that a State can legally use force to defend itself against hostile actions, should they nevertheless occur. (140) The United States has supported this view since the inception of the Outer Space Treaty, (141) and it remains part of current U.S. space policy. (142)
4. Article IV
In addition to the basic elements of space law established in the first three articles of the Outer Space Treaty, Article IV of the treaty "contain[s] the first principles of international law explicitly relating to military activities in space." (143) It reads as follows:
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.
The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited.
On its face, paragraph 1 of Article IV appears to bring to fruition the denuclearization of outer space that began with the 1963 Limited-Test-Ban Treaty--it imposes a general ban on positioning nuclear weapons and other weapons of mass destruction in orbit around the earth, on celestial bodies, or in outer space. From the outset, it is clear that since paragraph 1 of Article IV refers only to weapons of mass destruction, it implicitly permits the presence of other types of weapons in outer space. (144) Additionally, the provision was deliberately worded to permit the earthly use of intercontinental ballistic missiles (ICBMs), which incidentally pass through space, due to the fact that the national defense systems of the two major space powers were both based upon ICBMs. (145) However, the fact that paragraph 1 refers only to "celestial bodies" and "outer space" and not to "outer space, the moon, and other celestial bodies," as in other provisions of the treaty, suggests that the Moon is similarly excluded fr om its application. (146) While it is unclear whether exclusion of the Moon was intentional, or merely poor draftsmanship, (147) the question of whether weapons of mass destruction are banned from the Moon, as well as from trajectories to and around it, is nonetheless left open to interpretation. (148)
Paragraph 2 of Article 4, on the other hand, establishes the principle that "the moon and other celestial bodies" shall be used "exclusively for peaceful purposes." (149) Here a gain, by exclusion, this restriction does not apply to the whole of "outer space, the moon, and other celestial bodies." (150) In this instance, however, the omission of "outer space" from the second paragraph of Article IV was arguably intentional and designed to permit States to be able to carry out certain space activities for military purposes, such as the use of reconnaissance satellites. (151) This interpretation has strong support, not only because the text of the provision was agreed upon in the face of concerns raised by some delegates during negotiations that outer space would be excluded from its coverage, (152) but also because, at the time the treaty was entered into, it was well known that both the United States and the Soviet Union had already launched satellites into space for military purposes. (153)
While the foregoing theory reflects the view most widely held among (154) States and scholars, there is a second school of thought that takes a broader approach to interpretation of the Outer Space Treaty. "[L]ooking at other pertinent clauses [e.g., the Outer Space Treaty's Preamble and the language of Articles IX and XI], referenced U.N General Assembly resolutions, the U.N. Charter, and international law," this latter theory "concludes that all 'outer space must be used for peaceful purposes.' (155) Under this broad, contextual interpretation, the general maxims found in the U.N. Charter, the Outer Space Treaty, and elsewhere in international law, such as "'common interest of all mankind,' the 'benefit of all peoples,' 'furthering the purposes of the U.N.,' 'use in accordance with international law,' 'maintaining international peace and security,' promoting international cooperation' and 'having regard for the interests of other States,"' also "define the meaning and applicability of the phrase 'peaceful p urposes." (156)
Of course, under the more restrictive interpretation of the Outer Space Treaty, the meaning of "peaceful purposes" in Article TV, paragraph 2, is less significant, since interpreted strictly, the provision simply does not apply to outer space. Moreover, dating back to the time the treaty was adopted, military activities had never been carried out on the Moon and one of the only practical aspects of using a celestial body for military purposes, i.e., the testing of nuclear weapons, was already prohibited by the 1963 Limited-Test-Ban (157) Treaty. However, the adjective "peaceful" in relation to outer space activities is encountered in virtually every U.N. document devoted to outer space matters as well as in space law treaties, including the 1998 IGA for the International Space Station, which, in 2001, became the latest such treaty to enter into force. (158) Once again, the 1998 IGA states that the ISS shall be utilized "for peaceful purposes, in accordance with international law;" (159) thus, the meaning of the phrase "peaceful purposes" is directly relevant to ISS activities. This subject is addressed in subpart IV.A, infra. (160)
5. Articles IX, X, and XI
Resolving international problems through international cooperation constitutes one of the primary objectives of the United Nations. (161) In fact, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among Member States in Accordance with the U.N. Charter (Resolution 2625), was unanimously confirmed by all U.N. member States and proclaims cooperation between States to be an international legal obligation. (162) While the "obligation of cooperation" set down in Resolution 2625 pertains exclusively to the U.N. Charter, the principle of international cooperation between States is also made fully applicable to outer space activities by the Outer Space Treaty. (163)
Provisions of the treaty that expressly promote the principle of international cooperation in the exploration and use of outer space include Article IX, emphasizing that States are to be guided by the principle of cooperation and mutual assistance in conducting outer space activities; Article X, requiring States launching objects into space to consider, on the basis of equality, requests by other States to observe the flight of such space objects; and Article XI, requiring that States notify the Secretary-General of the United Nations, and the international community generally, of the nature, conduct, locations, and results of their space activities. (164) These provisions have led to the establishment of official and unofficial tracking stations in almost all States, which together make up a global network of data registration that is available for use by all States and institutions that wish to utilize such observational data. (165)
6. Article XII
To help ensure that the demilitarization provisions in Article IV are observed, Article XII of the Outer Space Treaty provides: All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other State Parties to the Treaty on the basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited.
Although the term "reciprocity" perhaps suggests "an interchange of privileges," such an interpretation must be rejected, since it would mean that a State could then legitimately refuse visits simply by making known its intention not to avail itself of this provision, and, thereby, nullify the legal obligation to allow free access. (166) Rather, "reciprocity" in this instance refers to the right of a State to refuse access to its installations to any State that does not comply with its obligation to allow visits to its installations. (167) In fact, the drafting history of Article XII reveals that the agreement that led to inclusion of the phrase "on the basis of reciprocity" was expressly conditioned on this latter interpretation being universally accepted. (168) As in the case of Article IV, paragraph 2, the "right to inspect" stations, installations, equipment and space vehicles under Article XII of the Outer Space Treaty applies only to the moon and other celestial bodies, and not to outer space. (169)
7. Article XIII
Finally, as the last substantive provision of the Outer Space Treaty, Article XIII makes clear that the treaty applies to all activities of State Parties in the exploration and use of outer space, whether carried out individually or, as in the case of the International Space Station, jointly with other States.
8. Other Articles
Certain Outer Space Treaty articles have been incorprated and expanded upon in successive treaties governing space activities, and are, accordingly, more significant than others. Such articles include: Article V, subsequently reflected in the 1968 Rescue Agreement; the "responsibility and liability clauses" of Articles VI and VII, later reflected in the 1972 Liability Convention; and Article VIII, reflected in the 1976 Registration Convention. These key Outer Space Treaty provisions are discussed below within the context of the treaties that they engendered.
C. Rescue Agreement (1968)
Article V of the Outer Space Treaty (OST) bestows on astronauts a unique status as "envoys of mankind" (170)--a lofty expression which to some suggests that astronauts enjoy a special immunity from some forms of normal jurisdiction. (171) The basic principles laid down in OST Article V provide for: "(1) assistance to astronauts in the event of accident, distress, or emergency landing; (2) their safe and prompt return; and (3) mutual assistance between astronauts of different States in outer space and on celestial bodies." (172) The 1968 Rescue Agreement was set up to develop and give further expression to the duties encompassed in OST Article V. (173)
The agreement is essentially a one-sided undertaking by the Contracting Parties to notify the "launching authority" (i.e., "the State responsible for launching"), (174) and the Secretary-General of the United Nations in the event that an astronaut or spacecraft returning from outer space lands within their territory. (175) Contracting Parties further assume an affirmative duty to search for, rescue, and unconditionally return the astronaut to representatives of the launching authority; and to do so at no expense to the launching authority. (176) In contrast, the duty to recover downed spacecraft is contingent upon a request from the launching authority, and, even then, the State in which the craft has landed has the option of either returning the object or simply holding it "at the disposal of representatives of the launching authority." (177) Moreover, unlike the case with the recovery and return of astronauts, expenses incurred by the landing State in the recovery and return of space objects are to be borne by the launching authority. (178)
D. Liability Convention (1972)
Articles VI, VII, and IX of the Outer Space Treaty (OST) are linked by their treatment of responsibility for outer space activities. (179) OST Article VI represents the first step in the regulation of responsibility in the space environment. (180) Pursuant to its provisions, States bear international responsibility for any activity in outer space, irrespective of whether such activity is carried out by governmental or non-governmental entities. This principle serves to remove the question of imputability and, thereby, helps to ensure that all activities in outer space are carried out in accordance with the relevant rules of international law. (181) Article VII focuses on liability for damage caused by space objects. (182) Under Article VII, each State from whose territory or facility a space object is launched, as well as each State that actually launches or procures the launching of an object into space, is internationally liable for damage caused by the object, whether such damage occurs on Earth, in outer space, or on the moon or other celestial body. Finally, under OST Article IX, contracting States are obliged to avoid any space activity that would cause harmful contamination or adverse changes to the Earth's environment, and to consult with other States before taking any action that could potentially interfere with their peaceful use of outer space, the Moon, or other celestial bodies.
The Liability Convention specifies the conditions under which liability is to be assessed and compensation paid for damage caused by space objects and formalizes a process whereby claims may be considered and determined. (183) Under the Convention's terms, liability rests with the "launching State" which, though sometimes used interchangeably with "launching authority," (184) is defined more comprehensively by the treaty to mean: (1) a State which launches or procures the launching of a space object; or (2) a State from whose territory or facility a space object is launched. (185)
Notably, there are no territorial or geographic limits on the application of the Liability Convention, and under Article II of the agreement, the launching state is absolutely liable for "damage caused by its space objects on the surface of the Earth or to aircraft in flight." (186) Elsewhere than on the surface of the Earth, however, liability for damage caused by space objects is based on fault. (187)
The 1998 IGA contains a cross-waiver of liability (188) requiring that ISS Partner States waive all claims against other Partner States, their related entities, or employees of other Partner States or their related entities, for damage arising out of "Protected Space Operations." (189) Nevertheless, the Liability Convention still applies to ISS activities in those situations not specifically covered by the cross-waiver. (190) Accordingly, in the case of a cooperative launch of an ISS element, (191) the Liability Convention subjects each of the States concerned to joint and several liability for any damage that might result from the launching of that Space Station element into outer space. (192)
E. Registration Convention (1975)
The earliest reference to registration of an object launched into space is in Article VIII of the Outer Space Treaty (OST). OST Article VIII provides that a State on whose national registry a "space object" is carried retains "jurisdiction and control over such object and over any personnel thereof, while in outer space or on a celestial body," (193) establishing registration as the basis for determining the nationality of a space object.
The requirement that each spacecraft have a nationality was generally based on the maritime concept that "when a state gives to a ship the right to use its flag, such state assumes certain international responsibilities for the good conduct of that ship... and at the same time acts as the protector of the ship to enforce its international rights." (194) The Registration Convention compels States to acknowledge their responsibility for space objects by requiring that any State launching an object into orbit or beyond, register the object in a registry maintained by the "launching State." (195) The launching State is also obliged to furnish certain information about each space object to the Secretary-General of the United Nations for recording in a central registry of objects launched into outer space.
Here again, "launching State" is defined as: (1) a State which launches or procures the launching of a space object; or (2) a State from whose territory or facility a space object is launched. (196) There is, however, no explicit link between the Registration Convention and the Liability Convention despite the fact that they both have the same definition of launching State.
The Registration Convention entered into force in 1976 and today has more than 50 signatories presumably committed to the principle of registering space objects with the United Nations. Nevertheless, states often delay registering objects launched into space or fail to register them altogether. (197)
F. Moon Treaty (1979)
Aside from being dubbed "the last of the 'first generation' of space treaties," (198) the Moon Treaty also holds the distinction of being the first treaty to give effect in international law to the concept of "the common heritage of mankind." (199) As such, it represents an effort to establish the Moon and other celestial bodies as a new type of territory under international law; i.e., "the common heritage of mankind," in which national appropriation in a territorial sense is prohibited (res extra commercium), and the fruits and resources of the territory are the property of mankind at large. (200) In this regard, however, the Moon Treaty "adds little, if anything, to the provisions of the Outer Space Treaty relating to military space activities." (201) Furthermore, although in force, the Moon Treaty has been adopted and ratified by only a handful of States, none of which is a significant space power. Therefore, the treaty is of relatively little consequence in establishing international space law. (202)
In the end, perhaps the most that can be said for certain is that the "corpus juris spatialis" partially demilitarizes outer space by (1) banning the use of nuclear weapons anywhere in outer space; (203) (2) prohibiting the stationing weapons of mass destruction in orbit around the earth, moon or any other celestial body, or otherwise installing such weapons on the moon or any other celestial body; (204) (3) restricting use of the moon and other celestial bodies for "exclusively peaceful purposes;' (205) and (4) expressly forbidding military maneuvers, the testing of weapons, or the establishment of military bases, installations or fortifications on celestial bodies. (206) However, while outer space plainly remains open to military use, (207) the 1998 IGA itself expressly restricts use of the ISS to "peaceful purposes." (208) Therefore, the question that remains is, What are the legal obligations of the ISS Partners concerning use of Space Station Alpha for "peaceful purposes"?
