"SPACE FORCE ALPHA"

MILITARY USE OF

THE INTERNATIONAL SPACE STATION AND THE CONCEPT OF "PEACEFUL PURPOSES"

[Major Christopher M. Petras]{.smallcaps} \*

> *Man has certain qualitative capabilities which machines cannot
> duplicate. He is unique in his ability to make on the spot
> judgments.... Thus by including man in military space systems, we
> significantly increase the flexibility of the systems, as well as
> increase the probability of mission success.*[^1]

###### I. INTRODUCTION

For the first twenty-five years of the "Space Age" (1957-1982), outer
space activities were almost exclusively performed by governments,
acting individually or in concert through inter­governmental
agencies,[^2] and, while the potential military utility of space systems
intended for civil or commercial uses did not go unnoticed,[^3] "the
development and use of space technology for military and civil
applications... \[generally\] occurred in parallel" through separate
military and civilian agencies.[^4] Such was the case in the early
1960s, when the U.S. Air Force undertook development of a military space
station---called the Manned Orbiting Laboratory (MOL)---on the basis
that the then ongoing National Aeronautic and Space Administration
(NASA) "Gemini" project did not provide necessary data on potential
military capabilities in space.[^5] By the end of the decade, however,
the high cost of the continuing war in Vietnam, the onset of détente
with the Soviets, and the recognition that the main military objectives
of the MOL (*i.e.*, reconnaissance and satellite detection and
inspection) could be performed by less costly unmanned satellite
systems, spelled the end of the project.[^6] And so, with the
cancellation of the Air Force's MOL in June 1969, manned spaceflight in
the United States became the exclusive province of NASA.[^7]

After cancellation of the MOL program, the concept of a military space
station garnered remarkably little enthusiasm among American military
leaders.[^8] A number of factors contributed to this lack of interest,
including budgetary considerations, the government's "desire to minimize
the visibility and notoriety of \[its\] military presence in space,"
and, perhaps most importantly, the lack of any "compelling arguments
that having crews in orbit gives a State any particular useful military
or strategic advantage."[^9] Yet, in a 1983 Department of Defense
([DoD)]{.smallcaps} study on the relation of military space activities
to space stations, which concluded that there were "no identifiable
mission requirements that could be uniquely satisfied by a manned space
station" and "no current requirements... \[for which\] a manned space
station would appear to provide a significant improvement to
[DoD]{.smallcaps} over alternative methods of performing a given task,"
the Department nonetheless recognized the possibility that the situation
could change over time and, accordingly, espoused its commitment "to
developing a better understanding of the potential future uses for the
role of man in space."[^10] In fact, the concept of "Military
Personnel-in-Space" remains, to this day, a part of official
D[o]{.smallcaps}D policy:

> [Military Personnel-in-Space]{.underline}. The unique capabilities
> that can be derived from the presence of humans in space may be
> utilized to the extent feasible and practical to perform in-space
> research, development, testing, and evaluation as well as enhance
> existing and future national security space missions. This may include
> exploration of military roles for humans in space focusing on unique
> or cost-effective contributions to operational missions.[^11]

Thus, the "coolness" of the U.S. military toward the notion of
stationing personnel in space notwithstanding, manned spaceflight
continues to have significant military implications, if for no other
reason than "the capacity to place personnel in orbit... allows for the
active management by the crew on orbit of various technological
capabilities that can be used for military applications."[^12]
Furthermore, a State does not have to launch a *military* crew into
Earth orbit in order to obtain militarily useful information from a
crewed mission.[^13] For example, in the case of photoreconnaissance:

> \[d\]epending upon the sensing or photographic equipment onboard a
> space mission, even a civil crew... could obtain and deliver highly
> valuable military information... \[and,\] \[w\]ithout access to flight
> telemetry and flight data products it would be impossible to know to
> what extent the crewed mission was or was not involved in information
> gathering of a military nature or of military value.[^14]

What's more, recent developments vis-à-vis the multi-billion dollar
partnership of the United States, Russia, Europe, Japan and Canada,
otherwise known as the International Space Station (ISS) (designated
"*Alpha*"), have also given the notion of the "military man-in-space"
renewed relevance in the context of current international law.
Specifically, in March 2001, Russia's *Mir* space station circled the
earth for the last time and, after a controlled decent, plunged into the
Pacific Ocean. As a result, the ISS is now the only space station
currently occupying outer space, and is therefore one of only two
operational space platforms available for evaluating the military
capabilities that can be derived from a human presence in space and
performing in-space research, development, testing, and evaluation in
support of national security[^15]---the other being the Space
Shuttle.[^16]

Meanwhile, the newly appointed NASA administrator[^17] has called for
closer ties between his agency and D[o]{.smallcaps}D.[^18] Additionally,
the United States and its partners are currently formulating plans for
commercialization of the ISS,[^19] and insofar as these plans allow
nonmilitary crews to perform ostensibly "commercial" activities with
direct military applications for or on-behalf of national defense
industries, there will inevitably be activities of a military nature or
of military value taking place onboard the Space Station in the near
future.

The prospect of military use of the ISS undoubtedly raises questions
about the permissibility of military activities within the confines of
the 1998 Intergovernmental Agreement (1998 IGA) that established the ISS
partnership;[^20] moreover, it rekindles an old debate about the
lawfulness of military activities in outer space under international law
generally. This latter dispute centers on the scope and applicability of
the 1967 Outer Space Treaty, and, specifically, the meaning of the
language in Article IV relating to the use of space for "peaceful
purposes,"[^21] with some arguing that peaceful purposes should be
understood to be "nonmilitary," and others, including the United States,
interpreting it as meaning "nonaggressive."[^22] Thus, the extent to
which military-related activities may be lawfully carried out onboard
the ISS has significant implications for the fifteen Partner States that
are party to the 1998 IGA (the United States, Russia, Canada, Japan, and
the eleven member states of the ESA[^23]), as well as for other
spacefaring States and international community as a whole.

The purpose of this article is to examine the permissibility of military
activity (including commercial activities with military ends) onboard
the ISS. The article is divided into four parts: Part I looks at the
1998 IGA framework and discusses significant provisions of the Agreement
and implementing documents; Part II provides a brief overview of the
body of public international law governing outer space, the "corpus
juris spatialis"; Part III analyzes the issue of the military use of the
ISS, focusing primarily on the meaning of the term "peaceful purposes"
as it applies to outer space and its relevance to ISS activities, while
also considering other legal and contextual issues, such as the
significance of the characterization of the ISS as a "civil" facility;
and, finally, Part IV provides some concluding comments. In the end, the
piece makes clear that, although "peaceful purposes" as generally
applied to outer space has taken on a meaning which allows for some
extraterrestrial military activities, the ISS Partners are divided on
what the phrase means with respect to utilization of Alpha. Moreover,
the piece shows that because of the ambiguity of the 1998 IGA with
respect to the ability of any given Partner to restrict military use of
the ISS by its counterparts, the meaning of "peaceful purposes" is a
potential source of future discord, especially as commercialization
opens up the facility for uses by private industry that could have
military significance.

## 

## **II. THE INTERGOVERNMENTAL AGREEMENT OF 1998**

The development and construction of an International Space Station (ISS)
began in the mid-1980s, with the U.S. plan to place a permanently
inhabited civil space station (known as "Space Station Freedom") into
low-earth orbit through a partnership with Canada, Japan, and a number
of European countries.[^24] This "Space Station Freedom" initiative
eventually culminated in the establishment of the 1988 Intergovernmental
Agreement (1988 IGA)[^25] among the United States, the state partners of
the European Space Agency (ESA),[^26] Japan and Canada. Under the 1988
IGA, the United States (NASA) would produce a "core U.S. Space Station,"
which would then be enhanced with elements produced by the ESA, the
Government of Japan (G[o]{.smallcaps}J), and Canada Space Agency (CSA),
to create an "international Space Station complex."[^27] In addition to
emphasizing the "civil" character of the space station, the 1988 IGA
also specified that the station be used "*for peaceful purposes, in
accordance with international law*," in order to "*enhance the
scientific, technological, and commercial use of space*."[^28]

The demise of the Soviet Union brought about a dramatic warming of the
world political climate in the early 1990s and ushered in a new era of
unprecedented cooperation among nations in outer space matters. In this
new spirit of cooperation, the Russian Federation was extended an
invitation to join the ISS project in December 1993.[^29] In addition to
possible "political" considerations,[^30] Russian involvement in the
program was expected to bring significant cost savings, experience in
space station management and prolonged human spaceflight, and access to
reliable heavy-lift launch vehicles.[^31] Formal negotiations on a
protocol to amend the 1988 IGA to add the Russian Federation to the ISS
partnership commenced in April 1994,[^32] and on June 23, 1994, NASA and
the Russian Space Agency (RSA) reached an interim agreement on Russian
participation in "the Space Station Program" pending the conclusion of a
protocol to the 1988 IGA.[^33] Although Russia became a full partner in
the ISS in July 1996, renegotiation of the terms of the 1988 IGA
continued, until finally, after almost five years of negotiating, the
representatives of the United States, Russia, Canada, Japan, and the
eleven member states of the ESA, concluded the Intergovernmental
Agreement of 1998 (1998 IGA) on January 29, 1998.[^34]

Upon entering into force on March 27, 2001, the 1998 IGA replaced the
1988 agreement.[^35] Like its predecessor, the object of the 1998
Agreement --

> is to establish a long-term international cooperative framework among
> the Partners, on the basis of genuine partnership, for the detailed
> design, development, operation and utilization of a permanently
> inhabited civil international Space Station.[^36]

The express purpose of the Space Station likewise remained unchanged
under the 1998 agreement; *i.e.*, the ISS is to be a "civil space
station" used for "peaceful purposes," in order to "enhance the
scientific, technological, and commercial use of outer space."[^37]
However, under the new agreement, the Russian and American space station
programs are merged;[^38] therefore, the ISS is no longer to be based on
a "core U.S. Space Station." Instead, the 1998 agreement provides for
the United States and Russia to co-produce the "foundational elements"
of the facility, which will then be significantly enhanced by additional
elements produced by "the European Partner," Japan, and Canada, to
create "an integrated international Space Station."[^39]

### A. Management

Although the 1998 IGA gives the United States "the lead role" in overall
management of the ISS,[^40] the agreement provides for participation of
all five Partners in the management of the integrated facility,[^41]
with "decision-making by consensus" being the goal.[^42] This
multilateral management function is performed by the ISS Multilateral
Coordination Board (MCB), which is comprised of representatives of NASA,
ESA, CSA, RSA and Japan's Science and Technology Agency (STA), with the
NASA representative serving as Chairman.[^43]

The MCB meets periodically, or at the request of any Partner, to
coordinate on matters "affecting the safe, efficient and effective
utilization" of the Space Station.[^44] In cases where consensus cannot
be reached on a matter within the MCB's purview, the Chairman may
unilaterally render a decision.[^45] However, the decision of the MCB
Chairman does not affect the right of any Partner to submit the matter
for consultations;[^46] moreover, pending resolution of the issue
through consultations, a partner has the right not to implement the
Chairman's decision with respect to its space station elements.[^47] The
MCB Chairman may not, however, issue a unilateral decision where the
lack of consensus relates to a matter outside the MCB's purview, *e.g.*,
"an issue *not* primarily technical or programmatic in nature, including
such issues with a political aspect." Rather, resolution of such matters
is to be pursued through consultation among the designated officials of
the Partners concerned.[^48]

In addition to the formal procedures for multilateral management of the
Space Station set forth in the Memoranda for Understanding (MOU),
Article 23 of the 1998 IGA gives Partners (acting through their
Cooperating Agencies) the right to request consultations with each other
on "any matter arising out of Space Station cooperation" and exhorts the
Partner of whom consultations are requested to "accede to such request
promptly."[^49] Partners are further directed to use their "best
efforts" to settle disagreements, either through the MOU procedures for
multilateral management or consultation.[^50] If an issue cannot be
resolved through consultations, Article 23 authorizes, but does not
require, Partners to submit the matter to "an agreed form of dispute
resolution such as conciliation, mediation, or arbitration."[^51]

### 

### 

### B. Utilization

The basic principles for utilization of the Space Station are laid down
in Article 9.1 of the 1998 IGA:

> Utilization rights are derived from Partner provision of user
> elements, infrastructure elements, or both. Any Partner that provides
> Space Station user elements shall retain use of those elements, except
> as otherwise provided for in this paragraph. Partners which provide
> resources to operate and use the Space Station, which are derived from
> their Space Station infrastructure elements, shall receive in exchange
> a fixed share of the use of certain user elements."[^52]

In other words, under Article 9.1, each Partner retains use of the "user
elements" (*i.e.*, the modules containing laboratory workspace or crew
member accommoda­tions)[^53] that it provides, *plus*, in exchange for
providing "infrastructure elements" that supply resources necessary for
space station operations as a whole,[^54] a Partner also receives a
share of the use of "user elements" provided by the other Partners.[^55]
Accordingly, each Partner's share of the use of the Space Station's
"user elements" (or "user accommodations") is expressed in fixed
percentage in the MOU, as follows:

-   NASA retains the use of 97.7% of the user accommodations on its
    laboratory modules and 97.7% of the use of its accommodation sites
    for external payloads, and receives the use of 46.7% of the user
    accommodations on the European pressurized laboratory and 46.7% of
    the user accommodations on the Japanese Experiment Module (JEM);

-   RSA retains the use of 100% of the user accommodations on its
    laboratory modules and 100% of the use of its accommodation sites
    for external payloads;

-   ESA retains the use of 51% of the user accommodations on its
    laboratory module;

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-   the G[o]{.smallcaps}J retains the use of 51% of the user
    accommodations on its laboratory module; and

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-   CSA will have the equivalent of 2.3% of the Space Station user
    accom­modations provided by NASA, ESA and the G[o]{.smallcaps}J.[^56]

Within these limits, each Partner determines for itself how to best
utilize its respective allocation,[^57] and, under Article 9.3, each
Partner is generally free to use and/or select users for its allocation
for any purpose which is not inconsistent with the terms of the
IGA.[^58] However, there are two significant limitations on the freedom
of ISS Partners in this regard. First, Article 9.3(a) prohibits use of a
user element by a non-Partner or a private entity under the jurisdiction
of a non-Partner without prior notification to and timely consensus of
all of the Partners.[^59] Second, Article 9.3(b) provides that the
decision as to whether a contemplated use of an element of the Space
Station is for "peaceful purposes" shall be made by the Partner that is
providing the element in question.[^60] In the context of the present
discussion, this second caveat is clearly important, because it places
the decision of whether a particular use of the Space Station is for
"peaceful purposes" outside the scope of the ISS "consensus management"
regime.

