I An Brownlie The Maintenance

+(,121/,1(
Citation:
Ian Brownlie, The Maintenance of International Peace
and Security in Outer Space, 40 Brit. Y.B. Int'l L. 1
(1964)
Content downloaded/printed from HeinOnline
Wed Jan 31 07:35:43 2018
-- Your use of this HeinOnline PDF indicates your acceptance

of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from

uncorrected OCR text.
-- To obtain permission to use this article beyond the scope

of your HeinOnline license, please use:
Copyright Information
Use QR Code reader to send PDF to

your smartphone or tablet device
THE MAINTENANCE OF INTERNATIONAL
PEACE AND SECURITY IN OUTER SPACE*
By DR. IAN BROWNLIE
Fellow of Wadham College, Oxford
Introductory
T HE intimate relation between rules of law concerning the use or threat of
force by States and international organizations, on the one hand, and other
branches of the law, is obvious to all. In this paper it will thus be necessary
to make references to concepts of law the precise content of which may not
as yet be determined in all respects, since the law relating to activities in
outer space is still in a process of development. For example, in regard to
rules protecting space vehicles from harmful activity, one may assume
the existence of a law of attribution or 'ownership', based on principles of
nationality or registration.
However,. whereas assumptions of this sort, with respect to specific
questions, may be justified, the views to be expressed involve certain other
assumptions of general import of which it is necessary to offer some ex-
planation at the very outset. In the first place, the writer considers that, of
its own force, international law, including the principles of the United
Nations Charter which have become a part of general international law,'
applies in outer space. 2 There is no reason to suppose that the law is
spatially restricted,3 although particular rules may be specialized in this
way. 4 In any case the general view of States, expressed in a resolution of
the United Nations General Assemblys is that: 'International law, includ-
ing the Charter of the United Nations, applies to outer space and celestial
bodies.' It follows from this position that there is no legal vacuum waiting
0© Dr. Ian Brownlie, 1965. 1 See Lord McNair. Law of Treaties (196x), pp. z6-x8.
2 Here and elsewhere this phrase will be assumed to include celestial bodies.
3 This statement involves a number of suppositions concerning the history and nature of
international law which cannot be elaborated upon here. See below, pp. 7-9, on the application of
the United Nations Charter. 4 See below, p. 6.
s Resolution 1721 (XVI), General Assembly, Official Records, x6th session, Supp..No. 17
(Doc. A/5 woo), pp. 6-7; adopted on 2o December 1961. Text: American Journalof International
Law, 56 (1962), p. 946. See further G.A. Resolution 1962 (XVIII), General Assembly, Official
Records, i8th session, Supp. No. 15 (Doc. A/5515), p. x5 . Adopted on 13 December 1963. Text:
American Journal of InternationalLaw, 58 (1964), p. 477. The second principle laid down in the
latter is: 'Outer space and celestial bodies are free for exploration and use by all States on a basis
of equality and in accordance with international law.' The fourth principle is: 'The activities of
States in the exploration and use of outer space shall be carried on in accordance with inter-
national law, including the Charter of the United Nations, in the interest of maintaining inter-
national peace and security and promoting international co-operation and understanding.' See
further, British Practicein InternationalLaw (1963-II), pp. 115-19; InternationalLegal Materials
(1964), pp. 157, 16o; and Jenks, Space Law (I965), pp. 203-9, 301-4, 309-12, 320, et. seq.
C 3612 B
a THE MAINTENANCE OF PEACE IN OUTER SPACE
to be filled with a composite body of rules having a special nature, a new
legal entity, 'space law'. Clearly, many rules of special application must
emerge, for example, relating to the nationality or registration of space
vehicles,' the definition of a 'space vehicle' and so on, and the relevant
rules may be conveniently labelled. But it is not the case that until a
complete codification is available there is no applicable law.2 Legality does
not wait upon perfection. In connexion with these issues it may also be
said that it is not necessary to attach too much importance to large issues
described in terms of the 'legal status of space'. Thus it is the view of
governments and writers alike that outer space may not be placed under
the sovereignty of any State, 3 and this proposition is sometimes expressed
by saying that space is not res nullius. As a corollary it is then asserted that
outer space, like the high seas, has the character of res communis. 4 It is true
that the law of the sea may furnish compelling or useful analogies for those
inquiring into the legal aspects of activities in space, but it is thought that
it is best to avoid the imprecision and non-consequence involved in the
use of the category res communis as though it were a storehouse of settled
rules. In the discussion which follows it is sought to examine particular
problems empirically without resort to general formulae as to the 'legal
status' of outer space. s
Two further prefatory observations may be made. First, in working on
the assumption that rules already exist which apply to activities in space
it will be borne in mind that the precise manner of their application will not
infrequently remain the subject of debate and that in some spheres one is
dealing quite simply with the progressive development of the law and not
merely the refinement of existing rules. The line between lex lata and lex
ferenda is often difficult to draw but at least the attempt will be made.
Secondly, the writer is conscious that the optimum conditions for peace
and security in this field, as in others, are created by political understand-
ing and more especially by the conclusion of agreements restricting the
Even in this context some criteria for decision must exist. already. It is unlikely that a court
would refuse to decide whether a satellite of American manufacture, launched from American
territory with official authority, was American for various legal purposes. See G.A. Resolution
1962 (XVIII), above, principles 7 and 8; and McMahon, this Year Book, 38 (1962), pp. 380-4.
2 Cf. the debate on the definition of aggression on which see Stone, Aggression and World
Order (1958), and the present writer, InternationalLaw and the Use of Force by States (1963),
PP. 355-8.
3 See G.A. Resolution 1721 (XVI), above, and G.A. Resolution 1962 (XVIII), above, prin-
ciples 2 and 3.
4 On the concept see Fitzmaurice, Recueil des cours, 92 (1957-I1), pp. ISo-I, 156-7, x6o-2;
Guggenheim, Traiti, vol. i, p. 446. In Roman law it did not acquire a very definite content and
was confused at times with res publicae: see Buckland, Textbook, 2nd ed., pp. 182, 184-5; id.,
Main Institutions, p. 9L; Girard, Manuel, 7th ed., p. 252. For references to Soviet literature see
Crane, American Journal of International Law, 56 (1962), at pp. 693-9. See also McMahon,
10c. cit., pp. 357-6o.
5 See McDougal and Lipson, American Journal of InternationalLaw, 52 (1958), p. 412, and
note 15 thereto.
THE MAINTENANCE OF PEACE IN OUTER SPACE 3
disposition of weapons and providing machinery for the control of harmful
activities. The general law normally should contribute to the solution of
these large issues by providing the technical framework for particular
arrangements. However, in conditions of political distrust, it is as well to
point out that the paucity of special agreements does not leave States to
shape their policies in complete freedom. Already too much activity in
space is more akin to the measuring and marking of a new arena for combat
than to a process of exploration primarily for peaceful purposes.
Relevance of the Boundary Question

International law is devoted primarily to the protection of the interests
of States and the relevant rules of law indicate a special concern to protect
the homeland, the area of territorial sovereignty. The sovereignty of a
State extends over the airspace above its territory, and the territorial sea
has been assimilated at least to a very great extent, and probably com-
pletely, to the regime of territorial sovereignty. Historically, as is well
known, the extension of control over a maritime belt was motivated in part
by a desire to increase security from seaward attack and to promote the
observance of the integrity of neutral States in time of conflict. Naturally
similar considerations, apply when the regime of the upper limit of the
sovereign corpus of States is examined. It is not the writer's purpose to
dispose incidentally of the important issue as to the criteria for determining
the upper limit of the territorial air-space. 2 However, the question has an
obvious impact on the maintenance of peace and certain of its aspects
require comment.
Rules relating to the use or threat of force are geared to prevention of
attack (with certain exceptions) on the corpus of the State and it is desirable
that there should be agreement on a particular limit.3 However, until there
is agreement on the legality of certain types of activity on the earth's
periphery, States will tend to reserve their positions on a boundary line
above which the application of sanctions against unlawful activities will be
problematical. In the absence of an agreed limit States are obviously not
free to disregard the territorial integrity of their neighbours. De lege lata,
obligations exist involving the exercise of good faith and reasonable care
in carrying on activities peripheral to the atmosphere. Two analogies
I With more emphasis on the aspect of military security in the absence, for the present at any
event, of any economic considerations comparable to the protection of offshore fisheries. The
claim to sovereignty over airspace (at a time when the upper limit was not a real issue) also rested
on considerations of security: see Fauchille, R.G.D.I.P. (s90, p. 414, and Galina, in Problems
of Space Exploration;A Symposium, 87th Cong., ist session, Senate Doc. No. 26, 22 March 1961,
p. 105 r , at pp. 1055-7 (hereafter cited as U.S. Senate Symposium).
2 See Brierly, The Law of Nations (6th ed.), pp. 22o-i, and the surveys by McMahon, loc.
cit., pp. 340-57 and Haley, Space Law and Government (1963), pp. 75-117.
In all probability 50 miles will come to represent a minimum claim, and, xoo miles a maximum.
4 THE MAINTENANCE OF PEACE IN OUTER SPACE
support this position. First, in spite of disagreement on the breadth of the
territorial sea, with most States claiming either three, six or twelve miles,
all prescriptions as to territorial integrity are assumed, or are expressed,
to apply to the territorial sea. If a State claims a particular territorial limit
which is not recognized by another State or States, the question then
arises whether the 'territorial' claimant is using unlawful self-help if force
is used to exclude others, or his competitor is committing a delict if he
uses force to maintain what he regards as his right to pass and repass on
the high seas or in space. In a sense both would be using force to settle a
dispute but it is thought that in the matter of self-help the presumption
should be in favour of the neighbouring sovereign,' unless the claim bears
no reasonable relation to existing minimum criteria, for example, a claim
to the South Atlantic by a shore State or a claim to a cone of air the top of
which reached out to a lunar orbit. Secondly, in an area such as Antarctica,
or in any hypothetical case of acquisition of sovereignty over a res nullius
which is remote and barren, if one State establishes a permanent base of
operations and some settlements it is not easy to establish the precise limits
of legal possession. Yet there is an aura of sovereignty beyond the actual
zone of activity.
Suggestion of a Security Zone Peripheralto TerritorialAirspace

