Properly Speaking, Only Celestial Bodies Have Been Reserved for Use Exclusively for Peaceful (Non Military) Purposes, but Not Outer Void Space

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1 III Properly Only Celestial Bodies Speaking, Been Have Use Exclusively Reserved for (Non Military) Purposes, hut Peaceful ... for Void Space Not Outer Cheng Bin cease, nothing else Cant begin. Till can Carlyle -Thomas N OCTOBER 4. 1957, FOR THE FIRST TIME IN HUMAN HISTORY, man O The in sending into outer space. object world was electri, succeeded an There was an overwhelming yearning that the fled. of outer space, in, whole eluding the celestial bodies, should be all for exploration and use for reserved peaceful purposes only-in words, demilitarised as Antarctica other completely Antarctic demilitarised being in the in Treaty'! Almost immediately, was 1959 (XII), 1148 of the United Nations, in Resolution Assembly General the adopted the 14th of the following month,2 urged all the States concerned, on in the Sub,Committee of the Disarmament Commission that particularly those limitation were agreement on reduction, an and open inspection of negotiating armament and armed forces, to give priority to reach a disarmament agreement force, which, its entry into upon will provide for the following:

2 Outer Void Not Reserved for Exclusively Peaceful Use Space the joint of an inspection system designed to ensure that the (f) study objects through space shall be exclusively for peaceful and of outer sending purposes; scientific Assembly, 13,1958, the General later, in another reso, A year December on 3 "the common interest of mankind in outer lution, and ... that space reiterated the common aim that outer space should be used for peaceful purposes it is it time clear at the same However, that the prime motive and incen, was only." space the Powers in reaching outer "space" were obviously military. of tive diplomats of the Soviet Union and of the United States, at the The the time seem, with space capability, consequently were faced with the only countries impossible task not to appear to defy an almost universal desire for ingly of how peaceful while of outer space, exclusively preserving their countries' the uses of the military potentials outer space. For the explore exploit all to need and Union, with its closed society and authoritarian Soviet regime, it relatively was simple. activities, to lie about its military only by either denying their ex, It had or labelling them as scientific istence it in fact did, for example, for a consid, (as erable with its own reconnaissance time while denouncing the U.S. satellites), ones as unlawful. For the United States, there obviously would be practical dif, ficulties in such a course. However, its diplomats, assisted, no doubt following by highly lawyers, also succeeded in minimal time in squaring the effective ably, by re,inventing circle simply "peaceful" and changing its meaning the word to "non,military," "non,aggressive."4 from became possible to create It misleading impression that all were thus a highly agreed the whole of outer that was to be used exclusively for peaceful space purposes, the space Powers carried while with military ambitions in on their space. This impression was somehow carried over into the outer 1967 Space treaty the and the most con' first relating to outer space important Treaty,5 cluded under the auspices of the United Nations, and one intended to establish the international framework for man's exploration and use of outer legal 6 wide by its nature and because of the Since, acceptance of most, if not space. necessarily of the provisions of the all, Treaty as rules of general interna, Space tionallaw by contracting and non,contracting parties to the Treaty alike, the in~luding that outer space, the moon and other celes, grown up also myth has tial bodies, has been reserved for exploration and use for exclusively peaceful purposes only, not only under the Space Treaty but also under general interna, of tionallaw. present paper is a re,examination The the 1967 Space Treaty, 82

3 Bin Cheng in particular Article IV, in order to clarify their impact on the military and its use outer of space. the Terms "Outer Space" and "Outer Void Space" Clarification of the of may be necessary to clarify it meaning of the term "outer First all, and to introduce the term "outer void space." space" to and including the Up Declaration Legal Principles Governing the Activities of States in the Explo~ of and adopted of Outer Space in General Assembly Resolution 1962, ration Use December Nations, 1963,7 the United on including its Committee on the 13, Uses of Outer Space (COPUOS), where international space law was Peaceful constantly being discussed with a view to its progressive development, always referred to space separately from celestial bodies. For instance, Article 3 outer the provides: of Declaration space and celestial bodies are not subject to national appropriation ... " "Outer added). (emphasis to this terminology, extraterrestrial space consists, therefore, of According are space" "celestial bodies." Celestial bodies "outer thus treated as a cate~ and gory apart from outer space as such, as illustrated in figure 1. However, since respects Treaty, which in other Space follows the 1963 Declaration the 1967 "outer in form and in substance, the United Nations always speaks of closely Up 1: Meaning of "Outer Space" Figure to the 1963 Resolution OUlER~~AC~ + 83

4 Outer Void Not Reserved for Exclusively Peaceful Use Space including the and other celestial bodies" in treaties and other in, space, moon to 1967 space which it has sponsored. Thus, the relating Space struments outer Article its in which is equivalent to the above,quoted Article 3 of Treaty, II, 1963 Declaration, provides: the space, including the moon and other celestial bodies, is not subject to "Outer appropriation national " (emphasis added). ... bodies other the moon and other celestial henceforth were no longer words, In of part forming as rather but as such, space from separate being as treated outer as shown in figure 2. It follows that whenever it, is made to "outer reference Figure Meaning of "Outer Space" 2: the 1967 Space Treaty, since Which, by Including Celestial Bodies Within It, Deprives the Space Outside of Own as Outer Space, Known a Name of Its Celestial Bodies, Previously OUTER ¢:JSPACE 'iiUIlrn~~ 'iID1II§ ~~ ~ NAMRESS the moon and all the other celestial bodies are automatically included. space," use of consequences of this change in the the of the term outer space is One that the vast space in between all the celestial bodies has lost any specific desig, nation. It become nameless, causing a great deal of confusion and misun, has the What done is to name it derstanding. "outer void space,"8 as can be I have seen the in hoping thereby to clarify 3, nomenclature of the different figure parts of outer space before we embark on the meaning of the word "peaceful." 84

5 Bin Cheng Need Figure the Term "Outer Void Space" to 3: Introduce OUTER ¢::lSPACE SPACE VOID DurER The Meaning of "Peaceful": Legal Trompe,VOeil A Sir Henry Wotton, one of King In 1's ambassadors, while on his 1604, James from way England of to up his post, wrote in Venice album take his friend to the Fleckamore Christopher at Augsburg: est vir bonus peregre missus ad mentiendum reipublicae causa." "Legatus into Translated means: English, it for is honest man, sent ambassador lie abroad an the good of his country." "An to sometimes wonders whether, especially since power politics in disguise One War over power politics after World open II,9 some international took from as, perhaps at one time by the Cold War, when advising or on spurred lawyers, sisting their colleagues in international discussions or negotiations, or diplomatic in not own approach to the subject, have even consciously or uncon, their order sciously calling to be abused in their to help create an illusion; allowed cozy and our benefit, that we are now all living in some brave for presumably restraints World from all the free of the past. New Order, is this more clearly shown than the attempt to transfigure "peace, Nowhere ful" from meaning "non,military" to meaning "non,aggressive," which appears 10 We with international space law. started need to go back no further to have 85

6 Outer Void Not Reserved for Exclusively Peaceful Use Space the fifties find the original meaning of the word, when Atoms for Peace than to the was fashionable preoccupation. International agree~ world's then most and of in the peaceful uses assistance nuclear energy ments for co~operation then definitely meant non~military. Imagine someone, at I I Peace proliferated. or even now, trying to justify the diversion of nuclear fuel that tech~ time and supplied such agreements to making what one would like to de~ nology under a peaceful to non~aggressive nuclear bomb as be used only when scribe and its in the Antarctic Treaty in 1959, Article I made it crystal threatened! Even that "peaceful" meant clear "non~military."12 Yet, three years and two days after the signing of the Antarctic Treaty only December 1, which was, after all, done in Washington, Senator Al~ on 1959, on Gore, the United States, stated representing December 3, 1962, be~ bert Sr., the First Committee of the United Nations in New York that: fore is United view of the It States that outer space should be used only for the is, and beneficial-purposes. The question of peaceful-that non~aggressive activities in space cannot be divorced from the military of military question activities earth. To banish these on in both environments we must activities continue our efforts for general and complete disarmament with adequate any Until achieved, the test of is space activities must not be this safeguards. not is non,military, but whether or or it is consistent with the military whether it Charter and oflaw.13 obligations Nations United other point clear the United States is at this that trying hard to attribute an It was new meaning to the word "peaceful." entirely piece of semantic and legal This was a bold attempt to bypass obviously circumvent the then still and acrobatics attitude prevalent all military activities should be banned from outer that the while accepting it, thus reaping space, benefit, seemingly as the saying goes, of having the cake and eating it too. Apart from the two General Assembly res, olutions quoted the beginning of this chapter, another example of this com~ at attitude to the time was a statement by the Indian delegate mon COPUOS at the he year, when earlier declaimed: same that delegation contemplate My prospect other than cannot outer space any should be a kind of warless world, where all military concepts of this earth should be totally inapplicable There that be only one governing concept, ... of should I 4 and the sovereignty of mankind. humanity However, this highly emotive, understandable and popular desire was unre, the alistic at least two reasons. First, for motive and incentive of the space 86

7 Bin Cheng in pouring amounts of money into the space programmes Powers astronomical were first and from that point of view their expectations foremost and military, vindicated were amply in Thus, although the launching of Sputnik I in time. no IS Year of scientific International Geophysical the programme, 16 part 1957 was little doubt as to the effect Sputnik I was perceived to have on the there is world's balance power. Whilst, until Sputnik I, the Soviet delegate sat alone of military with delegates Powers in the Western Disarmament Sub, of four five,Power the Conference of Foreign Ministers, two years Committee Sputnik I it of after decided replace this Sub,Committee with to ten,Power Disarmament was a consisting Committee five NATO States and five Warsaw Pact States-in of I7 words, instead of being outnumbered one to fourl other After all, if a parity can State tons of hardware into earth orbit, it is demonstrably capable put several missiles in nuclear warheads practically anywhere sending the world, with, of with extensive need foreign military bases or an the navy. To expect the space out of or near,space Powers, after acquiring or about to acquire space capability, Powers to abandon use the outer space military purposes was wholly unrealistic. of for out, Senator quite rightly pointed as disarmament in outer Gore Secondly, cannot take place space in isolation the problem of disarmament on earth. from a long Soviet took The same line, and for Union time declined to discuss the the control of the military use of outer space in COPUOS, maintaining that it fell within the jurisdiction the Disarmament IS Thus in the negotiations of the of Commission. about Treaty, some delegations to bring by a complete 1967 Space attempts de' I9 space were clearly rejected by both superpowers. militarisation of outer for the superpowers was how, from the standpoint of public The problem relations, reject not appear to flatly to the emotive demand that not merely sweeping the world was an outer space devoted exclusively to peaceful uses, for but to appear as if to endorse it, while, from the legal point of view, fully also their maintaining rights use outer space for military purposes. As mentioned to before, the superpowers each developed their own way of accomplishing two the seemingly For impossible. Soviet Union, the its closed society, totali, with tarian regime, and strict control over the media, the solution was relatively sim, 2o ple. had in fact jumped on the peace bandwagon. It even submitted a It proposal of Nations to prohibit the use United outer space for military in the All it had to do, as it purposes.2l wont to, was pretend that all its military was space were for scientific, missions and solely peaceful, purposes, while therefore of course resisting all suggestions of verification. Thus, in the beginning, it pre' for tended did not use satellites it military reconnaissance and maintained that that it was illegal to "spy" from outer space, while of course it was doing so all 22 one the For the United States, while time. cannot rule out that it might have 87