IV. 'PEACEFUL PURPOSES' AND THE ISS
A. Meaning of 'Peaceful Purposes'
While the adjective "peaceful" can be found in virtually all U.N. documents relating to outer space, the treaties which comprise international space law fail to provide an authoritative definition of that term. (209) The phrase "peaceful purposes" as used in the 1967 Outer Space Treaty (OST) was originally adapted from the 1959 Antarctic Treaty (AT), (210) which, to a considerable extent, served as the model for the 1967 treaty. (211) Article I of the AT reads as follows:
1. Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military maneuvers, as well as the testing of any type of weapons.
2. The present Treaty shall not prevent the use of military personnel or equipment for scientific research or for any other purpose.
Because the AT is credited with the "demilitarization" of the Antarctic, (212) it is often cited as the most authoritative aid for the interpretation of the term "peaceful" in the outer space context, (213) particularly by those who seek to equate "peaceful," as it pertains to outer space, with "non-military." (214) However, in view of the fact that the OST permits certain military activities in those areas expressly reserved "exclusively for peaceful purposes" (i.e., the moon and other celestial bodies), (215) and, at the same time, makes international law (including the right of self-defense) applicable to those same extraterrestrial regions, it is doubtful that the drafters of the treaty intended to attach such a definition to the term "peaceful." (217) Furthermore, the practice of States at the time of the treaty's adoption and since plainly belies such an interpretation. (218)
From the very early space age up to the present, the official position of the United States has been that "peaceful" means "non-aggressive" and not "non-military. (219) Indeed, while some of the initial U.S. statements on the international control of space activities appear to support the proposition that outer space should be used exclusively for nonmilitary purposes, (220) by the spring of 1958 (less than a year after the launch of Sputnik I), anticipation of the availability of reconnaissance satellites caused a decisive shift in U.S. policy towards the view that space could and should be used for "peaceful," rather than "nonmilitary" purposes. (221) Thus, the National Aeronautics and Space Act of 1958 (Space Act) (the statutory basis for the national space program) (222) requires that U.S. space activities be devoted to "peaceful purposes" while also providing that these activities shall contribute to "national defense." (223)
The U.S. interpretation of "peaceful" as synonymous with "non-aggressive" was a logical extension of America's effort to gain international legal recognition of the permissibility of reconnaissance satellites, while simultaneously discouraging military space activities that threatened these assets-two major goals of U.S. space policy during the pre-Outer Space Treaty era (1957-1967). (224) The definition is a corollary to the meaning of the terms "peace" and "aggression" found in the U.N. Charter. (225) "Essentially, nations have agreed in the Charter to act 'peacefully,' a term which the Charter then elaborates with specific examples, e.g., suppression of acts of aggression, no threats or use of force, save in the common interest or for (legitimate) self-defense." (226) By the same token, "'peaceful purposes'... was interpreted by the United States to mean... [that] all military uses are permitted and lawful as long as they remain 'nonaggressive' as per Article 2(4) of the U.N. Charter, which prohibits 'the threat or use of force.'" (227)
In contrast, the Soviet Union (U.S.S.R.), as part of its diplomatic offensive to ban U.S. reconnaissance satellites, (228) initially took the view that "peaceful purposes" meant "non-military," and, thus, maintained that military activities in outer space were totally prohibited. (229) However, although the Soviets consistently maintained that all of its activities in space were "peaceful" and "scientific," (230) the U.S.S.R.'s official line eventually softened as its military satellite programs came into their own, such that it can be said that the Soviets, at least, acquiesced to the U.S. interpretation. (231) So, as Professor Viasic notes:
[w]ith only the Soviet Union and the United States active in outer space before and for sometime after entry into force of the OST, the 'practice' of even one space power, clearly a 'specially affected' state, carried substantial weight in law. All the more so when supported by several other states with developing space capabilities. (232)
While it can perhaps be argued that there are still two competing definitions of "peaceful purposes" (one being "non-military" and the other "non-aggressive"), (233) no State has ever formally protested the U.S. version of "peaceful" in the context of outer space activities; (234) a consensus has developed within the United Nations that "peaceful" more specifically equates to "non-aggressive." (235) Nevertheless, the scope and substance of the notion of "peaceful use of outer space and celestial bodies" remains one of the main sources of controversy surrounding space activities. (236) Perhaps nowhere is this conundrum more clearly exemplified than in the context of the International Space Station (ISS).
B. ISS as a 'Civil' Facility (Permissibility of Military Use)
Under international law, States are free to erect space stations in outer space, even if they are devoted exclusively to military purposes, provided they do not run afoul of the minimal limitations of the Outer Space Treaty (OST) by carrying nuclear weapons or other weapons of mass destruction onboard. (237) Similarly, there is no restriction on the use of military personnel in outer space. (238) In fact, the OST expressly provides that military personnel are even permitted to perform certain "peaceful" activities, such as scientific research, on the Moon and other celestial bodies. (239) While the 1998 Intergovernmental Agreement (IGA) explicitly calls for a "civil international Space Station," which is to be operated and utilized "for peaceful purposes, in accordance with international law," (240) what significance this has in terms of its potential use for military purposes is not entirely clear.
Typically, a space system is considered "civil" if it is owned and operated by a non-military government agency, a business or other nongovernmental organization, or an international organization of regional or global participation. (241) So, for example, the satellite system of the International Telecommunications Satellite Organization (Intelsat), (242) though daily used by both civil and military customers, (243) is still regarded as a civil system. (244) Another case in point is the system operated by the International Maritime Satellite Organization (Inmarsat), (245) a "hybrid" commercial enterprise/public service organization. (246) As with the 1998 IGA, the Inmarsat Convention contained a "peaceful purposes" clause, (247) and yet Inmarsat's services were used by U.S. and coalition forces during the 1991 Gulf War, and thereafter by U.N. peacekeeping forces in Somalia, Bosnia and Croatia. (248)
Then again, ownership and management are not necessarily determinative of whether a given space system is civil or military; oftentimes it is the use and/or type of user that is controlling. (249) Thus, for example, although the Hughes Leasat satellite was commercially owned and managed, it was under contract to the U.S. Navy which controlled its design, development, production, launch, and provision of services. Leasat, therefore, could justifiably be deemed to be a military satellite. (250) In any case, as the examples of Intelsat and Inmarsat show, the mere fact that a space system is regarded as "civil" does not preclude the possibility of it being used for military purposes.
With respect to space systems owned and operated by NASA, the United States has long maintained a degree of separation between its military and civilian space activities; (251) however, as was shown previously, the proverbial "firewall between military space and civilian space" (252) has not always been strictly maintained. (253) Accordingly, there is some historical precedent for conducting military-related activities aboard NASA spacecraft. Moreover, the 1958 Space Act not only authorizes space activities in support of U.S. national defense, but also explicitly provides for NASA to make available "to agencies directly concerned with national defense" any information of "military value or significance." (254) There is thus a specific statutory basis for cooperation between NASA and DOD in national security matters, clearly on display in the military's use of archived NASA satellite imagery during the Gulf War and, more recently, when U.S. forces used "real-time," albeit unclassified data from advanced NASA s atellites in support operations during the war in Afghanistan. (255)
In the case of the Space Station, notwithstanding the 1998 IGA's reference to the "civil" nature of the facility, neither the Agreement nor the implementing MOUs specify what restrictions, if any, are imposed on use of the ISS for military purposes by virtue of either the characterization of the ISS as "civil" or the 1998 IGA's "peaceful purposes" requirement. Notably, the 1987 law authorizing NASA to undertake construction of an international space station provided that the facility was to serve four purposes:
(1) the conduct of scientific experiments, applications experiments and engineering experiments;
(2) the servicing, rehabilitation, and construction of satellites and space vehicles;
(3) the development and demonstration of products and processes; and
(4) the establishment of a space base for other civilian and commercial space activities. (256)
From the phrase "for other civilian and commercial space activities," one could reasonably infer that all of the enumerated uses of the international space station are to be understood as being civilian and commercial in nature--i.e., "non-military." (257) If this inference were accepted, it could be construed that use of the U.S. space station elements for any military purpose is contrary to the intended purpose under U.S. law.
The United States, however, does not subscribe to this view, as revealed during the course of negotiations on the ISS Agreement. Specifically, in 1988, during talks between the United States and the European Partner States, the Chief U.S. Negotiator professed the view that--
the United States has the right to use its elements, as well as its allocations of resources derived from the Space Station infrastructure, for national security purposes... [and further] [w]ith respect to such uses of these elements and resources, the decision whether they may be carried out under the Agreement will be made by the United States. (258)
In response to the American position, the members of the European Governments' Delegation maintained that "with respect to the use of elements of the permanently manned civil Space Station provided by Europe, the European partner will be guided by Article II of the Convention establishing the European Space Agency [ESA]," (259) which provides:
The purpose of the Agency shall be to provide for and to promote, for exclusively peaceful purposes, cooperation among European States in space research and technology and their space applications, with a view to their being used for scientific purposes and for operational space applications systems. (260)
The European delegates further made it clear that by "peaceful purposes" they meant civil, non-military projects; (261) thereby linking the concepts of "peaceful" and "scientific" purposes, while at the same time dispelling any notion that "operational space applications" might include systems used in national defense.
The issue of the "civil" character and "peaceful use" of the Station was again of primary importance during subsequent negotiations on the 1998 IGA, particularly with the European member states. (262) Nevertheless, the prevalence of the United States' 1988 negotiating position appears to be born out by the language that was ultimately incorporated into the 1998 Agreement. Once more, Article 9.3(b) provides:
[T]he Partner providing an element shall determine whether a contemplated use of that element is for peaceful purposes, except that this subparagraph shall not be invoked to prevent any Partner from using resources derived from the Space Station infrastructure.
If by "peaceful purposes" the Partners had, in fact, meant "civil, nonmilitary purposes" then Article 9.3(b) would seemingly be superfluous. Moreover, the Article 1.1 declaration that the ISS be used for "peaceful purposes, in accordance with international law" would be rendered meaningless, since the term "peaceful purposes," as used in the OST, plainly allows for some military activities. (263) Therefore, such an interpretation presumably cannot be correct. (264) Indeed, the above-mentioned declaration strongly suggests that, notwithstanding the nebulous language of the U.S. authorizing statute or the express characterization of the ISS as a "civil" facility, the term "peaceful purposes" should be given the meaning that it has generally been accorded under the international law governing outer space activities: that "peaceful purposes" does not exclude military activities so long as those activities are conducted as part of an enforcement action authorized by the U.N. Security Council, (265) pursuant to the right to individual or collective self-defense under Article 51 of the U.N Charter, or consistent with the inherent right of self-defense under customary international law. (266)
Even so, the fact that yet another ISS Partner, namely the Russian Federation, has recently made a renewed call for the complete demilitarization of outer space could once again cast the meaning of "peaceful purposes" as it pertains to the ISS into the fray. (267) However, time will tell whether this initiative represents a legitimate shift in Russian military posture or merely a retreat to the same rhetoric long espoused by the former Soviet Union. (268) Indeed, for decades the Soviets maintained the official position that "peaceful" meant totally non-military, while simultaneously engaging in a wide range of military space activities. (269) Furthermore, in the period since the Soviet Union's collapse, Russia has gone to great lengths to insulate its space program from the problems that have plagued the rest of its economy and has spent staggering amounts on "space defense." (270) This has lead some to suggest that Russia's new utopian stance is nothing more than an attempt to freeze the balance of power in the face of increasingly superior U.S. military space capabilities.(271) In any case, given the extensive history of Russian military utilization of outer space under both the Soviet regime and succeeding administrations,(272) the Russian Federation's current musing about the demilitarization of space could reasonably be looked upon with skepticism.