It has long been clear to all that the breadth of the territorial sea, be it
twelve miles or less, gives little protection from modern weapons. As a
result a number of States have claimed security zones. 2 Similar considera-
tions would seem to apply, with greater strength, with regard to weapon
systems operating in and from space. However, it has been remarked that
distance has little relation to security in this sphere3 and suggestions for a
security zone4 have met with a generally critical responses Undoubtedly
unilateral claims to security zones would increase the likelihood of breaches
of the peace. In the course of its work on the territorial sea and contiguous
SCf. the controversy in the Corfu Channel case (merits), I.C.J. Reports, 1949, p. 4; on which
see Brownlie, op. cit., pp. 283-8. The general problem is one of some complexity and deserves
detailed treatment. The presumption referred to in the text might be criticized by reference to
the fact that the competitor is upholding the status of a res communis.
2 Thirteen States have claimed security zones in the recent past but in four cases these have
been eliminated by extension of the territorial sea. See Gidel, Le Droit internationalpublic de la
mer, vol. 3, PP. 458-61; Secretariat 'Memorandum', I.L.C. Yearbook (,95o-II), p. 67, paras. 8x-
107; and Franqois, 'Second Report', ibid. (1951-II), p. 93, para. 117.
3 See Mankiewicz, Annuairefranfais (1959), at p. 115; Zhukov, in U.S. Senate Symposium,
p. 1072, at p. xo82. Cf. Craig, ibid., at p. 179.
4 Cooper, A.S.I.L. Proceedings(1956), p. 85 at p. 91. McDougal, ibid., pp. 180-9. See further
McDougal and Lipson, American Yournal of InternationalLaw, 52 (1958), p. 407, at pp. 424-6.
See Castrn, in Hommage d'une gdndration dejuristesau President Basdevant ( 96o), p. 75, at
p. 9r; Ppin, U.S. Senate Symposium, p. 182, at p. 185; id., p. 232, at p. 234; Zourek, ibid.,
p. 1109, at p. 1117; Kopal, ibid., p. 1118, at pp. 1122-3.
zone, in a commentary on the relevant draft article, the International
Law Commission stated:'
'The Commission did not recognise special security rights in the contiguous zone.
It considered that the extreme vagueness of the term "security" would open the way
for abuses and that the granting of such rights was not necessary. The enforcement of
customs and sanitary regulations will be sufficient in most cases to safeguard the security
of the State. In so far as measures of self-defence against an imminent and direct
threat to the security of the State are concerned, the Commission refers to the general
principles of international law and the Charter of the United Nations.'
No provision for security zones appears in the Convention on the
Territorial Sea and Contiguous Zone of 1958.2 The same objections apply
to neutrality zones in time of 'war' or armed conflict3 Reference 4 to the
Air Defence Identification Zones created by Canada and the United States, s
in support of the legality of security zones, does not help inquiry very much.
Apart from the small number of States involved it seems that force is not
employed to enforce such zones in airspace over the high seas. The fact that
other States, particularly those associated with Canada and the United
States in security pacts, comply with the regulations creating the zones is
not conclusive on the existence of an opinio juris et necessitatis.
The absence of cogent evidence for the legality of security zones
peripheral to the territorial airspace of States, and the vagueness of con-
cepts of 'security', should not be allowed to obscure the fact that it would
be a considerable gain in the maintenance of peace and security if by
international agreement a zone were created in which certain types of
6
hostile and provocative activity were prohibited.
Trespassersfrom Space
Apart from the extent of rights of self-defence in space, 7 it is perhaps
convenient to notice the problem of trespass into territorial air-space from
outer space where the entry is not part of activity which in law could be
I.L.C. Yearbook (I956-1I), p. 295. See also Oda, Internationaland Comparative Law Quar-
terly, ii (1962), pp. 147-8.
2 Admittedly this fact is not conclusive.
3 See further below, p. 28. Fourteen States have neutrality zones eo nomine at present, but of
these only France has a zone extending beyond the limit of the territorial sea (six miles). See U.N.
Legislative Series, Laws and Regulations on the Rdgime of the TerritorialSea (957), pp. 615-74;
Harvard Research, AmericanJournalof InternationalLaw, 33 (1939), Suppl., pp. 343-53; Jessup,
The Law of Territorial Waters and Maritime Jurisdiction(1927), pp. 96-105; Hackworth, vol. i,
pp. 660-3.
4 Feldman, U.S. Senate Symposium, p. 454, at p. 456; Beresford, ibid., p. 6oi, at p. 6o8.
s See MacChesney, Situation, Documents and Commentary on Recent Developments in the
InternationalLaw of the Sea, U.S. Naval War College, li (1957), part iii; Murchison, The Con-
tiguous Air Space Zone in International Law (1956); Note in Columbia Law Review, 6x (x961),
p. 1074 at pp. io86-95; and Head, Alberta Law Review, 3 (1964), pp. 182-96. Further examples
of 'defence' zones or areas (not as contiguous belts) in U.N. Legislative Series, Laws and Regula-
tions on the Rdgime of the TerritorialSea (1957), pp. 128, 175.
6 See below, pp. 19-20. 7 See below, pp. 20-24, 27-28.
characterized as an armed attack or use of force. The right of self-defence
may of course be exercised within the territorial domain but prima facie a
trespassing aircraft, to take the normal case, must be required to leave or
land and force may only be used if the order is ignored.! Even then the
force used should only be of an order sufficient to secure compliance with
the order given. It is not entirely settled whether in such cases the dominant
category is the termination of a trespass or self-defence, but in all proba-
bility the two categories are simply facets of the same legal right in this
sphere. However, if the penetration is by unidentified aircraft, Which
persist in a deep and apparently deliberate penetration of airspace, ii may
be that the territorial sovereign is justified in taking violent and immediate
preventive measures. 2 In a special sense this is anticipatory action but,
as it takes place within the corpus of the State and is a reaction to a threat
which is, to an extent, realized, the reaction does not present the possibili-
ties of abuse attending extra-territorial action of an anticipatory or preven-
tive character. Immediate preventive action, directed against space vehicles
unlawfully penetrating airspace, would seem to be justified on a similar
basis. Indeed the arguments apply a fortiori here and it may be that, as
a consequence of a system of registered and internationally controlled
launchings, treaty provisions will provide the basis for an assumption of
3
suspicious character.
The Application of ParticularParts of the Law to