8 Outer Void Not Reserved for Exclusively Peaceful Use Space to such on occasions, to sustain such a course on a long~term resorted methods have basis Here is where its diplomats, advised no doubt been would difficult. legal we started, as ingenious have seen, to re~invent the by colleagues, their its meaning from "non~military" to "non~aggressive" turning "peaceful," word all its military space missions, so being aggressive, would also be for that not purposes. peaceful both doing, was created by illusion space Powers In an so space has in that been kept exclusively for peaceful uses. Mission im~ outer fact was accomplished. possible task here is primarily to re~examine the effects of the Our Space 1967 Treaty,23 particular Article N, on the military use of outer space as well as the in if any, this masterpiece oflegal trompe~l'oeil has had on the Treaty. 24 which impact, to IV of Background 1967 Space Treaty the Article the 1967 a compromise reached by represents then two super~ The Treaty during a thaw in their relations after Nikita powers came to power Khrushchev in Soviet Union, and especially following the inauguration of John Ken~ the as the of the United States;25 nedy thaw continued during the presi~ President breakthrough of Johnson. The first real Lyndon on the disarmament dency 26 It of 1963. will the Partial Test Ban Treaty on August 5, signing the front was recalled that contracting States "undertake to prohibit, to prevent, and be the carry any any nuclear weapon test explosion, or to other nuclear explo~ not out including in atmosphere; beyond its limits, the outer space."27 The Treaty sion ... not only the first multilateral agreement was a specific reference to outer with was accompanied by an~ disarmament. This move space, also related to it from the the U.S. and the USSR nouncements same year that they would both or station objects carrying nuclear weapons any other weapons of mass de~ not struction in outer space. These superpower expressions of intentions were wel~ corned by UN General Assembly, which adopted Resolution 1884 (XVIII) the October 1963, calling on all States: on 17, refrain from placing in orbit around the earth to objects carrying nuclear any weapons such installing destruction, of mass of or kinds other any weapons weapons on celestial bodies, or stationing such weapons in outer space in any other manner. ' Treaty of the 1967 Article IV(1) adopted the wording from Resolu~ Space tion 1884 almost verbatim. In other words, by then, agreements had already States Union and the United on the sub- Soviet reached been between the 28 ject. Article IV(1) provides: 88

9 Bin Cheng Parties to Treaty undertake not to place in orbit around the earth any States the of weapons of mass nuclear weapons any other kinds objects carrying or such celestial bodies, or station on weapons in such install destruction, weapons in any other manner. outer space to effect the meaning and further of Article IV, let Before proceeding examine Treaty the remaining provisions in the 1967 Space which of those us examine space. an effect the military use of outer on have might Provisions Other Than Article IV Preamble. If we consider the 1967 Treaty The and exclude Article carefully, we that only the Preamble find references to both peaceful pur, contains IV, and weapons. Preamble has often been cited as evidence that outer poses The if we only used for "peaceful purposes." However, can look space be the Pre, at with care, we find this view difficult to sustain. amble Preamble begins with the opening paragraph: "The States Parties to this The and on with the paragraph: "Have agreed Treaty," the following." The reI, ends use evant the Preamble relating to peaceful in are the third, fifth, and passages eighth paragraphs. They are respectively as follows: Recognising the interest of all mankind in the progress of the common outer space for peaceful purposes, of and exploration use in contribute broad international co-operation to the scientific as Desiring to as the legal aspects of the exploration and use of outer space for peaceful well purposes, Recalling 1884 (XVIII), calling upon Resolution to from placing in refrain States kinds nuclear any any objects carrying of weapons or other earth around orbit the such of destruction weapons from installing mass weapons on celestial bodies, or 17 was adopted unanimously by the United Nations General Assembly on which October 1963, .29 ... close look at paragraphs 3 and 5 of the Preamble will show that A con' the tracting "recognise" that mankind is Parties in the "progress of the interested con, to "desire" of outer space for peaceful purposes," and use and exploration such to international co-operation tribute broad exploration and use. Para, in graph 8 merely recalls a resolution of the General Assembly, which in itself has 8 does no binding force. All that paragraph legally is to remind one that the 89

10 Outer Void Not Reserved for Exclusively Peaceful Use Space undertaken in IV(l) of the Treaty has already been the sub- obligation Article a General Assembly exhorting all States to do likewise. ject of resolution do is established that preambles to treaties it not normally con- law, In well with binding obligations. They may at best serve as an aid in in- tain provisions substantive provisions of the Treaty. As the last paragraph of this terpreting the what to contracting States have "agreed on" is notes, be found Preamble the the articles. in "following" only there to a fairly In misconception, contrary is nothing in the sum, prevalent which says or even suggests that outer space can only be used Preamble for peacefUl purposes. I(1). The can be said of Article 1(1) of the Treaty, which provides: :Article same and the of outer space, including exploration moon and other celestial The use and in for the benefit out the interests of all countries, shall be bodies, carried of their degree of economic or scientific developments, and be shall irrespective of mankind. all the province in apparently framed language with the imperative Although obligatory the article is extremely general and unspecific, so much so that "shall," during the some delegates actually suggested that it should be transferred negotiations the the After all, what constitutes to benefit and interests of all Preamble.3° countries is highly subjective. This provision, as a legally binding command, can easily to various kinds oflegal sophism. Thus at the height of the Cold lead in the the United States, under the first incarnation of its Open War fifties, cy is (a term which currently poli used to mean various other things), 31 Skies as U-2 of overflying other countries programme legitimate surveil- its justified 2 defence of the free world.3 lance Atmospheric nuclear in at the time in tests the were also justified on the same basis. No doubt the Soviet Union Pacific or defence and advance of Socialism Communism as good the consider would did the for the world. So, of course, soul the Inquisition about the work of the of Inquisitor-General! Article 1(1) as such can, therefore, hardly justify the view that it the contracting Parties to the Space Treaty to use outer space obliges 3 purposes.3 Moreover, non-military for purposes, for or solely solely peaceful Declaration on International Co-operation in the Exploration the Use of and Outer for the Benefit and in the Space of All States, Taking into Par- Interest ticular Account the Needs of Developing Countries, adopted by the General 13, of United Nations on December the 1996, in Resolution 51/122, Assembly pur- for space it quite clear that the exploration and use of outer made has now poses such as those enumerated in Article I of the Space Treaty are matters of 90

11 Bin Cheng and voluntary operation between States "on an equitable and mutually free co' acceptable The those purposes is, therefore, not a condition pursuit basis." of States' activities. contracting space the governing Articles Articles IX and IX are the only articles, other than Article and XI. XI follows: as worded is found. They are peaceful the where IV, word In the exploration and use of outer space, including the moon and Article IX: by Parties to the Treaty shall be guided the States bodies, other celestial principles co,operation mutual assistance and of conduct all their shall and other outer including the moon and in celestial bodies, with due activities space, to the corresponding regard interests of other States Parties to the Treaty. all Parties to Treaty shall pursue studies of outer space, including the States the other bodies, and conduct exploration and moon celestial so as to avoid of them the of adverse changes in the environment contamination harmful their and resulting from the introduction Earth extraterrestrial matter and, where of State Party to shall for this purpose. If a adopt appropriate measures necessary, its that an activity or experiment planned by it or Treaty reason to believe the has in the space, including nationals moon and other celestial bodies, would outer other cause interference with activities of harmful States Parties in the potential other and moon the of outer space, including use and peaceful exploration bodies, it shall appropriate international consultations before celestial undertake Party any or experiment. A State activity to the Treaty proceeding with such by planned or that an activity another experiment to believe has which reason and in space, including Party moon outer other celestial bodies, would State the potentially harmful interference cause activities in the peaceful exploration with may outer space, including the of and other celestial bodies, moon and use or experiment. consultation the activity request concerning XI: In order to promote international co-operation in peaceful the Article and exploration use outer space, States of to the Treaty conducting Parties activities in outer space, including the moon and other celestial bodies, agree to as and the United Nations of well as the public inform the Secretary-General scientific international community, to the greatest extent feasible and of the nature, conduct, location and results On such activities. of practicable, General the information, the receiving said of the United Nations Secretary, effectively. and it immediately to disseminate prepared be should provisions in, it abundantly clear that they are merely promoting Both make and co,operation the "peaceful exploration in use of outer space." ternational Like the Preamble and Article I, they carry no suggestion that outer space can military be only for peaceful or non' used purposes. The reference to "peaceful" 91

12 Outer Void Not Reserved for Exclusively Peaceful Use Space Article in clearly intended to limit the benefit of consultation in case of IX is with potential to solely "the peaceful exploration space interference activities and use outer Article XI intends of to promote merely Similarly, space." outer peaceful and use of exploration space." Further, in "co,operation the so doing, Article XI obviously is using more, term "peaceful" to mean in the and "non,aggressive." Otherwise, the contracting Parties "non,military" not a duty, the attenuated by the escape phrase "to carry greatest ex, would however of and "to inform the Secretary,General practicable," the United tent feasible Nations well as the public and the as scientific community ... of international the conduct, locations and results" of even their military space activi, nature, in order promote international co,operation in the "non,aggressive," in' ties, to exploration One use of outer space. military, can hardly ascribe to cluding and sophisticated extremely such a degree the negotiators And why only of naivety! public and the international scientific community"? If such "the co,operation "non,aggressive" military exploration and use, surely govern, include were to departments and the military community would be acutely interested ment and to expressly included. deserve be short, neither in the In nor in any provisions of the Space Treaty Preamble, other than Article do we find any restriction of outer space to exploration N, of outer use purposes, or limiting the military use or peaceful exclusively for peaceful a desire to promote exploration and use, even is While space. there extreme most the form interpretation teleological ferret out any of cannot the on contracting provisions to these any restriction in resolve shared impose not to use it for mili, purposes, and outer to space solely for peaceful States use purposes. Weare consequently left with tary Article IV in the whole only of ex, the the military use to outer space. Furthermore, which with deals Treaty tent to which the word "peaceful" is used in any of the text we have so far ex, amined, the "peaceful" is used to mean, and is clearly intended to mean, word and "non, aggressive." "non,military" not Eisenhower Proposal 1960 The traced IV Article Space Treaty can be of back to a proposal made by the President Dwight Eisenhower before the General Assembly of the United Na, recent tions 22, 1960. Afterrecalling the September example of the Antarc, on tic Treaty and the missed opportunity of 1946 when the Soviet Union turned down United States' Atoms for the Peace Plan for placing atomic energy under international control, he proposed: 92