Additionally, even assuming the Partners tacitly agreed that the Space Station's "civil" character precluded any dedicated missions or projects from being carried out aboard the ISS, either directly by or on behalf of their respective armed forces, use of the facility by commercial entities for activities of a military nature would not be foreclosed. As previously mentioned, Article IV of the Outer Space Treaty states: "The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited."(273) Although this provision pertains to the use of "military personnel" to conduct scientific research on the Moon and other celestial bodies, it has been argued that the additional phrase "or for any other peaceful purposes" underscores the fact that the drafters of the Treaty regarded scientific research as a per se "peaceful" activity--i.e., "irrespective of whether it is conducted by civilian or military personnel."(274)
From this standpoint, the underlying purpose of the research, whether for advancement of science, military defense, or some other purpose, has no bearing on the lawfulness (or perhaps more specifically, the "peacefulness") of any research activity.(275) Therefore, so long as the experimentation or testing does not itself contravene international law,(276) virtually all types weapons research would be permissible onboard the ISS provided the ultimate purpose of the activity was self-defense--a "peaceful purpose." (277) Hence, with the onset of Space Station commercialization, (278) it is conceivable that a commercial firm could, consistent with the 155 goal of enhancing the scientific, technological, and commercial use of outer space, (279) use ISS facilities to perform research for the advancement of some military technological objective without contravening the "peaceful purposes" requirement as defined by international law. (280)
C. Prospects for Limiting Military Activities
Beyond the many ambiguities surrounding the 1998 International Agreement's (IGA) "peaceful purposes" requirement, one should also not overlook the fact that the Agreement fails to address a number of key issues which have a direct impact on the availability of limitations or controls that ISS Partners could impose on the conduct of military-related activities onboard the Space Station by other Partners, or by commercial firms from other Partner (or even non-Partner) States.
Indeed, it plainly appears as though the 1998 IGA places no restrictions on military use of the ISS whatsoever, aside from those imposed on military space activities generally under international law. Once again, under the Agreement each ISS Partner retains jurisdiction and control over the Space Station elements it provides, (281) and the determination of whether a contemplated use of a Space Station element is for "peaceful purposes, in accordance with international law" is expressly removed from the scope of the ISS "consensus management" regime (282) and placed in the hands of the Partner providing the element concerned. (283) Thus, inasmuch as activities onboard the ISS are governed by the Outer Space Treaty (OST), (284) a Partner is legally obliged to consult with the other ISS Partners before proceeding with military-related activities or experiments only when the Partner has reason to believe that the activities or experiments could cause "potentially harmful interference" with the activities of one o r more of the other Partners. (285) Otherwise, each Partner is essentially free to decide how to best utilize its respective "user elements" within the bounds of international law. (286) Moreover, because the ISS occupies outer space, the "right to inspect" facilities, equipment and vehicles on the moon and other celestial bodies, which is afforded to state-parties to the OST on the basis of reciprocity in accordance with OST Article XII, (287) does not extend to the ISS or its elements. (288)
Yet, in the face of all this, Article 23 of the 1998 IGA gives each Partner the right to request consultations with each other on "any matter arising out of Space Station cooperation" and obligates all Partners to promptly accede to such requests and use their best efforts to settle disputes. (289) These provisions of the Agreement give rise to the question: Is the characterization of ISS activities (including commercial activities) as "peaceful" a "matter arising out of Space Station cooperation," such that it can be made the subject of consultations, or perhaps even submitted to mediation, arbitration or some other form of dispute resolution? (290) Or, Is the determination of the Partner that provided the element where such activities are taking place conclusive of the issue? Obviously, if the answer to the first part of this query were "yes," Article 23 would constitute a substantial (albeit procedural) restraint on a Partner's utilization of the ISS for military purposes. However, neither the 1998 IGA nor the implementing MOU provide a definitive answer to this question.
Ambiguities in other aspects of the ISS "consensus management" regime likewise pose complications. Specifically, the 1998 IGA provides that use of the Space Station by "a non-Partner or private entity under the jurisdiction of a non-Partner" requires "consensus among all Partners." (291) At the same time, an ISS Partner cannot refuse a fellow Partner access to resources derived from the Space Station infrastructure to support an ISS mission because they disagree with their fellow Partner's determination that the mission is for peaceful purposes. (292) The question that logically follows then is whether a Partner can rightfully refuse to consent to use of the ISS by a non-Partner (or a private commercial entity of a non-Partner) on the basis that they disagree with their fellow Partner's determination that the non-Partner's use is for peaceful purposes. Here again, there is the potential for a significant restriction on utilization of the Space Station for military-related activities, including those activitie s being carried out by or on-behalf of private industry. Once more, however, the 1998 IGA framework fails to provide any definitive guidance.
These questions, along with the broader legal issues raised by the prospect of commercial use of the ISS for the advancement of military aims, (293) must surely be counted among the many issues relating to the commercialization of the Space Station that remain unresolved and need to be addressed in any policy or political discussions toward that end. (294)
Like a truck, a telephone, or a pair of binoculars, orbiting space stations have no inherent characteristics that make them civil or military; rather, it is how the space station is utilized that is key to determining its civil or military potential. (295) However, the decision of the ISS Partners to use the notoriously imprecise "peaceful purposes" phraseology without providing a definition of the term in the 1998 International Agreement (IGA) not only exposes the Partner States' divergent interpretations of the meaning of "peaceful," but also suggests that the Partner States may have differing views about how the ISS should, in fact, be utilized.
While analysis of the language of the 1998 IGA and the international law which institutes the requirement that outer space shall be used "exclusively for peaceful purposes" lends strong support to the position that the ISS can be used for military purposes provided such actions are "nonaggressive," the permissibility of military use of the Space Station will ultimately hinge on how the term ''peaceful purposes" is interpreted and applied by the Partner States, both individually and collectively. Last year's controversy over the Russian Federation's decision to send American "space tourist" Denis Tito to the Space Station over the objection of the United States and other Partner States demonstrates how the limits of cooperation can be severely strained when one Partner State ignores the ISS goal of consensus management in favor of its own political and/or economic desires. To avoid similar controversies over the conduct of military-related activities onboard the Space Station, the ISS Partners, acting through their Cooperating Agencies, will have to match the foresight and skill already exhibited by scientists and engineers in the planning and construction of "Alpha," in making future decisions about the operation and utilization of the facility.
(1.) Congressional testimony of General James Ferguson (USAF), the Deputy Chief of Staff for Research and Development, regarding the Air Force's ten-year space plan, issued in September 1961, which included a manned military capability in space. Quoted in R.F. FUTRELL, IDEAS, CONCEPTS, DOCTRINE: A HISTORY OF BASIC THINKING IN THE UNITED STATES AIR FORCE 1907-1964, at 431 (Air Univ. Press 1971).
(2.) See Lawrence D. Roberts, A Lost Connection: Geostationary Satellite Networks and the International Telecommunication Union, 15 BERKELEY TECH. L.J. 1095, 1096-1097 (2000) ("For most of its history, space activity has been the province of government.... While the potential for commercial activity involving outer space was recognized relatively early on, and there were occasionally dramatic successes, commercial investments represented only a tiny portion of total space expenditures." (footnotes omitted)); see also Christian Roisse, The Roles of International Organizations in Privatization and Commercial Use of Outer Space, Discussion Paper presented at the Third U.N. Conf. on the Exploration and Peaceful Uses of Outer Space (1999) (copy on file with author) ("In the early nineteen sixties, any utilization and, above all, any commercial use of Outer Space was not conceivable with the involvement of entities other than intergovernmental agencies."); and Henry Wong, 2001: A Space Legislation Odyssey--A Propos ed Model for Reforming the Intergovernmental Satellite Organizations, 48 AM. U. L. REV. 547, 548-556 (1998) (on the factual and legal history of international satellite organizations).
(3.) See e.g., STAFF OF HOUSE COMM. ON GOVERNMENT OPERATIONS, 89TH CONG., REPORT ON GOVERNMENT OPERATIONS IN SPACE (ANALYSIS OF CIVIL-MILITARY ROLES AND RELATIONSHIPS), at 31 (Comm. Print 1965) ("[P]ractically every peaceful use of outer space appears to have a military application.").
(4.) See STEPHEN E. DOYLE, CIVIL SPACE SYSTEMS: IMPLICATIONS FOR INTERNATIONAL SECURITY 2 (U.N. Inst. for Disarmament Research 1994).
(5.) The U.S. Air Force conducted a series of experiments that essentially supplemented and were closely coordinated with NASA's Gemini program. In fact, such experiments on board Gemini V (August 1965) drew protest from the Soviet Union over their military nature. The MOL was actually based on a modified Gemini capsule. See DAVID N. SPIRES, BEYOND HORIZONS: A HALF CENTURY OF AIR FORCE SPACE LEADERSHIP, at 120-133 (rev. ed., Air Univ. Press 1998); and PAUL B. STARES, THE MILITARIZATION OF SPACE: U.S. POLICY, 1945-1984, at 79, 97-99, 130-131 (Cornell Univ. Press 1988); see generally BARTON C. HACKER & JAMES M. GRIMWOOD, ON THE SHOULDERS OF TITANS: A HISTORY OF PROJECT GEMINI 259 (NASA Special Publication No. 4203, 1977), available at http://www.hq.nasa.gov/office/pao/History/SP-4203/toc.htm (discussing the nature of the military experiments conducted aboard Gemini V); and S. HOUSTON LAY & HOWARD J. TAUBENFELD, STUDY ON THE LAW RELATING TO ACTIVITIES OF MAN IN SPACE, at 26 n.101 (1970) (discussing photographs taken from Gemini V and Soviet objections to the mission as a "spy flight").
(6.) See SPIRES, supra note 5, at 132-33; and STARES, supra note 5, at 159-60.
(7.) The data and equipment from the MOL project were transferred to NASA for use in what became the NASA Skylab space station operation. SPIRES, supra note 5, at 133.
(8.) DOYLE, supra note 4, at 77.
(9.) Id. at 76-77; see also STARES, supra note 5, at 242 ("With the cancellation of... [the] MOL, many in the Air Force believed that they had made their pitch and failed. This in turn reduced the incentives to try again and reinforced the bias towards the traditional mission of the Air Force, namely flying.").
(10.) Eilene Galloway, The Relevance of General Multilateral Space Conventions to Space Stations, in SPACE STATIONS: LEGAL ASPECTS OF SCIENTIFIC AND COMMERCIAL USE IN A FRAMEWORK OF TRANSATLANTIC COOPERATION, 5 STUDIES IN AIR AND SPACE LAW 33, 36 (Karl-Heiz Bockstiegal ed. 1985) (Proceedings of an International Colloquium held in Hamburg, Oct. 3-4, 1984) (quoting Military Activities and a Space Station, in SPACE STATION: POLICY, PLANNING AND UTILIZATION (Proceedings of the AIAA/NASA Symposium on the Space Station at Arlington, Virginia, Jul. 18-20, 1983)) [hereinafter SPACE STATIONS].
(11.) DoD Directive 3100.10, Space Policy, para. 4.11, at 13 (Jul. 9, 1999) [hereinafter DODD 3100.10]; cf Department of Defense Space Policy, Unclassified, at 2 (Mar. 10, 1987), available at http://sun00781.dn.net/spp/military/ docops/defense/87memo.htm [hereinafter DoD Space Policy (1987)] ("DoD supports the potential use of military man-in-space. DOD will ensure that the unique capabilities that can be derived from the presence of military mania-space shall be utilized to the extent feasible to perform in-space research and development, and to enhance existing and future missions in the interest of national security. DOD will actively explore roles for military man-in-space focusing on unique or cost-effective contributions to operational missions."). The official version of the policy was signed by Secretary of Defense Weinberger on Feb. 4, 1987, and remains classified.
(12.) DOYLE, supra note 4, at 78-79.
(13.) Id. at 79.
(15.) See DoDD 3100.10, supra note 11, para. 4.11, at 13.
(16.) See generally Walter D. Reed & Robert W. Norris, Military Use of the Space Shuttle, 13 AKRON L. REV. 665, 683-85 (1979).
(17.) Mr. Sean O'Keefe was nominated by President George W. Bush and subsequently sworn in as Administrator of NASA on December 21, 2001.
(18.) Seth Hettena, Military Uses Images in Combat, ASSOCIATED PRESS, Apr. 11, 2002, available at http://wire.ap.org/Apnews/?SITE=MNMIT&FRONTID=HOME.
(19.) See Commercialization of the Space Station, 42 U.S.C. [section] 14711(2001) ("[A] priority goal of constructing the International Space Station is the economic development of Earth orbital space... [to include] the fullest possible engagement of commercial providers and participation of commercial users."); see also John M. Logsdon, Commercializing the International Space Station: Current US Thinking, 14 SPACE POLICY 239 (1998) ("[C]ommercial utilization of the space station is a key element of [NASA's] overall commercialization strategy; see generally Peter B. de Selding, ISS Partners Set Boundaries: Governments Try to Limit Competition for Commercialization, SPACE NEWS, Jun. 11, 2001, at 1, 35.
(20.) Agreement among the governments of Canada, Member States of the European Space Agency, Japan, the Russian Federation, and the United States of America concerning Cooperation on the Civil International Space Station, Jan. 29, 1998, 1998 U.S.T. LEXIS 212, Hem's No. KAV 5119 [hereinafter 1998 IGA], reprinted in 4 UNITED STATES SPACE LAW: NATIONAL & INTERNATIONAL REGULATION, [section] II.A.22(f) (May 1998) [hereinafter U.S. SPACE LAW].
(21.) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, art. IV, U.N. GAOR, 21st Sess., Supp. No. 16, at 13, U.N. Doc. A/6316 (1967); 18 U.S.T. 2410; 1967 U.S.T. LEXIS 613 [hereinafter Outer Space Treaty].