Activities in Outer Space.
As seen earlier it is generally agreed that international law and the
principles of the United Nations Charter apply to outer space. Yet general
prescriptions can only provide the foundation for the complex structure of
rules relating to a variety of problems and it will be found that, in some
cases, rules of great importance do not apply, as they stand, to outer space.
The major source of difficulty lies in the rule (it is surely safe to regard it
as a rule) that outer space, including celestial bodies, is not open to appro-
priation by States, that it is a res communis. Many treaties are drafted on
the, hitherto safe, assumption that the law operated in regard to parcels of
territory under sovereignty, and the high seas, the chief exception to the
An exception must be made for crippled aircraft which have a limited capacity for exit or
mancuvre. It is possible that a special responsibility may be created by agreement in respect of
assistance to space vehicles and crews in case of accident, distress and mistaken landings. See
Committee on the Peaceful Uses of Outer Space, Report of the Legal Sub-committee on the Work
of its Second Session (x6 April-3 May 1963), (A/AC. 105/12, Annex, I), A. (U.S.S.R. draft),
para. io; B. (U.S.S.R. draft); C. (U.S. draft proposal); S. (U.S. draft), para. 4.
2 Brownlie, op. cit., pp. 363-4, 373-4. Generally, on the U-2 incident, see Note in Columbia
Law Review, 6i (i96i), pp. 1074-I 102; see also McMahon, loc. cit., p. 377, n. j.
3 See further below, p. i9,on reconnaissance.
regime of sovereignty, do not provide many parallels.' Thus the Hague
Convention V of 1907 'concerning the rights and duties of neutral powers
and persons in war on land' contains provisions regarding neutral rights
and duties which frequently refer to the 'territory' of a neutral Power or
belligerent Power. This and other classical conventions of 1899 and 1907
have a special relation and are expressed to apply to 'war on land', or
'bombardments by naval forces'.2 It is necessary to see how far this type
of defect occurs in the treaties, some of them now representing general
international law, which concern the regulation of the use of force by
States, the jus ad bellum.
The General Treaty for the Renunciation of War (or Kellogg-Briand
Pact)3 the United Nations Charter, Article 2, paragraph 4,4 and the Five
Principles of Peaceful Co-existence, 5 prominent in the practice of Afro-
Asian and Communist States, are, it is submitted, presently the three most
important prescriptions relating to the use of force, forming the major
contributions to the existing rules of general or customary international
law on the subject.6 The first of these legal institutions presents no textual
problems in this respect at least. 7 The High Contracting Parties declare
'that they condemn recourse to war for the solution of international con-
troversies, and renounce it as an instrument of national policy in their
relations with one another'. The fact that the arena for conflict was at that
time substantially confined to land and sea can hardly be held to qualify
its application. Article 2 is particularly comprehensive and decisive: the
High Contracting Parties 'agree that the settlement or solution of all
disputes or conflicts of whatever nature or of whatever origin they may be,
which may arise among them, shall never be sought except by pacific
means'.
Article 2, paragraph 4, of the United Nations Charter is similarly inclusive
However, there has been debate as to the nature of rights to sedentary fisheries and the con-
tinental shelf: see O'Connell, American Journal of International Law, 49 (1955), p. 185 at
pp. x88-9o; and Gutteridge, this Year Book, 35 (1959), P. 1o2 at pp. ixo-6.
2 It does not follow that the laws of war are applicable only to terrestrial conflict, since the
various conventions have become a part of a corpus of customary law the essential principles of
which probably have general application to all armed conflict. The Geneva Protocol for Prohibi-
tion of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods
of Warfare, signed on 17 June 1925, presents no problems in this respect. In any case tribunals
are unlikely to give restrictive interpretations to conventions of this type in respect of their spatial
fields of application.
3 League of Nations Treaty Series (1929), No. 29, Cmd. 3410; Hudson, InternationalLegisla-
tion, vol. 4, No. 2o6. Generally see Brownlie, op. cit., pp. 74-92, 113-15, 235-47.
4 See Brownlie, ibid., pp. 112-13, 127-9 (Appendix II, treaties reaffirming, and expressing
adherence to, the Charter and in particular the obligations of Article 2, paragraph 4). See also
,
Lord McNair, The Law of Treaties (i961), pp. 209-10, 216-18, 576-8, 59x 6oo.
5 Ibid., pp. 117-20, 123-6 (Appendix I, instruments affirming the five principles).
6 The nature of exceptions to these general prohibitions and their application in outer space
will be considered subsequently.
7 Cf. Jenks, U.S. Senate Symposium, p. 734, at p. 747.
and emphatic in its expression: 'All Members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any State, or in any other manner
inconsistent with the Purposes of the United Nations.' The force of the
obligation lies in the words 'shall refrain . . . from the threat or use of
force' and the phrase 'in their international relations' adds to the breadth
of the provision. The next part of the provision ('against the territorial
integrity or political independence of any State') was intended not to be
restrictive in effect but, on the contrary, to give more specific guarantees
to small States., Some writers have asserted that the phrase has a restrictive
effect in the course of arguments that intervention to protect the lives and
property of nationals, and without intent to acquire territory, is consistent
with the Charter provisions. 2 If one gives emphasis to the phrase in this
way then the provision does not apply with the same facility to relations in
outer space since the language is then based too closely on a regime of state
sovereignty. However, it is probable that those who would give the phrase
a restrictive effect would not dissent from the view that the provision as a
whole applies in outer space. Of particular significance is the alternative to
the phrase 'against the territorial integrity. .. '. The provision finishes 'or
in any other manner inconsistent with the Purposes of the United Nations',
and thus includes all forms of state relations.3 For example, an armed
assault on a space station or space vehicle-would be prohibited by Article 2,
paragraph 4, in spite of the fact that State 'territory' is not involved and
political independence is only threatened if the assault is associated with a
terrestrial attack aimed at the State to which the space station is legally
attributed. Incidentally, the text of Article 2, paragraph 3, and Article 33
of the Charter, which are complementary to Article 2, paragraph 4, present
no difficulties in the present connexion.4
Quite apart from the intrinsic value of the provision in Article 2, para-
graph 4, there is now considerable available evidence to support the view
that it applies to space activities. General Assembly Resolution 1721 (XVI)s
I See Brownlie, op. cit., pp. 265-8.
2 See, for example, Bowett, Self-defence in International Law, pp. i52, 185-6. And see Sir
Eric Beckett, Corfu Channel case, LC.J. Pleadings, pp. 295-6.
See Brownlie, op. Cit., pp. 266, 268. This particular wording appears in substance in the
Dumbarton Oaks Proposals: 'All members of the Organization shall refrain in their international
relations from the threat or use of force in any manner inconsistent with the purposes of the
Organization.' At San Francisco the role of the phrase in the later draft was described by the
United States delegate, who 'made it clear that the intention of the authors of the original text
was to state in the broadest terms an absolute all-inclusive prohibition; the phrase "or in any
other manner" was designed to insure that there would be no loopholes'; see U.N.C.I.O., vol. 4,
PP. 334-5 (Committee i, Commission i). See also ibid., pp. 342, 557, 558, 56o, 56r, 563, 564.
Bowett, op. cit., pp. 17, x86, is ready to give the phrase a restrictive meaning.
4 On the competence of the U.N. Organization see below, pp. 29-30. Article 39 has an implica-
tion as to the illegality of certain types of conduct.
s See above, p. i, n. 5; and also G.A. Resolution 1932 (XVIII), principle 4, quoted ibid,
of 20 December 1961 'commends to States for their guidance in the ex-
ploration and use of outer space the following principles: . . . (a) Inter-
national law, including the Charter of the United Nations, applies to
outer space and celestial bodies'. It is well known that resolutions do not
bind members, but voting on a resolution concerning issues of law pro-
vides cogent evidence of the consensus of opinion among governments.
Moreover, such resolutions have a special relevance for members of the
United Nations as an interpretation of the Charter by a principal organ of
the Organization. Draft declarations of principles governing the activities
of States in outer space, placed before the Legal Sub-committee of the
Committee on the Peaceful Uses of Outer Space, affirm the application of
the principles of the Charter.' Doctrine takes the same position, without
2
exception it seems.
The Five Principles of Peaceful Co-existence,3 taken as a whole, apply
to outer space. 4 The first principle, however, that of 'mutual respect for
each other's territorial integrity and sovereignty' obviously does not suit a
regime not based on territorial sovereignty. In this respect two of the ten
principles contained in the Final Communiqu6 of the Afro-Asian Con-
ference at Bandung, of 24 April 1955,5 are restricted in application. Never-
theless the first principle stipulates respect for the purposes and principles
of the United Nations Charter and the eighth for the 'settlement of all
international disputes by peaceful means... in conformity with the Charter
of the United Nations'. In Resolution 1815 (XVII), adopted unanimously
on 18 December 1962,6 the General Assembly 'recognised the paramount
importance in the progressive development of international law and in
I Report, Annex I, A. (U.S.S.R. draft); F. (U.K. draft); and E. (U.S. draft). Cf. preamble to
the U.A.R. draft, Annex I, E. See also Department of State Bulletin, vol. 48, No. 1228 (7 January
z963), p. 21 at p. 23 (U.S. representative in General Assembly, 14 December 1962); ibid.,
No. 1246 (3 May 1963), p. 746 at p. 750 (Leonard C. Meeker); and ibid., No. 1248 (27 May
1963), p. 835 at p. 838 (Abram Chayes).
2 American Bar Association (Section of International and Comparative Law), 'Report of
Committee on Law of Outer Space', U.S. Senate Symposium, p. 571, at pp. 574-7; Korovin,
ibid., p. 1O62, at p. 1070; Jenks, ibid., p. 734, at p. 747; Martin, ibid., p. 749, at p. 751; Galina,
ibid., p. 1O5I, at p. io55; Zhukov, ibid., p. 1072, at p. io8i; id., ibid., p. 1095, at p. io99; id.,
Soviet Year Book of InternationalLaw (1961), p. 202; Zourek, U.S. Senate Symposium, p. 1109,
at p. 1116; Kopal, ibid., p. 11r8, at pp. 1124-5; Sztucki, ibid., p. 1164, at pp. 1168-9; Goedhuis,
Nederlands Tijdschrift voor InternationaalRecht, 9 (1962), p. 113, at p. 1I8; Milde, International
Law Association, Report of the 49th Conference, p. 252; Koretsky, ibid., p. 256; Sztucki, ibid.,
p. 258; Machowski, A.S.I.L. Proceedings(196I), p. 169, at pp. 173-4; McDougal, Lasswell and
Vlasic, Law and Public Order in Space (1963), pp. 437-50. See also below, p. 21, on Article 51 of
the Charter.
3 See above, p. 7, n. 5.
4 See Osnitskaya, Soviet Year Book of International Law (I959), p. 65, and U.S. Senate
Symposium, p. iO88, at p. 1092.
5 Text: Documents on InternationalAffairs (1 955), P. 429. See also Brownlie, op. cit., pp. 119-20.
6 Text: E. Lauterpacht, The Contemporary Practice of the United Kingdom in the Field of
International Law (1962), vol. 2, p. 290. See further the points of consensus adopted by the
Special Committee on Principles of International Law Concerning Friendly Relations and
Co-operation Among States, 2 October 1964: U.N. Monthly Review, (November 1964), p. 56.
I0 THE MAINTENANCE OF PEACE IN OUTER SPACE
the promotion of the rule of law among nations of the principles of inter-
national law concerning friendly relations and co-operation among States
and the duties deriving therefrom, embodied in the Charter of the
United Nations which is the fundamental statement of these principles,
notably: . . . .' The first two principles set out correspond to Article 2,
paragraphs 4 and 3, of the Charter, in that order. It is sufficient to point
out that the era of space activity had begun some five years before this
resolution was adopted.
Bilateral and other special agreements with a restricted scope (by regional
or political connexion) contribute in some degree to the strength of
general norms relating to the use of force by States. Thus a number of
bilateral and multilateral treaties, preceded and followed the General
Treaty for the Renunciation of War 2 and added to the stock of evidence for
the growth of a customary rule prohibiting conquest and forcible self-help
by 1939. 3 Since 1945 special agreements known as 'non-aggression pacts'
have been less significant legally. However, they have a political significance
for all States and a residual legal import for States not permitted to join
the United Nations. 4 The point is that traditionally such pacts refer to
'territorial integrity' or 'inviolability' and generally relate to the protection
of parcels of territorial sovereignty.5 For the future the drafting of this type
of agreement will need to be changed from the older pattern. Recent
agreements reflect the drafting of Article 2 of the Charter. For example,
6
in the Sino-Afghan Treaty of Friendship and Mutual Non-aggression,
Article i refers to 'independence, sovereignty, and territorial integrity',
while in Article 2 the parties 'undertake to settle all disputes between them
by means of peaceful negotiation without resorting to force'. A recent
Soviet proposal for a non-aggression pact between the Warsaw Treaty and
N.A.T.O. States has more interest since the drafting is careful and com-
prehensive, and the potential adherents include those States presently
engaged in space activities. Article i of the draft text 7 provides as follows:
'The States parties to the Warsaw Treaty and the States parties to the North
See Brownlie, op. cit., pp. 95-1o5.
2 Above, p. 7, n. 3.
3 Brownlie, op. cit., pp. 107-x i. See also the J7udgment of the International Military Tribunal
at Nuremberg (1946), Cmd. 6964, pp. 40-41.
4 One thinks, naturally, of the People's Republic of China. In form, China is, of course, a
Member of the United Nations, but in substance the issue of representation serves to exclude the
de jure government of China. The People's Republic of China has concluded a number of non-
aggression pacts since i96o; see Brownlie, op. cit., p. 121, n. 4.
5 Thus States bound by the United Nations Charter have taken the view that by becoming a
party to a non-aggression pact they give recognition of the territorial and sovereign status of the
other parties; see the United States view on a pact between the Warsaw Treaty and NATO States,
The Times, 4 July x963.
6 Signed 26 August ig6o; Press Department of the Office of the Charg6 d'affaires of the
People's Republic of China, Press release, 14 December i96o.
' For the full text: Soviet News, 22 February x963, No. 481o.
THE MAINTENANCE OF PEACE IN OUTER SPACE iI
Atlantic Treaty solemnly pledge themselves to refrain from aggression, the
threat of force or the use of force by any means incompatible with the aims
and principles of the United Nations Charter, both against each other and
in their international relations in general.' Article 2 provides: 'All out-
standing questions which may arise between one or a number of States
parties to the Warsaw Treaty, on the one hand, and one or a number of
States parties to the North Atlantic Treaty, on the other hand, shall be
solved by peaceful means only, through talks among the parties concerned
or by using other means for the peaceful settlement of international dis-
putes provided for by the United Nations Charter.'
The Definition of Aggression

The lengthy quest for a definition of aggression by the Disarmament
Conference in 1933, the International Law Commission, the Legal Com-
mittee of the General Assembly and Special Committees, is familiar to
many. Whether one looks on the 'question of defining aggression' as a work
of codification (in the strict sense of the word), a vast law-making project
embracing economic and other forms of coercion and interference, or a pre-
condition to the acceptance of any norms on the threat or use of force, it
remains of the first importance. For those who approach the problem by
seeking an enumerative or 'mixed' definition,' some existing drafts will need
amendment to include operations by 'space forces'. Mixed definitions come
off best as they normally include a general provision similar to Article 2,
paragraph 4, of the Charter. Many definitions, including that contained in
the Conventions for the Definition of Aggression, 2 specify attack by 'land,
naval or air forces' on the 'territory, vessels or aircraft of another State'.
This type of formula can be easily improved by including references to
'space forces'. More difficulty is encountered in deciding what additions to
3
make to the list of objects protected from attack.
Disarmament
Since disarmament is primarily a question of political agreement and
involves problems of organization rather than law it is intended to give only
I See the annexes to the Report of the 1956 Special Committee on the Question of Defining
Aggression, General Assembly, Official Records, x2th session, Suppl. No. I6, A/3574; and the
appendix to Stone, Aggression and World Order (1958).
2 Signed in London, 3, 4 and 5 July 1933; League of Nations Treaty Series,- vol. 147, p. 67;
ibid., vol. 148, p. 2x; ibid., vol. 149, p. 79. See further Brownlie, op. cit., pp. 247, 353, 36o. The
definition therein appeared in several other instruments.
3 See below, pp. 27-28. See also McDougal, Lasswell and Vlasic, Law and Public Order in
Space, pp. 409-6.
passing notice to the subject., The points to be made are obvious enough.
The agenda for agreement on disarmament measures must now include
items relating to activities in space, or at least items commonly encountered
in draft programmes must be presumed, or expressed, to include ramifica-
tions in outer space. In so far as the efficacy of agreements in this field
depends on the niceties of drafting, appropriate steps may be taken. The
phrase 'armed forces' is usefully comprehensive and less old-fashioned
than reference to 'land, naval and air forces'. With regard to weapons,
'war' or 'military missiles' are generally understood to operate beyond air-
space but it is now probably necessary to include a reference to 'military
space vehicles'.2 Problems of definition may be circumvented by a system
of inspection and registration of launchings of vehicles capable of
carrying weapons of mass destruction: those not found innocent would
be prohibited from entry into orbit or stationing in space.3 Other vehicles
appearing could be given a status similar to that of the pirate or out-
law.
A class of question which also deserves notice relates both to the sphere
of international conference, or 'parliamentary', procedure based on practice
and convenience, and to questions of the formal competence of United
Nations subsidiary organs such as the Disarmament Commission. Apart
from the formal interpretation of mandates received under resolutions of
the Security Council or General Assembly or, otherwise, by special agree-
ment, the 'logical' argument is often encountered. According to this, if
subjects A, B and C are related, no agreement relating to one of them can
be achieved unless agreement has been reached on the other two. Other
combinations are possible but essentially the argument is that of 'all or
nothing', and it may provide a means of obstruction especially when the
other two subjects are within the competence, or on the agenda, of other
bodies. Fortunately arguments of this kind, relating to the status of outer
space and the law relating to activities there, have not been advanced in the
forum of bodies discussing disarmament. However, the relation between
the Committee on the Peaceful Uses of Outer Space and the Disarmament
Commission 4 is not yet entirely clear s
For a useful survey of development see Bin Cheng, CurrentLegal Problems, 14 (1 96 ), p. 247,
at pp. 272-9. See also McDougal, Lasswell and Vlasic, op. cit., pp. 452-68.
2 See also below, pp. 13-14, on the question of 'peaceful uses'. For examples of draft pro-
grammes which take the space era into account see the annexes in Verbatim Records of the Meetings
of the Ten-Power Disarmament Committee, March 15-April 2 (), r960 and June 7-June 27, 196o,
Misc. No. o (196o), Cmnd. x152; and American journalof InternationalLaw, 56 (1962), pp. 899-
946 (Soviet and U.S. Draft Treaties on General and Complete Disarmament).
3 See the Soviet and U.S. Draft Treaties of t962, cited in the preceding note.
4 And ad hoc or other bodies on which similar functions are conferred by international agree-
ment.
5 See Eilene Galloway, U.S. Senate Symposium, pp. 684-5; see also McMahon, loc. cit.,
P. 363.
The Demilitarizationof Outer Space'