13 Bin Cheng \Y/ that bodies are not subject to national appropriation by any 1. e agree celestial claims sovereignty. of 2. the nations of the world shall not engage in warlike activities e agree that \Y/ bodies. on these 3. will to verification, that \Y/e nation appropriate put into subject agree, no of in outer space weapons of mass destruction. All launchings station or orbit be verified in advance by the United Nations. space craft should 4. international a programme of with co-operation for press forward \Y/e ,34 of outer space under the United Nations ... constructive uses peaceful Paris meeting between Eisenhower and Khrushchev the Although Summit 1960 of owing to the U-2 incident on the first collapsed May planned late for that it is apparent how closely the 1967 Space Treaty was patterned month,35 the Eisenhower The exception is, of course, on advance monitor- on proposal. obviously of of spacecraft. This was launchings due to Soviet opposition. ing all that the United Nations_was at first able to do on this score adopt to was All year Assembly (XVI) the following 1721 General Resolution December 20, on calling upon States launching objects into 1961, or beyond to inform orbit promptly United Nations the such of and asking the Secre- launchings, tary-General to establish a public register to record them. But such reporting was voluntary the register very incomplete,36 and was not the conclu- It until 37 use Convention the that a "mandatory"-to Registration the 1975 of sion its in word registering of Preamble-system launched into space was of objects by contracting States. However, the to Soviet opposition, established owing watertight. is far from to The Soviet Union persistently objected the system to available advance information about launching. Thus, under make having national on register the to a space object duty the Convention, the register been an object has launched (Article II), and noth- arises when reality in only ing is said as to how soon after launching the registration should take place. Moreover, the duty such to United Nations of the launchings "as soon is notify practicable" (Article IV), which can mean, and as some cases does mean, at in no Finally, the Registration Convention, time. addition to some general de- in tails and the basic orbital parameters to be provided to the United Nations, the only launching State to indicate the requires "general function of the space described satellites Soviet It is believed that many of the IV). object" (Article as scientific in notifications to the United Nations were in fact military,38 93

14 Outer Void Reserved for Exclusively Peaceful Use Space Not of The launchings has obviously not been achieved. verifying objective all idea rather A was similar an in This that for 1978. in~ France by proposed was agency (ISMA) to verify ternational control treaties, satellite monitoring arms 9 monitor crisis as as well to ambiguous proposals were subse~ Even areas.3 more by, among others, Italy,40 quently and Canada,41 and in due made Australia course, volte~face, probably not uninfluenced by the United in a complete which Defense the Soviet Union itself, by in 1988 Strategic Initiative, States the idea of a international body of inspectors put carry out on~site forward to to that no object carrying weapons ensure launched into inspections would be 42 space. such ideas appear to be some distance away from fruition,43 However, although, as out, remote sensing satellites have become one of the most things turn 44 in the tools useful verification and agreements. limitation arms of disarmament to the Space Treaty, it can be seen that, But, the rest, the basic returning for ideas 1960 Eisenhower proposal have been the agreed to by the Soviet of largely and the other States and translated into binding obligations in the 1967 Union Treaty. Space item 1 of the Eisenhower proposal, the initial Although, following the draft a treaty put forward by States Johnson administration was lim~ United of to celestial bodi~s,45 the United States was quick to agree with the overwhelm~ ited Union, desire COPUOS, including that of the Soviet in to enlarge the scope of ing 46 Treaty to the whole of outer space. the Item 1 thus finds expression in Article II of the Treaty. Article N of the Treaty is clearly inspired by items 2 and 3. Space regards item this is, of course, what the rest of the Space Treaty is all As 4, about: a programme of for "constructive peaceful international co~operation uses Thus of the United Nations." space the phrase "international outer under or "co~operation" is expressly referred to in at least five of the co~operation" thirteen substantive of the Treaty, including, as mentioned before, Ar~ articles articles I, IX whilst several of the remaining XI, are concerned with ticles and assistance mutual the event of accident, distress in emergency, such as Arti~ or cles VIII.47 In order further to V and home the point that "peaceful" can drive only mean "non~military" and not "non~aggressive" in the context of outer space, one has to reflect whether President Eisenhower, especially as merely he was back to the Antarctic Treaty and the Atoms for Peace Plan, could harking and have really suggested realistically States establish a programme that should the under United for international co~operation in the non~aggressive Nations uses of outer space, including military uses. At th!;! same time, it may also be useful to recall across up this point, we that come to no hint from the su~ have perpowers or the actual drafts to the Treaty that the whole of outer space should be reserved law exclusively for in purposes. The only provision peaceful on use exclusively for peaceful purposes is in Article IV(2), and this applies 94

15 Bin Cheng to the other celestial bodies, and definitely not to the space in solely moon and celestial bodies, we call the outer void space. between the which IV(2) Article as in Sentence One. Insofar of Article IV(2) is con~ Meaning The Peaceful is little doubt that the word "peaceful" means "non~military" and cemed, there Article provides: "non~aggressive." not IV(2) States and bodies shall be used by all celestial Parties to the other moon The Treaty peaceful purposes. exclusively establishment of military bases, for The and the testing of any fortifications, of weapons and the installations type use military manceuvres on celestial bodies shall be of The forbidden. of conduct personnel military research or for any other peaceful purposes shall for scientific facility prohibited. of any equipment or use necessary for peaceful be The not moon and other celestial exploration shall also not be prohibited. of the bodies Textual Semantic Prestidigitation. A and of Article IV(2) with 1. comparison the of rea~ Eisenhower proposal may provide an additional clue as to the item 2 word behind in the meaning of the switch "peaceful." It will be seen son the the Eisenhower proposal, that presumably the fruit of some inter~ which was agency in the Administration, consultation merely to ban "warlike intended activities on these bodies," i.e., hostile or aggressive activities, but not necessar~ ily all activities. At that initial stage of space exploration, it is not in~ military that conceivable perhaps have thought of a military telecom~ one might the on centre or using it for the training of troops for space munications moon, was it sixties, non~aggressive military activities. In the other or combat, some premature to rule out such possibilities and in the negotiations of the probably Treaty been could well have Space the brief of the United States negotia~ that first tors. further be remembered that at should the United States had pro~ It posed a treaty limited to celestial bodies. It was only after the negotiations had started that agreed to extend the scope of the treaty to include also the outer it was no question of accepting complete space. there to outer void space, void As demilitarisation. was then faced with a problem. There Arti~ the precedent set by were They cle I of the 1959 Antarctic Treaty which had been mentioned by President Ei~ senhower himself introducing the United States 'proposal before the when and which was fresh in everyone's mind. The negotiators General Assembly, might well have thought to that the Antarctic precedent 100 percent to apply the moon, which would preclude any military including all celestial bodies, 95

16 Outer Void Not Reserved for Exclusively Peaceful Use Space thereon, would exceed their brief, but to also apply it to the activities already space would completely outer void be question. as men~ the However, out of was immense clamour from all quarters for tioned space as a earlier, there outer be reserved exclusively for peaceful use. to whole this demand out~ To reject hardly have been politic. right would their explain United States negotiators decided to carry the why would This 48 prestidigitation invented semantic newly Space Treaty, into at the the and time omit the clear and unambiguous to words in the second same introductory they doing, Treaty.49 of the Antarctic probably In so Article I sentence of they had the seemingly impossible. According to their own thought achieved partially, nominally not totally, at least if to the interpretation, while acceding, exclusively an outer space reserved purposes, for peaceful demand for popular on the moon activities they aggressive) banned have only warlike would (i.e., other and bodies in accordance with the original brief, celestial but them kept military (i.e., not aggressive) non~warlike activities, save for free completely for few specific prohibitions enumerated in the second (2). of Article IV sentence a have they not believed that so. is succeeded in doing However, it 2. The Antarctic Analogy and the Plain Meaning of the Word "Peaceful." In the wording of interest to compare the of Article I of the Ant~ be first it may place, Treaty with Article IV(2) of the Space Treaty: arctic Antarctic 1967 Space Treaty Treaty 1959 (2). and ARTICLE!. moon The other IV ARTICLE States all by used be shall bodies celestial Parties peace~ for exclusively Treaty the to 1. peaceful for used be shall Antarctica military purposes. The establishment of ful prohibited, only. There shall be purposes measures any a military na~ inter alia, of bases, installations the fortifications, and ture, type any of of such as the and weapons the establishment of military testing and celes~ the carrying out on of military fortifications, manceuvres bases conduct use The be shall bodies tial forbidden. test~ the as well as manceuvres, military of of any type of weapons. ing of scientific personnel for military research or for any other peaceful purposes shall not The present Treaty shall not pre~ of any equipment or 2. use be prohibited. The vent of exploration peaceful for of necessary facility use military personnel or the equipment moon or research scientific for for the and other celestial bodies shall other any purposes. peaceful also not be prohibite~l" That the word "peaceful" in Article 1 of the Antarctic Treaty means wording "non~military" clear. A comparison of the is of Article IV (2) of the 96

17 Bin Cheng Treaty with of Article 1 of the Antarctic Treaty shows that it is the Space that of intent of the Space Treaty to lay down basically the Article IV(2) obvious kind same Article to celestial bodies as of I of the Antarctic in regard obligation with of Antarctica, with the same kind of provisos, and respect in Treaty definitely "non~military". The few departures here and meaning "peaceful" It the in no way detract from it. wording is hoped that this paper in actual there in demonstrating that nothing in Article IV (2) or anywhere else in will succeed Treaty even faintly suggests Space "peaceful" means anything else, the that of all "non~aggressive." Only the reverse no true. It is submitted that is least of efforts the part of the United States during the negotiations of amount on Treaty the ever since to attribute to Space word "peaceful" in it the the and avail. of can be of any "non~aggressive" The reason is simple. novel meaning United States having accepted the wording of Article IV (2) as The stands, it must what it actually provides, whatever its own mental reservations. accept of the United States' position,50 some support doctrinal Notwithstanding meaning "peaceful" expression the the implications of consider only has one to and not "non~military." In the words of "non~aggressive" Ivan Vlasic, Professor "If 'peaceful' means 'non~aggressive,' then it follows logically-and absurdly- that all nuclear and chemical weapons are also 'peaceful,' as long as they are not used aggressive purposes."51 Further, if "non~aggressive" is truly the for in of the specific provision does Article IV(2) that "peaceful," then meaning and used celestial bodies shall be moon by all States Parties "exclu~ other the non~aggressive purposes" mean that elsewhere, especially in outer for sively may and restricted so not contrariwise Parties contracting the space, void are in activities which are partly or wholly for aggressive purposes? Would it engage possible, in instance, to deliberately ram someone else's satellites be orbit, for or Since or fire on them? geostationary the Space Treaty cannot be otherwise, acts and since "for aggressive or aggres~ results, to yield absurd such interpreted sion purposes" are under international law and the United Nations Charter, es~ pecially Article permitted nowhere in the universe, the specific provision 2(4), (2) found first sentence of Article IV the must consequently mean some~ as in different: it must mean that thing moon and other celestial bodies shall be the there point non~military purposes. Otherwise, no would be exclusively for used in having that first sentence. "Peaceful" in that first sentence means "non~mili~ the tary," reservation the most powerful contracting Party to mental whatever Treaty might have had on the subject. 3. Subsequent Practice. However, Professor Vlasic, in reliance on Article 31 (3) 52 Law 1969 Vienna Convention on the the of T reaties of on interpretation 97