(22.) Michael N. Schmitt, Bellum Americanum: The U.S. View of Twenty-First Century War and Its Possible Implications for the Law of Armed Conflict, 19 MICH. J. INT'L L. 1051, 1087 (1998).
(23.) Belgium, Denmark, France, Germany, Italy, the Netherlands, Norway, Sweden, Switzerland, Spain and the United Kingdom.
(24.) See Rochus Moenter, The International Space Station Legal Framework and Current Status, 64 J. AIR L. & COM 1033 (1999); see also Act of Oct. 30, 1987, Pub. L. No. 100-147, [section] 106(a) and (e), 101 Stat. 863 (1987) [hereinafter Act of Oct. 30, 1987].
(25.) Agreement among the governments of the United States of America, the Member States of the European Space Agency, Japan, and Canada, on Cooperation in the Detailed Design, Development, Operation, and Utilization of the Permanently Manned Civil Space Station, Sept. 29, 1988, as between the U.S., the ESA partner states, and Canada, Hem's No. KAV 2383, with respect to Japan, Hem's No. KAV 2382 [hereinafter 1988 IGA], reprinted in 4 UNITED STATES SPACE LAW: NATIONAL & INTERNATIONAL REGULATION, [section] II.A.22 (Jan. 1989) [hereinafter U.S. SPACE LAW].
(26.) At the time, the ESA had nine European partners: Belgium, Denmark, France, Germany, Italy, the Netherlands, Norway, Spain and the United Kingdom.
(27.) 1988 IGA, supra note 25, art. 1, para. 2. In conjunction with the 1988 IGA, three bilateral Memoranda of Understanding (MOUs) were executed between NASA and the space agencies of the other signatories of the agreement, setting out the details of the cooperative effort. See Memorandum of Understanding Between the United States National Aeronautics and Space Administration and the European Space Agency on Cooperation in the Detailed Design, Development, Operation, and Utilization of the Permanently Manned Civil Space Station, Sept. 29, 1988, reprinted in 4 U.S. SPACE LAW, supra note 25, [section] II.A.22(a) (Jan. 1989); and Memorandum of Understanding Between the United States National Aeronautics and Space Administration and the Ministry of State for Science and Technology [MOSST] of Canada on Cooperation in the Detailed Design, Development, Operation, and Utilization of the Permanently Manned Civil Space Station, Sept. 29, 1988, reprinted in 4 U.S. SPACE LAW, supra note 25, [section] II.A.22(b) (Jan. 19 89) (upon establishment of the Canadian Space Agency (CSA) on Mar. 1, 1989, it assumed responsibility for execution of the Canadian Space Station Program for MOSST); and Memorandum of Understanding Between the United States National Aeronautics and Space Administration and the Government of Japan on Cooperation in the Detailed Design, Development, Operation, and Utilization of the Permanently Manned Civil Space Station, Mar. 14, 1988, reprinted in 4 U.S. SPACE LAW, supra note 25, [section] II.A.22(c) (May 1990).
(28.) Emphasis added. 1988 IGA, supra note 25, art. 1, para. 1.
(29.) The invitation to the Russian Federation to become a Partner in the Space Station was extended on Dec. 6, 1993, and accepted on Dec. 17, 1993. 1998 IGA, supra note 20, Preamble; see also Moenter, supra note 24. at 1034; and Jesse B. Ashe, III, Space Station Alpha: International Shining Star or Legal Black Hole?, 9 TEMP. INT'L & COMP. L.J. 333 (1995).
(30.) "Critics suggest that the station is politically driven to reward the Russians for backing out of missile technology sales to developing countries." Ashe, supra note 29, at 335 (citing John M. Logsdon & Alain Dupas, Lessons to be Learned from Space Station Saga, AVIATION WK. & SPACE TECH., Mar. 7, 1994, at 52); see also Frank Morring, Jr., Tito Trip Strains ISS Partnership, AVIATION WK. & SPACE TECH., May 14, 2001, at 79 (quoting statements of U.S. Senator Milkuski indicating Russia had reneged on its "deal" with the United States concerning cooperation on the ISS project by continuing to sell missile "technology and know-how" to Iran).
(31.) See Ashe, supra note 29, at 334-35; see also Moenter, supra note 24, at 1034.
(32.) See U.S.-Russian Joint Commission on Economic and Technological Cooperation-Joint Statement on Space Station Cooperation, Jun. 23, 1994, U.S.-U.S.S.R., in 4 U.S. SPACE LAW, supra note 25, [ss] II.B. Russian Federation, at 16-17 (Oct 1994).
(33.) Interim Agreement Between the National Aeronautic and Space Administration of the United States and the Russian Space Agency for the Conduct of Activities Leading to a Russian Partnership in the Detailed Design, Development, Operation, and Utilization of the Permanently Manned Civil Space Station, Jun. 23, 1994, U.S.-U.S.S.R., in 4 U.S. SPACE LAW, supra note 25, [ss] II.B. Russian Federation (cont.) (Sept. 1995).
(34.) Moenter, supra note 24, at 1034.
(35.) 1998 IGA, supra note 20, art. 25, para. 4. The 1988 IGA had only entered into force for the United States and Japan. See Moenter, supra note 24, at 1035.
(36.) 1998 IGA, supra note 20, art. 1, para. 1; compare 1988 IGA, supra note 25, art. 1, para. 1.
(37.) 1998 IGA, supra note 20, art. 1, para. 1; see also art. 14, para. 1 ("The Space Station together with its additions of evolutionary capability shall remain a civil station, and its operation and utilization shall be for peaceful purposes, in accordance with international law.").
(38.) See Moenter, supra note 24, at 1034.
(39.) 1998 IGA, supra note 20, art. 1, para. 2.
(40.) Id. art. 1, para. 2, and art. 7, para. 2.
(41.) The IGA makes a distinction between "Partner States" and "Partners"--there are fifteen Partner States but only five Partners in the project because the eleven European States are grouped, for purposes of conducting this cooperation, under the umbrella designation of the "European Partner." Andre Farand, Legal Environment for Exploitation of the International Space Station, Presentation to the International Symposium at Strasbourg, France (May 26-28, 1999), in INTERNATIONAL SPACE STATION: THE NEXT MARKET PLACE 141, 142 (G. Haskell & M. Rycroft eds., 2000).
(42.) 1998 IGA, supra note 20, art. 1, para. 3, and art. 7, para. 1.
(43.) See, Memorandum of Understanding Between the National Aeronautic and Space Administration of the United States of America and the European Space Agency concerning Cooperation on the Civil International Space Station, Jan. 29, 1998, art. 8.1.b, in 4 U.S. SPACE LAW, supra note 25, [section] II.A.22(g) (May 1998) [hereinafter NASA-ESA MOU].
(45.) Id.; 1998 IGA, supra note 20, art. 7, para. 1 ("Mechanisms for decision-making... where it is not possible to reach a consensus are specified in the MOUs.").
(46.) NASA-ESA MOU, supra note 43, art. 8.1.b and art. 18; 1998 IGA, supra note 20, art. 23, para. 1 ("Partners... may consult with each other on any matter arising out of Space Station cooperation.").
(47.) NASA-ESA MOU, supra note 43, art. 8.1.b.
(48.) Id. art. 8.1.b. and art. 18 (under Article 18 of the MOU, questions concerning the interpretation or implementation of the MOUs entered into in conjunction with the 1998 IGA are likewise to be resolved through consultations).
(49.) 1998 IGA, supra note 20, art. 23, para. 1-2. (50.) Id. art. 23, para. 2.
(51.) Id. art. 23, para. 4.
(52.) Id. art. 9, para. 1.
(53.) Also referred to as "user accommodations." See NASA-ESA MOU, supra note 43.
(54.) E.g., Communication systems; guidance and propulsion systems; systems that provide water, power, etc. See MUSEUM OF SCIENCE AND INDUSTRY, INTERNATIONAL SPACE STATION: RUSSIAN SERVICE MODULE (2000), at http://www.msichicago.org/events/iss/pages_iss/zvezda.html.
(55.) See 1998 IGA, supra note 20, art. 9, para. 1.
(56.) NASA-ESA MOU, supra note 43, art. 8.3.a. To avoid a debate on the relative value of the utilization and infrastructure elements supplied by Russia as a proportion of the Space Station as a whole, it was decided that Russia would keep 100% utilization of its own modules. In other words, Russia waived any claim it had to a share of the use of the elements provided by the other Partners by virtue of its contribution to the Space Station's infrastructure, in exchange for being granted exclusive use of its own elements. This arrangement effectively placed the infrastructure element supplied to the Space Station by Russia for its own benefit and that of the other Partners on a par with that furnished by the United States, so as to enable Russia to accumulate 100% of the utilization rights in its own modules. The four founding Partners were thereby able to retain the percentages agreed to for sharing of resources with respect to the original elements (U.S.A.: 76.6%, Japan: 12.8%; Europe: 8.3%; Canada: 2.3%). F arand, supra note 41, at 147.
(57.) 1998 IGA, supra note 20, art. 7, para. 3.
(58.) Id., art. 9, para. 3. Article 9, paragraph 4, provides: "[i]n its use of the Space Station, each Partner... is to avoid causing serious adverse effects on the use of the Space Station by the other Partners."
(59.) Id. art. 9, para. 3(a). Notably, the notice and consensus requirements do not apply to use of the ISS by a private entity under the jurisdiction of a fellow Partner state, a la Russia's sale of a 6-day flight onboard the Space Station Alpha to American Dennis Tito (Apr. 30-May 5, 2001) over the objections of the United States and the other Partners; though, ultimately, the Russians did request and receive an "exemption" to the requirement for MCB coordination for the Tito flight. See Morring, supra note 30, at 79.
(60.) 1998 IGA, supra note 20, art. 9, para. 3(b).
(61.) Outer Space Treaty, supra note 21, art. II.
(62.) Id. art. VIII; see, e.g., infra text accompanying notes 129-38 (on the application of the right of self-defense in outer space).
(63.) See Mary B. McCord, Responding to the Space Station Agreement: The Extension of U.S. Law into Space, 77 GEO. L.J. 1933, 1938-39 (1989) (discussing the similar jurisdictional framework of the 1988 IGA) ("The territoriality principle allows a state to exercise jurisdiction with respect to acts occurring in whole or in part within its territory, or acts having or intended to have a substantial effect within its territory. The nationality principle allows a state to prescribe law with respect to the activities, status, interests, or relations of its nationals, both within and without its territory." (citing RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 402(2)-(3) (1986)) (footnotes omitted); see also Farand, supra note 41, at 141 ("The general rule is that a State can exercise its control and jurisdiction only in its territory and in its air space; the IGA therefore constitutes the basis on which the signatory States are allowed to extend their national jurisdictions and co ntrols to a facility located in outer space.").
(64.) 1998 IGA, supra note 20, art. 5, para. 1; Convention on the Registration of Objects Launched into Outer Space, Jan., 14, 1975, art. II, U.N. GAOR, 29th Sess., Supp. No. 31, at 16, U.N. Doc. A/9631 (1975), 28 U.S.T. 695, 1975 U.S.T. LEXIS 552 [hereinafter Registration Convention].
(65.) Id. art. 2, para. 1.
(66.) See Farand, supra note 41, at 141.
(67.) Outer Space Treaty, supra note 21.
(68.) Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, U.N. GAOR, 22nd Sess., Supp. No. 16, at 5, U.N. Doc. A/6716 (1968), 19 U.S.T. 7570, 1968 U.S.T. LEXIS 584 [hereinafter Rescue Agreement].
(69.) Convention on International Liability for Damages Caused by Space Objects, Mar. 29, 1972, U.N. GAOR, 26th Sess., Supp. No. 29, at 25, U.N. Doc. A/8429 (1972), 24 U.S.T. 2389, 1972 U.S.T. LEXIS 262 [hereinafter Liability Convention].
(70.) Registration Convention, supra note 64.
(71.) 1998 IGA, supra note 20, art. 1, para. 1.
(72.) Id. art. 2, para. 1.
(73.) Moenter, supra note 24, at 1038.
(74.) Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963, 14 U.S.T. 1313, 1963 U.S.T. LEXIS 257 (ratified by the United States on Oct. 7, 1963; entered into force on Oct. 10, 1963) [hereinafter Limited-Test-Ban Treaty].
(75.) Outer Space Treaty, supra note 21.
(76.) Rescue Agreement, supra note 68.
(77.) Liability Convention, supra note 69.
(78.) Registration Convention, supra note 64.