Proposals for the demilitarization of space have featured in some rela-
tively recent programmes for disarmamentz and writers have pointed to
the desirability of restricting the sphere of conflict in view of the hazards to
world security which would result from the placing of nuclear devices in
orbit, the creation of missile bases in space and so on. 'Demilitarization'
and 'neutralization' are not unfamiliar legal r6gimes but this type of
terminology is normally avoided in the present context. Reference is
usually to the prohibition of the use of outer space for military purposes
or the establishment of the principle that space can only be used for peaceful
purposes. Historical precedents for r~gimes of demilitarization and neu-
tralization probably have little to offer by way of providing prototypes or
general principles. Each tends to depend on its particular circumstances
and, as a whole, they relate to restriction on the use of areas under terri-
torial sovereignty. 3 More interesting are the neutralization of the Black Sea
provided for in Article i i of the Treaty of Paris of 1856, 4 and the provisions
of Article i of the Antarctic Treaty:5
'i. Antarctica shall be used for peaceful purposes only. There shall be prohibited,
inter alia, any measures of a military nature, such as the establishment of military bases
and fortifications, the carrying out of military manoeuvres, as well as the testing of any
type of weapons.
'2. The present treaty shall not prevent the use of military personnel or equipment
for scientific research or for any other peaceful purpose.'
It may also be recalled that the distinction between 'peaceful uses' and
'military purpose' appears in the Statute of the International Atomic
6
Energy Agency.
See, inter alia, U.S. Senate Symposium, p. 985; Bin Cheng, Current Legal Problems, 14 (196i),
p. 247, at pp. 272-9; Quadri, Recuei des cours, 98 (1959-III), p. 509, at pp. 553-77; Sztucki,
U.S. Senate Symposium, p. 1164, at pp. 1182-5; Lipson and Katzenbach, ibid., p. 779 at pp.
6
8o6-9; Zhukov, InternationalAffairs (Moscow), May 1963, p. 27; McMahon, loc. (it, pp. 3 0-5.
2 See the programmes of the period 195o-6o Verbatim Records Ten-Power Disarmament Com-
mittee, Cmnd. I 152, annexes. The American programme put forward in 1962 did not contain
such a proposal and advanced a more restricted proposal for the prohibition of the placing in
orbit of weapons of mass destruction: American Journal of InternationalLaw, 56 (1962), p. 906;
the Soviet draft of 1962 (ibid., p. 934), Article xS, has a rubric 'Control of Launching of Rockets
for Peaceful Purposes'. See also Clark and Sohn, World Peace through World Law (znd ed., 196o),
pp. 211, 296, 297, 299-302.
3 See generally Oppenheim, I, 8th ed., pp. 242-50, and II, 7th ed., 238, 244-6; Wicker,
Neutralization(191 I); Gooch and Ternperley, Documents on the Origins of the War, vol. 8, pp. 81
et seq., 371-412, 413-52; Erich, Recuel des cours, 26 (1929-I), p. 591.
4 Abolished in 1871 ; Article r of the Treaty of London.
s Signed at Washington, i December 1959. Text: American Journal of InternationalLaw, 54
(I96O), P. 477; Cmnd. 913 (I959). See also Jessup and Taubenfeld, Controls for Outer Space and
the Antarctic Analogy (New York, 1959).
6 Open for signature, 26 October 1956. Text: AmericanJournalof InternationalLaw,51 (1957),
p. 466.
Turning from programmes of, and precedents for, the demilitarization
of space (to call it so), it is necessary to consider the opinion, commonly
expressed by jurists hailing from Communist: countries, that de lege lata
outer space is only open to peaceful uses.' The arguments in support of
this view are as follows. The most 'fundamental' is based on the opinion
that the legal quality of the prohibition of the use or threat of force in
international relations has achieved a high intensity, especially since 1945,
when the Nuremberg Charter declared, or affirmed, the criminality of
aggressive war. Furthermore, the prohibition is broad and exceptions are
to be regarded as such.2 In short, the classical jus ad bellum has ceased to
exist. Thus it is very probable that in contemporary law a general armistice
agreement must be interpreted without resort: to a presumption in favour
of sovereign rights in regard to the use of force. Moreover, a party to an
armistice cannot treat a violation by the other party as a legal justification
for resumption of hostilities. By denouncing or violating an armistice a
State cannot acquire rights which it did not possess before its conclusion)
A similar argument could be employed to point out that, when a new
forum for international relations opens up, the presumption, at least, is that
activities relating to use, threat, or preparation for use, of force are illegal:
such activities are no longer within the pale of legal normality. Of particular
interest is the view that the establishment of military stations on celestial
bodies would require the adoption of security measures tantamount to de
4
facto appropriation.
Arguments of a more restricted ambit exist. Reference may be made to
Article 2, paragraph 4, of the Charter, as applied to a res communis like the
high seas, and the positioning of firing points and forces outside State
frontiers may be regarded as a 'threat of force'. Somewhat insubstantial
evidence for the view under discussion may be drawn from the language
of the relevant resolutions of the General Assembly. Thus Resolution of
12 December 1959,s on 'International Co-operation in the Peaceful Uses
of Outer Space' has the recital: 'Believing also that the United Nations
should promote international co-operation in the peaceful uses of outer
I
Zhukov, Soviet Year Book of InternationalLaw (x961), p. 171, at p. 204 of the English sum-
mary; id., InternationalAffairs (Moscow), May 1963, p. 27; id., U.S. Senate Symposium, p. 1072,
at p. xo82; Milde, International Law Association, Report of the 49th Conference,p. 252; Korovin,
InternationalAffairs (Moscow), December 1959, p. 82, and in U.S. Senate Symposium, p. Xo8s;
Zourek, ibid., p. i IO9, at p. xx x6. Further citations: Crane, American Journal of International
Law, 56 (x962), pp. 700 et seq. See also Sauer, Jahrbuch fiar internationales Recht (1959),
P. 39.
2 Generally see Brownlie, op. cit., pp. 130 et seq., 214 et seq., 431-2.
3 See Lachs, 'La Nouvelle fonction des armistices contemporains', in Hommage d'unegndration
dejuristes au PrdsidentBasdevant (x96o), p. 215, at pp. 320--6.
4 Chakravarty (India), A/AC. xo5/C. 2/S.R. 22, p. 9.
3 G.A. Resolution 1472 (XIV). See also G.A. Resolution 1348 (XIII), of 13 December 2958;
U.S. Senate Symposium, pp. 1246 et seq.; and A/AC. 1os/C. 2/S.R. 22, p. 8.
space'. Similar inferences may be drawn from Resolutions 1721 (XVI),'
1802 (XVII),z and 1962 (XVIII).3
The criticisms of and alternatives to the general opinion that military
uses are prohibited will now be examined. A number of critics 4 have ob-
served that it is difficult to define 'peaceful uses'. Thus meteorological
satellites and satellites which are components of communications systems
have both military and peaceful uses.5 However, this problem of definition
is by no means a fundamental objection and, as noticed earlier, the Ant-
arctic Treaty6 uses the concept of peaceful use and contains a good work-
ing definition of military measures. Another difficulty is the apparent con-
tradiction arising from the fact that the jurists supporting the concept of
peaceful use reserve the right to self-defence 7 in the form of missile launch-
ing (as a reaction to an armed attack) against the aggressor State, or its
bases in space (semble), through, but not from, outer space.8 If one regards
the concept of peaceful use sympathetically, the reservation of self-defence
(in this precise form) may be regarded as a reasonable and narrow excep-
tion. In logical terms it is a 'contradiction' but, defined narrowly and arising
only in the face of actual attack, it is not a source of confusion and leaves
the substance of 'peaceful use' intact.
The main weight of opposition stems from the belief that the concept of
peaceful use simply does not represent lex lata. Many jurists take the view
that the freedom of outer space for exploration and use 'in conformity with
international law' 9 is substantially identical with the freedom of the seas
and that military activities which do not involve the commission of a delict
against any State are permitted.1° American opinion is expressed by the
I Above, p. r, n. 5.
2 Adopted 14 December 1962. See E. Lauterpacht, The Contemporary Practiceof the United
Kingdom in the Field of InternationalLaw (1962), vol. 2,p. and Department of State Bulletin,
z92;
vol. 48, No. 1228 (7 January x963), p. 28. 3 Above, p. i,n. 5.
4 Goedhuis, Nederlands Tijdschrift voor InternationaalRecht, 9 (i962), p. 513, at p. 128; Lip-
son and Katzenbach, in U.S. Senate Symposium, pp. 806-9; Schick, Internationaland Compara-
tive Law Quarterly, io(i96 ),pp. 699 et seq.; McDougal, Lasswell and Vlasic, op. cit., pp. 394-9;
McMahon, loc. cit., pp. 362-3.
5 In February 1965 the U.S.S.R. piotested to Norway against the proposed tracking station
to be constructed by the European Space Research Organization at Spitzbergen, stating that this
would be a violation of the provision for demilitarization in the Spitzbergen Treaty of 9 February
1920 (League of Nations Treaty Series (1924), No. 18, Cmd. 2092; American Journalof Interna-
tionalLaw, 18 (1924), Suppl., p. 199), as the station could be used for military purposes, especially
for satellite reconnaissance over the northern U.S.S.R. The protest was rejected on i9 February
on the ground that E.S.R.O. was conducting research exclusively for peaceful purposes. See The
Times, 2o February 1965.
6 Above, p. 13. 7 See further below, pp. 20--24.
8 See Zhukov, Soviet Year Book of InternationalLaw (596!), p. 2o4; Osnitskaya, ibid. (1959),
p. 65, and in U.S. Senate Symposium, p. 1o92; Zourek, ibid., p. xsx6. Soviet jurists are still
debating the question of peaceful use, it seems: see Crane, American 7ournal of InternationalLaw,
57 (x963), pp. 618 et seq., for references.
0 G.A. Resolutions 5721 (XVI) and 5962 (XVIII), above, p. x, n. 5.
10 See, for example, Quadri, Recueil des cours, 98 (1959-IlI), pp. 568 et seq ; Zadorozhny, as
reported by Crane, loc. cit., p. 619; in The Cosmos and InternationalLaw (Moscow-in Russian),
following:' '. . . pending the achievement of disarmament agreements, the
test of any space activity cannot be whether it is military or non-military
but whether it is consistent with the United Nations Charter and other
obligations of international law'. Contemporary opinions of governments
probably concur in this statement of principle. 2 Thus in the Soviet draft
declaration of the 'Basic Principles Governing the Activities of States in
the Exploration and Use of Outer Space', placed before the Legal Sub-
committee of the Peaceful Uses Committee, 3 there is no general stipulation
as to peaceful uses eo nornine. Separate paragraphs deal with particular
questions, such as war propaganda, and paragraph 4 reads: 'The activities
of States pertaining to the conquest of outer space shall be carried out in
accordance with the principles of the United Nations Charter and with
other generally recognized principles of international law in the interests
of developing friendly relations among nations and of maintaining inter-
national peace and security'. The resolution which resulted from the work
of the Committee contains a very similar principle.4
Existing differences of opinion are clearest when one considers the
precise application of the lex lata, including the Charter principles, to
particular questions.
Military Preparationsin Spaces
For proponents of the concept of peaceful use the most important con-
stituent of the legal regime is the prohibition of the stationing of forces or
weapons in space. 6 Two related propositions are to be found. First, that
present activities directed toward the establishing of bases for attack, and
the stationing of weapons to be deployed from outer space, emanate from a
State believed by the given writer to have a policy of aggression against
certain other States. Secondly, that military preparations in space in the,
particular circumstances constitute a threat of force within the meaning of
Article 2, paragraph 4, of the Charter. The main source of difficulty and
p. 38; Meyer, U.S. Senate Symposium, p. 8, at pp. 18-i9; Kroell, ZeitschriftfiirLuftrecht (1952),
PP. 254 et seq.; McMahon, loc. cit., pp. 36o-i.
' Leonard C. Meeker, Deputy Legal Adviser, State Department, Department of State Bulletin,
vol. 48, No. 1246 (3 May 1963), p. 746, at p. 750. See also ibid., No. 1228 (7 January 1963),
p. z, at p. 23; Abram Chayes, ibid., No. 1248 (27 May 1963), p. 835 at p. 838; American Bar
Association, Report of Committee on Law of Outer Space, U.S. Senate Symposium, p. 571, at
PP. 574-7.
' See Chakravarty (India), A/AC. 1o5 /C. 2/S.R. 22, p. 7, commenting on the American and
Soviet drafts before the Sub-Committee of the Peaceful Uses Committee, which did not have a
provision limiting use to peaceful purposes.
A/AC. 105/1z, Annex I. A. See also Soviet News, No. 4840 (30 April 1963). See further the
disarmament drafts referred to above, p. 13, n. 2 and the U.K. draft declaration, A/AC. 105/12,
Annex I. F, para. 3; and see E. Lauterpacht, op. cit., p. igz.
4 G.A. Resolution 1962 (XVIII), principle 4, quoted above, p. i, n. 5. Cf. principle 6 of the
same Resolution.
5 Weapon tests and reconnaissance will be treated separately; below, pp. 17-20.
6 See above, p. 14, for the relevant arguments.
confusion is the objective aspect of military preparations in many situa-
tions, whether on State territory, on, over or under the high seas or in
outer space. The aspect they have is ambiguous: until the weapons are
used there is no decisive and reliable criterion by which to characterize
the activity. Moreover, the State or States concerned will usually describe
the activity as preparation for collective defence or individual or collective
self-defence, and omnia praesumunturrite esse acta. Exceptionally, it might
happen that a State declared its intention to attack another in conditions
under which the action would be illegal: there can be little doubt that
activity on the high seas or in outer space in preparation for the beginning
of an attack would be itself illegal., Furthermore, a breach of the peace
may provide evidence to establish that activity which was prima facie
lawful had in fact been illegal ab initio.
Unfortunately, restrictions on (prima facie lawful) military preparations in
space must depend on international agreement. However, it could be said
that even exfacie defensive preparations will be unlawful if they involve the
deployment of force of an intensity which could have no reasonable relation
to proportionate reaction to any conceivable form of attack on State terri-
tory.2 Leaving aside the issue of prohibited weapons, planned retaliation on
a scale which has no relation to defence and which in the thermonuclear era
places whole continents in jeopardy is unlawful and constitutes the greatest
imaginable threat to peace and security. It is arguable that annihilation is
not war in the legal sense, 3 quite apart from the orthodox form of the question
of lawful and unlawful resort to force. Counter-annihilation from pro-
tected 'hard' missile bases or from outer space, after the recipient State
4
has been destroyed, is no more lawful than the first blow of the aggressor.
Testing of Weapons in Outer Space