18 Outer Void Not Reserved for Exclusively Peaceful Use Space on the subsequent practice, and the International Court of based parties' Sea Continental Cases (1969)53 regarding the role of the Justice's North Shelf States in formation of rules of affected" international law, general "specially the the conceded United States usage of the word "peaceful" have seemed to that be its accepted meaning. He cited the enormous amount of military may now activities of United States and the Soviet Union in outer space, and both the remarked: interpretation fonnally protested the U.S. ever of the "No State has uses' phrase 'peaceful context space outer the activities."54 in of ) such is respect, Article 31 (3 a conclusion (b) of the Vi, With unwarranted. Convention, which is itself based on the International Court enna ofJustice's Temple Preah Vihear Case (1962) ,55 provides quite explicitly that interpreta, of can take account "any subsequent practice in the application of the tion into which treaty establishes of the parties regarding its interpretation."56 agreement the is it not here, justified to mix what does expressly proVided for in But appear 31 Article ) (b) of the Vienna Convention with what was said in relation to (3 formation the general international law by the Court in the North Sea Conti, of any Shelf parties "specially affected." In concerning case, in the nental Cases instance, there present be been to have cannot any subsequent practice re, said for the of the phrase "exclusively garding peaceful purposes" in interpretation Article IV(2) of the 1967 Space Treaty, and certainly no subsequent practice which "establishes agreement of the parties regarding its interpretation." the regards the that there has been no protest, it needs to be pointed As point all States military activities of the United that and the Soviet Union are out the outer in space, actually void celestial bodies. on as the moon and not Insofar celestial bodies are concerned, there has been other known or even sus' no celestial exploration of the moon or other use bodies for military pur, pected or There has, therefore, so far been no reason why any poses. State contracting "peaceful" meaning "non,military" and not "non,aggressive" which in believes definitely lodge As a result, one can should not speak of any subse, a protest. quent practice acquiescing in the United States' interpretation of the term "peaceful" based the absence of any protest insofar as Article IV (2) is con, on since other are certainly not required to monitor and correct cerned, States mistakes their understanding States' in the law or legal malapropisms, as of their as do not put they misinterpretation into practice. long Insofar as the outer void space is concerned, where Professor Vlasic said all kinds of space activities were widely known to be taking place without military protest. protest, be even less reason to would There would be grounds for there mass of if any contracting State were to orbit or station weapons only protest destruction in outer space. Up to now, it does not appear that any party to the 98

19 Bin Cheng Treaty, Space at all, has done so or tried to do so. Outer void space or any State for reserved peaceful purposes, or, as exclusively that matter, been for has not purposes, and all the military activities cited for Professor Vlasic as any specific by there perfectly legal under the Space are reaty.57 Consequently, up place taking T there has been neither reason to now, for ground can, there- nor protest. One the practice subsequent "peace- in relation to of word base hardly fore, a case ful" IV(2) on what has been going on in outer void space, to which in Article to uses does not apply. peaceful restriction the question of either practice or subsequent practice, as both the T em- On the 58 59 pie Case of and the Anglo-Norwegian Fisheries Case Preah show, a Vihear it be adversely affected by can conduct of others only if the State's rights legal be proved to accepted, or to have over a period of time failed to pro- have can a situation it cause to protest against, had which actually impinged when test its rights or interests. In our case, the fact that the contracting States to the on Treaty of not protested the practice Space one or two of them choosing to have in lawful to describe their perfectly peaceful military activities the misuse term void space certainly cannot amount to what Article outer (3 ) (b) of the Vi- 31 enna on the Law of Treaties Convention "agreement of the parties" re- calls garding such a use of the term in relation to the treaty. Indeed, if every time some State commits a legal malapropism, one were required to foreign official rights are affected, government offices would not one's or protest, whether to do anything else! time hardly have Work. As a matter of 4. nor can one invoke Article 32 of the Preparatory fact, Convention, allows the preparatory work which the Treaty to be Vienna of United the though of interpretation," even means used a "supplementary as of the Treaty appeared to have spent much effort in negotiators cor- the States that "peaceful" meant "non-aggressive" and not the notion propagating ridors In the first place, this novel and bizarre use of a familiar word "non-military." as of known, recorded officially as a reservation in any the pre- as never, far was and still less is there any record paratory work concerned with the Treaty itself, of the negotiators acquiescing in such an extraordinary interpretation. other count. has hearsay, which certainly does not only It is true that There been can use any term in any meaning they treaties to assign to it. The Moon wish in the as insofar that 1 Article for proclaims less or more example, Treaty,60 treaty is concerned, when it says moon, it means all the celestial bodies within is the other than the earth. But there system no such provision in the 1967 solar Space Treaty. With a use of the term as upside down as the United States is be propagating, only way that it can the acceptable without ambiguity would be 99

20 Outer Void Not Reserved for Exclusively Peaceful Use Space this for be defined explicitly in the Treaty, as the Moon Treaty has usage to the word If there was an equivalent provision in. the 1967 "moon." with done Treaty, there no problem, but there is no such provision. then be would true that Article 32 of the Vienna Convention provides that resort can It is to made be work of a treaty in interpretation, but the provision preparatory the that which so is but a "supplementary means," one doing may be it clear makes used only; to confirm the meaning resulting in the application of Article 31, or to order from the meaning when the interpretation according to Article 31: determine (a) the meaning ambiguous or obscure, or leaves leads to which is manifestly absurd or unreasonable. (b) a result unreasonable nothing manifestly absurd or obscure, in ambiguous, is There interpreting mean "non,military," which is the ordinary "peaceful" nor' to and meaning the word. There is no of therefore to invoke preparatory mal need On the contrary, to interpret "peaceful" as is, "non,aggressive" meaning work. use to of Article 32, "manifestly absurd and unreasonable." the words renders is such an interpretation because the first sentence It unreasonable Article IV(2) of the Space Treaty totally useless. First, States under current of United not the Charter of the bound Nations are already law and international to engage in aggressive activities, and parties to the Space Treaty have already pledged themselves Article III to abide in international law the UN by and Consequently, their use of outer space. and under this Charter in exploration first sentence would be redundant and the the second sen' only interpretation, Article IV(2) would be relevant. of of being merely exempli, tence Instead as it should be, if ficative, first sentence is controlling, as in Article I of the the Antarctic the second sentence would be the only material provision in Treaty, the of contracting Parties' obligations would be enumeration IV Article Its (2). also Sentences and four would three become totally redundant; for exhaustive. there would be nothing in the first sentence even remotely to suggest that either not be used for "non,aggressive" military military equipment might personnel or be or an interpretation would Such totally unreasonable. exploration use. But interpret "peaceful" in Article IV (2) to "non,aggressive" would in as fact be by absurd," reasons already "manifestly for Professor Vlasic. In ad, given dition, if this is the correct interpretation, since Article IV(2) applies only to absence not the outer void space, the of such a stipulation and celestial bodies in, say, Article IV(l) or anywhere else in the Treaty immediately gives rise to contrariwise the we have said, that as aggressive activities are permis' argument, sible in outer void space! Otherwise, why an express provision providing that 100

21 Bin Cheng moon and celestial bodies shall be used exclusively for non, aggressive the other purposes? provision Vienna Convention that is applicable in this case is, of The the Article 31 on subsequent practice, nor (3) 32 on pre' neither therefore, Article but Article 1 (1), which provides as follows: paratory work, treaty shall interpreted in good faith in accordance with the ordinary A be and be to the terms to the treaty in their context given in the light of meaning of 61 object and purpose. its sum, the conclusion is inevitable that "peaceful" in the Space Treaty as In a whole in Article IV (2) in particular, means, has always meant and contin, and to mean and not "non,aggressive," notwithstanding United ues "non,military," to otherwise. attempts maintain States Sentence Article N(2). If, as Two have just shown, "peaceful" in the first of we of Article IV(2) means "non,military," then it becomes obvious that sentence the second of Article IV(2), as in Article I of the Antarctic Treaty, is sentence exemplificative. a military activity whatsoever of purely nature is permitted No As the on the other celestial bodies. moon for the fact that only celestial and bodies, but not the moon, are mentioned in the second sentence-this cannot possibly have significance, since throughout the Treaty the moon has aI, any been treated one of the celestial bodies. Besides, the first sentence hav, ways as bodies, explicitly the moon and other celestial to it would have been ing referred repetitive, in the next sentence intended to give examples of what may purely be done on all celestial bodies, to again add an express reference to the not 62 moon. Last Two Sentences of Article N(2). The same applies to the omission The of any before "equipment and facility" qualification the last sentence. The last in two sentences, following the example of the Antarctic Treaty, set out two permitted, or exceptions to the principle laid down in the first seeming, that They of a similar character. Provided both the research or sentence. are is for peaceful purposes, what exploration otherwise be thought prohibited might is allowed, namely military personnel expressly equipment or facility. The and omission of the qualification "military" insofar as equipment and facility are fact concerned elliptical. Furthermore, the purely that, apart from the mention is of weapon testing being forbidden, which falls clearly under the heading of a sentences third in the second and item of Article IV (2) is every military activity, 101