### 

### 

### C. Jurisdictional Framework

While the Outer Space Treaty bars the extraterrestrial extension of
State sovereignty,[^61] certain functional aspects of sovereignty
nevertheless do apply in outer space.[^62] Accordingly, the 1998 IGA
allocates jurisdiction and control of the individual elements of the ISS
to the Partner that provides the element based on the customary
international legal principles of territoriality and nationality.[^63]

> Under Article 5 of the agreement, each Partner registers the Space
> Station elements it provides as space objects, in accordance with the
> 1976 Registration Convention.[^64] Article 5 further provides
> that---each Partner shall retain jurisdiction and control over the
> elements it registers... and over personnel in or on the Space Station
> who are its nationals. The exercise of such jurisdiction and control
> shall be subject to any relevant provisions of this Agreement, the
> MOUs, and the implementing arrangements, including relevant procedural
> mechanisms established herein.[^65]

The 1998 IGA, thus, allows each Partner to treat the Space Station
elements carried on its registry as extensions of its territory for
jurisdictional purposes and ensures that its national laws can apply to
elements and personnel that it provides to the project.[^66]

### D. Applicability of International Law

The Preamble to the 1998 IGA specifically refers to the four
multilateral treaties that give force to the fundamental principles of
public international space law: namely the 1967 Outer Space Treaty,[^67]
the 1968 Rescue Agreement,[^68] the 1972 Liability Convention,[^69] and
the 1975 Registration Convention.[^70] Article 1 decrees that the
"design, development, operation and utilization" of the ISS shall take
place "in accordance with international law."[^71] In addition,
Article 2 of the Agreement provides that space station activities must
comply with the treaties governing the use of outer space, as well as
with general principles of international law (including customary law),
wherein it states:

> The Space Station shall be developed, operated, and utilized in
> accordance with international law, including the Outer Space Treaty,
> the Rescue Agreement, the Liability Convention, and the Registration
> Convention.[^72]

Utilization and operation of the ISS must therefore be "seen and
interpreted in the light of the aforementioned international agreements,
treaties and conventions---the current law of Outer Space."[^73]

## **III. THE LAW OF OUTER SPACE (*CORPUS JURIS SPATIALIS*)**

The fundamental principles of public international space law can be
found in six multilateral treaties: 1963 Limited-Test-Ban Treaty,[^74]
1967 Outer Space Treaty,[^75] 1968 Rescue Agreement,[^76] 1972 Liability
Convention,[^77] 1975 Registration Convention,[^78] and 1979 Moon
Treaty.[^79] As previously mentioned, only four of these are expressly
referenced in the 1998 IGA;[^80] however, as reflected in Articles 1 and
2 of the agreement, the ISS is subject to international law. Moreover,
to the extent that an ISS Partner is a party to any of these treaties,
such treaties will, pursuant to Article 5 of the IGA, govern the
elements and personnel that are provided to the project.[^81] Therefore,
a brief discussion of each of the treaties governing the use of outer
space is appropriate.

### A. Limited-Test-Ban Treaty (1963)

The Limited-Test-Ban Treaty was the first treaty concerning the legal
regulation of the activities of states in the exploration and use of
outer space.[^82] The treaty is not concerned with outer space *per se*,
but rather addresses activity in outer space as part of a more general
subject---*i.e*., the prevention of global nuclear contamination.[^83]
It is perhaps for this reason that the treaty is sometimes over-looked
as a part of the "*corpus juris spatialis*."[^84] In any case, the
Limited-Test-Ban Treaty forbids State parties from carrying out the
explosion of nuclear devices in the oceans, atmosphere, or outer
space.[^85] Notably, the two powers that lead the world in both nuclear
weapons and space technology, namely the United States and the Russian
Federation, are both party to the treaty, together with Great Britain
and more than 120 other nations. Conversely, other nuclear powers, most
notably France and China, have rejected the treaty as the "selective
rapprochement" of the two former Cold War adversaries and have continued
their altitude nuclear tests.[^86] As a result, the impact of the
Limited-Test-Ban Treaty is somewhat limited and, as the International
Court of Justice (ICJ) decision in the Nuclear Test Case[^87] suggests,
the treaty's prohibitions likely cannot be regarded as declaratory of
general international law.[^88] Nevertheless, the Limited-Test-Ban
Treaty stands as the first legally binding document renouncing a
military use of outer space,[^89] and was also the first step towards
the "denuclearization of outer space."[^90] The provisions of the
Limited-Test-Ban Treaty apply to Space Station activities inasmuch as
all ISS Partner States, apart from France, are parties to the
treaty.[^91]

### B. Outer Space Treaty (1967)

In 1958, shortly after the launching of Sputnik I, the United Nations
General Assembly formed an *ad hoc* Committee on the Peaceful Uses of
Outer Space (COPUOS),[^92] and, the following year, COPUOS was
established as a permanent body.[^93] Since its inception, COPUOS has
overseen the development of five international space treaties which have
all entered into force.[^94] The first and, by far, the most significant
of these treaties was the 1967 Outer Space Treaty. This agreement is
considered to be the foundation for international legal order in outer
space,[^95] and it is binding on all of the ISS Partner States as public
international law.[^96] The first three articles of the Outer Space
Treaty establish the framework for the peaceful exploration and use of
outer space, from which the basic elements of space law are derived: the
common interest principle (Article I), the freedom principle (Article
I), the nonappropriation principle (Article II), and the application of
international law and the U.N. Charter to outer space (Article
III).[^97]

*1. Article I*

Like many of the principles set forth in the Outer Space Treaty, the
common interest principle had been previously advanced in a variety of
forms.[^98] By 1951, developments in high altitude rocket flight were
such that the launching of earth satellites was imminent; thus, there
was increased discussion among legal scholars about the notion of an
upper boundary in space to the territory of the subjacent State.[^99] In
1952, Oscar Schachter predicted that---

> outer space and the celestial bodies would be the common property of
> all mankind, over which no nation would be permitted to exercise
> domination... \[and\] a legal order would be developed on the
> principle of free and equal use, with the object of furthering
> scientific research and investigation.[^100]

Subsequently, in 1958, in its first resolution dealing specifically with
outer space, the United Nations General Assembly expressly recognized
the principle of "the common interest of mankind in outer space."[^101]
This notion was thereafter carried forward into Article I of the Outer
Space Treaty,[^102] which reads:

> The exploration and use of outer space, including the moon and other
> celestial bodies, shall be carried out for the benefit and interests
> of all countries, irrespective of their degree of economic or
> scientific development, and shall be the province of all mankind.
>
> Outer space, including the moon and other celestial bodies, shall be
> free for exploration and use by all States without discrimination of
> any kind, on a basis of equality and in accordance with international
> law, and there shall be free access to all areas of celestial bodies.
>
> There shall be freedom of scientific investigation in outer space,
> including the moon and other celestial bodies, and States shall
> facilitate and encourage international cooperation in such
> investigation.

The legal significance of the "common interest" principle is subject to
debate. One view equates the "common interest" principle to "the
equitable sharing of whatever benefits may be gathered from the
exploration and use of outer space---equitably, that is, not only
between States operating in outer space, but also taking into account
those states not so technologically advanced."[^103] So, for example,
under this theory a State whose economy is not adequate to finance a
space program may, nevertheless, rightfully share in the benefits of the
use of outer space by registering orbital positions in the geostationary
orbit (a limited resource)[^104] and then gaining revenue by leasing the
positions.[^105] The principle of "equitable sharing of the benefits" of
the exploration and use of outer space might also be interpreted so as
to require international taxation on profits made from the commercial
extraction of natural resources from the Moon, Mars and asteroids (once
such exploitation becomes possible), or a mandatory transfer of the
technology used to exploit these resources to the so-called "space
have-nots."[^106]

In practice, however, the common interest principle has predominantly
been interpreted as assuring only "equitable access" to outer space and
its benefits for those States having the requisite technology and
financial resources.[^107] The International Telecommunications Union
(ITU) Convention, for instance, states that radio frequencies and the
geostationary orbit "must be used efficiently and economically so that
countries or groups of countries may have *equitable access* to
both."[^108]

Similarly, in the case of remote sensing, the U.N. declaration of
Principles Relating to Remote Sensing of the Earth from Outer Space
(1986)[^109] basically repeats the language of Article I, paragraph 1,
of the Outer Space Treaty, wherein it provides that---

> \[r\]emote sensing activities shall be carried out for the benefit and
> in the interests of all countries, irrespective of their degree of
> economic, social, or scientific and technological development, and
> taking into particular consideration the needs of the developing
> countries.

But under Principle XII, the sensed State is again only assured of
*access* to the remote sensing data, albeit "on a non-discriminatory
basis and on reasonable cost terms."[^110] In practical terms, this
means that (at a minimum) the data will be made available to the sensed
State at "market rates," though without any guarantee of uniform
pricing.[^111]

Article I of the Outer Space Treaty also establishes the freedom
principle, which is at once a corollary to, but also limited by, the
common interest principle.[^112] Pursuant to Article 1, paragraph 2,
three "positive" aspects of the principle of freedom of outer space are
established: (1) freedom of access, (2) freedom of exploration, and (3)
freedom of use.[^113] As in the case of the common interest principle,
the freedom principle was also initially put forward in the form of a
General Assembly Resolution; first in Resolution 1721, which was adopted
on December 20, 1961,[^114] and then again in Resolution 1962, which was
adopted, on December 13, 1963.[^115] Because these resolutions are
viewed as having enunciated preexisting legal principles based on the
practice of States dating back to the launching of the first
satellite,[^116] the freedom principle that is incorporated into the
Outer Space Treaty is generally considered to be part of customary
international law, binding on all States, regardless of whether they are
actually a party to the agreement.[^117]

*2. Article II*

Closely linked to the concepts of the common interest of mankind and the
freedom of exploration and use of outer space is the principle of
nonappropriation under Article II of the Outer Space Treaty.[^118] It
states:

> Outer space, including the moon and other celestial bodies, is not
> subject to national appropriation by claim of sovereignty, by means of
> use or occupation, or by any other means.