Doubtless the testing of conventional weapons and, or, missiles, is law-
ful in outer space as it is lawful on the high seas and in the airspace over
I The content of the illegality is a question of considerable interest. For example, is there a duty
to discriminate against an aggressor before he initiates an attack? Cf. McNair, this Year Book, 17
(1936), pp. 155-8 and National Coal Board v. England, [1954] A.C. 403, at pp. 428-9, per Lord
Asquith of Bishopstone.
2 On proportionality: Brownlie, op. cit., pp. 261-4. For another view: McDougal, Lasswell
and Vlasic, op. cit., pp. 468-77.

3 United Kingdom, Manual of Military Law, Part III: The Law of War on Land (1958),
para. 3: 'The development of the law of war has been determined by three principles: first, the
principle that a belligerent is justified in applying compulsion and force of any kind, to the extent
necessary for the realization of the purpose of war, that is, the complete submission of the enemy
at the earliest possible moment with the least possible expenditure of men, resources, and money;
secondly the principle of humanity, according to which kinds and degrees of violence which are
not necessary for the purpose of war are not permitted to a belligerent; and thirdly, the principle
of chivalry, which demands a certain amount of fairness in offence and defence, and a certain
mutual respect between the opposing forces.' See also Oppenheim, InternationalLaw (7th ed.,
by Lauterpacht), vol. 2, pp. 226-7.
4 Unless one subscribes to use of that great solvent of rules, the reprisal.
C 8612 c
i8 THE MAINTENANCE OF PEACE IN OUTER SPACE
them. The controversial issue is that of nuclear and thermonuclear weapon
testing. If one accepts the concept of peaceful use of space nuclear tests are
clearly unlawful. If the view is correct that the use of nuclear weapons is
unlawful then testing is unlawful unless (i) the hypothesis that nuclear
weapons may be used in reprisal is correct or (2)the State concerned has
made a reservation to the Geneva Protocol of 1925' as to breaches by
another party or its allies and this Protocol alone is regarded as the legal
basis for the prohibition of resort to nuclear weapons. Even if it were true2
that use of nuclear weapons is not prohibited by the law, two possibilities
still remain. In the first place, if the testing is part of preparation for the
use of massive thermonuclear retaliation it cannot be properly described as
preparation for measures of self-defence. Secondly, in view of the risks to
the wellbeing of the terrestrial community as a whole created by nuclear
tests in space peripheral to the earth, it may well be said that, if there is no
rule prohibiting tests, there is as yet no rule positively permitting tests.
Interference with the basic environment of the earth in conditions of rela-
tive ignorance as to the consequence of such activity might well be re-
garded as a 'universal' delict. Indeed, de lege lata, and by reference to
general principles of law relating to extra-hazardous activities, 3 there is, at
the least, strict liability for harmful consequences. 4
I The Law of War on Land (1958), p. 2x6. The United Kingdom has made such a reserva-
tion.
2 The principal question of the legality of the manufacture, testing and use of nuclear weapons
is a major issue which cannot be dealt with properly in the present context. See G.A. Resolution
of 24 November i96o entitled: 'Resolution on the Prohibition of the Use of Nuclear Weapons
for War Purposes.' This declared the use of nuclear and thermonuclear weapons to be a violation
of the Charter and contrary to the rules of international law and the laws of humanity. See gener-
ally Brownlie, Internationaland Comparative Law Quarterly, i4 (1965), pp. 437-51.
3 Rylands v. Fletcher (1866), L.R. i Ex. 265; (1868), L.R. 3 H.L. 330; Prosser, Handbook of
the Law of Torts, 2nd ed., p. 329; Mexican Civil Code (1932), Art. 1913; ItalianCivil Code (1942),
Art. 2oo; Soviet Civil Code (1922), Art. 4o4. See further Lawson, Negligence in the Civil Law,
pp. 43-5 o and Amitai, Law Quarterly Review, 73 (1957), P. 31 . On liability without proof of
fault for space vehicle accidents see Meeker, A/AC. 1os/C. 2/SR. 16, p. 4; Gutteridge, ibid.,
S.R. 25, p. 5; Draft Rules Concerning Changes in the Environment of the Earth (David Davies
Memorial Institute of International Law Studies); and McMahon, 1oc. cit., pp. 380-93. G.A.
Resolution 1962 (XVIII), above, p. x, n. 5,provides in principle 6 as follows: 'In the exploration
and use of outer space, States shall be guided by the principle of co-operation and mutual assist-
ance and shall conduct all their activities in outer space with due regard for the corresponding
interests of other States. If a State has reason to believe that an outer space activity or experiment
planned by it or its nationals would cause potentially harmful interference with activities of other
States in theiOeaceful exploration and use of outer space, it shall undertake appropriate inter-
national consultations before proceeding with any such activity or experiment. A State which has
reason to believe that an outer space activity or experiment planned by another State would cause
potentially harmful interference with activities in the peaceful exploration and use of outer space
may request consultation concerning the activity or experiment.' Cf. The Convention on Fishing
and Conservation of the Living Resources of the High Seas, 1958.
4 The practical problem would be for smaller States to produce evidence technically adequate
to prove causal connexion. See also the debate on the legality of tests on the high seas. One argu-
ment for their legality is that they are part of preparations for self-defence (McDougal, American
Journal of InternationalLaw, 49 (1955), p. 361). This is but a variant of arguments based on
security, necessity and self-preservation, and it has been condemned by Gidel, 'Fundamental
On 5 August 1963 a treaty' banning nuclear weapon tests 'in the atmo-
sphere; beyond its limits, including outer space; or under water, including
territorial waters or high seas', (Article I, para. i (a)) was signed by the
United States, the United Kingdom and U.S.S.R. and at least ninety-
eight States have signed the treaty altogether.
Military Reconnaissance by Satellites

It is not proposed to discuss the question of a right of innocent passage
through territorial airspace by orbiting satellites, 2 and one may assume that
in any case reconnaissance does not accompany innocent passage. 3 The
legality of reconnaissance in outer space has been challenged on the basis
4
of the arguments used to establish the concept of peaceful use of space,
and the considerations of principle which apply are those set out above with
reference to military preparations in space. Certain points require separate
attention, however, and it must be noted that the problem of reconnaissance
can be approached in isolation from the general question of demilitariza-
tion of space. 5 Those asserting the illegality of reconnaissance must find it
difficult to deal adequately with recent very explicit practice relating to
reconnaissance peripheral to State territory (including the territorial sea)
and superjacent airspace. Here the distinction is established between
illegal trespass and peripheral reconnaissance. 6 Reconnaissance in space
is not per se an illegal 'armed attack' or 'use of force' and therefore it is
difficult to support a right of possible self-defence. 7 Two other approaches
may be adopted. First, one can seek to establish that peace-time espionage,
whatever the apparatus employed, is unlawful.8 Unfortunately it is as yet
doubtful if this object can be achieved satisfactorily. Secondly, it could
Problems of International Law', Festschriftfur Jean Spiropoulos, pp. 173-205, at pp. i9i-'4. See
further McDougal and Schlei, Yale Law Journal, 64 (1955), pp. 648 et seq.; McDougal and
Burke, The Public Order of the Oceans, pp. 13, n., 757-63, 771-3; Margolis, .Yale Law Yournal, 64
(1955), p. 629; Johnson, International and Comparative Law Quarterly, 8 (1959), pp. 127-8.
, In force 'o October 1963. Text: United Kingdom Treaty Series, 3 (1964), Cmnd. 2245; British
Practicein InternationalLaw (1963-II), p. 212.
2 See Goedhuis, Nederlands Tijdschrift voor InternationaalRecht, 9 (1962), pp. 122 et seq.;
Mankiewicz, Annuaire franjais (1959), p. Ii; International Law Association, Report of the
49th Conference, pp. 278-9; Bin Cheng, U.S. Senate Symposium, p. 668.
3 On trespassing vehicles see above, p. 6.
4 Above, p. 14.
s See the U.S.S.R. draft declaration of basic principles in Report of the Legal Sub-committee,
A/AC. 105/12, Annex I, A, para. 9.
6 See Bin Cheng, Current Legal Problems, 14 (I961), pp. 262-72; Note in Columbia Law
Review, 61 (x961), pp. 1074-1 102. See also Goedhuis, loc. cit., pp. 129-30; and British Practice
in InternationalLaw (1963-I), p. 22.
See McMahon, loc. cit., pp. 375-8o. Of course the doctrine of the Caroline could be invoked
but this is in substance a plea of necessity; see Brownlie, InternationalLaw and the Use of Force
by States, index, sub nom., and below, p. 21.
8 See Quincy Wright, American Journal of InternationalLaw, 54 (196o), p. 836, at p. 849;
writers cited Columbia Law Review, 61 (196i), p. 1074; and McMahon, loc. cit., pp. 365-71.
be argued with considerable force that, in the absence of agreement on the
upper limit of territorial airspace, reconnaissance may lead to incidents
with threats of retaliation for forcible interference with satellites. As a
consequence airspace experience is not a sufficient guide. Significantly,
demands have been made for a contiguous zone in space.' Intensive use of
reconnaissance satellites, with individual satellites forming part of the
operation penetrating well into the atmosphere, undoubtedly constitutes a
threat to the peace within the meaning of Article 39 of the United Nations
Charter. Soviet jurists usually take the view that space reconnaissance is
illegal.2
Propagandaof War and Racial Hatred
The Soviet draft declaration of basic principles governing activities in
space 3 contains the principle that 'the use of outer space for propagating
war, national or racial hatred or enmity between nations is inadmissible'.
The problem of controlling harmful propaganda has been considered on
various occasions in the past with regard to the press and radio4 and it is
clear that no new considerations apply to the use of a new medium, except
in so far as the thesis as to peaceful uses of space be accepted s Certain
types of propaganda de lege lata may create criminal responsibility under the
principles of the Nuremberg Charter 6 (for conspiracy to wage aggressive
war) and under the provisions of the Genocide Convention7 (incitement).
Acts Involving the Use of Force in Self-defence in Outer Space