(79.) Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 18, 1979, U.N. GAOR, 34th Sess., Supp. No. 46, at 77, U.N. Doc. A/34/46 (1980), 18 I.L.M. 1434 [hereinafter Moon Treaty]. The Moon Treaty entered into force among its signatories in 1984, yet, it has not been ratified by the United States or any other major space power and so is viewed as having "no real significance in establishing international space law." Glenn H. Reynolds, The Moon Treaty: Prospects for the Future, 11 SPACE POLICY 115 (1995); see OUTER SPACE: PROBLEMS OF LAW AND POLICY 116 (Glenn H Reynolds & Robert P. Merges, eds., 2d ed. 1997) ("[A]bsent adoption by the major space powers, the Moon treaty is unlikely to play a major role in the future") [hereinafter Reynolds & Merges]; and Kurt Anderson Baca, Property Rights in Outer Space, 58 J. AIR L. & COM. 1041, 1069 (1993) (stating that the Moon Treaty is not binding as a treaty and "the claim that it represents customary law is probably not credible"); cf Michael Bourbonniere & Loius Haeck, Jus in Bello Spatiale, 25 AIR & SPACE L. 2, 4 (2000) (includes the Moon Treaty in the six multilateral treaties that make up space law); and BRUCE A. HURWITZ, THE LEGALITY OF SPACE MILITARIZATION 2 (Elsevier Science Publishing Co. 1986) ("[S]pace law.., is composed of five treaties... [including] the 1979 Moon Treaty"); and David Everett Marko, A Kinder Gentler Moon Treaty: A Critical Review of the Current Moon Treaty and a Proposed Alternative, 8 J. NAT. RESOURCES & ENVTL. L. 293 (1993) ("[The Moon Treaty is] one of the five stars in the constellation of space law.").
(80.) See 1998 IGA, supra note 20, Preamble & art. 2, para. 1.
(81.) Id. art. 5, para. 2; see also supra text accompanying notes 61-64.
(82.) MAURICE N. ANDEM, INTERNATIONAL LEGAL PROBLEMS IN THE PEACEFUL EXPLORATION AND USE OF OUTER SPACE 43 (Univ. of Lapland Publ'ns 1992).
(83.) Limited-Test-Ban Treaty, supra note 74, Preamble.
(84.) See, e.g., sources cited supra note 79.
(85.) Limited-Test-Ban Treaty, supra note 74, art. I. "A careful reading of this provision shows that nuclear explosions are prohibited in all environments except underground tests carried out within the territorial limits of the parties to the Treaty." Nicholas M. Matte, The Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water (10 October 1963) and the Peaceful Uses of Outer Space, 9 ANNALS OF AIR & SPACE L. 391, 401 (1984).
(86.) Matte, supra note 85, at 405.
(87.) Nuclear Test Case (Austl. v. Fr.), 1974 I.C.J. 253 (Dec. 20).
(88.) See BIN CHENG, Outer Space: The International Legal Framework--the International Legal Status of Outer Space, Space Objects, and Spacemen, Lectures delivered at the Institute of Public International Law and International Relations, University of Thessaloniki (Sept. 1979), in 10 THESAURUS ACROASIUM 41 (1981), reprinted in STUDIES IN INTERNATIONAL SPACE LAW 383, 408-9 (Clarendon Press 1997) [hereinafter STUDIES IN SPACE LAW].
(89.) See Reynolds & Merges, supra note 79, at 52.
(90.) G.S. Raju, Military Use of Outer Space: Towards Better Legal Controls, in MAINTAINING OUTER SPACE FOR PEACEFUL PURPOSES 90, 92 (Nandasiri Jasentuliyana ed., 1984) (Proceedings of a Symposium held in The Hague, Mar. 1984) [hereinafter PEACEFUL PURPOSES].
(91.) See Galloway in SPACE STATIONS, supra note 10, at 42.
(92.) Question of the peaceful use of outer space, G.A. Res. 1348, U.N. GAOR, 13th Sess., Supp. No. 18, at 5, U.N. Doc. A/4090 (1959) [hereinafter Resolution 1348 (1958)].
(93.) International co-operation in the peaceful uses of outer space, G.A. Res. 1472, U.N. GAOR., 14th Sess., Supp. No. 16, at 5, U.N. Doc. A/4354 (1960).
(94.) On the role of COPUOS in the development of international space law, see Nandasiri Jasentuliyana, The Law Making Process in the United Nations, in SPACE LAW: DEVELOPMENT AND SCOPE 33 (Nandasiri Jasentuliyana ed., 1992).
(95.) Nandasiri Jasentuliyana, A Survey of Space Law as Developed by the United Nations, in PERSPECTIVES ON INTERNATIONAL LAW 349, 359 (N. Jasentuliyana ed., 1995) [hereinafter PERSPECTIVES ON INT'L L.]. For detailed historical and legal analysis of the Outer Space Treaty, see Paul G. Dembling, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space. Including the Moon and Other Celestial Bodies, in 1 MANUAL ON SPACE LAW 1 (Nandasiri Jasentuliyana & Roy S.K. Lee eds., 1979).
(96.) See Moenter, supra note 24, at 1038 (citing Bin Cheng, 1967 Outer Space Treaty: Thirtieth Anniversary, 23 AIR & SPACE LAW 156 (1998)). The Outer Space Treaty currently binds over 100 signatories; yet, the question of whether the legal principles of the treaty have become a part of customary international law and thereby apply to all States remains controversial. See Ram S. Jakhu, Application and Implementation of the 1967 Outer Space Treaty (Presentation to the American Institute of Aeronautics and Astronautics (AIAA) Legal Symposium Celebrating the 30th Anniversary of the 1967 Outer Space Treaty (1997)) (on file with author).
(97.) Jasentuliyana in PERSPECTIVES ON INT'L L., supra note 95, at 359.
(98.) Paul G. Dembling & Daniel M. Axons, The Evolution of the Outer Space Treaty, 33 J. AIR L. & COM. 419, 420 (1967).
(99.) C. WILFRED JENKS, SPACE LAW 97 (Fredrick A. Praeger 1965); see, e.g., JOHN COBB COOPER, High Altitude Flight and National Sovereignty, Address Delivered at the Escuela Libre de Derecho, Mexico City (Jan. 5, 1951), in EXPLORATIONS IN AEROSPACE LAW 256, 263 (Ivan A. Vlasic ed., 1968) [hereinafter AEROSPACE LAW] ("[I]t is obvious we must agree there is an upper boundary in space to the territory of the subjacent State. Under no possible theory can it be said that a State can exercise sovereign rights in outer space beyond the region of the earth's attraction.").
(100.) Quoted in JENKS, supra note 99, at 97.
(101.) Resolution 1348 (1958), supra note 92.
(102.) See also Outer Space Treaty, supra note 21, Preamble. The Preamble to the Outer Space Treaty recalls the language of Resolution 1348 wherein it recognizes "the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes."
(103.) BESS C.M. REIJNEN, THE UNITED NATIONS SPACE TREATIES ANALYSED 89 (Editions Frontieres 1992).
(104.) The geostationary satellite orbit is 22,300 miles above the Earth's surface, at which height a satellite revolves around the Earth at the same speed as the ground below and, thus, it appears to remain stationary over a given point on the Earth's surface; it is the only satellite orbit which is specifically deemed to be a "limited natural resource" under Article 33(2) of the Convention of the International Telecommunication Union, Dec. 22, 1992, 5. Treaty Doc. No. 104-34 (1996) (as amended through 1994) [hereinafter ITU Convention]. See Ram S. Jakhu, The Legal Status of the Geostationary Orbit, 7 ANNALS OF AIR & SPACE L. 333, 349-350 (1982); Final Acts of the Additional ITU Plenipotentiary Conference, Geneva, 1992, available at http://www.wia.org/pub/itu-constitution.html.
(105.) From 1988-90, Tonga, a tiny Pacific nation, submitted filings for sixteen geostationary satellite orbital (GSO) positions over the Pacific Ocean. The five member nations of the International Telecommunications Satellite Organization (INTELSAT) protested to the International Frequency Registration Board (IFRB), on the ground that the acquisition was for profit only and did not further the IFRB goal of maximizing international communications access. Eventually, a compromise was reached whereby Tonga relinquished all but six of the GSO slots. See Jonathan Ira Ezor, Costs Overhead: Tonga's Claiming of Sixteen Geostationary Orbital Sites and the Implications for U.S. Space Policy, 24 LAW & POL'Y INT'L Bus. 915 (1993); and Francis Lyall, Expanding Global Communication Services, Discussion Paper Presented at the Workshop of Space Law in the 21st Century (Jul. 1999) (criticizing Tonga's claim to sixteen geostationary orbital sites as a "homestead claim which might or might not eventually produce gold" and "an undesirable abuse of the ITU system") (on file with author).
(106.) Art Dula, Free Enterprise and the Proposed Moon Treaty, 2 HOUS. J. INT'L L. 3, 33 (1979), reprinted in Reynolds & Merges, supra note 79, at 14; see also REIJNEN, supra note 103, at 16-17.
(107.) See REIJNEN, supra note 103, at 16.
(108.) ITU Convention, supra note 104, art. 33(2) (emphasis added).
(109.) Principles Relating to Remote Sensing of the Earth from Outer Space, Principle II, U.N. GAOR, 41st Sess., Supp. No. 53, at 115, U.N. Doc. A/41/53 (1986).
(110.) See also Land Remote Sensing Policy Act of 1992, 15 U.S.C. [section] 5601 et seq. (1992); and Proposed Rules for Licensing of Private Land Remote-Sensing Space Systems, 62 Fed. Reg. 59,317, 59,319 (Nov. 3, 1997) ("Section 202(b)(2) of the 1992 Act requires that all licenses include the condition that the licensee shall make available to the government of any country, including the United States, unenhanced data collected by the system concerning the territory under the jurisdiction of such government on reasonable terms and conditions.").
(111.) See Joanne Irene Gabrynowicz, Defining Data Availability for Commercial Remote Sensing Systems, 23 ANNALS OF AIR & SPACE L. 93, 104 (1998) ("However, if pronounced differences [in pricing] led to defacto exclusion of access to data for the sensed State, then the obligation of nondiscriminatory access would be breached.").
(112.) The "common interest" principle, art. I, para. 1, requires that exploration and use of outer space be for the common "benefit and interest." Other limitations imposed by the Outer Space Treaty on the freedom of use of outer space include the nondiscrimination and equity clause (art. I, para. 2), the nonappropriation clause (art. II), the international law clause (art. III), the proscription on nuclear weapons (art. IV, para. 1), the responsibility and liability clauses (art. VI and VII), and the consultation, observation, and information clauses (art. V, IX, and XI). CENTRE FOR RESEARCH OF AIR & SPACE LAW, MCGILL UNIVERSITY, SPACE ACTIVITIES AND EMERGING INTERNATIONAL LAW 270, 272 (Nicolas M. Matte ed., 1984) [hereinafter SPACE ACTIVITIES & INT'L LAW].
(113.) Id. at 270.
(114.) International Cooperation in the Peaceful Uses of Outer Space, G.A. Res. 1721, reprinted in JENKS, supra note 99, at 320.
(115.) Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, G.A. Res. 1962, U.N. GAOR, 18th Sess., Supp. No. 15, at 15, U.N. Doc. A/5515 (1964).
(116.) See, ANDEM, supra note 82, at 15 ("[D]uring the launching into orbit by the Soviet Union in 1957 of the first artificial earth satellite, Sputnik-1, there was no protest in any form from any state or group of states about any violation of, or infringement on its territorial sovereignty of its air space... [t]herefore... all states established as a precedent the principle of the freedom of flight of space objects of one state over the territory (air space) of another.").
(117.) See Ivan A. Viasic, The Growth of Space Law 1957-65: Achievements and Issues, in YEARBOOK OF AIR AND SPACE LAW 1965, at 365, 374-380 (Rene H. Mankiewicz ed., 1967).
(118.) SPACE ACTIVITIES & INT'L LAW, supra note 112, at 275.
(119.) See id. ("Appropriation is incompatible with both of these principles."); but see Declaration of the First Meeting of Equatorial Countries, Dec. 3 1976 (the Bogota Declaration), reprinted in 2 MANUAL ON SPACE LAW 383 (Nandasiri Jasentuliyana & Roy S.K. Lee eds., 1979) (under this declaration, the eight equatorial states of Brazil, Columbia, Congo, Ecuador, Indonesia, Kenya, Uganda and Zaire, claim sovereignty over the portions of the geostationary satellite orbit (GSO) above their territory).
(120.) See Carl Q. Christol, Article 2 of the 1967 Principles Treaty Revisited, 9 ANNALS OF AIR & SPACEL. 217, 217-21 (1984).
(121.) Moenter, supra note 24, at 1039.
(122.) See Convention on International Civil Aviation, Dec. 7, 1944, art. 1, 61 Stat. 1180, 3 Bevans 944, 15 U.N.T.S. 295, 1944 U.S.T. LEXIS 146 ("[E]very State has complete and exclusive sovereignty over the air space above its territory.").
(123.) See Jakhu, supra note 104, at 334 (discussing the claim made by equatorial states in the Bogota Declaration (see supra note 119) that, in the absence of a lower boundary of outer space, their sovereignty extends to the part of the GSO located over their respective territories).