22 Outer Void Not Reserved for Exclusively Peaceful Use Space by the qualified adjective "military "military," and bases, namely, installations fortifications," and personnel" also confirms that manceuvres," "military "military in the last sentence is "military equipment or what is meant facility." of last two sentences in Article the permitting the use existence The IV(2) personnel and equipment or facilities of respectively peaceful pur, military for 63 exploration and shows clearly that Article IV(2) of the Space poses peaceful Article like Treaty, I Antarctic Treaty, must have felt that such explicit of the because necessary, this could only be and there exemptions were a blanket is prohibition military uses in the first sentence. Otherwise, since the research of exploration only be and for "non, aggressive purposes" and not "non,mili, need tary," it saying that any personnel and equipment can be used. goes without these two sentences, to As last is sometimes voiced that, since the opinion and personnel military equipment used, Article be (2) cannot possibly can IV to prohibit the use of celestial bodies for military purposes, and "peace, intend 64 ful" non,aggressive, or at least something in between. must Such views mean ignore the of the Antarctic Treaty, and what was so well explained precedent Edwin by Parker, the umpire in the United States,German Mixed Claims B. (1922) Commission Opinion Construing the in "Naval and Military Works Phrase or Materials" as Applied to Hull Losses and Also Dealing with Requisitioned Dutch Ships (1924), graphically shows that the test of whether an activity or which is equipment or non' military character can be an essentially func, of a military and He one of nominal status. one said in that case: tional not in privately and operated for profit owned Paris during September, The taxicabs military same no sense were materials, but when these ta.'i:icabs in 1914, were used by Governor of Paris and Military to transport French requisitioned the to meet and repel the oncoming German army, they became military reserves The automobile and until redelivered to their owners. materials, remained so to belonging United States assigned the its President and constitutional to commander,in-chief of its Army for use in Washington is in sense military no to But same automobile been transported the the battlefront in materials. had France Belgium and used by the same or it would have become a part President, of military equipment of the Army and the such impressed with a military as 65 character. Thus, in reverse, the fact that the first person in space was a Soviet military officer, and of the three men who first two to the moon were respectively a flew United States Air Force colonel and Air Force lieutenant colonel did not pre' purposes. clude flights from being explorations of outer space for peaceful their The essential criterion is the purpose of the activity. 102

23 Bin Cheng uses is that there are activities and deny which can serve both not to This civilian military the standpoint of maintaining interna- purposes. and From security, con- is a serious problem which causes much and this peace tional IV(2) cern,66 law is concerned, Article insofar is quite explicit. The but as the other celestial bodies may only be used by the moon States to and contracting Treaty for peaceful purposes"; in other words, no admixture of the "exclusively From can point of view, the law military purpose. only look at the pres- any this but actual whether overt or covert, purpose, not speculative ulterior ent and motives. tremen- has we have seen before, the whole space programme as After all, military and strategical significance. To be realistic, the total demilitarisa- dous of the and other celestial bodies is possible largely because they are, tion moon as strategically stand at the moment, militarily and least of no, or lit- at things of significance. as one is aware, none far the space Powers is contemplat- tle, As using the moon or any ing celestial for other military purposes. This bodies the of to a misleading interpretation of on word "peaceful" in holding tenacity to the Space Treaty is difficult to understand, especially since the ban- relation void of activities in the Treaty does not apply to outer military space, as a ning careful examination of Article IV(!) will show. In any event, the last two sentences of Article IV (2) of the Space Treaty, far of the word "peaceful" in the article's first from meaning modifying ordinary the serve only confirm that it means "non-military." sentence, to Moon moon Insofar as the demilitarisation of the 1979 and the The Treaty.67 the celestial concerned, Article 3 of is Moon Treaty basically re- other bodies Article IV of the Space Treaty, especially Article IV(2), except that the peats of Treaty Moon scope is limited to the moon and only the celestial bodies the therefore, than the earth, and, does not extend to other system the within solar in moon the of mention The specific system. celestial the outside bodies solar second 3(4), was Article in the which sentence of Article IV(2) of the omitted Space Treaty, for reasons which have been given above, in fact does not add 68 anything to the latter. of Apart from the express prohibition of significance the weapons destruction in a "trajectory to" mass moon, the only dif- placing of lies in the Moon Treaty's Article 3(2), which ference prohibits the specifically threat use of force or other hostile act. or Article 2 of the Moon Treaty al- Since ready binds the contracting States to observe international law and the Charter (4) of Nations, and since Article 2 United of the United Nations Charter al- the ready prohibits the threat or use of force, and no doubt also the la:unching of any any of mass destruction against weapon place in the universe without 103

24 Outer Void Not Reserved for Exclusively Peaceful Use Space justification, the real addition consists in the prohibition of "the lawful only use threat other hostile act." The nature of these hostile acts remains, how~ of or ... which they to acts of individuals to refer in principle in~ unclear, ever, unless is not applicable. But since, under both ternational VI of the law Article of the Moon Treaty, contracting States bear Article 14(1) Treaty Space and for activities responsibility" in space carried "international national whether on entities, by non~governmental or including individuals, and themselves by assuring that they are carried out in conformity with the respective for trea~ ties, of which provide for compliance with international law and the both of the Nations, they would already have the responsibility of United Charter States' acts ensuring such individuals comply with the the interna~ that of 69 obligations. tional Article IV(l) IV (1) of the Space Treaty provides: Article Parties undertake the Treaty States not to place in orbit around the earth any to of or any other kinds weapons of mass carrying weapons objects nuclear weapons on in such celestial bodies, or station destruction, such weapons install outer space in any other manner. As we have seen, this provision in the Space Treaty is directly inspired by item 3 of Eisenhower Proposal, except for the omission of the condition of verifi~ the In cation. IV(l) also specifies that outer space includes celes~ addition, Article bodies. tial mention the omission of a specific In of the moon, like the connection, that no of again is (2), of Article IV signifi~ sentence the in omission similar second 70 It also readily be seen that will IV (1) reproduces almost verba~ cance. Article the relevant paragraph of tim Assembly Resolution 1884 (XVIII) of 17 General October when the long~winded formula 1963, "outer space, including the of moon and other celestial bodies" had not yet been developed, and as we have same in of Resolution 1962 of the case year, the usage then was always the seen refer and "outer space to celestial bodies," without any specific mention of to moon moon. any event, the In is obviously a celestial body. the be~ understanding was, of course, itself based on a mutual 1884 Resolution From the Union and the United tween Soviet this point of view, the States. 1967 Treaty merely put into a multilateral treaty a mutual undertaking which United and reached between themselves, had to which the the superpowers Nations had already called on all States to subscribe. Consequently, it added 104

25 Bin Cheng little to restriction on their freedom of action in outer space, relatively the is of that Article IV(1) provides All that no the that superpowers. especially any destruction" kinds of weapons of mass or may be "nuclear weapons other moon and any in outer space, including the anywhere in manner stationed celestial bodies. other words, insofar as the immense void In in between the innumera, other space celestial (the outer void space) is concerned, apart from the limita, ble bodies the destruction, of weapons of mass on the 1967 Treaty as a tion stationing contracting its IV (1), leaves the Article States entirely free to whole, including military for it in any way they wish, pur, using including space outer use void particularly in in accordance with the rules of international poses, self,defence Article law and United Nations Charter,71 of only to applicable the 51 subject general international law, the United Nations rules in particular its of Charter, may outer other treaty obligations States brief, have. In and any Article 2(4), space has NOT been reserved void use exclusively for peaceful (non,military) for 2 to a very prevalent view.7 purposes, contrary Moon this view, Article 3(3) of the of Treaty adds nothing to From point the (1) of the Space Treaty, installa, already prohibits not only which IV Article of of weapons and tion weapons nuclear mass destruction "on celestial other bodies," but also stationing them "in outer space in any other manner." The Moon Treaty remedied the omission of a specific reference to the "moon" has the second of Article IV(1), but as we have already pointed out, in sentence 73 is no significance. by The only addition made omission Article 3 (3) of this of the Treaty, addition it really be, is if prohibition of placing of any the Moon of weapons of mass or any other kinds weapons nuclear object space carrying in in or around the moon," again to the sense the word destruction a "trajectory is used in the Moon Treaty. The essential condition space outer void of moon has not affected. been Thus, insofar Article IV of as 1967 Space Treaty is concerned, as well as, the for that matter, the Treaty itself and the 1979 Moon Treaty, the contracting States remain to deploy IN OUTER VOID SPACE any type of military sat, free including communications, early warning, navigational, reconnaissancej ellite, geodetic and other satellitesj construct manned or unmanned meteorological, use stationsj carry military military exercises and manceuvreSj station or space out any or non,mass destruction non,nuclear there, including anti,satellite weapon weapons (ASAT) and ballistic missile defence systems (BMD)j and last but not exhaustive, least, is by no means en~meration send through or into this though destruction, space any weapon, whether or not nucl outer 74 or of mass void ear 75 space target on earth or in outer any against -of course, always subject to 105

26 Outer Void Not Reserved for Exclusively Peaceful Use Space rules applicable law and specific treaty obligations, including of international Nations Charter, Articles 2(4) and 51. United the particularly in freedom the contracting States have immense outer void this With that is hard to understand how, first, one can fail to see the difference be' it space, Article tween Article IV(2) of the Space Treaty, and maintain that and IV(I) Article no is intended to mean in more than "non,aggres, "peaceful" IV(2) sive," think one can possibly claim or and that the whole of outer second, how is limited to use for peaceful purposes only, without reducing the word space "peaceful" meaninglessness. to American The K. Nielsen, in his 1923 U.S.,Mexican General arbitrator F. in the International Fisheries Co. Case dissenting Commission Claims opinion pointed out: (1931), rightly of use terminology may sometimes be of but little importance, and An inaccurate of it may be merely a quibble. But accuracy of expression becomes discussion important when appears that is due to a confusion of thought in the inaccuracy it application of proper rules or principles oflaw.16 or understanding of whether or Irrespective Article IV of the Space Treaty has now be, not come of general international law, there a matter no doubt that the 1967 is Space Treaty, as President Johnson said of it at the time, was "the most impor, tant arms development since the limited test ban treaty of 1963."77 It is control extremely important there should be a clear understanding consequently that it about The world has cause to be deeply concerned what the mili, of means. control use 78 However, arms limitation and space. in space cannot be di, tary of from the much wider political problems vorced extremely complex and that between nations. Yet to begin exist one must be clear as to with, relations one what has the moment, namely, Article IV of the Space Treaty, which at is the starting point. For the obvious the three indispensable conditions of rest, successful international lawmaking are: 1) perceived need; 2) propitious politi, cal climate; due representation and consequential support of the domi, and 3) of international society, including what the International Court of nant section calls the States "specially affected."79 However, those who seek to se, Justice and the of outer space exclusively for peaceful exploration whole use need cure "peaceful" is correctly interpreted. Othenvise, that the word first of all to ensure fall they an entirely empty victory and score into the kind of meaningless could Conven, Sea by Article 88 of the United Nations Law of the typified self,deception tion (1982),80 which tells us that the "high seas shall be reserved for peaceful purposes"! 106