There is general agreement that international law, including the prin-
ciples of the United Nations Charter, applies to activities in outer space and
it follows of course that the law relating to forcible self-defence by States is
Above, pp. 4-5.
Korovin, InternationalAffairs (Moscow), January 1959, p. 53, and U.S. Senate Symposium,
p. io62; Zhukov, InternationalAffairs (Moscow), October 196o, p. 53 and U.S. Senate Sym-
posium, p. 1o95. Further references: Crane, American Journal of International Law, 56 (1962),
pp. 704-6; McMahon, loc. cit., pp. 372-4.
3 Placed before the Legal Sub-committee of the Committee on Peaceful Uses, A/AC. 105/12,
Annex I, A. Cf. Soviet proposals in the Sub-committee of the U.N. Disarmament Commission,
1954-7-
4 See, for example, General Assembly, Official Records, 2nd session, Ist Committee, 79th meet-
ing; work of U.N.E.S.C.O. Conference, Mexico City, 1947. See also the Convention Concerning
the Use of Broadcasting in the Cause of Peace, signed 23 September 1936; Hudson, International
Legislation, vol. 7, No. 451 ; in force 2 April 1938; and G.A. Resolution izo (II) of 1947 on war
propaganda.
5 Above, p. x4.
6 'Agreement for the Prosecution and Punishment of the Major War Criminals of the European
Axis', AmericanJournalof InternationalLaw, 39 (1945), p. 257. The principles of the Charter and
the Judgment of the I.M.T. at Nuremberg were affirmed by G.A. Resolution No. 95 of i x Decem-
ber 1946. See also Brownlie, InternationalLaw and the Use of Forceby States, pp. 161-4, 166 et
seq., 188-94, x96 (charges against Streicher), 2oo-1.
7 In force between 64 States (as at July 196o): United Nations Treaty Series, vol. 78, p. 278;
Article 3 (c): 'Direct and public incitement to commit genocide.'
applicable. A great many jurists, including those supporting the concept of

peaceful use, state the existence of the right of self-defence when writing
about outer space, usually by reference to Article 51 of the United Nations
Charter.'
There are three principal views on the present scope of self-defence,
the common element among them being the absence of explicit reference to
'security', 'necessity' or 'self-preservation', concepts which have been
discredited as bases for the major rules relating to the use of force.2
According to the first view, 3 Article 51 of the Charter is not an exclusive
definition of self-defence as permitted within the Charter, and the 'inherent
right' as defined in the pre-Charter, customary law, still exists. The defini-
tion assumed to represent the customary law is stated in terms of the tests
laid down by Webster in the correspondence arising from the Caroline
incident.4 In his letter of 24 April 1841 Webster required the British
Government to show the existence of:
'...the necessity of self-defence, instant, overwhelming, leaving no choice of means,
and no moment for deliberation. It will be for it to show, also, that the local authorities
of Canada, even supposing the necessity of the moment authorised them to enter the
territories of the United States at all, did nothing unreasonable or excessive; since the
act justified by the necessity of self-defence, must be limited by that necessity, and kept
clearly within it.'
The present writer does not consider that this doctrine represents the
law today, but apart from this question, it is thought that the 'Caroline
doctrine' has certain organic faults.5 The formula so often quoted made
no difference to contemporary legal doctrine, in which self-defence was
regarded either as synonymous with self-preservation or as a particular
instance of it. The statesmen of the period used self-preservation, self-
defence, necessity and necessity of self-defence, as more or less inter-
changeable terms, and the diplomatic correspondence was not intended to
I Quadri, Recueil des cours, 98 (1959-III), p. 570; Zhukov, Soviet Year Book of International
Law (1961), p. 202; Goedhuis, loc. cit., p. i3 ; Becker, Department of State Bulletin (9 June
1958), p. 962 and in U.S. Senate Symposium, p. 400; Leopold and Scafusi, ibid., p. 536; Osnit-
skaya, Soviet Year Book of International Law (5959), p. 65 and in U.S. Senate Symposium,
p. 1092; McDougal, Lasswell and Vlasic, op. cit., pp. 403, 440-1.
. Unfortunately some writers have resurrected security and self-preservation in writing about
space. See Colonel Martin Menter, U.S.A.F., U.S. Senate Symposium, p. 871; Beresford and
Yeager, quoted ibid., p. 480; resolution of American Bar Association of 1959, ibid., p. 595. Cf.
Cooper, International Law Association, Report of the 49th Conference, pp. 288-9, referring-to
action in outer space to the extent necessary for 'self-protection or self-defence'.
3 See Waldock, Recueil des cours, 8i (1952-I1), pp. 463-4, 466-7; and id., in Brierly, Law of
Nations, 6th ed., pp. 46 et seq.; Bowett, Self-Defence in InternationalLaw, pp. 58-6o, 184-93.
See further McDougal and Feliciano, Law and Minimum World Public Order (196i), pp. 232-41.
4 On which Jennings, American Journal of InternationalLaw, 32 (1938), p. 82; Moore, Digest,
vol. 2, pp. 409 et seq., and vol. 7, pp. 919 et seq.; McNair, InternationalLaw Opinions, vol. 2,
pp. 221 et seq.
5 See Brownlie, InternationalLaw and the Use of Force by States, pp. 42-43, 429.
restrict the right of self-preservation, which was in fact reaffirmed.' More-
over, Webster's test is primarily verbal: it deals with a question of degree
and is no more informative than the crude formula that there must be a
necessity to act in self-defence. There is no definition of self-defence and
the elastic formula permits anticipatory self-defence and a variety of acts
of self-help.
It is hardly surprising that some jurists assert extensive claims to use
force in space on the basis of this type of doctrine. Professor Cooper2 has
said that the right of 'individual self-protection and self-defence' must be
acknowledged and preserved. He refers to the Caroline doctrine and
remarks: '. . . I would point out that no emergency could leave less chance
for deliberation than a threat from outer space.' Next he considers the air
defence identification zones of the United States and Canada 3 and with
reference to the regulation of the former he comments :4
'This is a clear application of the right of self-preservation and self-defence applicable
outside national territory and within international flight space. It would seem that the
same right exists for subjacent States to act in outer space above national territorial
airspace to the extent deemed necessary for the protection and defence of the lands
below.
'Certainly any future agreement for international regulation of outer space flight,
or control of outer space, must preserve such national rights of self-protection and self-
defence. It is submitted that nothing in the United Nations Charter is opposed to this
view ... it is my firm belief that (article 51) does not take away already existing inter-
national law rights of self-protection. .. .'
The subjectivity in this type of doctrine is obvious and it can be summed

up as a regression to a discretionary right to act in self-preservation (or, in
modern terminology, self-protection or security). In the absence of any
objective criteria for making a decision to act in self-defence, the confer-
ment of a right, inter alia, of anticipatory action involves the negation of
any legal rule worth the name. One writer, adopting this sort of argument,
concludes,5 naturally enough: 'In view of this it is difficult to deny to a
State the right to destroy a satellite which he believes presents a threat to
the security of the State.' The factors leading to his conclusion include the
consideration that States have no means of establishing the character of a
satellite in orbit, and yet, previously, 6 the same writer takes the view that
reconnaissance by satellites is not aggressive within the meaning of the
I Letter of 6 February z838, Fox to Forsyth; see Jenning, loc. cit., at p. 85.
2 U.S. Senate Symposium, p. 764, at p. 769. See also id., in Air Force and Space Digest (February
z962), p. 51; Lipson and Katzenbach, 'Report to the National Aeronautics and Space Adminis-
tration', U.S. Senate Symposium, p. 779 at p. 807; Beresford and Yeager, quoted ibid., p. 480.
3 See above, p. 5, n. 5.
4 U.S. Senate Symposium, p. 770 (and see the conclusions at pp. 77x-2).
s Goedhuis, loc. cit., p. 131. See also Cooper,Air Force andSpace Digest(Februaryx962), p. 5x.
6 Goedhuis, loc. cit., p. 130.
Charter. Indeed the paradox apparent from the literature is that those who
regard reconnaissance as lawful tend to favour self-help against 'hostile'
satellites' whereas those asserting that reconnaissance is unlawful have
avoided suggestions that forcible self-help may be employed.2
The other two principal views on the present law of forcible self-defence
may be treated together since their outcome is the same, namely that the
use of force in self-defence is lawful only in reaction to an actual use of
force. This conclusion may be derived from the argument that Article 51
of the Charter, taken with Article 2, paragraph 4, supplants the previous
customary law. Alternatively, it may be thought that, even if the customary
right remains and Article 5i is not exclusive in effect, the customary right
had evolved in the years 1920 to 1945 and that today its content is sub-
stantially identical with the conditions stated in Article 51. 3 Essentially
these two approaches rule out anticipatory action and emphasize objective
criteria in the form of the initiation of a use of force. 4 There is undoubtedly
a right to use force to counteract an attack by a State which sends rockets
or military vehicles through space in the course of an attack from terrestrial
bases. So also an attack from bases on celestial bodies or space stations,
directed against the corpus of a State, may be forcibly repulsed by measures
against the source of attack.5 However, even if the main features of this
legal r6gime be accepted, certain points require further consideration.
Proportionality
There is general agreement that proportionality is of the essence of self-
defence but the practical application of the principle is far from easy.
Thus attacks on ships and aircraft, 6 if repeated and of a vicious character,
may justify defensive measures extending to the territorial bases of the ships
and aircraft carrying out the aggression. Analogous problems, exaggerated
See, for example, Colonel E. Menter, U.S. Senate Symposium, P. 349 at pp. 370-I.
2 See Korovin, InternationalAffairs (Moscow), January 1959, p. 53 and in U.S. Senate Sym-
posium, p. io62 at pp. io66-7; Zhukov, InternationalAffairs (Moscow), October 196o, p. 53,
and U.S. Senate Symposium, p. 1095 at pp. rioo-i. Goedhuis, loc. cit., p. 131, places a different
construction on the article by Zhukov. See also Zhukov, InternationalAffairs (Moscow), May
1963, P. 27 at p. 28. Generally on reconnaissance see above, pp. 19-20.
3 See generally, on the two views, Brownlie, this Year Book, 37 (x961), pp. 191 et seq.; id.,
International Law and the Use of Force by States (x963), pp. 216 et seq. See also de Arichaga,
Derecho constitucional de las Naciones Unidas (958), pp. 401-7; Wehberg, Recueil des cours, 78
(1951-I), pp. 71, 84-85.
4 For discussion in the context of the law in outer space see Zhukov, Soviet Year Book of
InternationalLaw (196I), pp. 202-7 (Eng. summary).
5 See Becker, Department of State Bulletin (9 June 1958), p. 962, and in U.S. Senate Sym-
posium, p. 396, at p. 40o; Osnitskaya, Soviet Year Book of International Law (959), p. 65, and
in U.S. Senate Symposium, p. io88, at p. 1092; see also McDougal, Lasswell and Vlasic, op. cit.,
pp. 440-1.
1 These are protected from attack on the high seas by the law: Brownlie, International Law
and the Use of Force by States (1963), pp. 304-5, 360, 433.
perhaps by the different environment, arise if agents of State A attack
State B from vehicles and stations in outer space. Primafacie, counter-
measures should be confined to the source of attack. But it may happen
that it is only possible to deal adequately and quickly with a space vehicle,
or an object in orbit, by destroying control mechanisms situated in the State
of origin or the territory of its allies in military pacts.
The Initiation of Resort to Force