This restriction is a logical extension of the fundamental principles
pronounced in Article I. Indeed, if outer space is to serve the common
interest of all of mankind and be free for use and exploration, it
obviously cannot be appropriated and, thereby, subjected to exclusive
claims of sovereignty by select States.[^119] Together, the principles
reflected in Articles I and II of the Outer Space Treaty establish outer
space as a *res communis* under international law;[^120] that is to say,
"space is owned by no one but is free for use by everyone."[^121]

However, the scope of applicability of the nonappropriation principle
has at times been disputed, due to the lack of a precise boundary
between air space (which is subject to the sovereignty of the subjacent
State)[^122] and outer space (which, under Article II of the Outer Space
Treaty, is not).[^123] To resolve this ambiguity, some (known as
"spacialists") have argued for the establishment of a legal boundary
delineating national air space from outer space.[^124] Nevertheless,
throughout the space age, the prevailing view has been that there is no
real need to establish any boundary between air space and outer space,
since the absence of such a boundary has, thus far, not created any
major problems, and the utmost freedom of action in the peaceful
exploration and use of outer space is both necessary and
desirable.[^125] According to this latter school of thought, activities
in the *aerospace continuum* (made up of air space and outer space)
should be governed according to their nature, *i.e.*, aeronautical
activities by aeronautical law and space activities by aerospace
law.[^126] Ergo, advocates of this second approach are referred to as
"functionalists."[^127]

The dominance of the functionalist approach at the U.N. has, at least to
date, forestalled efforts to fix a definite, though seemingly arbitrary
boundary between air space and outer space.[^128] At the same time,
through state practice, the functionalist approach has led to the
establishment of "functional" criteria for defining "outer space" and
"space objects" which, according to Professor Bin Cheng, can be said to
reflect current international law.[^129] First, since no State has ever
claimed that a satellite orbiting the earth was infringing its national
airspace, it is possible to say that in international law, outer space
begins *at least* from the height above the earth of the lowest perigee
of any existing or past artificial satellite that has orbited the earth
without encountering any protest.[^130] Secondly, for purposes of
international law, a "space object" can be defined as "an object
designed and intended to penetrate into outer space \[as previously
defined\]... whether or not in any orbit, and for whatever length of
time"---correspondingly, "\[o\]bjects which are not designed and
intended to enter outer space and which do not penetrate into outer
space are not space objects."[^131]

##### 3. Article III

The last of the aforementioned "basic legal elements of space law"
established by the Outer Space Treaty is embodied in Article III. It
provides that---

> States Parties to the Treaty shall carry on activities in the
> exploration and use of outer space, including the moon and other
> celestial bodies, in accordance with international law, including the
> Charter of the United Nations, in the interest of maintaining
> international peace and security and promoting international
> cooperation and understanding.[^132]

Article III thus makes the general principles of international law (*lex
generalis*)---including rules of customary law---and the United Nations
Charter[^133] applicable to outer space.[^134] However, because certain
rules of international law and/or provisions of the Charter cannot, by
definition, apply to outer space, or are of a nature of *lex specialis*
for certain environments, Article III is not an automatic extension to
outer space and celestial bodies of 'international law, including the
Charter of the United Nations' *in toto*.[^135] Yet, there are those
that have gone further and argued that since the Outer Space Treaty does
not enumerate exactly which "general principles" apply to outer space,
certain fundamental provisions of international law, specifically those
concerning the use of force in self-defense, cannot and should not be
made applicable to outer space, on the basis that they are inconsistent
with the principles of the Outer Space Treaty itself.[^136]

But while the right to use force in self-defense in outer space is
perhaps not universally accepted,[^137] the prevalent view is that
Article 2(4) of the U.N. Charter[^138] applies in outer space, and it
is, therefore, unlawful for a State to interfere in a hostile manner
with the assets in outer space of another State,[^139] and that the
exception to the bar on the use of force under Article 51 likewise
applies in outer space, so that a State can legally use force to defend
itself against hostile actions, should they nevertheless occur.[^140]
The United States has supported this view since the inception of the
Outer Space Treaty,[^141] and it remains part of current U.S. space
policy.[^142]

*4. Article IV*

In addition to the basic elements of space law established in the first
three articles of the Outer Space Treaty, Article IV of the treaty
"contain\[s\] the first principles of international law explicitly
relating to military activities in space."[^143] It reads as follows:

> States Parties to the Treaty undertake not to place in orbit around
> the earth any objects carrying nuclear weapons or any other kinds of
> weapons of mass destruction, install such weapons on celestial bodies,
> or station such weapons in outer space in any other manner.
>
> The moon and other celestial bodies shall be used by all States
> Parties to the Treaty exclusively for peaceful purposes. The
> establishment of military bases, installations and fortifications, the
> testing of any type of weapons and the conduct of military maneuvers
> on celestial bodies shall be forbidden. The use of military personnel
> for scientific research or for any other peaceful purposes shall not
> be prohibited. The use of any equipment or facility necessary for
> peaceful exploration of the moon and other celestial bodies shall also
> not be prohibited.

On its face, paragraph 1 of Article IV appears to bring to fruition the
denuclearization of outer space that began with the 1963
Limited-Test-Ban Treaty---it imposes a general ban on positioning
nuclear weapons and other weapons of mass destruction in orbit around
the earth, on celestial bodies, or in outer space. From the outset, it
is clear that since paragraph 1 of Article IV refers only to weapons of
mass destruction, it implicitly permits the presence of other types of
weapons in outer space.[^144] Additionally, the provision was
deliberately worded to permit the earthly use of intercontinental
ballistic missiles (ICBMs), which incidentally pass through space, due
to the fact that the national defense systems of the two major space
powers were both based upon ICBMs.[^145] However, the fact that
paragraph 1 refers only to "celestial bodies" and "outer space" and not
to "outer space, the moon, and other celestial bodies," as in other
provisions of the treaty, suggests that the Moon is similarly excluded
from its application.[^146] While it is unclear whether exclusion of the
Moon was intentional, or merely poor draftsmanship,[^147] the question
of whether weapons of mass destruction are banned from the Moon, as well
as from trajectories to and around it, is nonetheless left open to
interpretation.[^148]

Paragraph 2 of Article 4, on the other hand, establishes the principle
that "the moon and other celestial bodies" shall be used "exclusively
for peaceful purposes."[^149] Here again, by exclusion, this restriction
does not apply to the whole of "outer space, the moon, and other
celestial bodies."[^150] In this instance, however, the omission of
"outer space" from the second paragraph of Article IV was arguably
intentional and designed to permit States to be able to carry out
certain space activities for military purposes, such as the use of
reconnaissance satellites.[^151] This interpretation has strong support,
not only because the text of the provision was agreed upon in the face
of concerns raised by some delegates during negotiations that outer
space would be excluded from its coverage,[^152] but also because, at
the time the treaty was entered into, it was well known that both the
United States and the Soviet Union had already launched satellites into
space for military purposes.[^153]

While the foregoing theory reflects the view most widely held among
States and scholars,[^154] there is a second school of thought that
takes a broader approach to interpretation of the Outer Space Treaty.
"\[L\]ooking at other pertinent clauses \[e.g., the Outer Space Treaty's
Preamble and the language of Articles IX and XI\], referenced U.N
General Assembly resolutions, the U.N. Charter, and international law,"
this latter theory "concludes that all 'outer space' must be used for
peaceful purposes."[^155] Under this broad, contextual interpretation,
the general maxims found in the U.N. Charter, the Outer Space Treaty,
and elsewhere in international law, such as "'common interest of all
mankind,' the 'benefit of all peoples,' 'furthering the purposes of the
U.N.,' 'use in accordance with international law,' 'maintaining
international peace and security,' promoting international cooperation'
and 'having regard for the interests of other States,'" also "define the
meaning and applicability of the phrase 'peaceful purposes.'"[^156]

Of course, under the more restrictive interpretation of the Outer Space
Treaty, the meaning of "peaceful purposes" in Article IV, paragraph 2,
is less significant, since interpreted strictly, the provision simply
does not apply to outer space. Moreover, dating back to the time the
treaty was adopted, military activities had never been carried out on
the Moon and one of the only practical aspects of using a celestial body
for military purposes, i.e., the testing of nuclear weapons, was already
prohibited by the 1963 Limited-Test-Ban Treaty.[^157] However, the
adjective "peaceful" in relation to outer space activities is
encountered in virtually every U.N. document devoted to outer space
matters as well as in space law treaties, including the 1998 IGA for the
International Space Station, which, in 2001, became the latest such
treaty to enter into force.[^158] Once again, the 1998 IGA states that
the ISS shall be utilized "for peaceful purposes, in accordance with
international law;"[^159] thus, the meaning of the phrase "peaceful
purposes" is directly relevant to ISS activities. This subject is
addressed in subpart IV.A, *infra*.[^160]

*5. Articles IX, X, and XI*

Resolving international problems through international cooperation
constitutes one of the primary objectives of the United Nations.[^161]
In fact, the Declaration on Principles of International Law Concerning
Friendly Relations and Cooperation Among Member States in Accordance
with the U.N. Charter (Resolution 2625), was unanimously confirmed by
all U.N. member States and proclaims cooperation between States to be an
international legal obligation.[^162] While the "obligation of
cooperation" set down in Resolution 2625 pertains exclusively to the
U.N. Charter, the principle of international cooperation between States
is also made fully applicable to outer space activities by the Outer
Space Treaty.[^163]

Provisions of the treaty that expressly promote the principle of
international cooperation in the exploration and use of outer space
include Article IX, emphasizing that States are to be guided by the
principle of cooperation and mutual assistance in conducting outer space
activities; Article X, requiring States launching objects into space to
consider, on the basis of equality, requests by other States to observe
the flight of such space objects; and Article XI, requiring that States
notify the Secretary-General of the United Nations, and the
international community generally, of the nature, conduct, locations,
and results of their space activities.[^164] These provisions have led
to the establishment of official and unofficial tracking stations in
almost all States, which together make up a global network of data
registration that is available for use by all States and institutions
that wish to utilize such observational data.[^165]

*6. Article XII*

To help ensure that the demilitarization provisions in Article IV are
observed, Article XII of the Outer Space Treaty provides:

> All stations, installations, equipment and space vehicles on the moon
> and other celestial bodies shall be open to representatives of other
> State Parties to the Treaty on the basis of reciprocity. Such
> representatives shall give reasonable advance notice of a projected
> visit, in order that appropriate consultations may be held and that
> maximum precautions may be taken to assure safety and to avoid
> interference with normal operations in the facility to be visited.

Although the term "reciprocity" perhaps suggests "an interchange of
privileges," such an interpretation must be rejected, since it would
mean that a State could then legitimately refuse visits simply by making
known its intention not to avail itself of this provision, and, thereby,
nullify the legal obligation to allow free access.[^166] Rather,
"reciprocity" in this instance refers to the right of a State to refuse
access to its installations to any State that does not comply with its
obligation to allow visits to its installations.[^167] In fact, the
drafting history of Article XII reveals that the agreement that led to
inclusion of the phrase "on the basis of reciprocity" was expressly
conditioned on this latter interpretation being universally
accepted.[^168] As in the case of Article IV, paragraph 2, the "right to
inspect" stations, installations, equipment and space vehicles under
Article XII of the Outer Space Treaty applies only to the moon and other
celestial bodies, and not to outer space.[^169]

*7. Article XIII*

Finally, as the last substantive provision of the Outer Space Treaty,
Article XIII makes clear that the treaty applies to all activities of
State Parties in the exploration and use of outer space, whether carried
out individually or, as in the case of the International Space Station,
jointly with other States.

*8. Other Articles*

Certain Outer Space Treaty articles have been incorporated and expanded
upon in successive treaties governing space activities, and are,
accordingly, more significant than others. Such articles include:
Article V, subsequently reflected in the 1968 Rescue Agreement; the
"responsibility and liability clauses" of Articles VI and VII, later
reflected in the 1972 Liability Convention; and Article VIII, reflected
in the 1976 Registration Convention. These key Outer Space Treaty
provisions are discussed below within the context of the treaties that
they engendered.

### C. Rescue Agreement (1968)

Article V of the Outer Space Treaty (OST) bestows on astronauts a unique
status as "envoys of mankind"[^170]---a lofty expression which to some
suggests that astronauts enjoy a special immunity from some forms of
normal jurisdiction.[^171] The basic principles laid down in OST Article
V provide for: "(1) assistance to astronauts in the event of accident,
distress, or emergency landing; (2) their safe and prompt return; and
(3) mutual assistance between astronauts of different States in outer
space and on celestial bodies."[^172] The 1968 Rescue Agreement was set
up to develop and give further expression to the duties encompassed in
OST Article V.[^173]

The agreement is essentially a one-sided undertaking by the Contracting
Parties to notify the "launching authority" (i.e., "the State
responsible for launching"),[^174] and the Secretary-General of the
United Nations in the event that an astronaut or spacecraft returning
from outer space lands within their territory.[^175] Contracting Parties
further assume an *affirmative duty* to search for, rescue, and
unconditionally return the astronaut to representatives of the launching
authority; and to do so at no expense to the launching authority.[^176]
In contrast, the duty to recover downed spacecraft is contingent upon a
request from the launching authority, and, even then, the State in which
the craft has landed has the option of either returning the object or
simply holding it "at the disposal of representatives of the launching
authority."[^177] Moreover, unlike the case with the recovery and return
of astronauts, expenses incurred by the landing State in the recovery
and return of space objects are to be borne by the launching
authority.[^178]

### D. Liability Convention (1972)

Articles VI, VII, and IX of the Outer Space Treaty (OST) are linked by
their treatment of responsibility for outer space activities.[^179] OST
Article VI represents the first step in the regulation of responsibility
in the space environment.[^180] Pursuant to its provisions, States bear
international responsibility for any activity in outer space,
irrespective of whether such activity is carried out by governmental or
non-governmental entities. This principle serves to remove the question
of imputability and, thereby, helps to ensure that all activities in
outer space are carried out in accordance with the relevant rules of
international law.[^181] Article VII focuses on liability for damage
caused by space objects.[^182] Under Article VII, each State from whose
territory or facility a space object is launched, as well as each State
that actually launches or procures the launching of an object into
space, is internationally liable for damage caused by the object,
whether such damage occurs on Earth, in outer space, or on the moon or
other celestial body. Finally, under OST Article IX, contracting States
are obliged to avoid any space activity that would cause harmful
contamination or adverse changes to the Earth's environment, and to
consult with other States before taking any action that could
potentially interfere with their peaceful use of outer space, the Moon,
or other celestial bodies.