(124.) See Definition and Delimitation of Outer Space, U.N. Doc. A/AC. 105/484, at 22 (1991), discussed in REIJNEN, supra note 103, at 98; see also Approach to the Solution of the Problems of the Delimitation of Airspace and Outer Space, U.N. Doc. A/AC.105/C.2/L.121 (1979) (reissued version of Mar. 28, 1979) (working paper prepared by the Soviet Union which defined outer space as the region beyond an altitude of 100 kilometers above sea level), discussed in BIN CHENG, The Legal Regime of Airspace and Outer Space: the Boundary Problem, 5 ANNALS OF AIR & SPACE L. 323 (1980), reprinted in STUDIES IN SPACE LAW, supra note 88, at 425, passim.
(125.) REIJNEN, supra note 103, at 98; see also CHENG, supra note 124, in STUDIES IN SPACE LAW, at 426-28.
(126.) Jakhu supra note 104, at 337-38.
(127.) See id.; see also BIN CHENG, International Responsibility and Liability for Launch Activities, 20 AIR & SPACE L. 297 (1995), reprinted in STUDIES IN SPACE LAW, supra note 88, at 598, 615.
(128.) See CHENG, supra note 124, in STUDIES IN SPACE LAW, at 426-27; see also Jakhu, supra note 104, at 38-39 (discussing the various bases proposed for establishing the height of a boundary between air space and outer space).
(129.) See CHENG, supra note 127, in STUDIES IN SPACE LAW, at 615.
(132.) Outer Space Treaty, supra note 21, art. III.
(133.) Charter of the United Nations, Jun. 26, 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153, 1945 U.S.T. LEXIS 199 [hereinafter U.N. CHARTER]. Ratified by the United States on Aug. 8 1945, entered into force on Oct. 24, 1945.
(134.) See Ivan A. Vlasic, Space Law and the Military Applications of Space Technology, in PERSPECTIVES ON INT'L L., supra note 95, at 385, 394; and REIJNEN, supra note 103, at 102; see also MANFRED LACHS, THE LAW OF OUTER SPACE: AN EXPERIENCE IN CONTEMPORARY LAW MAKING 14 (Sijthoff Leiden 1972) ("[Article III] obviously implies that in all their activities in regard to and within outer space and on celestial bodies States are subject to the rule of international law.").
(135.) LACHS, supra note 134, at 15.
(136.) M. Chandrasekharan, Editorial Comment, The Space Treaty, 7 INDIAN J. INT'L L. 61, 63 (1967).
(137.) See Vlasic, supra note 134, in PERSPECTIVES ON INT'L L., at 394; and HURWITZ, supra note 69, at 71 (citing Chandrasekharan, supra note 136, at 63).
(138.) Article 2(4) states: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." U.N. CHARTER, supra note 133.
(139.) See Vlasic, supra note 134, in PERSPECTIVES ON INT'L L., at 394; and Philip D. O'Neill, Jr., The Development of International Law Governing the Military Use of Outer Space, in NATIONAL INTERESTS AND THE MILITARY USE OF SPACE 169, 177 (William J. Durch ed., 1984) [hereinafter NATIONAL INTERESTS]; see also Manfred Lachs, Preserving the Space Environment, Opening Address to the Symposium on the Conditions Essential for Maintaining Outer Space for Peaceful Uses (Mar. 12, 1984), in PEACEFUL PURPOSES, supra note 90, at 5, 7.
(140.) "Under present treaty rules and/or customary law, as demonstrated in practice, national statements, and United Nations resolutions... [i]nternational law including the United Nations Charter where appropriate, applies to acts in outer space. This expressly includes the right of self defense." LAY & TAUBENFELD, supra note 5, at 73; see also HURWITZ, supra note 69, at 72 (the Legal Sub-Committee of the U.N. Committee for the Peaceful Uses of Outer Space (COPUOS) has rejected the view that the right of self-defense is not applicable in regards to outer space); and GENNADIL ZHUKOV, INTERNATIONAL SPACE LAW 89 (Progress Publishers 1976) (states can lawfully use force in or through outer space in the process of self-defense); J.E.S. FAWCETT, INTERNATIONAL LAW AND THE USE OF OUTER SPACE 39 (Manchester Univ. Press 1968) (no provision of the Charter or rule of customary law imposes "any upper limit above the surface of the Earth on the legitimate exercise of the right of self-defense.").
(141.) CARL Q. CHRISTOL, THE MODERN INTERNATIONAL LAW OF OUTER SPACE 37 (Pergamon Press 1982).
(142.) See White House Fact Sheet, National Space Policy (Sept. 1, 1996), available at http://ast.faa.gov/ licensing/regulations/nsp-pdd8.htm [hereinafter National Space Policy (1996)] ("National security space activities shall contribute to U.S. national security by... providing support for the United States' inherent right of self-defense... The United States considers the space systems of any nation to be national property with the right of passage through and operations in space without interference. Purposeful interference with space systems shall be viewed as an infringement on sovereign rights."); see also DODD 3100.10, supra note 11, para. 4.1-4.2, at 6; and COMMISSION TO ASSESS U.S. NATIONAL SECURITY SPACE MGMT. & ORG., REPORT PURSUANT TO P.L. 106-65, at 37 (2001), available at http://sun00781.dn.net/spp/military/ commission/report.htm ("It is important to note... that by specifically extending the principles of the U.N. Charter to space, the Outer Space Treaty (Article III) provides for the right of individual and collective self-defense, including "anticipatory self-defense.").
(143.) Vlasic, supra note 134, in PERSPECTIVES ON INT'L L., supra note 95, at 396.
(144.) SPACE ACTIVITIES & INT'L LAW, supra note 112, at 292 (noting that most publicists espouse this view); see, e.g., BIN CHENG, The Commercial Development of Space: the Need for New Treaties (Adapted from a keynote address delivered at a Seminar on The Cape York Space Port: The Legal and Business Issues, Aug. 17, 1990), 19 J. SPACE L. 17 (1991), reprinted in STUDIES IN SPACE LAW, supra note 88, at 641, 651; CHRISTOL, supra note 141, at 26; Nandasiri Jasentuliyana, The Moon Treaty, in PEACEFUL PURPOSES, supra note 90, at 121, 127; REIJNEN, supra note 103, at 98; cf. Vlasic, supra note 134, in PERSPECTIVES ON INT'L L., supra note 95, at 397 ("If one chooses to ignore the controversy concerning the 'true' meaning of 'peaceful' in the Outer Space Treaty, it is safe to conclude that the treaty permits the deployment in outer space of anti-satellite weapons, directed energy weapons, or any other kind of weapon, as long as these weapons are not in conflict with the provisions of Article IV of the Outer Space Trea ty or some other agreement.").
(145.) See Raju in PEACEFUL PURPOSES, supra note 90, at 90, 91; and Ivan A. Vlasic, The Legal Aspects of Peaceful and Non-Peaceful Uses of Outer Space, in PEACEFUL AND NON-PEACEFUL USES OF SPACE 37, 42 n. 13 (B. Jasani ed., 1991) (citing A. Chayes, et al., Space Weapons: the Legal Context, in WEAPONS IN SPACE, No. 7, at 193-97) [hereinafter PEACEFUL USES OF SPACE]; see also Jasentuliyana, supra note 144, in PEACEFUL PURPOSES, at 126 ("[A]ny object carrying [nuclear] weapons in sub-orbital flights such as ICBMs is not included within the meaning of paragraph 1 since the phrase 'place in orbit' means that an object would have to complete a full orbit around the Earth in order to be covered by the Treaty.").
(146.) Jasentuliyana, supra note 144, in PEACEFUL PURPOSES, at 126.
(147.) Cf. id. (discussing drafting history of Article IV, paragraph 1, which suggests that the exclusion of the Moon from the provision was intentional); and Vlasic, supra note 134, in PERSPECTIVES ON INT'L L., at 397 (referring to the omission of the Moon from Article IV as an "oversight"); also CHRISTOL, supra note 141, at 20 ("[I]n most instances the inconsistent and non-uniform use of 'outer-space,' 'the moon,' and 'other celestial bodies' can be laid to time constraints and other exigencies surrounding the drafting process."). The view of U.S. Ambassador to the United Nations, Arthur Goldberg, was that the prohibition in Article IV, paragraph 1, extended to "the Moon or any other celestial body." CHRISTOL, supra, at 21.
(148.) See Jasentuliyana, supra note 144, in PEACEFUL PURPOSES, at 127 ("It is [likewise] not clear from its language whether paragraph 1 applies to trajectories to and orbits around celestial bodies."); but see Vlasic, supra note 134, in PERSPECTIVES ON INT'L L., at 397 ("[I]t should not be difficult to prove, relying on the overall spirit of the Treaty, that the prohibition on these weapons applies also to the moon and other celestial bodies.").
(149.) Jasentuliyana, supra note 144, in PEACEFUL PURPOSES, at 127.
(150.) See id.; see also CHENG, supra note 144, in STUDIES SPACE LAW, at 651 ("The only provision in the 1967 Treaty which limits the use of any part of outer space to 'exclusively... peaceful purposes' is to be found in the second paragraph of Article IV, but, in very explicit terms, it applies only to 'the moon and other celestial bodies.'"); Viasic in PEACEFUL USES OF SPACE, supra note 145, at 42 ("[T]he 'peaceful purposes' clause applies to the moon and other celestial bodies but not to 'outer space.'"); J.E.S. FAWCETT, OUTER SPACE: NEW CHALLENGES TO LAW AND POLICY 15 (Clarendon Press 1984) ("[T]here is no provision that outer space shall be used exclusively for peaceful purposes."); CHRISTOL, supra note 141, at 25 (Art. IV, para. 2, does not require use of outer space "per se" for exclusively peaceful purposes); SPACE ACTIVITIES & INT'L LAW, supra note 112, at 291 ("[Only] the moon and other celestial bodies were made subject to greater restrictions on military activity pursuant to article IV, paragraph 2."); Raju in PEACEFUL PURPOSES, supra note 90, at 91 ("Under the second paragraph of Article IV, the states parties to the 1967 treaty are under an obligation to use the Moon and other celestial bodies exclusively for peaceful purposes."); and ZHUKOV, supra note 140, at 92-93 (the 1967 Treaty does not provide for "the total demilitarization of outer space" as "just the Moon and other celestial bodies" are required "to be used for peaceful purposes exclusively"). Notably, the United States has extended application of the "peaceful purposes" requirement to all of outer space via statute. See 42 U.S.C. [section] 2451(a) ("[I]t is the policy of the United States that activities in space should be devoted to peaceful purposes for the benefit of all mankind.") (emphasis added).
(151.) See CHRISTOL, supra note 141, at 24-25; and Raju in PEACEFUL PURPOSES, supra note 90, at 91.
(152.) See CHRISTOL, supra note 141, at 24; Jasentuliyana, supra note 144, in PEACEFUL PURPOSES, at 127; and Raju in PEACEFUL PURPOSES, supra note 90, at 92.
(153.) CHRISTOL, supra note 141, at 24. Before 1961, "[w]ith the exception of the highly classified CIA involvement, the existence of a US satellite reconnaissance program had been openly admitted in Congress." STARES, supra note 5, at 62. The Soviet Union, on the other hand, "used to controlling the media--at least at home--and distorting facts, simply denied that it ever engaged in such internationally 'illegal' activity as spying on anyone, especially from outer space, even though it was obviously indulging in it." CHENG, supra note 144, in STUDIES IN SPACE LAW, at 650. "[Nevertheless] statements of the significance of military space activities in Soviet planning... emerged on a number of occasions." STARES, supra note 5, at 148-49.
(154.) Richard A. Morgan, Military Use of Commercial Communication Satellites: A New Look at the Outer Space Treaty and "Peaceful Purposes," 60 J. AIR L. & CoM. 237, 300 (1994); see also sources cited supra note 150.
(155.) Morgan, supra note 154, at 299; accord. J.N. SINGH, OUTER SPACE, OUTER SEA, OUTER LAND AND INTERNATIONAL LAW 85-86 (Harman Publ'ns 1987) ("Outer space, minus celestial bodies, by no justification, can legally be used for purposes other than peaceful... The obligation to explore and use outer space for peaceful purposes exists even independent of the provisions of the Outer Space Treaty."). For a breakdown of U.N. General Assembly Resolutions, Charter provisions, and other sources of international law, including the portions of the Outer Space Treaty Preamble and other articles of the treaty that support this interpretation, see Morgan, supra note 154, at 301-302 nn.338-40.
(156.) Morgan, supra note 154, at 302 (footnotes omitted); see SINGH, supra note 155, at 80-88; see also Marko G. Markoff, Disarmament and "Peaceful Purposes" Provisions in the 1967 Outer Space Treaty, 4 J. SPACE L. 3, 10-11 (1976) (suggesting that the principle of nonmilitary use of space could arguably be advanced as part and parcel of the "common interest" principle), cited in Morgan, supra, at 302 n.341.
