Peace v the UN Charter

Exceptions to the General Reservation of Space for Peaceful Purposes

Feb 18, 2008

NASA Astronaut Bruce McCandless II, National Aeronautics and Space Administration

Despite international desire to the contrary, there has already been cause to provide exceptions to the peaceful purposes reservation of outer space.

There already exist two formal exceptions to the peaceful purposes reservation which permit the use of force in outer space – the UN Security Council enforcement actions under Chapter VII of the UN Charter and self-defence under Article 51 of the UN Charter.

The primary objective of the UN Security Council is to ensure that international peace and security is maintained and, in order to do so, the Council relies on the enforcement measures set out in Chapter VII of the UN Charter. Article 39 of the Charter states:

“The Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Article 41 and 42 to maintain or restore international peace and security”.

Article 42 of the Charter provides that the Security Council may take ‘such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security’. Although there is no specific mention of taking action in space in Article 42, Gerardine Goh suggests that Article 42 does in fact probably encompass the use of force in outer space since outer space was no doubt not specifically mentioned simply because, at the time of drafting the UN Charter, humanity had not yet ventured into space. It is clear from the subsequent practice of both the Security Council and UN Member States that the Security Council enjoys wide discretion in deciding when to take enforcement action under Chapter VII and so it is certainly likely that the Security Council would consider itself empowered to take enforcement action, action that could well involve the use of military force, in outer space should the need arise.

Article 51 permits self-defence to be used as an exception to the general prohibition on the use of force and provides:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right to self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.

Therefore, according to Article 51, there seem to be two conditions for justified self-defence: the occurrence of an ‘armed attack’ and the duty to report any action taken in self-defence to the Security Council. The fact that an armed attack must have already occurred is particularly significant in the context of outer space. Space-based assets such as surveillance satellites provide an early warning system that can alert states to an imminent attack before it actually occurs. With the precision and ease of space-based systems, it would be tempting for a state to pre-empt an attack by striking first and then claiming self-defence. This has led Gerardine Goh to suggest that the requirement of an actual occurrence of an armed attack serves to curb trigger happy states from striking without cause. It also serves to maintain international peace and security by preventing a situation that could spiral out of control into mutual annihilation among those countries with space capabilities. The right to self-defence continues ‘until the Security Council has taken measures necessary to maintain international peace and security’. The reporting of a space-based use of force in self-defence is crucial to maintaining international peace and security since any attempt at pre-emptive self-defence would clash with the principle of outer space being reserved for exclusively peaceful purposes.

Therefore it can be seen that UN Charter already contains exceptions which would permit the use of military force, whether by UN Peacekeepers or the military forces of Member States in outer space. Those instances of military force which are permitted could best be clarified as ‘non-aggressive’ action since force is only permitted in peacekeeping or non-pre-emptive self-defence situations. Given this fact, it seems sensible to suggest that acknowledging that the phrase ‘peaceful’ should in fact mean ‘non-aggressive’ rather than ‘non-military’ activities. If it was recognised that non-aggressive military activities in space were permitted, it would be possible to have strict guidelines and penalties for aggressive acts and states would have to leeway to avoid there responsibilities since the legislation was not needlessly harsh and did not ban all military activity.