The Liability Convention specifies the conditions under which liability
is to be assessed and compensation paid for damage caused by space
objects and formalizes a process whereby claims may be considered and
determined.[^183] Under the Convention's terms, liability rests with the
"launching State" which, though sometimes used interchangeably with
"launching authority,"[^184] is defined more comprehensively by the
treaty to mean: (1) a State which launches or procures the launching of
a space object; or (2) a State from whose territory or facility a space
object is launched.[^185]

Notably, there are no territorial or geographic limits on the
application of the Liability Convention, and under Article II of the
agreement, the launching state is absolutely liable for "damage caused
by its space objects on the surface of the Earth or to aircraft in
flight."[^186] Elsewhere than on the surface of the Earth, however,
liability for damage caused by space objects is based on fault.[^187]

The 1998 IGA contains a cross-waiver of liability[^188] requiring that
ISS Partner States waive all claims against other Partner States, their
related entities, or employees of other Partner States or their related
entities, for damage arising out of "Protected Space Operations."[^189]
Nevertheless, the Liability Convention still applies to ISS activities
in those situations not specifically covered by the cross-waiver.[^190]
Accordingly, in the case of a cooperative launch of an ISS
element,[^191] the Liability Convention subjects each of the States
concerned to joint and several liability for any damage that might
result from the launching of that Space Station element into outer
space.[^192]

### E. Registration Convention (1975)

The earliest reference to registration of an object launched into space
is in Article VIII of the Outer Space Treaty (OST). OST Article VIII
provides that a State on whose national registry a "space object" is
carried retains "jurisdiction and control over such object and over any
personnel thereof, while in outer space or on a celestial body,"[^193]
establishing registration as the basis for determining the nationality
of a space object.

The requirement that each spacecraft have a nationality was generally
based on the maritime concept that "when a state gives to a ship the
right to use its flag, such state assumes certain international
responsibilities for the good conduct of that ship... and at the same
time acts as the protector of the ship to enforce its international
rights."[^194] The Registration Convention compels States to acknowledge
their responsibility for space objects by requiring that any State
launching an object into orbit or beyond, register the object in a
registry maintained by the "launching State."[^195] The launching State
is also obliged to furnish certain information about each space object
to the Secretary-General of the United Nations for recording in a
central registry of objects launched into outer space.

Here again, "launching State" is defined as: (1) a State which launches
or procures the launching of a space object; or (2) a State from whose
territory or facility a space object is launched.[^196] There is,
however, no explicit link between the Registration Convention and the
Liability Convention despite the fact that they both have the same
definition of launching State.

The Registration Convention entered into force in 1976 and today has
more than 50 signatories presumably committed to the principle of
registering space objects with the United Nations. Nevertheless, states
often delay registering objects launched into space or fail to register
them altogether.[^197]

### F. Moon Treaty (1979)

Aside from being dubbed "the last of the 'first generation' of space
treaties,"[^198] the Moon Treaty also holds the distinction of being the
first treaty to give effect in international law to the concept of "the
common heritage of mankind."[^199] As such, it represents an effort to
establish the Moon and other celestial bodies as a new type of territory
under international law; *i.e.*, "the common heritage of mankind," in
which national appropriation in a territorial sense is prohibited (*res
extra commercium*), *and* the fruits and resources of the territory are
the property of mankind at large.[^200] In this regard, however, the
Moon Treaty "adds little, if anything, to the provisions of the Outer
Space Treaty relating to military space activities."[^201] Furthermore,
although in force, the Moon Treaty has been adopted and ratified by only
a handful of States, none of which is a significant space power.
Therefore, the treaty is of relatively little consequence in
establishing international space law.[^202]

G.  **Summary**

In the end, perhaps the most that can be said for certain is that the
"*corpus juris spatialis*" partially demilitarizes outer space by (1)
banning the use of nuclear weapons anywhere in outer space;[^203] (2)
prohibiting the stationing weapons of mass destruction in orbit around
the earth, moon or any other celestial body, or otherwise installing
such weapons on the moon or any other celestial body;[^204] (3)
restricting use of the moon and other celestial bodies for "exclusively
peaceful purposes;"[^205] and (4) expressly forbidding military
maneuvers, the testing of weapons, or the establishment of military
bases, installations or fortifications on celestial bodies.[^206]
However, while outer space plainly remains open to military use,[^207]
the 1998 IGA itself expressly restricts use of the ISS to "peaceful
purposes."[^208] Therefore, the question that remains is, What are
the legal obligations of the ISS Partners concerning use of Space
Station Alpha for "peaceful purposes"?

## **IV. 'PEACEFUL PURPOSES' AND THE ISS**

### A. Meaning of 'Peaceful Purposes'

While the adjective "peaceful" can be found in virtually all U.N.
documents relating to outer space, the treaties which comprise
international space law fail to provide an authoritative definition of
that term.[^209] The phrase "peaceful purposes" as used in the 1967
Outer Space Treaty (OST) was originally adapted from the 1959 Antarctic
Treaty (AT),[^210] which, to a considerable extent, served as the model
for the 1967 treaty.[^211] Article I of the AT reads as follows:

> 1\. Antarctica shall be used for peaceful purposes only. There shall
> be prohibited, *inter alia*, any measures of a military nature, such
> as the establishment of military bases and fortifications, the
> carrying out of military maneuvers, as well as the testing of any type
> of weapons.
>
> 2\. The present Treaty shall not prevent the use of military personnel
> or equipment for scientific research or for any other purpose.

Because the AT is credited with the "demilitarization" of the
Antarctic,[^212] it is often cited as the most authoritative aid for the
interpretation of the term "peaceful" in the outer space context,[^213]
particularly by those who seek to equate "peaceful," as it pertains to
outer space, with "non-military."[^214] However, in view of the fact
that the OST permits certain military activities in those areas
expressly reserved "exclusively for peaceful purposes" (i.e., the moon
and other celestial bodies),[^215] and, at the same time, makes
international law (including the right of self-defense) applicable to
those same extraterrestrial regions,[^216] it is doubtful that the
drafters of the treaty intended to attach such a definition to the term
"peaceful."[^217] Furthermore, the practice of States at the time of the
treaty's adoption and since plainly belies such an interpretation.[^218]

From the very early space age up to the present, the official position
of the United States has been that "peaceful" means "non-aggressive" and
not "non-military."[^219] Indeed, while some of the initial U.S.
statements on the international control of space activities appear to
support the proposition that outer space should be used exclusively for
*nonmilitary* purposes,[^220] by the spring of 1958 (less than a year
after the launch of Sputnik I), anticipation of the availability of
reconnaissance satellites caused a decisive shift in U.S. policy towards
the view that space could and should be used for "peaceful," rather than
"nonmilitary" purposes.[^221] Thus, the National Aeronautics and Space
Act of 1958 (Space Act) (the statutory basis for the national space
program)[^222] requires that U.S. space activities be devoted to
"peaceful purposes" while also providing that these activities shall
contribute to "national defense."[^223]

The U.S. interpretation of "peaceful" as synonymous with
"non-aggressive" was a logical extension of America's effort to gain
international legal recognition of the permissibility of reconnaissance
satellites, while simultaneously discouraging military space activities
that threatened these assets---two major goals of U.S. space policy
during the pre-Outer Space Treaty era (1957-1967).[^224] The definition
is a corollary to the meaning of the terms "peace" and "aggression"
found in the U.N. Charter.[^225] "Essentially, nations have agreed in
the Charter to act 'peacefully,' a term which the Charter then
elaborates with specific examples, *e.g*., suppression of acts of
aggression, no threats or use of force, save in the common interest or
for (legitimate) self-defense."[^226] By the same token, "'peaceful
purposes'... was interpreted by the United States to mean... \[that\]
all military uses are permitted and lawful as long as they remain
'nonaggressive' as per Article 2(4) of the U.N. Charter, which prohibits
'the threat or use of force.'"[^227]

In contrast, the Soviet Union (U.S.S.R.), as part of its diplomatic
offensive to ban U.S. reconnaissance satellites,[^228] initially took
the view that "peaceful purposes" meant "non-military," and, thus,
maintained that military activities in outer space were totally
prohibited.[^229] However, although the Soviets consistently maintained
that all of its activities in space were "peaceful" and
"scientific,"[^230] the U.S.S.R.'s official line eventually softened as
its military satellite programs came into their own, such that it can be
said that the Soviets, at least, acquiesced to the U.S.
interpretation.[^231] So, as Professor Vlasic notes:

> \[w\]ith only the Soviet Union and the United States active in outer
> space before and for sometime after entry into force of the OST, the
> 'practice' of even one space power, clearly a 'specially affected'
> state, carried substantial weight in law. All the more so
> when supported by several other states with developing space
> capabilities.[^232]

While it can perhaps be argued that there are still two competing
definitions of "peaceful purposes" (one being "non-military" and the
other "non-aggressive"),[^233] no State has ever formally protested the
U.S. version of "peaceful" in the context of outer space
activities;[^234] a consensus has developed within the United Nations
that "peaceful" more specifically equates to "non-aggressive."[^235]
Nevertheless, the scope and substance of the notion of "peaceful use of
outer space and celestial bodies" remains one of the main sources of
controversy surrounding space activities.[^236] Perhaps nowhere is this
conundrum more clearly exemplified than in the context of the
International Space Station (ISS).

### B. ISS as a 'Civil' Facility (Permissibility of Military Use)

Under international law, States are free to erect space stations in
outer space, even if they are devoted exclusively to military purposes,
provided they do not run afoul of the minimal limitations of the Outer
Space Treaty (OST) by carrying nuclear weapons or other weapons of mass
destruction onboard.[^237] Similarly, there is no restriction on the use
of military personnel in outer space.[^238] In fact, the OST expressly
provides that military personnel are even permitted to perform certain
"peaceful" activities, such as scientific research, on the Moon and
other celestial bodies.[^239] While the 1998 Intergovernmental Agreement
(IGA) explicitly calls for a "civil international Space Station," which
is to be operated and utilized "for peaceful purposes, in accordance
with international law,"[^240] what significance this has in terms of
its potential use for military purposes is not entirely clear.

Typically, a space system is considered "civil" if it is owned and
operated by a non-military government agency, a business or other
non-governmental organization, or an international organization of
regional or global participation.[^241] So, for example, the satellite
system of the International Telecommunications Satellite Organization
(Intelsat),[^242] though daily used by both civil and military
customers,[^243] is still regarded as a civil system.[^244] Another case
in point is the system operated by the International Maritime Satellite
Organization (Inmarsat),[^245] a "hybrid" commercial enterprise/public
service organization.[^246] As with the 1998 IGA, the Inmarsat
Convention contained a "peaceful purposes" clause,[^247] and yet
Inmarsat's services were used by U.S. and coalition forces during the
1991 Gulf War, and thereafter by U.N. peacekeeping forces in Somalia,
Bosnia and Croatia.[^248]

Then again, ownership and management are not necessarily determinative
of whether a given space system is civil or military; oftentimes it is
the use and/or type of user that is controlling.[^249] Thus, for
example, although the Hughes *Leasat* satellite was commercially owned
and managed, it was under contract to the U.S. Navy which controlled its
design, development, production, launch, and provision of services.
*Leasat*, therefore, could justifiably be deemed to be a military
satellite.[^250] In any case, as the examples of Intelsat and Inmarsat
show, the mere fact that a space system is regarded as "civil" does not
preclude the possibility of it being used for military purposes.

With respect to space systems owned and operated by NASA, the United
States has long maintained a degree of separation between its military
and civilian space activities;[^251] however, as was shown previously,
the proverbial "firewall between military space and civilian
space"[^252] has not always been strictly maintained.[^253] Accordingly,
there is some historical precedent for conducting military-related
activities aboard NASA spacecraft. Moreover, the 1958 Space Act not only
authorizes space activities in support of U.S. national defense, but
also explicitly provides for NASA to make available "to agencies
directly concerned with national defense" any information of "military
value or significance."[^254] There is thus a specific statutory basis
for cooperation between NASA and [DoD]{.smallcaps} in national security
matters, clearly on display in the military's use of archived NASA
satellite imagery during the Gulf War and, more recently, when U.S.
forces used "real-time," albeit unclassified data from advanced NASA
satellites in support operations during the war in Afghanistan.[^255]

In the case of the Space Station, notwithstanding the 1998 IGA's
reference to the "civil" nature of the facility, neither the Agreement
nor the implementing MOUs specify what restrictions, if any, are imposed
on use of the ISS for military purposes by virtue of either the
characterization of the ISS as "civil" or the 1998 IGA's "peaceful
purposes" requirement. Notably, the 1987 law authorizing NASA to
undertake construction of an international space station provided that
the facility was to serve four purposes:

> \(1\) the conduct of scientific experiments, applications experiments
> and engineering experiments;
>
> \(2\) the servicing, rehabilitation, and construction of satellites
> and space vehicles;
>
> \(3\) the development and demonstration of products and processes; and
>
> \(4\) the establishment of a space base for other civilian and
> commercial space activities.[^256]

From the phrase "*for other civilian and commercial space activities*,"
one could reasonably infer that all of the enumerated uses of the
international space station are to be understood as being civilian and
commercial in nature---*i.e.*, "non-military."[^257] If this inference
were accepted, it could be construed that use of the U.S. space station
elements for any military purpose is contrary to the intended purpose
under U.S. law.