The present writer takes the view that anticipatory action is unlawful,
but clearly one then faces the problem of determining when a use of force
commences.' In particular cases this is a question of some delicacy. When
objects and missiles are placed in complex orbits, and control mechanisms
can produce drastic changes of behaviour in high-speed missiles and satel-
lites in orbit, it is difficult to detect the initiation of an attack, unless the
aggressor obliges by a declaration of intention. If military rockets are
directed through or from space at the corpus of a State, by mistake or
otherwise, it will be reasonable to intercept outside the space boundary.
The attack, the undertaking of an irreversible process intended to result
in forcible penetration of and cause destruction in the victim's territory and
airspace, will have begun when the rocket is launched.
The concept is essentially that of trespass in the common law. Prima
facie, 'attack' begins by launching the 'long-playing ballistic missile' which
may be placed in a space trajectory some forty-eight hours before re-entry
and arrival on target. It may be that such missiles could be destroyed by
the launching State, before arrival, by radio-control systems. However, in
regarding the legality of defensive measures in reaction to such activity,
the criterion is reasonableness in estimating the apparent nature of the
threat. Obviously the object of attack will not make, nor await the result of,
inquiries as to the precise technical characteristics of the missile.7
In systems of space settlements and stations the principle of the first
attacker will operate sensibly only by localizing conflict and thus observing
the requirement of proportionality. The point is that, if space exploration
becomes very extended, comparison of the dates of events may not always
be easy and may necessarily be postponed.
What Constitutes Force?

Article 2, paragraph 4, of the United Nations Charter prohibits the 'threat
or use of force' by States and, apart from obvious military connotations,
See op. cit., pp. 365-8; and this Year Book, 37 (196), pp. 257-9.
2 Generally see Gatland, Astronautics in the Sixties: A Survey of Current Technology and Future
Development (1962), pp. 137 et seq., and especially pp. 153-4.
the phrase creates some difficulties of interpretation.' In an environment

such as that of the moon, an available source of destructive power may
be the existence of volcanic forces which can be released by the use of
techniques which require no use of force or the explosion of devices which
do not, of their own force, harm the agencies2 of another State. Providing
the authors intend the infliction of harms by such means, this would involve
a use of force although no 'military' agents are involved.3 Somewhat
different considerations apply when an explosive or nuclear device is
employed to change the environment of the agencies of another State,
with harmful consequences. For example, nuclear explosions in a limited
atmosphere or near caches of supplies on a celestial body might contami-
nate available means of subsistence. Again, devices might destroy protective
layers of particles- and leave a space station or individuals exposed to
harmful cosmic radiation. In this type of case the immediate agent of harm
is not the use of force, but it would be in accordance with general principles
of law to include intended and direct consequences in the prohibition of
the use of force in international relations.
Questions of Agency and Command

The great cost of space exploration and other activities and the existence
of international organizations for co-operation in terrestrial activities leads
to the likelihood of participation by organizations in space activity.4 Two
points relevant to the present discussion may be made briefly. First, the
use of mixed military forces, drawn from several States, with a composite
command structure,, creates difficulty in the determination of the author,
or authors, of an attack, since one principal might dominate and use the
composite force for an attack perpetrated solely by that one State. Secondly,
mixed forces create considerable legal difficulties since the chain of com-
mand may not correspond to that assumed by the draftsmen of Hague
Convention IV of 1907 and other instruments relating to the conduct of
6
war.
It is not necessary to consider these in extenso here: see Brownlie, InternationalLaw and the
Use of Force by States, pp. 361-5; and id., this Year Book, 37 (1961), PP. 254-7. See also above
on trespass from outer space, pp. 5-6.
2 See below, pp. 27-28.
Cf. Brownlie, InternationalLaw and the Use of Force by States, p. 376; id., this Year Book, 37
(i96i), pp. 262-3.
4 See the Report of the Legal Sub-committee, A/AC. 105/12, Annex I, A, U.S.S.R. draft,
para. 7 (activities 'shall be carried out solely by States'); and contrast the U.S. draft, ibid., G.
paras. 6 and 7.
5 This may exist on a basis other than that provided by an international organization. See also
below, p. 30, on the function of regional arrangements.
6 See Draper, International and Co,nparativeLaw Quarterly, 12 (1963), p. 387 at pp. 408-9.
Problems also arise in the context of the flag State in the Convention of the High Seas (in force
30 September x962), and note especially Article 6 of the Convention.
Special Cases of Necessity

Discussion naturally centres on threats by States and their agents to
the security of other States and their agencies. However, in two cases at
least,I force may be used to counteract danger from other sources. First,
individuals engaged in space activities may throw off their allegiance and
assume the status of space pirates, or take part in insurgent activities
directed against their own State. In either case States may take forcible
measures to prevent, and in the case of piratesz to punish, attacks on State
agencies by such groups.3 In the second place, it would be justifiable and
necessary to destroy abandoned space vehicles and also vehicles out of
control. 4 Agreements on matters of registration, joint measures for the
policing of space and the like, would be needed to eliminate breaches of
and threats to the peace resulting from mistakes as to the character and
legal status of apparently vagrant vehicles.
Relations with other Intelligences5

The reader may become impatient in the face of somewhat speculative
references but, for the sake of completeness, it is necessary to prescribe for
acts of self-defence against attack from other intelligences encountered in
space exploration or invading our planet. Prescriptions for self-defence do
not comprehend this situation as they normally refer to activities by States
or other entities with a familiar legal status, viz., insurgents and pirates.
'Other intelligences' present new problems of status and harmful activity
from such a source may not involve the dolus which characterises terrestrial
aggression. 6 Large issues as to the application of international law in
relations with other worlds need not be pursued here. 7
See also below, on relations with other intelligences.
2 Piracy as a legal concept now applies to attacks by aircraft on aircraft over the high seas 'or in
a place outside the jurisdiction of any State' (Convention on the High Seas, Article 15). See also
I.L.C. Year Book (1956-II), p. 282 (comment on Article 30). There would seem to be a strong
presumption that similar rules apply to activities in outer space.
3 In the case of piracy permitted action includes seizure of the pirate vessel by the victim of an
attack, and thus goes beyond the limits of self-defence: see, however, I.L.C. Year Book (1956-Il),
p. 2o (comment on Article 20) for a contrary view; and see further Convention on the High Seas,
Article i9; and I.L.C. Year Book (1956-II), p. 283 (Article 43). On the legal character of the acts
of insurgents on the high seas see Anna van Zwanenberg, Internationaland Comparative Law
Quarterly, io (196i), pp. 798-817; Green, this Year Book, 37 (1961), pp. 496-505.
4 See Manckiewicz, Annuairefranfais (1959), p. 138.
1 Cf. Jenks, The Common Law of Mankind, p. 398; Haley, U.S. Senate Symposium, pp. 117-18.
6 Of course, self-defence is justified in the absence of dolus: an attack launched in error may be
resisted, since the criterion of self-defence is objective-what is reasonably necessary for self-
defence in the circumstances as they appear at the time.
7 Studies in the history of the law provide obvious analogies: see Alexandrowicz, Recueil des
cours, oo (96o-II), pp. 207-321; and Franciscus de Vitoria, De Indis et de jure Belli Relectiones
(1532, ed. by Nys, 1917, in The Classics of International Law).
The Defence of Agencies in Outer Space

Outer space, it is assumed, is incapable of appropriation by States, but
at the same time is open to lawful modes of use and exploration. States will
operate by means of space vehicles and space stations,' and will mount
exploratory expeditions on celestial bodies.2 The lex lata, resting on general
principles of international law derived from the law of the sea as the proto-
type of a res communis, 3 gives to State agencies in outer space protection
from forcible interference by agencies of other States, just as ships and air-
craft on or over the high seas have a right of protection.4 Article 2, paragraph
4, prohibits the threat or use of force by member States 'in their inter-
national relations' and, after referring to the 'territorial integrity or political
independence of any State', continues: 'or in any other manner incon-
sistent with the purposes of the United Nations.'
Although States may not exert territorial sovereignty in outer space, the
concept of 'exploration and use' will give rise to settlement and the assump-
tion of certain possessory rights, for example, over landing zones, and
safety zones round the installations. Peaceful possession of this type, pro-
tected by the law from forcible disturbance, is to be found in Antarctica
and also in areas where two States have carried out acts of occupation in
what was, initially at least, terra nullius, which do not give title decisively to
either claimant and, or, which have not yet been submitted to the adjudica-
tion of a competent tribunal. The intermingling of settlements, rights of
way and installations may give rise to breaches of the peace precisely
because frontier lines as such are not requisite to a regime unconcerned
with sovereignty nor important in zones of planets comparable ifi terms of
See Welf Heinrich, Prince of Hanover, U.S. Senate Symposium, p. 271, at pp. 3o et seq.;
Meyer, ibid., p. 5oo, at pp. 5o8-io.
2 Some mutual defence treaties refer to armed attacks on 'armed forces; public vessels or
aircraft' in areas outside State territory: Treaty between U.S. and the Philippines, 3o August
195r, Article 5; U.S. Naval War College, InternationalLaw Documents (1952-3), p. 238. See also
the Anzus Pact, i September 1951, Art. 5, United Nations Treaty Series, vol. 131, No. 1736,
American Journal of International Law, 46 (1952), Suppl., p. 93; and North Atlantic Treaty,
4 April x949, Art. 6, United Nations Treaty Series, vol. 34, No. 541, American Journalof Inter-
national Law, 43 (1949), Suppl., p. 159.
It is submitted that, in respect of this aspect of the maintenance of peace and security, the
general category probably can be used with safety: but see above, p. 2.
4 See, in particular, Fitzmaurice, Recueil des cours, 92 (1957-I), pp. 140-4, for a discussion of
the juridical r6gime of the res nullius. At p. 143 he observes: 'Although not de jure a res communis,
a res nullius is defacto a res communis in the following sense. A true res communis cannot lawfully
be reduced into sovereignty at al!, whereas a res nullius can: but unless and until a res nullius is
so reduced, it is open to the common use and exploitation of the nationals and undertakings of all
countries. Consequently, interferences at the hands of the public authorities or forces of another
State (i.e. a State other than that of the person or undertaking concerned) is illegal-except in the
valid assertion or initiation of a claim to sovereignty by that other State.' On self-defence by
vessels on the open sea: Hackworth, Digest, vol. 7, PP. 365-6; Guggenheim, Traitd, vol. 2, p. 329,
n. 2; Colombos, International Law of the Sea, 5th ed., pp. 729-30; MeNair, InternationalLaw
Opinions, vol. 1, p. 274; Brownlie, InternationalLaw and the Use of Force by States, p. 305.
environment to polar areas or uninhabited deserts. Yet it is often precisely
where a spatial mixing of State competences occurs that grave threats to
the peace may arise,! and it would be desirable if the principles of effective
occupation, coupled with the use of an agreed r6gime of demarcation, were
applied for the special purpose of delineating zones protected from trespass.
Difficulties still arise even in these conditions. For example, if it be accepted
that intervention to protect the lives of nationals is unlawful in the normal
regime of sovereign States, 2 it does not follow that the objections to this
type of intervention are as valid in the context of outer space. In this situa-
tion the intervention does not involve invasion of the major parcel of
sovereignty, a direct threat to the homeland. However, the argument based
on proportionality, that the breach of the peace created by the intervention
bears no relation to the original offence against or threat of danger to
nationals probably applies with equal force, since intervention in outer
space may well lead to repercussions on earth.
Crimes against Humanity