27 Bin Cheng and Summary Conclusions Space 1. very close to the United States' policy on 1967 remains Treaty The President Eisenhower in 1960. by announced space first United States intention as 2. the celestial bodies was The original regards should no "warlike" activities on them, which may not be that that there mean be completely demilitarised. should they opinion and a number 3. Popular were of the governments clamouring for space, preserved all the celestial bodies, to be outer for ex~ including of whole i.e., non~military, exploration and use. peaceful, clusively 4. superpowers evidently did not wish to be seen as opposing this The two in ways keeping all options open, of view of the obvious im~ wish, seeking while portance outer space for military purposes. The Soviets, well used to con~ of the true of practically everything they did, simply carried on cealing nature activities their dissimulating all their military of in space as with practice and thus peaceful. The United States negotiators, instead, propa~ non~military, the that idea gated "peaceful" meant merely "non~aggressive" and not novel Every illusion was made not to disturb the popular "non~military." that effort the was everyone space, including the moon and using other celestial outer bodies, only for peaceful purposes. use In the 1967 Space Treaty, the only article that concerns the military 5. of whole of outer space is Article IV. Neither the Preamble nor Articles the IX 1(1), or to the the contracting States' freedom affect use outer XI Treaty of space purposes, though they all intend to promote its peaceful use. for military the Space Treaty makes much of international co~operation in the Although prevalent of outer space, there is no provision, contrary to a very uses peaceful of in the entire Treaty which reserves the whole anywhere misconception, space exclusively for peaceful use or exploration. outer bodies Only in and the other celestial the have been so reserved moon 6. Article IV (2), which does not apply to the void in between-what I have called "the outer space." The first sentence of Article IV (2), in providing that void "moon shall other celestial bodies the be used ... exclusively for peaceful and demilitarising has effect of completely the all the celestial bodies. purposes," 7. Notwithstanding the stance taken by the United States, the word "peace~ Article ful" Treaty as a whole, and in its the IV(2) in particular, by all the in meaning of treaty interpretation, retains its ordinary and well~established rules leads "non~military." To argue that it means "non~aggressive" of to illogical, unreasonable, and even absurd consequences. 107

28 Outer Void Reserved for Exclusively Peaceful Use Space Not is unwarranted conclude from the fact that the United States has It 8. to word interpreted persistently the (2) in meaning IV "peaceful" Article as "non~military," and that there has "non~aggressive" "no protest" and not been States, the United States that has consequently other from interpretation by subsequent practice in accordance with Article 31 (3) of the confirmed been Convention 1969 Vienna Law Treaties. The reason is simply that the of on up to now not been any known occasion there the United States has when by carrying on in regard to implement IV(2), to its interpretation tried Article military activities on the moon or other celestial bodies. The "non~aggressive" is result has been no violation of Article IV (2) and, therefore, no that there any need for State to protest. other fact that the United States has long qualified its military The in activities 9. any as peaceful without evoking inas~ protest proves even less, void space outer as such activities are, insofar as the Treaty is concerned, governed by its much reason IV(I) under it. There is no lawful or ground for other con~ and Article States to protest simply because the United States wishes to give such tracting a whimsical description. activities 10. can one invoke the history of the Treaty to justify the United States Nor of the Vienna Convention, inasmuch as not 32 interpretation under Article the in express reservation on no part of the United States only has been there regard, this has also been no recorded pronouncement on the part of but there States of the presentation or adoption United this Article or of the accompanying Treaty the by that has been accepted to the other negotiating parties. effect this The applicable provision of the Vienna Convention (1), Article 31 is 11. provides which interpreted terms are to the of a treaty in good faith and that be "peaceful" "ordinary meaning." The ordinary meaning of of is, their given "non~military." course, The first sentence of Article IV (2) 12. categoric, the second sentence being is purely exemplificative. 13. The omission in the second sentence of Article IV (2) of a specific refer~ ence to moon when dealing with celestial bodies is without Significance, in~ the "the as sentence has already mentioned previous moon and other asmuch the bodies," thus clearly indicating that celestial moon is one of the celestial the bodies. omission is purely The elliptical. 14. Similarly, the omission of any qualification as to the nature of the equip~ IV ment in the last sentence of Article facility (2) must be understood to and mean military equipment and facility, in view of the reference to military per~ Such sonnel the previous sentence. in ellipses are perfectly normal. 108

29 Bin Cheng The express of the use of military personnel, equipment 15. authorisation that the word "peaceful" for peaceful far from showing facilities and purposes, sentence on not mean "non~military," first the contrary conclu~ in the does sentences it mean "non~military," for does three and demonstrates sively that Article IV (2) constitute clear and express exemptions from the prohibi~ in four laid tion the first sentence. Otherwise, they would not be thought to be in down if only even necessary, abundance of caution, of the exemptions out an since sentence. first the of spirit are with compatible perfectly the Article Treaty the Moon Space basically repeats of IV of the Article 16. 3 insofar as the latter concerns the moon in the sense Treaty word is used in the the Treaty, namely the moon and all the celestial bodies within the solar Moon than earth. the system other bodies of outer void space in between the celestial as whole Insofar 17. the Treaty the provision in the Space only concerning military use is is concerned, found in its Article IV(l), in which the contracting States "undertake not to be place earth orbit around the to any objects carrying nuclear weapons or any in kinds other of mass destruction, ... or weapons such weapons in outer of station in any other manner." It follows that, space to the observance of appli~ subject cable of international law and of rules United Nations Charter, as well as the relevant treaty obligations, contracting States may otherwise use outer void space for purposes military any manner wish, particularly in legitimate in they international accordance applicable rules of the law. Arti~ in with self~defence (1) has definitely not excluded all military uses of cle void space. IV outer no of whole Space Treaty has by the means reserved sum, 1967 the 18. In space for exclusively peaceful exploration outer use. Its Article IV(l) merely or outer weapons of mass of in the whole of destruction prohibits stationing the agreed United States and the Soviet Union had to the space, a measure which them Treaty. before the between Whether "peaceful" means "non~mili~ even effect tary" consequently has no "non~aggressive" whatsoever on the con~ or tracting States' freedom to use the outer void space for military purposes in accordance with law . Only Article IV (2) of the Treaty has com~ international demilitarised solely bodies by saying that they shall be used pletely for celestial under of legal position The the military use of outer space peaceful purposes. Space Treaty is up in Figure 4. summed the celestial that only if the United States intends to use any of the It results of meaning the distort it make sense to does bodies military for purposes from "non~military" "peaceful" "non~aggressive." Since it is not believed to that the United States has any such intention, and since the world has now be~ of come more realistic regarding the use far outer space, the United States' 109

30 Outer Void Not Reserved for Exclusively Peaceful Use Space and continuing of "peaceful" in the Space Treaty deliberate misinterpretation to "non-aggressive" "non-military" appears to be wholly without and mean not behind and purpose gratuitously ruining a most times, and de- the while useful and at the same time opening sirable door to possible mischief. It word, the be forthwith. should dropped Figure The Use of Outer Space 4: Military Under Space Treaty the 1967 OUTER SPACE GENERAL RESTRICTIONS USE GOVERNING International and 1. UN Charter law (Article III), prohibit applicable which the aggression threat use and or of Article 2(4)); force (Charter, stationing 2. "nuclear weapons No of any other kinds of weapons of mass or anywhere in outer space destruction" any in (Article IV(1)). manner The the fervent hope is not only that Article IV of 19. Space Treaty world's by has acquired a sufficient now generalis opinio generalis to qualify as a rule juris of general international law, 81 but also that States would, especially in the wake of the celebration in 1997 of the end of the Cold War,82 make rapid official progress of further limiting the military use in outer void space, but not merely in using outer space for the purpose of assisting limitations of armament or also even general everywhere by providing an effective means of veri- disarmament be In to fication. so, one has first to order clear as to the meaning and scope do of Article IV of the Space Treaty, which is the obvious starting point, and the precise meaning the the There is definitely "peaceful." need to ensure of word real Peace that on earth, as well as in space. The political climate is prevails propitious. All that is needed to satisfy the three indispensable conditions for successful lawmaking international to achieve this end is the political will of the leading nations of the world. 110

31 Bin Cheng Notes 402 12 UST 794; TIAS No. 4780. Signed at Washington on 1 December UNTS 1. 71; force on June 1961. entered 1959; into 23 1957. November 14 2. Resolution 1348 (XII). 3. Professor Vlasic, one 4. According to earliest uses the term "peaceful" as an of the of American appeared a 1959 report of the "aggressive" Bar Association Committee for antonym in Law of Outer Space [Proceedings of the American Bar Association, Section on the of Comparative 1959, pp. 215-233, reproduced in Senate Committee on International and Law, A Space Problems of Space Exploration: Legal Symposium, S. Doc. and Aeronautical Science, 87th Cong., 1st Sess. (1961), pp. 571-594, at p. 576, citing M. MCDOUGAL, H. No. 26, & I. LAW AND PUBLIC ORDER IN SPACE (1963), at p. 397]. I. A. Vlasic, VLASIC, LASSWELL Technology, and Military Application of Space the in N. Jasentuliyana (ed.), Law Space ON INTERNATIONAL LAW, London: Kluwer Law International (1995), pp. PERSPECTIVES at p. It may be added that the learned authors of LAW AND PUBLIC ORDER IN 385-410, 391. vigorously only approach in their book, but also this elaborated on the same not SPACE endorsed theme (pp. their contributed voice must have greatly and to forming the 394-401), powerful to view the U.S. It may be of interest on mention that Professor McDougal was a official subject. of the ABA Space Law Committee, whilst at the same time Professor J. c. Cooper, member alia, he expressed doubts, in a Inter another declined to sign the report. Committee member, Charter of the UN (Senate 1961 Symposium, p. about report's invocation the separate statement, which was used by the Committee to justify its line of argument on this topic (ibid., pp. 592), added Andrew another Committee member, while voting for the report, Haley, a 574-577). that he did "not believe that this stating Comment endorsing John Cobb Cooper's statement and is an document in which to discuss such philosophical and political concepts as appropriate 593). of space" (ibid., p. outer Such concepts are, however, military 'non-aggressive uses' for with philosophy as exemplified, McDougal's legal instance, in perfectly consonant Professor Sea, The Hydrogen Bomb Tests and the International Law of 49 the article his well-known justifies OF LAw (1955), pp. 356-361. JOURNAL end INTERNATIONAL all! But AMERICAN The dilemma faced the the ABA Committee of having to choose between by the one hand on on the other hand the needs of purposes and reserving space for use for exclusively peaceful outer United have and its allies to defend themselves could no doubt the been resolved by States reserve acknowledging that it simply just not realistic in the circumstances to openly the was use outer space for of for exclusively peaceful purposes. whole of Use on Principles Gove::rning the Activities of States in the Exploration and Treaty 5. Space, including Moon and Other Celestial Bodies, 610 UNTS 205; 18 UST 2410; Outer the on 6347. for signature at London, Moscow, and Washington No. 27 January TIAS Opened entered into force 1967; on October 1967. 10 INTERNATIONAL analysis of the 1967 Space an see B. CHENG. STUDIES IN Treaty, 6. For pp. LAW, Clarendon Press (1997), Ch. 9, Oxford: 215-264. SPACE 7. Resolution 1962 (XVIII). the See B. Cheng, The 1967 Space Treaty: Thirty Years On, keynote address at 8. International Space Law's special dinner to of the 30th anniversary of the Institute celebrate Treaty, 40 SPACE LAW COLLOQUIUM (1997), pp. XVII-XXIX, s. III.1: Filing in Lacunae, Space B. "Outer Space," at p. XIX. See further Void Cheng, Outer Void Space: The Reasons for This e.g., LAW Neologism Space Law, AUSTRALIAN INTERNATIONAL in JOURNAL (1999), pp. 1-8. 111