The United States, however, does not subscribe to this view, as revealed
during the course of negotiations on the ISS Agreement. Specifically, in
1988, during talks between the United States and the European Partner
States, the Chief U.S. Negotiator professed the view that---

> the United States has the right to use its elements, as well as its
> allocations of resources derived from the Space Station
> infrastructure, *for national security purposes*... \[and further\]
> \[w\]ith respect to such uses of these elements and resources, the
> decision whether they may be carried out under the Agreement will be
> made by the United States.[^258]

In response to the American position, the members of the European
Governments' Delegation maintained that "with respect to the use of
elements of the permanently manned civil Space Station provided by
Europe, the European partner will be guided by Article II of the
Convention establishing the European Space Agency \[ESA\],"[^259] which
provides:

> The purpose of the Agency shall be to provide for and to promote, for
> exclusively peaceful purposes, cooperation among European States in
> space research and technology and their space applications, with a
> view to their being used for scientific purposes and for operational
> space applications systems.[^260]

The European delegates further made it clear that by "peaceful purposes"
they meant civil, non-military projects;[^261] thereby linking the
concepts of "peaceful" and "scientific" purposes, while at the same time
dispelling any notion that "operational space applications" might
include systems used in national defense.

The issue of the "civil" character and "peaceful use" of the Station was
again of primary importance during subsequent negotiations on the 1998
IGA, particularly with the European member states.[^262] Nevertheless,
the prevalence of the United States' 1988 negotiating position appears
to be born out by the language that was ultimately incorporated into the
1998 Agreement. Once more, Article 9.3(b) provides:

> \[T\]he Partner providing an element shall determine whether a
> contemplated use of that element is for peaceful purposes, except that
> this subparagraph shall not be invoked to prevent any Partner from
> using resources derived from the Space Station infrastructure.

If by "peaceful purposes" the Partners had, in fact, meant "civil,
non-military purposes" then Article 9.3(b) would seemingly be
superfluous. Moreover, the Article 1.1 declaration that the ISS be used
for "peaceful purposes, *in accordance with international law*" would be
rendered meaningless, since the term "peaceful purposes," as used in the
OST, plainly allows for some military activities.[^263] Therefore, such
an interpretation presumably cannot be correct.[^264] Indeed, the
above-mentioned declaration strongly suggests that, notwithstanding the
nebulous language of the U.S. authorizing statute or the express
characterization of the ISS as a "civil" facility, the term "peaceful
purposes" should be given the meaning that it has generally been
accorded under the international law governing outer space activities:
that "peaceful purposes" does not exclude military activities so long as
those activities are conducted as part of an enforcement action
authorized by the U.N. Security Council,[^265] pursuant to the right to
individual or collective self-defense under Article 51 of the U.N
Charter, or consistent with the inherent right of self-defense under
customary international law.[^266]

Even so, the fact that yet another ISS Partner, namely the Russian
Federation, has recently made a renewed call for the complete
demilitarization of outer space could once again cast the meaning of
"peaceful purposes" as it pertains to the ISS into the fray.[^267]
However, time will tell whether this initiative represents a legitimate
shift in Russian military posture or merely a retreat to the same
rhetoric long espoused by the former Soviet Union.[^268] Indeed, for
decades the Soviets maintained the official position that "peaceful"
meant totally non-military, while simultaneously engaging in a wide
range of military space activities.[^269] Furthermore, in the period
since the Soviet Union's collapse, Russia has gone to great lengths to
insulate its space program from the problems that have plagued the rest
of its economy and has spent staggering amounts on "space
defense."[^270] This has lead some to suggest that Russia's new utopian
stance is nothing more than an attempt to freeze the balance of power in
the face of increasingly superior U.S. military space
capabilities.[^271] In any case, given the extensive history of Russian
military utilization of outer space under both the Soviet regime and
succeeding administrations,[^272] the Russian Federation's current
musing about the demilitarization of space could reasonably be looked
upon with skepticism.

Additionally, even assuming the Partners tacitly agreed that the Space
Station's "civil" character precluded any dedicated missions or projects
from being carried out aboard the ISS, either directly by or on behalf
of their respective armed forces, use of the facility by commercial
entities for activities of a military nature would not be foreclosed. As
previously mentioned, Article IV of the Outer Space Treaty states: "The
use of military personnel for scientific research or for any other
peaceful purposes shall not be prohibited."[^273] Although this
provision pertains to the use of "military personnel" to conduct
scientific research on the Moon and other celestial bodies, it has been
argued that the additional phrase "*or for any other peaceful purposes*"
under­scores the fact that the drafters of the Treaty regarded scientific
research as a *per se* "peaceful" activity---*i.e.*, "irrespective of
whether it is conducted by civilian or military personnel."[^274]

From this standpoint, the underlying purpose of the research, whether
for advancement of science, military defense, or some other purpose, has
no bearing on the lawfulness (or perhaps more specifically, the
"peacefulness") of any research activity.[^275] Therefore, so long as
the experimentation or testing does not itself contravene international
law,[^276] virtually all types weapons research would be permissible
onboard the ISS *provided* the ultimate purpose of the activity was
self-defense---a "peaceful purpose."[^277] Hence, with the onset of
Space Station commercialization,[^278] it is conceivable that a
commercial firm could, consistent with the ISS goal of enhancing the
scientific, technological, and commercial use of outer space,[^279] use
ISS facilities to perform research for the advancement of some military
technological objective without contravening the "peaceful purposes"
requirement as defined by international law.[^280]

### 

### C. Prospects for Limiting Military Activities

Beyond the many ambiguities surrounding the 1998 International
Agreement's (IGA) "peaceful purposes" requirement, one should also not
overlook the fact that the Agreement fails to address a number of key
issues which have a direct impact on the availability of limitations or
controls that ISS Partners could impose on the conduct of
military-related activities onboard the Space Station by other Partners,
or by commercial firms from other Partner (or even non-Partner) States.

Indeed, it plainly appears as though the 1998 IGA places no restrictions
on military use of the ISS whatsoever, aside from those imposed on
military space activities generally under international law. Once again,
under the Agreement each ISS Partner retains jurisdiction and control
over the Space Station elements it provides,[^281] and the determination
of whether a contemplated use of a Space Station element is for
"peaceful purposes, in accordance with international law" is expressly
removed from the scope of the ISS "consensus management" regime[^282]
and placed in the hands of the Partner providing the element
concerned.[^283] Thus, inasmuch as activities onboard the ISS are
governed by the Outer Space Treaty (OST),[^284] a Partner is legally
obliged to consult with the other ISS Partners before proceeding with
military-related activities or experiments *only* when the Partner has
reason to believe that the activities or experiments could cause
"potentially harmful interference" with the activities of one or more of
the other Partners.[^285] Otherwise, each Partner is essentially free to
decide how to best utilize its respective "user elements" within the
bounds of international law.[^286] Moreover, because the ISS occupies
*outer space*, the "right to inspect" facilities, equipment and vehicles
on the moon and other celestial bodies, which is afforded to
state-parties to the OST on the basis of reciprocity in accordance with
OST Article XII,[^287] does not extend to the ISS or its elements.[^288]

Yet, in the face of all this, Article 23 of the 1998 IGA gives each
Partner the right to request consultations with each other on "*any
matter* arising out of Space Station cooperation" and obligates all
Partners to promptly accede to such requests and use their best efforts
to settle disputes.[^289] These provisions of the Agreement give rise to
the question: Is the characterization of ISS activities (including
commercial activities) as "peaceful" a "matter arising out of Space
Station cooperation," such that it can be made the subject of
consultations, or perhaps even submitted to mediation, arbitration or
some other form of dispute resolution?[^290] *Or*, Is the determination
of the Partner that provided the element where such activities are
taking place conclusive of the issue? Obviously, if the answer to the
first part of this query were "yes," Article 23 would constitute a
substantial (albeit procedural) restraint on a Partner's utilization of
the ISS for military purposes. However, neither the 1998 IGA nor the
implementing MOU provide a definitive answer to this question.

Ambiguities in other aspects of the ISS "consensus management" regime
likewise pose complications. Specifically, the 1998 IGA provides that
use of the Space Station by "a non-Partner or private entity under the
jurisdiction of a non-Partner" requires "consensus among all
Partners."[^291] At the same time, an ISS Partner cannot refuse a fellow
Partner access to resources derived from the Space Station
infrastructure to support an ISS mission because they disagree with
their fellow Partner's determination that the mission is for peaceful
purposes.[^292] The question that logically follows then is whether a
Partner can rightfully refuse to consent to use of the ISS by a
non-Partner (or a private commercial entity of a non-Partner) on the
basis that they disagree with their fellow Partner's determination that
the non-Partner's use is for peaceful purposes. Here again, there is the
potential for a significant restriction on utilization of the Space
Station for military-related activities, including those activities
being carried out by or on-behalf of private industry. Once more,
however, the 1998 IGA framework fails to provide any definitive
guidance.

These questions, along with the broader legal issues raised by the
prospect of commercial use of the ISS for the advancement of military
aims,[^293] must surely be counted among the many issues relating to the
commercialization of the Space Station that remain unresolved and need
to be addressed in any policy or political discussions toward that
end.[^294]

## 

## **V. CONCLUSION**

Like a truck, a telephone, or a pair of binoculars, orbiting space
stations have no inherent characteristics that make them civil or
military; rather, it is how the space station is utilized that is key to
determining its civil or military potential.[^295] However, the decision
of the ISS Partners to use the notoriously imprecise "peaceful purposes"
phraseology without providing a definition of the term in the 1998
International Agreement (IGA) not only exposes the Partner States'
divergent interpretations of the meaning of "peaceful," but also
suggests that the Partner States may have differing views about how the
ISS should, in fact, be utilized.

While analysis of the language of the 1998 IGA and the international law
which institutes the requirement that outer space shall be used
"exclusively for peaceful purposes" lends strong support to the position
that the ISS can be used for military purposes provided such actions are
"nonaggressive," the permissibility of military use of the Space Station
will ultimately hinge on how the term "peaceful purposes" is interpreted
and applied by the Partner States, both individually and collectively.
Last year's controversy over the Russian Federation's decision to send
American "space tourist" Denis Tito to the Space Station over the
objection of the United States and other Partner States demonstrates how
the limits of cooperation can be severely strained when one Partner
State ignores the ISS goal of consensus management in favor of its own
political and/or economic desires. To avoid similar controversies over
the conduct of military-related activities onboard the Space Station,
the ISS Partners, acting through their Cooperating Agencies, will have
to match the foresight and skill already exhibited by scientists and
engineers in the planning and construction of "Alpha," in making future
decisions about the operation and utilization of the facility.

[^1]: \* *Major Christopher M. Petras (B.A., University of Dayton; J.D.,
    Samford University; LL.M., McGill University) is Chief of Operations
    Law, Headquarters United States Space Command, Peterson AFB,
    Colorado. He is a member of the State Bar of Alabama.*

    ^?^ Congressional testimony of General James Ferguson (USAF), the
    Deputy Chief of Staff for Research and Develop­ment, regarding the
    Air Force's ten-year space plan, issued in September 1961, which
    included a manned military capability in space. *Quoted in* [R.F.
    Futrell, Ideas, Concepts, Doctrine: A History of Basic Thinking in
    the United States Air Force 1907-1964]{.smallcaps}, at 431 (Air
    Univ. Press 1971).

[^2]: *See* Lawrence D. Roberts, *A Lost Connection: Geostationary
    Satellite Networks and the International Telecom*­*munication Union*,
    15 [Berkeley Tech. L.J.]{.smallcaps} 1095, 1096-1097 (2000) ("For
    most of its history, space activity has been the province of
    government.... While the potential for commercial activity involving
    outer space was recog­nized relatively early on, and there were
    occasionally dramatic successes, commercial investments represented
    only a tiny portion of total space expenditures." (footnotes
    omitted)); *see also* Christian Roisse, The Roles of Interna­tional
    Organizations in Privatization and Commercial Use of Outer Space,
    Discussion Paper presented at the Third U.N. Conf. on the
    Exploration and Peaceful Uses of Outer Space (1999) (copy on file
    with author) ("In the early nineteen sixties, any utilization and,
    above all, any commercial use of Outer Space was not conceivable
    with the involvement of entities other than intergovernmental
    agencies."); *and* Henry Wong, *2001: A Space Legislation
    Odyssey---A Proposed Model for Reforming the Intergovernmental
    Satellite Organizations*, 48 [Am. U. L. Rev.]{.smallcaps} 547,
    548-556 (1998) (on the factual and legal history of international
    satellite organizations).

[^3]: *See e.g.*, [Staff of House Comm. on Government Operations, 89th
    Cong., Report on Government Operations in Space (Analysis of
    Civil-Military Roles and Relationships),]{.smallcaps} at 31 (Comm.
    Print 1965) ("\[P\]ractically every peaceful use of outer space
    appears to have a military application.").