(157.) Markoff, supra note 156, at 5.
(158.) Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 37-38.
(159.) 1998 IGA, supra note 20, art. 1, para. 1.
(160.) See text accompanying notes 209-236.
(161.) U.N. CHARTER, art. 1, para. 3.
(162.) Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among Member States in Accordance with the U.N. Charter, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. A/5217 (1970).
(163.) SPACE ACTIVITIES & INT'L LAW, supra note 112, at 348-49 (citing Outer Space Treaty, supra note 21, art. I).
(164.) Id. at 350-51.
(165.) REIJNEN, supra note 103, at 134.
(166.) BIN CHENG, The 1967 Outer Space Treaty, 95 JOURNAL DU DROIT INTERNATIONAL 532 (1968), reprinted in STUDIES IN SPACE LAW, supra note 88, at 215, 249; see also REUNEN, supra note 103. at 139.
(167.) CHENG, supra note 166, in STUDIES IN SPACE LAW, at 249. Such a right is implicit under principles of international law. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES ?? 335 (1986) (this section follows Article 60(1) and (2) of the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980; the United States is not a party to the treaty)).
(168.) "The United States... [sought] to preserve the effective operation of the free access clause... (and thus] made it clear.., that neither [the advance notice] requirement or the condition of reciprocity implied any 'veto right."' CHENG, supra note 166, in STUDIES IN SPACE LAW, at 249-50.
(169.) Id. at 250; see also Harminderpal Singh Rana, The "Common Heritage of Mankind" & the Final Frontier: A Revaluation of Values Constituting the International Legal Regime for Outer Space Activities, 26 RUTGERS L. J. 225, 245 (1994) (noting that "[t]he visits and assistance contemplated in [Article XII] are probably intended to be informational, rather than use oriented" (emphasis added)); compare Heidi Keefe, Making the Final Frontier Feasible: A Critical Look at the Current Body of Outer Space Law, 11 COMPUTER & HIGH TECH. L. J. 345, 352 n.47 (1995) (arguing that the same "reciprocity requirement" that applies on the moon and other celestial bodies theoretically ought apply to outer space as well).
(170.) Outer Space Treaty, supra note 21, art. V, para. 1.
(171.) REIJNEN, supra note 103, at 107; but see CHENG in STUDIES IN SPACE LAW, supra note 88, at 417 (noting that during negotiations of the Outer Space Treaty, the representative from Hungary put forward the view that "as 'envoys' astronauts should enjoy jurisdictional immunity"; the Soviet representative indicated that, to the contrary, the expression "envoys of mankind" merely "served to justify the legal obligations" in the rest of the article and had "no special legal significance").
(172.) LACHs, supra note 134, at 79.
(173.) REIJNEN, supra note 103, at 157.
(174.) Rescue Agreement, supra note 68, art. 6. "[W]here an international inter-governmental organization is responsible for launching, [the term 'launching authority' shall refer to] that organization, provided that that organization declares its acceptance of the rights and obligations provided for in [the Rescue] Agreement and a majority of the States members of that organization are Contracting Parties to [the] Agreement and to the [Outer Space Treaty]" Id. (emphasis added); see also Outer Space Treaty, supra note 21, art. VI ("[States] bear international responsibility for national activities in out space").
(175.) Rescue Agreement, supra note 68, art. 1 and art. 5, para. 1.
(176.) Id., art. 2; see CHENG in STUDIES IN SPACE LAW, supra note 88, at 419 ("[T]he launching authority...apparently is not responsible for the expenses incurred by other contracting States in rescuing and returning astronauts.").
(177.) Rescue Agreement, supra note 68, art. 5, paras. 2 and 3.
(178.) Id. art. 5, para. 5.
(179.) CHRISTOL, supra note 141, at 89.
(180.) LACHS, supra note 134, at 121.
(182.) See CHENG, supra note 127, in STUDIES IN SPACE LAW, at 603-4 ("Liability represents merely one aspect of responsibility"); see also Bin Cheng, Article VI of the 1967 Space Treaty Revisted: "International Responsibility," "National Activities," and "the Appropriate State," 26 J. SPACE L. 7, 9(1998).
Responsibility means answerability, answerability for one's acts and omissions, for their being in conformity with whichever system of norms... may be applicable.... Responsibility... [does] not necessarily involve payment of compensation, especially when no damage has been caused, [but, rather, can take the form of] for example assurances of nonrepetition. The term liability is used to specifically denote the obligation to bear the consequences of a breach of legal duty, in particular the obligation to make reparation for any damaged caused.... [R]espsonsibility is a broader concept than liability.
(183.) CHRISTOL, supra note 141, at 91.
(184.) See e.g., Edward G. Lee, Liability for Damage Caused by Space Debris: The Cosmos 954 Claim, in 26 THE CANADIAN YEARBOOK OF INTERNATIONAL LAW 273, 278 (C.B. Bourne ed., 1988) (discussing the relationship between Article V of the Rescue Agreement and the Liability Convention).
(185.) Liability Convention, supra note 69, art. I.
(186.) Id art. III.
(187.) Id. art. III.
(188.) 1998 IGA, supra note 20, art. 16.
(189.) Id. art. 16.3(a).
(190.) Id. art. 17, para. 1. The ISS cross-waiver of liability only applies to claims for damage arising out of "Protected Space Operations," as defined in Article 16.2(f). See also Moenter, supra note 24, at 1047-48 (describing the cross waiver of liability of the 1998 IGA).
(191.) See 1998 IGA, supra note 20, art. 12(2).
(192.) Liability Convention, supra note 69, art. V; see also 1998 IGA, supra note 20, art. 17.3 (Partners may conclude separate agreements regarding the apportionment of any joint and several liability arising out of the Liability Convention).
(193.) "The term 'space object' includes component parts of a space object as well as its launch vehicle and parts thereof." Registration Convention, supra note 64, art. I. For purposes of international law, "space object" can be defined as "an object designed and intended to penetrate into outer space." See supra text accompanying notes 122-31.
(194.) MYERS S. McDOUGAL, ET AL., LAW AND THE PUBLIC ORDER IN OUTER SPACE 585-86 (Yale Univ. Press 1963).
(195.) Registration Convention, supra note 64, art. II, para. 1.
(196.) Id. art. I.
(197.) Moenter, supra note 24, at 1044.
(198.) Reynolds, supra note 79, at 115.
(199.) BIN CHENG, The Moon Treaty; Agreement Governing the Activities of States on the Moon and Other Celestial Bodies within the Solar System other than Earth, 33 CLP 213 (1980), reprinted in STUDIES IN SPACE LAW, supra note 88, at 357. According to Cheng, the Moon Treaty is also perhaps the most poorly drafted of the five treaties that have emanated from GOPUOS. Id. at 374.
(200.) Id. at 357 (noting that, heretofore, international law divided the world into three parts: "(i) national territory, (ii) res nullis, i.e., areas which may be acquired as national territory, and (iii) res extra commercium, i.e., areas which by law are not susceptible to national appropriation); compare CHRISTOL, supra note 141, at 318-19 ("[T]he [Moon] Treaty allows for exploitation by both public and private legal persons of natural resources that have been reduced to possession by the act of removing them from their original in place location. Once such materials and resources are no longer in place the possessor may maintain proprietary rights."). For discussion of the provisions in the Moon Treaty that together define the territorial status labeled "the common heritage of mankind," see CHENG, supra note 199, at 367-74.
(201.) Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 43; cf Vlasic, supra note 134, in PERSPECTIVES ON INT'L L., supra note 95, at 397 (noting that the Moon Treaty (art. 1 and 3) corrects an omission in OST Article IV(1), by expressly prohibiting the stationing of weapons of mass destruction in orbits around the Moon and other celestial bodies or trajectories to or around them); and see generally BIN CHENG, Definitional Issues in Space Law: the "Peaceful Use" of Outer Space, including the Moon and other Celestial Bodies (Adapted from the paper The Status of Outer Space and Relevant Issues: Delimitation of Outer Space and Definitions of "Peaceful Use," 11 J. SPACE L. 89 (1983)), in STUDIES IN SPACE LAW, supra note 88, at 513, 532-34 (discussing the provisions of the Moon Treaty related to the military use of space).
(202.) See generally supra note 79 and 201.
(203.) Limited-Test-Ban Treaty, supra note 74, art. I.
(204.) Outer Space Treaty, supra note 21, art IV, para. 1.
(205.) Id. art IV para. 2.
(206.) Id. For a comprehensive summary of military activities prohibited and permitted by treaty or customary international law, see Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 47-50.
(207.) Outer Space Treaty, supra note 21, art IV, para. 2; see also sources cited supra note 150.
(208.) 1998 IGA, supra note 20, art. 1, para. 1.
(209.) Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 37; see also Bhupendra Jasani, Introduction to PEACEFUL USES OF SPACE, supra note 145, at 1, 7.
(210.) Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 72, 1959 U.S.T. LEXIS 420 (ratified by the United States on Aug. 18, 1960; entered into force on Jun. 23. 1961).
(211.) REIJNEN, supra note 103, at 88.
(212.) See Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 41 n.12; see also Aldo A. Cocca, Historical Precedents for Demilitarization, in PEACEFUL PURPOSES, supra note 90, at 29, 41-42.
(213.) Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 41.
(214.) See CHENG, supra note 144, in STUDIES IN SPACE LAW, at 650-51.
(215.) Outer Space Treaty, supra note 21, art. IV, para. 2.
(217.) See Jasentuliyana, supra note 144, in PEACEFUL PURPOSES, at 128; and Stephen Gorove, Article IV of the Outer Space Treaty and Some Alternatives for Further Arms Control, in PEACEFUL PURPOSES, supra note 90, at 77, 82 (asserting that the drafters intended to give "peaceful" a distinct meaning within the context of the treaty itself); cf CHENG, supra note 144, in STUDIES IN SPACE LAW, at 650 (arguing that Article I of the Antarctic Treaty, in which the word "peaceful" is used in contradistinction to "military," was "very much on the minds of those who drew up the 1967 Space Treaty"). In this regard, the argument that the Outer Space Treaty prohibits all military activities on the Moon and other celestial bodies, except those expressly permitted by the treaty (see e.g., LACHS, supra note 134, at 106-08), would appear to gain support from the fact that at the time the treaty was adopted, military activities were not being carried out in these areas.
(216.) Id. art. III; see also supra text accompanying notes 129-35.
(218.) See Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 42, 45. Vlasic notes that at the time negotiations on the Outer Space Treaty began, the United States and Soviet Union were both already "using outer space for a variety of military purposes" (e.g., surveillance, communications, navigation, etc.), which the United States openly regarded as "peaceful." While the Soviet Union publicly opposed these activities, it secretly engaged in them as well, and thus acquiesced to the U.S. interpretation."
(219.) CHENG, supra note 201, in STUDIES IN SPACE LAW, at 515; see also Morgan, supra note 154, at 304 nn. 353-55.
(220.) E.g., National Security Council Action No. 1553 (Nov. 21, 1956) (outlining a U.S. disarmament proposal to prohibit "the production of objects designed for travel in or projection though outer space for military purposes," which would have ultimately banned ICBMs as well as military satellites), quoted in STARES, supra note 5, at 54 ("It is difficult to assess how sincere Eisenhower and his administration were with these proposals."); see also Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 39.
(221.) See NATIONAL SECURITY COUNCIL, PRELIMINARY U.S. POLICY IN OUTER SPACE (NSC 5814/1) (Jun. 20, 1958), reprinted in ORGANIZING FOR EXPLORATION, 1 EXPLORING THE UNKNOWN: SELECTED DOCUMENTS IN THE HISTORY OF THE U.S. CIVIL SPACE PROGRAM (J. Logsdon ed., 1998); quoted in STARES, supra note 5, at 55; cf. Viasic in PEACEFUL USES OF SPACE, supra note 145, at 40 ("[A]s early as 1958-59, the legal position of the United States with respect to the meaning of the phrase "peaceful uses" became crystallized along lines quite dissimilar from the initial rhetoric.").
(222.) National Aeronautics and Space Act of 1958, Pub. L. No. 85-568, 72 Stat. 426 (1958) (unamended) (codified as amended at 42 U.S.C. [section][section] 2451 et seq. (2000)) [hereinafter 1958 Space Act].
(223.) Id. [section]102.
(224.) See STARES, supra note 5, at 59-71; see also SPIRES, supra note 5, at 108-12.
(225.) Morgan, supra note 154, at 305; see U.N. CHARTER, supra note 133, art. 1, para. 1, and art. 2, para. 3.
(226.) Id. at 305 n.357.