32 Outer Void Not Reserved for Exclusively Peaceful Use Space Cf. G. ARZENBERGER, POWER POLITICS, 3rd ed., London: Stevens (1964), Part II: 9. SCHW in Power 249-515. Disguise, Politics pp. Issues CHENG, in note 6 above, Ch. 19: Definitional cit. in Space Law: The op. e.g., 10. See, Outer Space, pp. 513-522. See also note "Peaceful Use" of 4 above. 11. cit. in note 6 above, Ch. 4: International Co-operation op. Control: CHENG, See and 52-69. to Space, pp. Atoms From text of Art I is reproduced 12. The below. 13. A/C. I/PV. 1289 (3.12.62), p. 13. UN Doc. 14. Doc. (20.3.62), p. 63. UN NAC.105/PV.3 to the expectations at the time, even before the actual launch of Sputnik I, see As 15. 14-51, cit. 6 above, Ch. 2: International Law and High Altitude Flights, pp. in note CHENG,op. thereto, 13 and text 17. at p. 12 and notes 16. ibid., Ch. 1: In the Beginning: The International Geophysical Year, pp. 3-13. See See 17. Ch. 6: The United Nations and Outer Space, pp. 91-124, text to note 134, atp. ibid., 121. ibid., 6, s. VI: Demilitarisation and Ch. at pp. 119-124. See Disarmament, 18. Cf. 19. UN (22.7.66), pp. 9-10; ibid., /SR.66 (23.7.66), pp. 6-7 NAC/105/C.2!SR.65 Doc. (USSR). (see 20. behaviour in the 1960 RB-47 incident e.g., CHENG, op. cit. in note 6 Cf., Soviet Airlines 6, s. V.B: Peripheral Reconnaissance, at pp. 107-119), and the 1933 Korean Ch. above, (see incident Cheng, The Destruction of KAL Flight KE007 and Article 3bis of the Chicago B. der in J. Storm van s Gravesande and A. van E. Veen Vonk (eds.), AIR WORTHY Convention, W. Amicorum 1. H. Ph. Diederiks- Verschoor), Daventer: Kluwer (1985), p. 47. (Liber see text And 38 below. note to 21. UN NC.1IL.219 (16.3.58). Doc. See op. cit. in 22. 6 above, Ch. 6 : The Extraterrestrial Application ofInternational Law, note note 39 and text thereto, at p. 83. 23. A number other treaties, or multilateral, concluded or proposed, affect the of bilateral military use us time and space do not permit space, to enter into here. Mention of which outer in of the 1963 Treaty Banning Outer \Veapon Tests in the Atmosphere Nuclear made may be US-USSR Under (480 UNTS 43); and 1972 Water agreement on the Limitation of Space the Ballistic Missile Systems (ABM Treaty) [11 ILM (1972) 784); the 1972 Anti- Interim US/USSR Agreement Certain Measures Respect to the Limitation of Strategic Offensive Arms on with the [11 (1972) 791); 1977 Convention on or Prohibition of Military ILM I Agreement) (SALT Other Hostile Use of Environmental Modification Techniques Any ILM (1977) 88); 1979 [16 US/USSR on the Limitation of Strategic Offensive Arms (SALT II Treaty) [18ILM Treaty of (1979) 1979 Agreement Governing the Activities the States on the Moon and Other 1112); Celestial Bodies (Moon Treaty) [18 ILM (1979) 1434; 1363 UNTS 3); the 1981 Soviet proposal for a Treaty Any the the Stationing of Weapons of of Kind in Outer Space [UN Prohibition on N36/192 (22.8.81»); the 1983 Soviet proposalfor a Treaty on the Prohibition of the Use of Doc. Force Outer Space and from Space against the Earth [UN Doc. A/38/194 (20.8.83)). in B. See Jasani, Space: Militarization Outpaces Legal Outer in N. Jasentuliyana (ed.) , Controls, MAINTAINING OUTER SPACE FOR PEACEFUL USES, Japan: The UN University (1984), pp. key 2, pp. 234-237, where some of the at provisions of these treaties are cited. 221-252, Table 1967 On other terms and aspects of the various Space Treaty, particularly from the 24. standpoint of interpretation and definition, cf. S. Gorove, Article N of the 1967 Outer Space (ed.) Treaty Some Alternatives for Further Arms Control, in Jasentuliyana and , op. cit. in note 23 above, pp. 77-89. 112

33 Bin Cheng Cf. bilateral reached on 8 June 1962 between the Academy of Sciences of the 25. agreement the and and Space Administration (NASA) of the US on National USSR Aeronautics meteorology, geomagnetic survey and satellite telecommunications, satellite world co·operation in of views between Khrushchev and Kennedy, and subsequently following an exchange communicated two to the United Nations, UN governments NC.l/880 (5.12.62); reprinted 2 ILM the by Doc: coming having note on its into been confirmed by both governments, and its a 195, (1963) with effect. C. LAW, London: Stevens (1965), prints the First Memorandum of JENKS, SPACE W. appendices, the agreement among its above at p. 382. implement Understanding to 43; 14 UST 26.480 TIAS No. 5433; 2 ILM (1963) 883. UNTS 1313; Art. 27. added. 1, emphasis may be worthwhile pointing out that It Declaration of Legal Principles Governing the the 28. of States in the Exploration and Use of Outer Space [GA Res. 1962 Activities of 13 (XVIII)] December the year before, which represents an earlier agreement between the 1963, and which the forerunner of the 1967 Treaty, does not include a principle similar superpowers is Article to N the Treaty. of 29. Emphasis added. UN Doc. NAC.105/C.2/SR.64 (21.7.66), p. 4-5; France, ibid., p. 6. 30. Italy, Law op. in note 6 above, Ch. 2: International cit. and High Altitude Flights, note 11, Cf. 31. p. 17, and text thereto; Ch. 6: The United Nations and Outer Space, notes 75 at 89, at pp. and 103 Skies': 106, thereto; V. S. Vereshchetin, 'Open text The Metamorphosis of a Concept, and and T. L. Masson·Zwaan and P. M. J. Mendes de Leon (eds.), AIR AND SPACE LAW: DE LEGE in (Liber FERENDA Henri A. Wassenbergh), Dordrecht: Martinus Nijhoff (1992), pp. Amicorum 283-290. also be added It the term is now should used in air law to describe a liberal policy in that international air transport of opening a country's airspace to foreign airlines. See H. Wassenbergh, 'Open 'Open Markets': The Umits to Competition, in Chia.Jui Cheng (ed.), Skies'/ USE OF AND OUTER SPACE FOR ALL MANKIND IN THE 21ST CENTURY, The AIRSPACE THE Kluwer pp.195-204. (1995), Hague: Storm in Treaty, Military Uses of Outer Space and the 1967 Outer Space van in M. N. 32. Matte pp. vanderVeen (eds.), op. cit. in and 13 above, Vonk 117-134, using a more s Gravesande note example, likewise points recent that, while reconnaissance satellites may be good for their out and (at necessarily good for the benefit not in the interests of all countries they are owner.States, 125). p. 33. the in agreement, Goedhuis, Legal Implications See, D. Present and Projected Military e.g., of ofOmer Space, inJasentuliyana (ed.) , op. cit. in note 23 Uses pp. 253-269, at pp. 260-261; above, contra, loco cit. in note 32 above, at p. Matte, On Art. I of the Space Treaty, see further 128. CHENG, op. cit. in note 6 above, Ch. 9: The 1967 Space Treaty, s.V.E.: Exploration and Use for the Benefit All Countries, at pp. 234-236. of Eisenhower's speech 34. as by U.S. Information out in London, Official Text put Service pp. 5-6. Text differs slightly from the Official Records of the General Assembly, (22.9.60), A/PV.868 (22.9.60), p. 45, at p. 48, which was based on a transcript of the recording of GA(XV) writer, the reply to an inquiry from the In the State Department confirmed the accuracy speech. of the text quoted above. See further CHENG, op. cit. in note 6 above, Ch. 6: The United Nations thereto, and note 142 and text Space, at p. 123. Outer 35. See CHENG, op. cit. in note 6 above, Ch. 6, S. V.A.: Penetrative Reconnaissance, at pp. 104-107. Nations See C. S. Sheldon II and B. M. DeVoe, United SPACE Registry of Space Vehicles, 13 36. LAW COLLOQUIUM (1970),pp.127-141. 113

34 Outer Void Not Reserved for Exclusively Peaceful Use Space Convention on of Objects Launched into Outer Space, 14 January 1975, 37. Registration on 15; TIAS No. 8480. Opened for signature 695; 29 March 1972; entered 28 UNTS UST 1023 1 September on 1972. into force 38. Ct. on Application of the Convention on Registration of UN Secretary-General, Report J. Outer UN Doc. NAC.105/382 (2.3.87); A. Space. Young, A Decennial into Objects Launched the Registration Convention, 9 ANNALS OF AIR AND SPACE Review (1986), pp. 287-308. of LAW UN NS-1O.117 (May-June 1978). Doc. 39. 171. (26.3.79); CDJPV.274 (19.7.84), p. 5-8; CD/540, p. CD/9 40. CD Doc. 41. Doc. CD/OSJWP.25 (25.8.88). CD Doc. CD/817, CD/OSJWP.19 (17.3.88). See CD 1. Kuskuvelis, The Importance of 1. 42. the Future of the Military Space Regime, in E. J. Palyga (ed.), INTERNATIONAL SPACE Structures in MISCELLANEA (Liber Amicorum Andrzej G6rbiel), Warsaw: Instytut Humanistyczny LAW p. 115, (1955), pp. 116-117. at BhupendraJasani Cf. AND NON.PEACEFUL USES OF SPACE, New York: (ed.), 43. PEACEFUL Outpaces (1991), 14-16; idem, Outer Space: Militarisation Francis Legal Controls, loc. & pp. Taylor note 23 above, at pp. 244-250. cit. in 44. Ct. cit. in note 6 above, Ch. 22: Remote Sensing, S. VII: Capability and Uses, op. CHENG, OF 584-589; Sur (ed.) , VERIFICATION S. CURRENT DISARMAMENT AND ARlvlS pp. at AGREEMENTS: WAYS, liMITATION AND PRACTICES, Aldershot: Dartmouth for MEANS UNIDIR (1991); Hashimoto, Verification from Outer Space-Revival of International Y. Systems 230; Agency, Monitoring LAW COLLOQUIUM (1994), p. 37 W. von Kries, Satellite Satellite SPACE and European Arms Control, 33 ibid. (1990), Verification p. 375. 45. Doc. and Corr. 1 (16.6.66). UN NAC.105/32, 46. further CHENG, op. cit. in note See Ch. 9, S. IILB: The 1967 Space Treaty, at pp. 6 above, 221-223. 47. See ibid., Ch. 9, S. VII: International Co-operation and Mutual Assistance, at pp. 252-261. 48. Senator Gore's referred to in note 13 above. The point was apparently See speech in in without it being officially recorded discussions any home hammered informal the of or proces-verbaux. See, e.g., the Indian representative to Committee, First the records summary criticising limited scope who, the when IV, went of to say, "the use of military Article on and any it was equipment or facility was expressly permitted, and where necessary personnel asserted emphatically meant not 'non-military' but merely 'non-aggressive.' II UN 'peaceful' that (17.12.66), p. 436 (9). NC.l/SR.1493 Doc. 49. Article was based largely on IV(l) 9 of the U.S. first draft transmitted to the Article Doc. on 16 June 1966, UN ofcopuos NAC.105/32, and Corr. 1. A comparative text Chairman of Article 1 of the Antarctic Treaty and Article IV (2) of the Space Treaty is to be found below. It would, however, only fair mention that, for reasons which were not fully apparent, the be to of Union reluctant to follow the example also the Antarctic Treaty, UN Doc. Soviet was p. NAC.105/C.2!SR.65(22.7.66), 11. 50. e.g., E. R. Finch, Outer Space for "Peaceful Purposes," 54 AMERICAN BAR Cf., of JOURNAL p. 365; A. Meyer, Interpretation (1968), the Term "Peaceful" in the ASSOCIATION Light of the Space Treaty, 11 SPACE LAW COLLOQUIUM (1968), p. 105; M. Menter, Peacejill Uses of Outer Space National Security, 17(3) INTERNATIONAL LAWYER (1983), p. 381; L. Haeck, and SPACE droit laguerre Le 16 ANNALS OF AIR AND de LAW (1991), p. 307, at p. 309. spatiale, 51. The Legal Aspects of Peaceful and Non-Peaceful Uses of Outer Space, in Jasani, op. cit. in 44-45. at pp. p. 37, note above, 43 UNTS 331; 8 ILM (1969),679. 52. 1155 114