[^4]: *See* [Stephen E. Doyle, Civil Space Systems: Implications for
    International Security]{.smallcaps} 2 (U.N. Inst. for Disarmament
    Research 1994).

[^5]: The U.S. Air Force conducted a series of experiments that
    essentially supplemented and were closely coordinated with NASA's
    Gemini program. In fact, such experiments on board Gemini V (August
    1965) drew protest from the Soviet Union over their military nature.
    The MOL was actually based on a modified Gemini capsule. *See*
    [David N. Spires, Beyond Horizons: A Half Century of Air Force Space
    Leadership,]{.smallcaps} at 120-133 (rev. ed., Air Univ. Press
    1998); *and* [Paul B. Stares, The Militarization of Space: U.S.
    Policy, 1945-1984]{.smallcaps}, at 79, 97-99, 130-131 (Cornell Univ.
    Press 1988); *see generally* [Barton C. Hacker & James M. Grimwood,
    On the Shoulders of Titans: A History of Project Gemini]{.smallcaps}
    259 (NASA Special Publication No. 4203, 1977), *available at*
    http://www .hq.nasa.gov/office/pao/History/SP-4203/toc.htm
    (discussing the nature of the military experiments conducted aboard
    Gemini V); *and* [S. Houston Lay & Howard J. Taubenfeld, Study on
    the Law Relating to Activi]{.smallcaps}­[ties of Man in
    Space,]{.smallcaps} at 26 n.101 (1970) (discussing photographs taken
    from Gemini V and Soviet objections to the mission as a "spy
    flight").

[^6]: *See* [Spires,]{.smallcaps} *supra* note Error: Reference source
    not found, at 132-33; *and* [Stares,]{.smallcaps} *supra* note
    Error: Reference source not found, at 159-60.

[^7]: The data and equipment from the MOL project were transferred to
    NASA for use in what became the NASA Skylab space station operation.
    [Spires,]{.smallcaps} *supra* note Error: Reference source not
    found, at 133.

[^8]: [Doyle]{.smallcaps}, *supra* note Error: Reference source not
    found, at 77.

[^9]: *Id.* at 76-77; *see also* [Stares,]{.smallcaps} *supra* note
    Error: Reference source not found, at 242 ("With the cancellation
    of... \[the\] MOL, many in the Air Force believed that they had made
    their pitch and failed. This in turn reduced the incentives to try
    again and reinforced the bias towards the traditional mission of the
    Air Force, namely flying.").

[^10]: Eilene Galloway, *The Relevance of General Multilateral Space
    Conventions to Space Stations*, *in* [Space Stations: Legal Aspects
    of Scientific and Commercial Use in a Framework of Transatlantic
    Cooperation,]{.smallcaps} 5 [Studies in Air and Space Law 33,
    36]{.smallcaps} (Karl-Heiz Böckstiegal ed. 1985) (Proceedings of an
    International Colloquium held in Hamburg, Oct. 3-4, 1984) (quoting
    *Military Activities and a Space Station*, *in *[Space Station:
    Policy, Planning and Utilization]{.smallcaps} (Proceedings of the
    AIAA/NASA Sym­posium on the Space Station at Arlington, Virginia,
    Jul. 18-20, 1983)) \[hereinafter [Space Stations\]]{.smallcaps}.

[^11]: [DoD]{.smallcaps} Directive 3100.10, Space Policy, para. 4.11, at
    13 (Jul. 9, 1999) \[hereinafter D[o]{.smallcaps}DD 3100.10\]; *cf.*
    Depart­ment of Defense Space Policy, Unclassified, at 2 (Mar. 10,
    1987), *available at* http://sun00781.dn.net/spp/military/
    docops/defense/87memo.htm \[hereinafter D[o]{.smallcaps}D Space
    Policy (1987)\] ("D[o]{.smallcaps}D supports the poten­tial use of
    military man-in-space. D[o]{.smallcaps}D will ensure that the unique
    capabilities that can be derived from the presence of military
    man-in-space shall be utilized to the extent feasible to perform
    in-space research and development, and to enhance existing and
    future missions in the interest of national security.
    D[o]{.smallcaps}D will actively explore roles for military
    man-in-space focusing on unique or cost-effective contributions to
    operational missions."). The official version of the policy was
    signed by Secretary of Defense Weinberger on Feb. 4, 1987, and
    remains classified.

[^12]: [Doyle]{.smallcaps}, *supra* note Error: Reference source not
    found, at 78-79.

[^13]: *Id.* at 79.

[^14]: *Id.*

[^15]: *See* D[o]{.smallcaps}DD 3100.10, *supra* note Error: Reference
    source not found, para. 4.11, at 13.

[^16]: *See generally* Walter D. Reed & Robert W. Norris*, Military Use
    of the Space Shuttle*, 13 [Akron L. Rev.]{.smallcaps} 665, 683-85
    (1979).

[^17]: Mr. Sean O'Keefe was nominated by President George W. Bush and
    subsequently sworn in as Administrator of NASA on December 21, 2001.

[^18]: Seth Hettena, *Military Uses Images in Combat*, [Associated
    Press]{.smallcaps}, Apr. 11, 2002, *available at*
    http://wire.ap.org/ Apnews/?SITE=MNMIT&FRONTID=HOME.

[^19]: *See* Commercialization of the Space Station, 42 U.S.C. § 14711
    (2001) ("\[A\] priority goal of constructing the International Space
    Station is the economic development of Earth orbital space... \[to
    include\] the fullest possible engagement of commercial providers
    and participation of commercial users."); *see also* John M.
    Logsdon, *Commer*­*cializing the International Space Station: Current
    US Thinking*, 14 [Space Policy]{.smallcaps} 239 (1998)
    ("\[C\]ommercial utili­zation of the space station is a key element
    of \[NASA's\] overall commercialization strategy; *see generally*
    Peter B. de Selding, *ISS Partners Set Boundaries: Governments Try
    to Limit Competition for Commercialization*, [Space
    News]{.smallcaps}, Jun. 11, 2001, at 1, 35.

[^20]: Agreement among the governments of Canada, Member States of the
    European Space Agency, Japan, the Russian Federation, and the United
    States of America concerning Cooperation on the Civil International
    Space Station, Jan. 29, 1998, 1998 U.S.T. LEXIS 212, Hein's No. KAV
    5119 \[hereinafter 1998 IGA\], *reprinted in* 4 [United States Space
    Law: National & International Regulation]{.smallcaps}, § II.A.22(f)
    (May 1998) \[hereinafter [U.S. Space Law]{.smallcaps}\].

[^21]: Treaty on Principles Governing the Activities of States in the
    Exploration and Use of Outer Space, Including the Moon and Other
    Celestial Bodies, Jan. 27, 1967, art. IV, U.N. GAOR, 21st Sess.,
    Supp. No. 16, at 13, U.N. Doc. A/6316 (1967); 18 U.S.T. 2410; 1967
    U.S.T. LEXIS 613 \[hereinafter Outer Space Treaty\].

[^22]: Michael N. Schmitt, *Bellum Americanum: The U.S. View of
    Twenty-First Century War and Its Possible Implications for the Law
    of Armed Conflict*, 19 [Mich. J. Int\'l L.]{.smallcaps} 1051, 1087
    (1998).

[^23]: Belgium, Denmark, France, Germany, Italy, the Netherlands,
    Norway, Sweden, Switzerland, Spain and the United Kingdom.

[^24]: *See* Rochus Moenter, *The International Space Station Legal
    Framework and Current Status*, [64 J. Air L. & Com]{.smallcaps} 1033
    (1999); *see also* Act of Oct. 30, 1987, Pub. L. No. 100-147, §
    106(a) and (e), 101 Stat. 863 (1987) \[hereinafter Act of Oct. 30,
    1987\].

[^25]: Agreement among the governments of the United States of America,
    the Member States of the European Space Agency, Japan, and Canada,
    on Cooperation in the Detailed Design, Development, Operation, and
    Utilization of the Permanently Manned Civil Space Station, Sept. 29,
    1988, as between the U.S., the ESA partner states, and Canada,
    Hein's No. KAV 2383, with respect to Japan, Hein's No. KAV 2382
    \[hereinafter 1988 IGA\], *reprinted in* 4 [United States Space Law:
    National & International Regulation]{.smallcaps}, § II.A.22 (Jan.
    1989) \[hereinafter [U.S. Space Law]{.smallcaps}\].

[^26]: At the time, the ESA had nine European partners: Belgium,
    Denmark, France, Germany, Italy, the Netherlands, Norway, Spain and
    the United Kingdom.

[^27]: 1988 IGA, *supra* note Error: Reference source not found, art. 1,
    para. 2. In conjunction with the 1988 IGA, three bilateral Memoranda
    of Under­standing (MOUs) were executed between NASA and the space
    agencies of the other signatories of the agreement, setting out the
    details of the cooperative effort. *See* Memorandum of Understanding
    Between the United States National Aeronautics and Space
    Administration and the European Space Agency on Cooperation in the
    Detailed Design, Development, Operation, and Utilization of the
    Permanently Manned Civil Space Station, Sept. 29, 1988, *reprinted
    in* 4 [U.S. Space Law]{.smallcaps}, *supra* note Error: Reference
    source not found, § II.A.22(a) (Jan. 1989); *and* Memorandum of
    Understanding Be­tween the United States National Aeronautics and
    Space Administration and the Ministry of State for Science and
    Technology \[MOSST\] of Canada on Cooperation in the Detailed
    Design, Development, Operation, and Utilization of the Permanently
    Manned Civil Space Station, Sept. 29, 1988, *reprinted in* 4 [U.S.
    Space Law]{.smallcaps}, *supra* note Error: Reference source not
    found, § II.A.22(b) (Jan. 1989) (upon establishment of the Canadian
    Space Agency (CSA) on Mar. 1, 1989, it assumed responsibility for
    execution of the Canadian Space Station Program for MOSST); *and*
    Memorandum of Under­standing Between the United States National
    Aeronautics and Space Administration and the Government of Japan on
    Cooperation in the Detailed Design, Development, Operation, and
    Utilization of the Permanently Manned Civil Space Station, Mar. 14,
    1988, *reprinted in* 4 [U.S. Space Law]{.smallcaps}, *supra* note
    Error: Reference source not found, § II.A.22(c) (May 1990).

[^28]: Emphasis added. 1988 IGA, *supra* note Error: Reference source
    not found, art. 1, para. 1.

[^29]: The invitation to the Russian Federation to become a Partner in
    the Space Station was extended on Dec. 6, 1993, and accepted on Dec.
    17, 1993. 1998 IGA, *supra* note Error: Reference source not found,
    Preamble; *see also* Moenter, *supra* note Error: Reference source
    not found, at 1034; *and* Jesse B. Ashe, III, *Space Station Alpha:
    International Shining Star or Legal Black Hole?*, 9 [Temp. Int'l &
    Comp. L.J]{.smallcaps}. 333 (1995).

[^30]: "Critics suggest that the station is politically driven to reward
    the Russians for backing out of missile technology sales to
    developing countries." Ashe, *supra* note Error: Reference source
    not found, at 335 (citing John M. Logsdon & Alain Dupas, *Lessons to
    be Learned from Space Station Saga*, [Aviation Wk. & Space
    Tech]{.smallcaps}., Mar. 7, 1994, at 52); *see also* Frank Morring,
    Jr., *Tito Trip Strains ISS Partnership*, [Aviation Wk. & Space
    Tech]{.smallcaps}., May 14, 2001, at 79 (quoting statements of U.S.
    Senator Milkuski indicating Russia had reneged on its "deal" with
    the United States concerning cooperation on the ISS project by
    continuing to sell missile "technology and know-how" to Iran).

[^31]: *See* Ashe, *supra* note Error: Reference source not found, at
    334-35; *see also* Moenter, *supra* note Error: Reference source not
    found, at 1034.

[^32]: *See* U.S.-Russian Joint Commission on Economic and Technological
    Cooperation---Joint Statement on Space Station Cooperation, Jun. 23,
    1994, U.S.-U.S.S.R., *in* 4 [U.S. Space Law]{.smallcaps}, *supra*
    note Error: Reference source not found, § II.B. Russian Federation,
    at 16-17 (Oct 1994).

[^33]: Interim Agreement Between the National Aeronautic and Space
    Administration of the United States and the Russian Space Agency for
    the Conduct of Activities Leading to a Russian Partnership in the
    Detailed Design, Development, Operation, and Utilization of the
    Permanently Manned Civil Space Station, Jun. 23, 1994,
    U.S.-U.S.S.R., *in* 4 [U.S. Space Law]{.smallcaps}, *supra* note
    Error: Reference source not found, § II.B. Russian Federation
    (cont.) (Sept. 1995).

[^34]: Moenter, *supra* note Error: Reference source not found, at 1034.

[^35]: 1998 IGA, *supra* note Error: Reference source not found, art.
    25, para. 4. The 1988 IGA had only entered into force for the United
    States and Japan. *See* Moenter, *supra* note Error: Reference
    source not found, at 1035.