(227.) Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 40; see also Dembling & Axons, supra note 98, at 434. Commenting on the prospect of future efforts to address the nonincorporation of outer space into the Outer Space Treaty provision in Article IV(2), which confines all activities on the Moon and other celestial bodies to solely "peaceful purposes," Dembling, then General Counsel of NASA, writes: "In the interim, one might conclude that any military use of outer space must be restricted to nonaggressie purposes in view of Article III, which makes applicable international law including the Charter of the United Nations" (emphasis added). But cf. CHENG, supra note 144, in STUDIES IN SPACE LAW, at 651-52 (proposing that the U.S. interpretation of "peaceful" as meaning "non-aggressive" is due to "an initial misreading of the Treaty and the erroneous belief that the restriction of the use for 'exclusively peaceful purposes'... extends to the whole of outer space.").
(228.) See STARES, supra note 5, at 69.
(229.) Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 40. "For more than twenty years scholars of international law in the Soviet Union have unanimously stated that 'use for peaceful purposes' should be interpreted as 'nonmilitary use.'" Id. at n.11.
(230.) See Morgan, supra note 154, at 304; and CHENG, supra note 144, in STUDIES IN SPACE LAW, at 650.
(231.) See STARES, supra note 5, at 71 ("Soviet diplomatic opposition to U.S. reconnaissance satellites effectively ceased in September 1963."). See also Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 42; and Morgan, supra note 154, at 304.
(232.) Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 45 n.16 (noting that "[a] rule becomes a rule of customary international law when a significant majority of states, including states whose interests are specifically affected, act in accordance with that rule because they believe it to be binding... [and] state practice... [is] both extensive and virtually uniform." (citing The North Sea Continental Shelf (F.R.G. v. Den. and Neth.), 1969 I.C.J. 3, 46, para. 73 (Feb 20)).
(233.) This debate "has not been resolved and may never be." Morgan, supra note 154, at 241; see also CHENG, supra note 144, in STUDIES IN SPACE LAW, at 650-52.
(234.) Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 45.
(235.) Morgan, supra note 154, at 303 (quoting Reed & Norris, supra note 16, at 678). In practice, this has led to an understanding among the major space actors that all military activities in outer space are permissible, unless specifically prohibited by treaty or customary international law. Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 38, 45.
(236.) Manfred Lachs, Views from the Bench: Thoughts on Science, Technology and World Law, 86 A.J.I.L. 673, 686 (1992).
(237.) Outer Space Treaty, supra note 21, art. IV; see also Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 50.
(238.) Vlasic in PEACEFUL USES OF SPACE, supra note 145, at 50.
(239.) Outer Space Treaty, supra note 21, art. IV, para. 2. For the full text, see supra text accompanying notes 13943-44. The identical language is used in the Moon Treaty, supra note 79, art. III, para. 4.
(240.) 1998 IGA, supra note 20, art. 1, para. 1, and art. 14, para. 1; see supra text accompanying note 37.
(241.) See DOYLE, supra note 4, at 85.
(242.) Agreement on the International Telecommunications Satellite Organization (Intelsat), Aug. 20, 1971, 23 U.S.T. 3810, 1971 U.S.T. LEXIS 157 (entered into force on Feb. 12 1973) [hereinafter Intelsat Agreement], reprinted in 4 U.S. SPACE LAW, supra note 25, [section] II.A.9 (Oct. 1986); Operating Agreement Relating to the International Telecommunications Satellite Organization (Intelsat), Feb. 12 1973, 23 U.S.T. 4091, 1973 U.S.T. LEXIS 302), reprinted in 4 U.S. SPACE LAW, supra note 25, [section] II.A.10 (Oct. 1986).
(243.) The Intelsat Agreement prohibits use of its space segment to provide "specialized communication services" for military purposes. Intelsat Agreement, supra note 242, art. III, paras. (d) and (e). However, the services provided to DOD are considered "public communication services" available to the military forces of any signatory State. Since Intelsat does not provide any "specialized services" (which evidently would require equipping satellites with special hardware) to anyone at this time, military use of the system is not an issue. Morgan, supra note 154, at 293-94.
(244.) DOYLE, supra note 4, at 86.
(245.) Convention on the International Maritime Satellite Organization (Inmarsat), Sept. 3, 1976, 31 U.S.T. 1, 1976 U.S.T. LEXIS 309 (entered into force on Jul. 16, 1979) [hereinafter Inmarsat Convention], reprinted in 4 U.S. SPACE LAW, supra note 25, [section] II.A. 12 (Oct. 1986); Operating Agreement on the International Maritime Satellite Organization (Inmarsat), Jul. 16, 1979, 31 U.S.T. 135, 1979 U.S.T. LEXIS 309, reprinted in 4 U.S. SPACE LAW, supra note 25, [section] II.A. 13 (Oct. 1986).
(246.) Morgan, supra note 154, at 280.
(247.) "The Organization shall act exclusively for peaceful purposes." Inmarsat Convention, supra note 245, art. 3(3). See also Nick Rowe, Peaceful Purposes (1999) (fact sheet published by the Inmarsat Legal Services Dept.) (on file with author) ("Whilst Inmarsat is now privatized and is no longer subject to the Convention, it is nevertheless obliged under its Public Services Agreement to continue to act exclusively for peaceful purposes.").
(248.) See Morgan, supra note 154, at 265-70 (discussing military satellite use during regional conflicts).
(249.) DOYLE, supra note 4, at 91.
(250.) Id. at 88, 90 (Leasat had a design life beyond the time period of the Navy's needs and, thus, under Hughes' lease arrangement, Hughes retained the right to recover the satellite after the expiration of the Navy's lease and revert the balance of its useful life to commercial applications).
(251.) For a historical overview of the U.S. policy of segregating military and civilian space activities, see Christopher M. Petras, The Convergence of U.S. Military and Commercial Space Activities (2001) (unpublished LL.M. thesis, McGill University) (on file with author).
(252.) See Hettena, supra note 18 (quoting U.S. Senator Mikulski discussing the growing cooperation between the military and NASA).
(253.) See e.g., supra note 5.
(254.) 42 U.S.C. [section] 2451(d)(6).
(255.) See Craig Covault, Navy Enlists NASA In the War on Terror, AVIATION WK. & SPACE TECH., Apr. 8, 2002, at 30; see also Hettena, supra note 18 (According to NASA, the images that the U.S. military used in Afghanistan were "available to 'anyone and everyone,' including a host of federal agencies and foreign governments.").
(256.) Act of Oct. 30, 1987, supra note 24, [section] 106. Section 108 of the same law provides for "development of the space station... [as] part of a balanced civilian space program." (emphasis added).
(257.) See generally S. Neil Hosenball, The Space Station--Past, Present and Future with some Thoughts on some legal Questions that need to be addressed, in SPACE STATIONS, supra note 10, at 36 ("The Space Station has been fully justified as a civil and commercial space facility... No national security related funds will be used [for Space Station development].") (emphasis added).
(258.) CHENG, supra note 144, in STUDIES IN SPACE LAW, at 653 n.44 (emphasis added).
(260.) Belgium-Denmark-France-Federal Republic of Germany-Italy-Netherlands-Spain-Sweden-Switzerland-United Kingdom: Convention for the Establishment of a European Space Agency, May 30, 1975, art. II, 14 I.L.M. 855, 865-66 (1975) (entered into force Oct. 30, 1980) [hereinafter ESA Convention].
(261.) CHENG, supra note 144, in STUDIES TN SPACE LAW, at 652.
(262.) Moenter, supra note 24, at 1045.
(263.) See supra text accompanying notes 1415-5 1; and supra text accompanying notes 1948-2048.
(264.) Cf CHENG, supra note 144, in STUDIES IN SPACE LAW, at 65 1-52.
(265.) U.N. CHARTER, supra note 133, arts. 25, 39, 42, and 48.
(266.) See Schmitt, supra note 22, at 1087; see also Morgan, supra note 154, at 295 ("'peaceful purposes' does not exclude military activities so long as those activities are consistent with the United Nations Charter").
(267.) See Sean R. Mikula, Blue Helmets in the Next Frontier: The Future is Now, 29 GA. J. INT'L & COMP. L. 531, 549-50 nn.85-87 (2001) and sources cited (discussing the international conference on preventing an arms race in space that was initiated and hosted by Russian President Vladimir Putin in April 2001).
(268.) See e.g., Draft Treaty on the Prohibition of the Stationing of Weapons of Any Kind in Outer Space, U.N. GAOR, 36th Sess., Annex, U.N. Doc. A/36/192 (1981) (presented to the U.N. Secretary-General by the U.S.S.R. Minister for Foreign Affairs on Aug. 10, 1981).
(269.) See supra notes 153, 218; see also STARES, supra note 5, passim.
(270.) David Tan, Towards a New Regime for Protection of Outer Space as the "Province of All Mankind," 25 YALE J. INT'L L. 145, 167 n.100 (2000), citing Albert Gore, Jr., Outer Space, the Global Environment, and International Law: Into the Next Century, 57 TENN. L. REV. 329, 332 (1990).
(271.) See Mikula, supra note 267, at 550.
(272.) For an in-depth discussion of the history of Soviet military space capabilities, see NICHOLAS L. JOHNSON, SOVIET MILITARY STRATEGY IN SPACE (Jane's Publishing Co. 1987); see also Tan, supra note 270, at 167 n.l00.
(273.) Outer Space Treaty, supra note 21, art. IV, para. 2.
(274.) Gorove, supra note 217, in PEACEFUL PURPOSEs, supra note 90, at 82; see also CHENG, supra note 199, at 369 ("[T]he 1967 Space Treaty in its Article 1(3) asserts a general freedom of scientific investigation in outer space.").
(275.) Gorove, supra note 217, in PEACEFUL PURPOSES, supra note 90, at 82;
(276.) E.g., Limited-Test-Ban Treaty, supra note 74, forbids State parties from carrying out the explosion of nuclear devices in outer space; see also, e.g., Outer Space Treaty, supra note 21, art. IV (bans placement of nuclear weapons or other weapons of mass destruction in earth orbit); and Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, Dec. 10. 1976, U.N. GAOR, 31st Sess., Supp. No. 39, at 36, U.N. Doc. A/RES/31/72 (1977), 31 U.S.T. 333 (ratified by the United States on Dec.13, 1979; entered into force on Jan. 17, 1980) (prohibits military or other hostile use of environmental modification techniques--i.e., the deliberate manipulation of natural processes--that are widespread, long lasting, or severe, to include changes to the dynamics, composition or structure of outer space).
(277.) See Morgan, supra note 154, at 306 ("[S]tate practice appears to confirm that 'use' is to be distinguished from 'purpose.' Take, for example, the 'Star Wars' program... Although arguably 'non-peaceful' or 'aggressive' uses might be made of space, the stated purpose of the program was to defend the U.S., a peaceful 'purpose' [of] self-defense. Therefore, the drafters very deliberately distinguished between 'use' from 'purpose' and intentionally chose the latter. As a result, through the use of the term 'purpose,' the drafters of the Outer Space Treaty incorporated a 'rightful intent' test.").
(278.) See sources cited supra note 19.
(279.) 1998 IGA, supra note 20, art. 1, para. 1.
(280.) Cf Logsdon, supra note 19, at 245 ("Among the many unresolved issues [with respect to ISS commercialization] are... the legal issues associated with commercial research aboard the ISS.").
(281.) 1998 IGA, supra note 20, art. 5, para. 1.
(282.) Id. art. 1, para. 3, and art. 7, para. 1; see also NASA-ESA MOU, supra note 43, art. 8. See text accompanying notes 40-51 (discussing the ISS "consensus management" regime).
(283.) 1998 IGA, supra note 20, art. 9, para. 3(b).
(284.) Id. art. 1, para. 1, and art. 2, para. 1.
(285.) Outer Space Treaty, supra note 21, art. IX; see also 1998 IGA, supra note 20, art. 9, para. 4 ("[E]ach Partner... is to avoid causing serious adverse effects on the use of the Space Station by the other Partners.").
(286.) 1998 IGA, supra note 20, art. 7, para. 3; art. 9, para. 3; and art. 1, para. 1.
(287.) See supra text accompanying notes 166-69.
(288.) See supra sources cited at note 169.
(289.) 1998 IGA, supra note 20, art. 23, para. 1-2 (emphasis added); NASA-ESA MOU, supra note 43, art. 18.
(290.) Id. art. 23, paras. 2 and 4.
(291.) Id. art. 9, para. 3(a).
(292.) Id. art. 9, para. 3(b).
(293.) See e.g., supra text accompanying notes 256-59.
(294.) See Logsdon, supra note 19, at 245-46.
(295.) DOYLE, supra note 4, at 3. Each of the main uses of a permanent manned orbiting space station, including "observation," "space labs," and "mission staging" represent dual civil/military capabilities. DOYLE, supra, at 4.
Major Christopher M. Petras *
* Major Christopher M. Petras (B.A., University of Dayton; J.D., Samford University; LL.M, McGill University) is Chief of Operations Law, Headquarters United States Space Command, Peterson AFB, Colorado. He is a member of the State Bar of Alabama.
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|Author:||Petras, Christopher M.|
|Publication:||Air Force Law Review|
|Date:||Mar 22, 2002|
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