35 Bin Cheng Ic;JRep. 1969,p.3,para. 53. 73. cit. 54. 51 above, p. 45. Original italics. in Loc. note 1962, Iq p. Rep. 6. 55. added. 56. Emphasis "Article N(I)" below. See 57. Iq 6. Rep. 1962, p. 58. 1951,p. 116. Ic;JRep. 59. the Activities of 60. on the Moon and Other c;elestial Bodies, Agreement Governing States 1978, York, 1363 UNTS 3; 18 ILM (1979) New Opened for signature on 18 December 18 1434. December into force on 11 July 1984. See <::HENG, op. cit. in note 6 above, c;h. 12: 1979; entered Moon at pp. 357-380. The Treaty, added. 61. Emphasis op. N. The Moon Treaty, in c;f. (ed.), Jasentuliyana, cit. in note 23 contra 62. Jasentuliyana 121-139, at above, 130, who seems to believe that the second sentence is not applicable to pp. p. moon, and this omission the is remedied by Article 3(4) of the 1979 Moon Treaty. Such an only interpretation, combined with the U.S. interpretation of "peaceful," would deprive Article if come, any effect for probably many decades to practical if not forever, since the military of (2) IV use present, other than the terrestrial moon is at bodies to say the least, somewhat of celestial speculative. There is a rather subtle difference between the third and fourth sentences in that military 63. personnel be used for "any ... peaceful purposes," military equipment and facilities can only can used be for peaceful exploration." This makes necessary inasmuch as military equipment "if sense facilities, unless "necessary for peaceful exploration," are likely and be capable of military use. to The risks presented by military personnel without military equipment or facilities would military be much less. 64. c;f. Gorove, loc. cit. in note above, p. 77, at pp. 81-2; N.Jasentuliyana, The Moon Treaty, loc. cit. note 62 above, at pp. 128-129. in Decisions 65. p. 75, at p. 97. and Opinions, IMPLICATIONS e.g., DOYLE, c;IVIL SPACE SYSTEMS: E. FOR INTERNATIONAL See, S. 66. Dartmouth for UNIDIR (1994). SECURITY, Aldershot: The c;HENG, cit. in note 6 above, c;h. 12: op. Moon Treaty, at pp. 357-380. See 67. See notes 62 above and 75 below with accompanying text. See also Haeck, loc. cit. in note 68. 50 by no means the only writer who appears to be rather unclear on the subject (p. 321), above, on concerned, distinction that ought to be made, insofar as Article N is and between (i) the other space the sense used by outer Space Treaty, which includes the moon and the in the celestial (ii) the outer void space, bodies, (iii) celestial bodies (at p. 315). and IV.c;: See further c;HENG, op. cit. in note 6 above, c;h. 12: The Moon Treaty, s. 69. Non-militarisation, pp. 367-368, and c;h. 24: International Responsibility and Liability for at Outer Article at pp. 621-640; B. c;heng, Space, VI of the 1967 Space Treaty Activities National in "International Responsibility," "National Activities," and "The Revisited: State," 26 Appropriate ]OURNALOF LAW (1998), pp. 7-32. • SPACE note c;f. 70. loc. cit. in contra 64 above, at p. 130. ]asentuliyana, 71. Some politicians and writers appear to have a mistaken notion of a State's right of the self-defence, whatever is desirable in authorising interest of national security. it as treating international law right of self-defence is a legal concept derived from or at least comparable The It of legitima, legitimate (self-) defence. defensio is subject to strict legal canon law notion to the and international On the position in conditions. law, see B. c;HENG, GENERAL PRINCIPLES rules 115

36 Outer Void Not Reserved for Exclusively Peaceful Use Space LAW AS BY INTERNATIONAL COURTS AND TRIBUNALS, Cambridge: Grotius OF APPLIED 2, s. Self-Defence, pp. 77-97. B: (1987), Ch. others, Menter and Finch, lac. cit. in note 50 above, and numerous lac. Cf., among 72. Jasani 23 above, at p. 244. note in cit. Jasentuliyana, lac. cit. in 73. 64 above, at p. 130, who believes that Article 3 (3) Cf contra note Moon has added "vast new areas that were Treaty specifically covered by the outer the of not seemingly referring to the applicability of treaty," moon treaty to all the celestial bodies the space is difficult to understand because 1(2}. However, this within solar system under its Article the in of Treaty applies to all celestial bodies Space the whole universe, which N(I} the Article weapons of of "use" the solar system. The prohibition of the in celestial all include would bodies of "on in the moon" mentioned destruction Article 3(3} or the Moon Treaty and not in mass in N(1} of the Space Treaty is covered by Article IV(2} of the Space Treaty, sentence. first Article also notes above and 75 below. See 62 74. tone nuclear weapons, see the rather hesitant of of the International Court of On the use Opinion in Legality of the Use of Nuclear Weapons, ICJ Rep. 1996, p. 66. Justice's Advisory Insofar as 75. to space for parties which are parties concerned, the Partial Test outer is void (see Ban 26 above and text thereto), the Treaty may be applicable. It may, however, TreatY note but devices, that the Treaty applies only to the test of nuclear not and weapons argued possibly be their use. Treaty may further arguably be said to apply to not only outer void space, but The to usage at previously mentioned, the as the time was to speak of even though, bodies, celestial also space and celestial bodies. However, outer IV (2) ofthe Space Treaty and Article 3 of the Article of the Moon Treaty, by forbidding the are obviously applicable. Article 3(3} Moon Treaty any of objects carrying nuclear weapons or space other kinds of weapons of mass placing weapons such of "trajectory to ... the moon," may possibly prevent the use a in destruction is the in the sense the word moon moon used in the Moon Treaty. Moreover, on targets against may of or use of force" on the moon threat also prevent the lise of any "any the prohibition the moon, even though the specific prohibition of on testing of any type of weapon" "the weapon 3(4} of the Moon Treaty, and Article IV(2} Article Space Treaty may give rise to the in ofthe apply Treaty, that just mentioned regarding the Partial Test Ban only that they as same argument testing, to actual use. Finally, the question remains as to whether the reservation of but not both for for exclusively peaceful purposes in use treaties means that no weapon celestial bodies outer or earth the any"target on celestial bodies from void either against be may whatsoever used however it can illegal, and even criminal the target may be, although in such a case space, be evil, argued that assault would not constitute a "use" the the celestial body, whilst the target most of another from mounted be assault an may such neither under However, would. probably treaty cit. other earth. See further CHENG, op. the in note 6 above, Ch. 20: The than celestial body at Use Space and International Law, s. III.B(viii}, Outer pp. 529-532. See also, e.g., Military of Jasani, cit. in note 23 above, at pp. 222-244, and loco V. Vlasic, Space Law and the Military I. Applications Space Technology, loco cit. in note 4 above, on some of the current military uses of of United outer As mentioned by Professor Vias ie, the space. States in the 1991 Gulf War had void at its disposal seven imaging satellites, making an average of 12 passes over the theatre of operations each between 15 and 20 signals intelligence satellites, intercepting radio day, communications of Iraqis, three defence weather satellites, at least four military the Global "Navstar" Positioning System (GPS) satellites, and up to 16 communications satellites sensing by images acquired by the French SPOT and U.S. Landsat civilian remote assisted the operational forces (at p. 388). which satellites were used to update maps for 76. Opinions 1931, of October 1930 to July Commissioners, p. 207, at pp. 265-266. 116

37 Bin Cheng 55 DEPT. STATE BULL. (1966), p. 952; statement released on 8 December 1966, when 77. OF actually Powers. between the major space was agreement reached Nations e.g., Kopal, Concerns Cf., in the United V. over the Military Uses of Outer 78. Expressed inJasentuliyana, (ed.), op. cit. in note 23 above, p. 59, and several other papers in the same Space, Space of Monserrat Filho, Total Militarization of Jose and Space Law: The Future See volume. also Article LAW of the '67 Outer Space T reary, 40 SPACE the COLLOQUIUM (1997), pp. 356-369. N International See 79. cit. in note 6 above, Epilogue, s. IV: Conditions Governing CHENG, op. Rule-Making, pp. 671-697. 80. UN Pub!. Sales No. E.83.V.5. Future On the formation of rules of general international law, see B. Cheng, Custom: The 81. of State Practice In a Divided World, in R. St. J. MacDonald and D. M. Johnston (eds.), General THE STRUCTURE PROCESS OF INTERNATIONAL LAW, The Hague: Martinus Nijhoff AND wrong the 546 are in and order and have been wrongly N.B.: (1983), 545 513-554. pp. pp. paginated. Cold the Bury TIMES LoNDON (28 May 1997), p. 1, co!. 1: Russia and NATO THE See 82. on reporting signing by NATO and Russia at \Var, the 27 May 1997 of the Founding Act on Paris Mutual Relations, Co-operation and Security, and the surprise promise by President Yeltsin at Founding warheads would not be targeted Russian the signatories to the that Act. afterwards see of the Founding Act, 36 ILM (1997) 1006. For text 117

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