3
War crimes, and crimes against peace and humanity, may be committed
in outer space, 4 and it is worth noting in the same connexion that nationals
not functioning as State agencies s and stateless persons (and persons of
unknown status) have certain basic rights in accordance with 'elementary
considerations of humanity'. 6 These rights include that of self-defence.
The Law of Neutrality

It seems clear that the law of neutrality applies in outer space7 and that
the territorial integrity of neutral States is protected in the event of the use
of space as a medium for armed conflict.' In relation to the situation where
I Cf. the issues relating to Berlin; and incidents re Israeli and Syrian farming settlements in
the zone subject to an armistice rbgime. It may be noted that certain defence agreements refer
to territory 'lawfully brought under the administrative control' of the given State: see Senate
resolution of 26 January 1954 concerning the ratification of U.S.-Korean Treaty of 1953, in
American Journalof InternationalLaw, 48 (1954), Suppl., p. 148.
2 For this view, and a consideration of the contrary view, see Brownlie, InternationalLaw and
the Use of Force by States, pp. 289-301. See further, Bowett, Self-Defence in InternationalLaw,
pp. 87-105; Fitzmaurice, Recueil des cours, 92 (1957-I), pp. 172-4.
3 See, however, above, p. 7.
4 See Fitzmaurice, loc. cit., p. 142 (with reference to res nullius); and see G.A. Resolution 1721
(XVI), above, p. z, n. 5.
3 Obviously their role will be non-existent for some time yet.
6 See I.C.J7. Reports, 1949, p. 4, at p. 22; Lauterpacht, The Development of InternationalLaw
by the International Court (1958), p. x68; Annual Digest, i9.€9 , vol. x6, p. 3.
See, however, above, pp. 6-7 and Quadri cited in the next note. The latter seems to under-
estimate the value of the law of neutrality at sea (which is not tied to State territorial units).
8 The debate as to the importance of neutral rights vis-d-vis belligerents in modern warfare
is repeated in the literature on outer space: see Verplaetse, Nordisk Tidsskrift (959), p. 49;
and in International Law in Vertical Space (Madrid, 196o), pp. 487-9; Probst, Zeitschrift far
a belligerent extends the theatre of war into neutral territory the present
writer has made the following prescription:,
'If State A launches an attack expressly and clearly aimed at State C, but which of
necessity involves operations across the territory of State B, then State C may under-
take defensive measures on the territory of State B when the object of the operations
has become reasonably clear and it is also obvious that State B has not only failed to
repel the invader but has fallen substantially under his control. In a sense State B has
ceased to be a neutral when such action becomes necessary.'
For fairly obvious reasons it is doubtful if the principle contained in this
statement (relating to territorial invasions of the conventional type) applies
where military space vehicles pass through the atmosphere of neutral
States: only a very few States have, or will have in the near future, the
technology required for preventive measures and hence it is absurd to
regard such passage as a breach of neutral duty.2
Competence of United Nations Organs

The general opinion of both governments and 'writers is that the Charter
of the United Nations applies to outer space3 and it follows from this,
since the Charter is largely a constitutional document dealing with the
powers of the principal organs, that the organs, and particularly those
concerned with peace and security, have competence in regard to space
activities. The existing resolutions on outer space support this opinion by
the practice they evidence. Discussion as to the proper procedure for
amendment of the Charter is out of place in view of the fact that the
generally held opinion represents a valid interpretation of the instnment,
a reading of what is already there. 4 The statement of purposes in Article i,
of principles in Article 2, and of the powers of organs in Articles io to 14,
24 to 26, and 33 to 5 1, are sufficiently comprehensive and emphatic.5 The
International Court has, in case of doubt, presumed in favour of the
existence of competence. 6 Of activities in space it may be noted that some
auslndisches 6ffentliches Recht und V6lkerrecht, i9 (1958), p. 637. See also Quadri, Recueil des
cours, 98 (1959-IlI), pp. 577, 579-81; de Nova, Diritto internazionale(g6i), pp. 132-43; id.,
Zeitschrift fur Luftrecht und Weltraumrechtsfragen( 961), pp. 247-58; Meyer, ibid., pp. 26o-78;
Sztucki, U.S. Senate Symposium, p. 1164, at pp. 1189, 1191. The latter proposes that zones on
the frontiers of neutral States should not be attacked from space in order to save such States
from peripheral effects of missile attacks. Cf. above, pp. 4-5, on proposals for security and
neutrality zones.
I InternationalLazo and the Use of Force by States, p. 314.
2 See Jenks, U.S. Senate Symposium, p. 734, at p. 743. 3 Above, pp. 1, 7-9.
4 Of course, the word 'interpretation' is ambiguous and may evoke thoughts of hidden
legislation.
5 Some minor difficulties occur. Thus Article 42 twice refers to 'action by air, sea, or land
forces'. See also Article 45.
6 See the Reparation case, I.C.J. Reports, 1949, p. 174, at p. 182; and the Expenses ease, I.C.J.
Reports, 1962, p. 151 at pp. 163 et seq., 167-8, 185-6 (separate Opinion of Sir Percy Spender),
223 (individual Opinion of Judge Morelli).
of those under discussion, including nuclear testing, may justify the
application of the concept of 'international peace and security' to questions
not exclusively associated with military conflict between States. Some
activities may cause, or create the risk of, harmful and perhaps irreversible
changes in the earth's environment. The threat here is not in personam
but to mankind and the community of States as a whole.
Regional Arrangements
Article 53, paragraph i, of the Charter provides that regional arrange-
ments, the existence of which is recognized in Chapter VIII, may be
utilized by the Security Council for enforcement action under its authority.
Such action goes beyond the limits of collective self-defence and defence
of third States and, while it can only' be carried out with the authorization
of the Council,2 it gives a significant power of action to regional arrange-
ments and agencies. Doubt has always existed as to the meaning of 'regional
arrangement' 3 but it is at least probable that the concept cannot be applied
to activities in space. 'Regional' is a term which primafacie connotes one-
dimensional areas of the earth's surface. It is possible to argue, with some
plausibility, that a conventional regional arrangement could claim to apply
its authority in an extended 'contiguous zone' in space over a large zone or
part of a continent. 4 However, the limits of such a zone would be difficult
to establish on the basis of objective criteria and it would seem to be
undesirable to encourage acts for the protection of 'security' in 'contiguous
zones', or otherwise, on the basis that regional co-operation makes respect-
able and lawful what would be otherwise unlawful.
Some Generalities
The complexities of the exploration and use of outer space and the
delicacy of the legal problems generated by the subject dictate that modesty
be shown in offering conclusions. It is for the reader to decide if the writer
has been over-confident in taking positions on the application of the lex lata
in the preceding discussion. The latter will content himself by referring to
three patent sources of technical difficulties and grave dangers for peace.
The first is the absence of agreement on the outer limit of sovereignty and
I There are provisos for action against 'enemy States'.
2 Arguments with the object of circumventing this control have appeared from time to time;
see, for example, Meeker, Americanyournal ofInternationalLaw, 57 (1963), p. 515 at pp. 518-22.
See further Quincy Wright, ibid., p. 546 at pp. 557-9; de Ardchaga, Recuei des cours, iI I
(x964-I), PP. 423-526.
3 For discussion of the issues, with reference to the literature, see Bowett, Self-Defence in
InternationalLaw, pp. 219 et seq.
4 Existing regional arrangements assume authority over areas of the high seas. The writer does
not consider that such authority has a clear legal basis.
the deliberate inattention of the more powerful States with respect to the
question. The second arises from the technology of the military uses of
space and the physical nature of the forum. Concepts of armed attack, the
use of force, and of agency, which work fairly well in the sphere of earth-
bound conflict, are subjected to considerable strain when it is sought to
apply them to operations by means of space vehicles, nuclear weapons
placed in orbit, rockets in complex trajectories and the like. Finally, the
existing legal r6gime of the use of force by States has been developed and
refined on the basis of the conventional model consisting of parcels of
territorial sovereignty. The rgime of the res cornniunis, to use an omnibus
term, is relatively undeveloped and problems are not solved by reference
to general formulae as to the prohibition of State appropriation in outer
space. The existing treaty regime in Antarctica provides some cause for
optimism in finding solutions to the problems, but in that case the back-
ground to the regime is the demilitarization of the area concerned. This
should be the ultimate goal in outer space' whilst, more immediately,
agreement is needed to provide other safeguards against surprise attack
from outer space. In this respect the recent General Assembly resolution
prohibiting the placing in orbit around the earth of objects carrying
weapons of mass destruction has obvious importance.z
I See the Declaration of the Belgrade Conference of Non-Aligned Countries, 6 September 1961,
paragraph 17. Twenty-five States participated.
2 Adopted unanimously 17 November 1963, Doc. A/RES/1884 (XVIII). The resolution
extends its prohibition to 'installing such weapons on celestial bodies, or stationing such weapons
in outer space in any other manrner'.

I An Brownlie The Maintenance

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

I An Brownlie The Maintenance

Uploaded by

Copyright:

Available Formats

+(,121/,1(

Content downloaded/printed from HeinOnline

Wed Jan 31 07:35:43 2018

-- Your use of this HeinOnline PDF indicates your acceptance

-- The search text of this PDF is generated from

-- To obtain permission to use this article beyond the scope

Use QR Code reader to send PDF to

Fellow of Wadham College, Oxford

Relevance of the Boundary Question

Suggestion of a Security Zone Peripheralto TerritorialAirspace

The Application of ParticularParts of the Law to

The Definition of Aggression

The Demilitarizationof Outer Space'

Testing of Weapons in Outer Space

and Vlasic, op. cit., pp. 468-77.

Military Reconnaissance by Satellites

Acts Involving the Use of Force in Self-defence in Outer Space

applicable. A great many jurists, including those supporting the concept of

The subjectivity in this type of doctrine is obvious and it can be summed

The Initiation of Resort to Force

What Constitutes Force?

the phrase creates some difficulties of interpretation.' In an environment

Questions of Agency and Command

Special Cases of Necessity

Relations with other Intelligences5

The Defence of Agencies in Outer Space

Crimes against Humanity

The Law of Neutrality

Competence of United Nations Organs

You might also like