[^36]: 1998 IGA, *supra* note Error: Reference source not found, art. 1,
    para. 1; *compare* 1988 IGA, *supra* note Error: Reference source
    not found, art. 1, para. 1.

[^37]: 1998 IGA, *supra* note Error: Reference source not found, art. 1,
    para. 1; *see also* art. 14, para. 1 ("The Space Station together
    with its additions of evolutionary capability shall remain a civil
    station, and its operation and utilization shall be for peaceful
    purposes, in accordance with international law.").

[^38]: *See* Moenter, *supra* note Error: Reference source not found, at
    1034.

[^39]: 1998 IGA, *supra* note Error: Reference source not found, art. 1,
    para. 2.

[^40]: *Id*. art. 1, para. 2, and art. 7, para. 2.

[^41]: The IGA makes a distinction between "Partner States" and
    "Partners"---there are *fifteen* Partner States but only *five*
    Partners in the project because the eleven European States are
    grouped, for purposes of conducting this coopera­tion, under the
    umbrella designation of the "European Partner." André Farand, Legal
    Environment for Exploitation of the International Space Station,
    Presentation to the International Sympo­sium at Strasbourg, France
    (May 26-28, 1999), *in* [International Space Station: The Next
    Market Place]{.smallcaps} 141, 142 (G. Haskell & M. Rycroft eds.,
    2000).

[^42]: 1998 IGA, *supra* note 20, art. 1, para. 3, and art. 7, para. 1.

[^43]: *See*, Memorandum of Understanding Between the National
    Aeronautic and Space Administration of the United States of America
    and the European Space Agency concerning Cooperation on the Civil
    International Space Station, Jan. 29, 1998, art. 8.1.b, *in* 4 [U.S.
    Space Law]{.smallcaps}, *supra* note Error: Reference source not
    found, § II.A.22(g) (May 1998) \[hereinafter NASA-ESA MOU\].

[^44]: *Id*.

[^45]: *Id*.; 1998 IGA, *supra* note Error: Reference source not found,
    art. 7, para. 1 ("Mechanisms for decision-making\... where it is not
    possible to reach a consensus are specified in the MOUs.").

[^46]: NASA-ESA MOU, *supra* note Error: Reference source not found,
    art. 8.1.b and art. 18; 1998 IGA, *supra* note Error: Reference
    source not found, art. 23, para. 1 ("Partners... may consult with
    each other on any matter arising out of Space Station
    cooperation.").

[^47]: NASA-ESA MOU, *supra* note Error: Reference source not found,
    art. 8.1.b.

[^48]: *Id*. art. 8.1.b. and art. 18 (under Article 18 of the MOU,
    questions concerning the interpretation or implementation of the
    MOUs entered into in conjunction with the 1998 IGA are likewise to
    be resolved through consultations).

[^49]: 1998 IGA, *supra* note Error: Reference source not found, art.
    23, para. 1-2.

[^50]: *Id*. art. 23, para. 2.

[^51]: *Id*. art. 23, para. 4.

[^52]: *Id.* art. 9, para. 1.

[^53]: Also referred to as "user accommodations." *See* NASA-ESA MOU,
    *supra* note Error: Reference source not found.

[^54]: *E.g.*, Communication systems; guidance and propulsion systems;
    systems that provide water, power, etc. *See* [Museum of Science and
    Industry, International Space Station: Russian Service
    Module]{.smallcaps} [(2000)]{.smallcaps}, *at*
    <http://www.msichicago.org/events/iss/pages_iss/> zvezda.html.

[^55]: *See* 1998 IGA, *supra* note Error: Reference source not found,
    art. 9, para. 1.

[^56]: NASA-ESA MOU, *supra* note Error: Reference source not found,
    art. 8.3.a. To avoid a debate on the relative value of the
    utilization and infra­structure elements supplied by Russia as a
    proportion of the Space Station as a whole, it was decided that
    Russia would keep 100% utilization of its own modules. In other
    words, Russia waived any claim it had to a share of the use of the
    elements provided by the other Partners by virtue of its
    contribution to the Space Station's infrastructure, in exchange for
    being granted exclusive use of its own elements. This arrangement
    effectively placed the infrastruc­ture element supplied to the Space
    Station by Russia for its own benefit and that of the other Partners
    on a par with that furnished by the United States, so as to enable
    Russia to accumulate 100% of the utilization rights in its own
    modules. The four founding Partners were thereby able to retain the
    percentages agreed to for sharing of resources with respect to the
    original elements (U.S.A.: 76.6%, Japan: 12.8%; Europe: 8.3%;
    Canada: 2.3%). Farand, *supra* note Error: Reference source not
    found, at 147.

[^57]: 1998 IGA, *supra* note Error: Reference source not found, art. 7,
    para. 3.

[^58]: *Id.*, art. 9, para. 3. Article 9, paragraph 4, provides: "\[i\]n
    its use of the Space Station, each Partner... is to avoid causing
    serious adverse effects on the use of the Space Station by the other
    Partners."

[^59]: *Id.* art. 9, para. 3(a). Notably, the notice and consensus
    requirements do not apply to use of the ISS by a private entity
    under the jurisdiction of a fellow Partner state, *à la* Russia's
    sale of a 6-day flight onboard the Space Station Alpha to American
    Dennis Tito (Apr. 30-May 5, 2001) over the objections of the United
    States and the other Partners; though, ultimately, the Russians did
    request and receive an "exemption" to the requirement for MCB
    coordination for the Tito flight. *See* Morring, *supra* note Error:
    Reference source not found, at 79.

[^60]: 1998 IGA, *supra* note Error: Reference source not found, art. 9,
    para. 3(b).

[^61]: Outer Space Treaty, *supra* note Error: Reference source not
    found, art. II.

[^62]: *Id.* art. VIII; *see, e.g.*, *infra* text accompanying notes
    129-38 (on the application of the right of self-defense in outer
    space).

[^63]: *See* Mary B. McCord, *Responding to the Space Station Agreement:
    The Extension of U.S. Law into Space*, 77 [Geo. L.J]{.smallcaps}.
    1933, 1938-39 (1989) (discussing the similar jurisdictional
    framework of the 1988 IGA) ("The territoriality principle allows a
    state to exercise jurisdiction with respect to acts occurring in
    whole or in part within its territory, or acts having or intended to
    have a substantial effect within its territory. The nationality
    principle allows a state to prescribe law with respect to the
    activities, status, interests, or relations of its na­tionals, both
    within and without its territory." (citing [Restatement (Third) of
    the Foreign Relations Law of the United States]{.smallcaps}
    § 402(2)-(3) (1986)) (footnotes omitted); *see also* Farand, *supra*
    note Error: Reference source not found, at 141 ("The general rule is
    that a State can exercise its control and jurisdiction only in its
    territory and in its air space; the IGA therefore constitutes the
    basis on which the signatory States are allowed to extend their
    national jurisdictions and controls to a facility located in outer
    space.").

[^64]: 1998 IGA, *supra* note Error: Reference source not found, art. 5,
    para. 1; Convention on the Registration of Objects Launched into
    Outer Space, Jan., 14, 1975, art. II, U.N. GAOR, 29th Sess., Supp.
    No. 31, at 16, U.N. Doc. A/9631 (1975), 28 U.S.T. 695, 1975 U.S.T.
    LEXIS 552 \[hereinafter Registration Convention\].

[^65]: *Id.* art. 2, para. 1.

[^66]: *See* Farand, *supra* note Error: Reference source not found, at
    141.

[^67]: Outer Space Treaty, *supra* note Error: Reference source not
    found.

[^68]: Agreement on the Rescue of Astronauts, the Return of Astronauts
    and the Return of Objects Launched into Outer Space, Apr. 22, 1968,
    U.N. GAOR, 22nd Sess., Supp. No. 16, at 5, U.N. Doc. A/6716 (1968),
    19 U.S.T. 7570, 1968 U.S.T. LEXIS 584 \[hereinafter Rescue
    Agreement\]*.*

[^69]: Convention on International Liability for Damages Caused by Space
    Objects, Mar. 29, 1972, U.N. GAOR, 26th Sess., Supp. No. 29, at 25,
    U.N. Doc. A/8429 (1972), 24 U.S.T. 2389, 1972 U.S.T. LEXIS 262
    \[hereinafter Liability Convention\].

[^70]: Registration Convention, *supra* note Error: Reference source not
    found.

[^71]: 1998 IGA, *supra* note Error: Reference source not found, art. 1,
    para. 1.

[^72]: *Id.* art. 2, para. 1.

[^73]: Moenter, *supra* note Error: Reference source not found, at 1038.

[^74]: Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer
    Space and Under Water, Aug. 5, 1963, 14 U.S.T. 1313, 1963 U.S.T.
    LEXIS 257 (ratified by the United States on Oct. 7, 1963; entered
    into force on Oct. 10, 1963) \[hereinafter Limited-Test-Ban
    Treaty\].

[^75]: Outer Space Treaty, *supra* note Error: Reference source not
    found.

[^76]: Rescue Agreement, *supra* note Error: Reference source not found.

[^77]: Liability Convention, *supra* note Error: Reference source not
    found.

[^78]: Registration Convention, *supra* note Error: Reference source not
    found.

[^79]: Agreement Governing the Activities of States on the Moon and
    Other Celestial Bodies, Dec. 18, 1979, U.N. GAOR, 34th Sess., Supp.
    No. 46, at 77, U.N. Doc. A/34/46 (1980), 18 I.L.M. 1434
    \[hereinafter Moon Treaty\]. The Moon Treaty entered into force
    among its signatories in 1984, yet, it has not been ratified by the
    United States or any other major space power and so is viewed as
    having "no real significance in estab­lishing international space
    law." Glenn H. Reynolds, *The Moon Treaty: Prospects for the
    Future*, 11 [Space Policy]{.smallcaps} 115 (1995); *see* [Outer
    Space: Problems of Law and Policy 116]{.smallcaps} (Glenn H Reynolds
    & Robert P. Merges, eds., 2d ed. 1997) ("\[A\]bsent adoption by the
    major space powers, the Moon treaty is unlikely to play a major role
    in the future") \[hereinafter Reynolds & Merges\]; *and* Kurt
    Anderson Baca, *Property Rights in Outer Space*, 58 [J. Air L. &
    Com]{.smallcaps}. 1041, 1069 (1993) (stating that the Moon Treaty is
    not binding as a treaty and "the claim that it represents customary
    law is probably not credible"); *cf*. Michael Bourbonniere & Loius
    Haeck, *Jus in Bello Spatiale*, 25 [Air & Space L.]{.smallcaps} 2, 4
    (2000) (includes the Moon Treaty in the *six* multilateral treaties
    that make up space law); *and* [Bruce A. Hurwitz, The Legality of
    Space Militarization]{.smallcaps} 2 (Elsevier Science Publishing Co.
    1986) ("\[S\]pace law... is composed of *five* treaties...
    \[including\] the 1979 Moon Treaty"); *and* David Everett Marko, *A
    Kinder Gentler Moon Treaty: A Critical Review of the Current Moon
    Treaty and a Proposed Alternative*, 8 [J. Nat. Resources & Envtl.
    L]{.smallcaps}. 293 (1993) ("\[The Moon Treaty is\] one of the five
    stars in the constellation of space law.").

[^80]: *See* 1998 IGA, *supra* note Error: Reference source not found,
    Preamble & art. 2, para. 1.

[^81]: *Id.* art. 5, para. 2; *see also supra* text accompanying notes
    61-64.

[^82]: [Maurice N. Andem, International Legal Problems in the Peaceful
    Exploration and Use of Outer Space]{.smallcaps} 43 (Univ. of Lapland
    Publ'ns 1992).

[^83]: Limited-Test-Ban Treaty, *supra* note Error: Reference source not
    found, Preamble.

[^84]: *See, e.g.*, sources cited *supra* note Error: Reference source
    not found.

[^85]: Limited-Test-Ban Treaty, *supra* note Error: Reference source not
    found, art. I. "A careful reading of this provision shows that
    nuclear explosions are prohibited in all environments except
    underground tests carried out within the territorial limits of the
    parties to the Treaty." Nicholas M. Matte, *The Treaty Banning
    Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under
    Water (10 October 1963) and the Peaceful Uses of Outer Space*,
    9 [Annals of Air & Space L]{.smallcaps}. 391, 401 (1984).

[^86]: Matte, *supra* note Error: Reference source not found, at 405.

[^87]: Nuclear Test Case (Austl. v. Fr.), 1974 I.C.J. 253 (Dec. 20).

[^88]: *See* [Bin Cheng]{.smallcaps}, Outer Space: The International
    Legal Framework---the International Legal Status of Outer Space,
    Space Objects, and Spacemen, Lectures delivered at the Institute of
    Public International Law and Inter­national Relations, University of
    Thessaloniki (Sept. 1979), *in* 10 [Thesaurus Acroasium]{.smallcaps}
    41 (1981), *reprinted in* [Studies in International Space
    Law]{.smallcaps} 383, 408-9 (Clarendon Press 1997) \[hereinafter
    [Studies in Space Law\]]{.smallcaps}.

