| Abstrakt: | the sixth century B.C., Sun Tzu, one of the greatest military strategists in the history of mankind, created the first complete military compendium called "The Art of War". Writing about the "area" as the ground fight, he recommended to cover the terrain located as high as possible in order to gain an advantage over the opponent
and thereby increase the likelihood of victory. Nowadays, this principle takes on a new meaning with respect to the outer space. States, having at their disposal advanced space technology for military purposes, are able to achieve dominance over the states not using such potential. Military expansion into space has created the need for a special legal regime, regulating the specific characteristics of the activities.
Militarization of space - that is placing a military equipment and sending military personnel into space and celestial bodies - began with the launch of the first artificial satellite Sputnik-1 in 1957. Over the years, space objects have become a very important military tool.
At the same time, most countries under the United Nations agreed that space should be used exclusively for peaceful purposes and in the common interest of mankind. However, with the new millennium the situation dramatically began to change. The war on terror and related military operations in different countries led to an idea that space can become a strategic place for weaponization - that is the physical placement
of weapons in outer space that can be used for attacking, damaging or destroying ground and space targets. Policies of countries such as the United States and Russia have been directed towards space arms, which in turn motivated other countries, such as China and India, to technological development in this direction.
In English terminology, the concept is known as "militarization and weaponization of space". This dissertation addresses the problem from the international law point of view.
The aim of this paper is primarily to examine the extent to which contemporary international law is able to regulate the phenomena of militarization and the armaments in space.
The paper analyses the areas that require change or formulation of new regulations.
The aim of the dissertation is also to prove that the use of weapons in space, except the nuclear weapon and weapons of mass destruction, is not prohibited under current international law. However, international law should be clarified so as to prohibit the use of ny type of weapons in outer space and celestial bodies at all, for purposes other than peaceful. The paper demonstrates that an "open door" should be left for the use of weapons in space (including nuclear weapons) "for the peaceful purposes". However, the current legal
regime should be adequately amended, and the realisation of military goals should - as far as
possible - take place on Earth, not in space.
The work is divided into four chapters. Chapter one covers a historical background in the context of space law development. Special attention is given to the evolution of legal terminology, such as "space", "space law", etc. The history covers also the evolution of the concept of "metalaw" which sets out the rules governing the relations between human beings and the potential extraterrestrial civilization. Furthermore, the paper presents the use
of analogies to other branches of international law, including air law, maritime law and the Antarctic Treaty. It analyses the similarities of the branches to space law but also the differences and common development possibilities. Since airspace and outer space have much more in common than any other area, the paper refers to the fundamental problemof delimitation of these two spaces. Second part of the chapter focuses on sources of space law, including customary law, treaty law, case law, soft law, unilateral acts and national
space legislations. The author draws attention to the unprecedented in other branches of international law "instant custom". Special attention is also given to resolutions and memoranda of understanding which are very often designed to crystallize different aspects of space law. Chapter II discusses the legal status of military personnel and objects in space and on Earth. Author revised legal definition of an astronaut as the person holding an immunity of being "an envoy of mankind". In the context of militarization, author describes "space
forces" which is a special military unit in Russia, currently the only country having such a specialised unit, acting under the Ministry of Defence. As an opposite to that, author shows current situation in the "western countries", especially in the United States, where many military tasks connected with space have been outsourced to private companies. Members of staff working in private military companies (PMC) are often working on orders
given by the government, but the latter doesn't authorise the PMC to represent the government, nor takes the responsibility for the PMC's actions. Furthermore in the same chapter, the author draws attention to issues relating to space object, including the admissibility of creation of military bases in the areas known as "common heritage of mankind" and their use in a potential conflict. The third chapter presents the fundamental principle of "peaceful use of outer space". In that context, the chapter defines certain "dual-use" technologies (space objects that can be used for both civil and military purposes). Such classification can be given to certain
telecommunication satellites, remote sensing and broadcasting satellites and even navigational satellites. These technologies are not weapons as such but can greatly contribute to armed forces in a battlefield. A separate section is dedicated to satellite reconnaissance, which is a specific form of espionage, somehow linking civilian and military functions. Second part of the chapter presents technologies well defined as weapons, including nuclear weapon and weapon of mass destruction (e.g. biological, chemical etc.), kinetic weapon
(e.g. anti-satellite weapon, intercontinental ballistic missiles etc.), and possible future weapons (e.g. laser constellation in space, weather manipulation etc.). Since weapon usage can create space debris staying in outer space forever, author explains why the battlefield should only be on the surface of the Earth. The chapter presents the legal regulations relating to particular types of weapons, both de lege lata and de lege ferenda.
Final Chapter analyses the admissibility of the use of force, as well as the realization of the right to self-defence in the specific space environment. Some analogy is made to cyberspace law cases. With reference to the previous chapters, attention is given to the principles of distinction, necessity, proportionality and neutrality in space. The author argues that the use of weapons in space - including nuclear weapon - can in some cases be beneficial but only if it serves exclusively the peaceful purposes. One particular example can be
an asteroid which can potential destroy our planet. In such situation the Security Council should have the possibility to use an adequate weapon, even if that weapon is forbidden by law. The author proposed an amendment to the article IV of the Outer Space Treaty of 1967 that can allow the United Nations certain flexibility in this matter. Due to the fact that the researched topic is a relatively new issue in the Polish legal
literature, the aim of the paper is to draw attention to current legal problems of the military
space sector in the context of militarization and weaponization of space. Poland, as a member
of the North Atlantic Treaty Organisation, the European Union and the European Space
Agency, more and more often contributes to and from the space technology, using it not only
for civil but also for the military purposes. |