[^89]: *See* Reynolds & Merges, *supra* note Error: Reference source not
    found, at 52.

[^90]: G.S. Raju, Military Use of Outer Space: Towards Better Legal
    Controls, *in* [Maintaining Outer Space for Peaceful Purposes 90,
    92]{.smallcaps} (Nandasiri Jasentuliyana ed., 1984) (Proceedings of
    a Symposium held in The Hague, Mar. 1984) \[hereinafter [Peaceful
    Purposes\]]{.smallcaps}.

[^91]: *See* Galloway *in* [Space Stations]{.smallcaps}, *supra* note
    Error: Reference source not found, at 42.

[^92]: Question of the peaceful use of outer space, G.A. Res. 1348, U.N.
    GAOR, 13th Sess., Supp. No. 18, at 5, U.N. Doc. A/4090 (1959)
    \[hereinafter Resolution 1348 (1958)\].

[^93]: International co-operation in the peaceful uses of outer space,
    G.A. Res. 1472, U.N. GAOR., 14th Sess., Supp. No. 16, at 5, U.N.
    Doc. A/4354 (1960).

[^94]: On the role of COPUOS in the development of international space
    law, *see* Nandasiri Jasentuliyana, *The Law Making Process in the
    United Nations*, *in* [Space Law: Development and Scope]{.smallcaps}
    33 (Nandasiri Jasentuliyana ed., 1992).

[^95]: Nandasiri Jasentuliyana, *A Survey of Space Law as Developed by
    the United Nations*, *in* [Perspectives on International
    Law]{.smallcaps} 349, 359 (N. Jasentuliyana ed., 1995) \[hereinafter
    [Perspectives on Int'l L.\]]{.smallcaps}. For detailed historical
    and legal analysis of the Outer Space Treaty, *see* Paul G.
    Dembling, *Treaty on Principles Governing the Activities of States
    in the Exploration and Use of Outer Space, Including the Moon and
    Other Celestial Bodies*, *in* 1 [Manual on Space Law]{.smallcaps} 1
    (Nandasiri Jasentuliyana & Roy S.K. Lee eds., 1979).

[^96]: *See* Moenter, *supra* note Error: Reference source not found, at
    1038 (citing Bin Cheng, *1967 Outer Space Treaty: Thirtieth
    Anniversary*, 23 [Air &  Space Law]{.smallcaps} 156 (1998)). The
    Outer Space Treaty currently binds over 100 signatories; yet, the
    question of whether the legal principles of the treaty have become a
    part of customary international law and thereby apply to all States
    remains controversial. *See* Ram S. Jakhu, Application and
    Implementation of the 1967 Outer Space Treaty (Presentation to the
    American Institute of Aeronautics and Astronautics (AIAA) Legal
    Symposium Celebrating the 30th Anniversary of the 1967 Outer Space
    Treaty (1997)) (on file with author).

[^97]: Jasentuliyana *in* [Perspectives on Int'l L]{.smallcaps}.,
    *supra* note Error: Reference source not found, at 359.

[^98]: Paul G. Dembling & Daniel M. Arons, *The Evolution of the Outer
    Space Treaty*, 33 [J. Air L. & Com]{.smallcaps}. 419, 420 (1967).

[^99]: [C. Wilfred Jenks, Space Law]{.smallcaps} 97 (Fredrick A. Praeger
    1965); *see, e.g.*, [John Cobb Cooper]{.smallcaps}, High Altitude
    Flight and National Sovereignty, Address Delivered at the Escuela
    Libre de Derecho, Mexico City (Jan. 5, 1951), *in *[Explorations in
    Aerospace Law]{.smallcaps} 256, 263 (Ivan A. Vlasic ed., 1968)
    \[hereinafter [Aerospace Law\]]{.smallcaps} ("\[I\]t is obvious we
    must agree there is an upper boundary in space to the territory of
    the subjacent State. Under no possible theory can it be said that a
    State can exercise sovereign rights in outer space beyond the region
    of the earth's attraction.").

[^100]: *Quoted in* [Jenks]{.smallcaps}, *supra* note Error: Reference
    source not found, at 97.

[^101]: Resolution 1348 (1958), *supra* note Error: Reference source not
    found.

[^102]: *See also* Outer Space Treaty, *supra* note Error: Reference
    source not found, Preamble. The Preamble to the Outer Space Treaty
    recalls the language of Resolution 1348 wherein it recognizes "the
    common interest of all mankind in the progress of the exploration
    and use of outer space for peaceful purposes."

[^103]: [Bess C.M. Reijnen, The United Nations Space Treaties
    Analysed]{.smallcaps} 89 (Editions Frontières 1992).

[^104]: The geostationary satellite orbit is 22,300 miles above the
    Earth's surface, at which height a satellite revolves around the
    Earth at the same speed as the ground below and, thus, it appears to
    remain stationary over a given point on the Earth's surface; it is
    the only satellite orbit which is specifically deemed to be a
    "limited natural resource" under Article 33(2) of the Convention of
    the International Telecommunication Union, Dec. 22, 1992, S. Treaty
    Doc. No. 104-34 (1996) (as amended through 1994) \[hereinafter ITU
    Con­vention\]. *See* Ram S. Jakhu, *The Legal Status of the
    Geostationary Orbit*, 7 [Annals of Air & Space L]{.smallcaps}. 333,
    349-350 (1982); Final Acts of the Additional ITU Plenipotentiary
    Conference, Geneva, 1992, *avail­able
    at *http://www.wia.org/pub/itu-constitution.html.

[^105]: From 1988-90, Tonga, a tiny Pacific nation, submitted filings
    for sixteen geostationary satellite orbital (GSO) positions over the
    Pacific Ocean. The five member nations of the International
    Telecommunications Satellite Organization (INTELSAT) protested to
    the International Frequency Registration Board (IFRB), on the ground
    that the acquisition was for profit only and did not further the
    IFRB goal of maximizing interna­tional communications access.
    Eventually, a compromise was reached whereby Tonga relinquished all
    but six of the GSO slots. *See* Jonathan Ira Ezor, *Costs Overhead:
    Tonga's Claiming of Sixteen Geostationary Orbital Sites and the
    Implications for U.S. Space Policy*, 24 [Law & Pol'y Int'l
    Bus]{.smallcaps}. 915 (1993); *and* Francis Lyall, Expanding Global
    Communica­tion Services, Discussion Paper Presented at the Workshop
    of Space Law in the 21st Century (Jul. 1999) (criticizing Tonga's
    claim to sixteen geostationary orbital sites as a "homestead claim
    which might or might not eventually produce gold" and "an
    undesirable abuse of the ITU system") (on file with author).

[^106]: Art Dula, *Free Enterprise and the Proposed Moon Treaty*, 2
    [Hous. J. Int'l L]{.smallcaps}. 3, 33 (1979), *reprinted in*
    Reynolds & Merges, *supra* note Error: Reference source not found,
    at [14]{.smallcaps}; *see also* [Reijnen,]{.smallcaps} *supra* note
    Error: Reference source not found, at 16-17.

[^107]: *See* [Reijnen,]{.smallcaps} *supra* note Error: Reference
    source not found, at 16.

[^108]: ITU Convention, *supra* note Error: Reference source not found,
    art. 33(2) (emphasis added).

[^109]: Principles Relating to Remote Sensing of the Earth from Outer
    Space, Principle II, U.N. GAOR, 41st Sess., Supp. No. 53, at 115,
    U.N. Doc. A/41/53 (1986).

[^110]: *See also* Land Remote Sensing Policy Act of 1992, 15 U.S.C. §
    5601 et seq. (1992); *and* Proposed Rules for Licensing of Private
    Land Remote-Sensing Space Systems, 62 Fed. Reg. 59,317, 59,319 (Nov.
    3, 1997) ("Section 202(b)(2) of the 1992 Act requires that all
    licenses include the condition that the licensee shall make
    available to the government of any country, including the United
    States, unenhanced data collected by the system concerning the
    territory under the jurisdiction of such government on reasonable
    terms and conditions.").

[^111]: *See* Joanne Irene Gabrynowicz, *Defining Data Availability for
    Commercial Remote Sensing Systems*, 23 [Annals of Air & Space
    L]{.smallcaps}. 93, 104 (1998) ("However, if pronounced differences
    \[in pricing\] led to *de facto* exclusion of access to data for the
    sensed State, then the obligation of nondiscriminatory access would
    be breached.").

[^112]: The "common interest" principle, art. I, para. 1, requires that
    exploration and use of outer space be for the common "benefit and
    interest." Other limitations imposed by the Outer Space Treaty on
    the freedom of use of outer space include the nondiscrimination and
    equity clause (art. I, para. 2), the nonappropriation clause
    (art. II), the international law clause (art. III), the proscription
    on nuclear weapons (art. IV, para. 1), the responsibility and
    liability clauses (art. VI and VII), and the consultation,
    observation, and information clauses (art. V, IX, and XI). [Centre
    for Research of Air & Space Law, McGill University, Space Activities
    and Emerging International Law]{.smallcaps} 270, 272 (Nicolas M.
    Matte ed., 1984) \[hereinafter [Space Activities &
    Int'l Law\]]{.smallcaps}.

[^113]: *Id.* at 270.

[^114]: International Cooperation in the Peaceful Uses of Outer Space,
    G.A. Res. 1721, *reprinted in* [Jenks]{.smallcaps}, *supra* note
    Error: Reference source not found, at 320.

[^115]: Declaration of Legal Principles Governing the Activities of
    States in the Exploration and Use of Outer Space, G.A. Res. 1962,
    U.N. GAOR, 18th Sess., Supp. No. 15, at 15, U.N. Doc. A/5515 (1964).

[^116]: *See*, [Andem]{.smallcaps}, *supra* note Error: Reference source
    not found, at 15 ("\[D\]uring the launching into orbit by the Soviet
    Union in 1957 of the first artificial earth satellite, Sputnik-1,
    there was no protest in any form from any state or group of states
    about any violation of, or infringement on its territorial
    sovereignty of its air space... \[t\]herefore... all states
    established as a precedent the principle of the freedom of flight of
    space objects of one state over the territory (air space) of
    another.").

[^117]: See Ivan A. Vlasic, *The Growth of Space Law 1957-65:
    Achievements and Issues*, in [Yearbook of Air and Space Law
    1965]{.smallcaps}, at 365, 374-380 (René H. Mankiewicz ed., 1967).

[^118]: [Space Activities & Int'l Law]{.smallcaps}, *supra* note Error:
    Reference source not found, at 275.

[^119]: *See id.* ("Appropriation is incompatible with both of these
    principles."); *but see* Declaration of the First Meeting of
    Equatorial Countries, Dec. 3 1976 (the Bogotá Declaration),
    *reprinted in* 2 [Manual on Space Law]{.smallcaps} 383 (Nandasiri
    Jasentuliyana & Roy S.K. Lee eds., 1979) (under this declaration,
    the eight equatorial states of Brazil, Columbia, Congo, Ecuador,
    Indonesia, Kenya, Uganda and Zaire, claim sovereignty over the
    portions of the geostationary satellite orbit (GSO) above their
    territory).

[^120]: *See* Carl Q. Christol, *Article 2 of the 1967 Principles Treaty
    Revisited*, 9 [Annals of Air & Space L]{.smallcaps}. 217, 217-21
    (1984).

[^121]: Moenter, *supra* note Error: Reference source not found, at
    1039.

[^122]: *See* Convention on International Civil Aviation, Dec. 7, 1944,
    art. 1, 61 Stat. 1180, 3 Bevans 944, 15 U.N.T.S. 295, 1944 U.S.T.
    LEXIS 146 ("\[E\]very State has complete and exclusive sovereignty
    over the air space above its territory.").

[^123]: *See* Jakhu, *supra* note Error: Reference source not found, at
    334 (discussing the claim made by equatorial states in the Bogotá
    Declaration (*see supra* note Error: Reference source not found)
    that, in the absence of a lower boundary of outer space, their
    sovereignty extends to the part of the GSO located over their
    respective territories).

[^124]: *See* Definition and Delimitation of Outer Space, U.N. Doc.
    A/AC.105/484, at 22 (1991), *discussed in* [Reijnen,]{.smallcaps}
    *supra* note Error: Reference source not found, at 98; *see also*
    Approach to the Solution of the Problems of the Delimitation of
    Airspace and Outer Space, U.N. Doc. A/AC.105/C.2/L.121 (1979)
    (reissued version of Mar. 28, 1979) (working paper prepared by the
    Soviet Union which defined outer space as the region beyond an
    altitude of 100 kilometers above sea level), *dis*­*cussed in* [Bin
    Cheng]{.smallcaps}, *The Legal Regime of Airspace and Outer Space:
    the Boundary Problem*, 5 [Annals of Air & Space L]{.smallcaps}. 323
    (1980), *reprinted in* [Studies in Space Law,]{.smallcaps} *supra*
    note Error: Reference source not found, at 425, *passim*.

[^125]: [Reijnen,]{.smallcaps} *supra* note Error: Reference source not
    found, at 98; *see also* [Cheng,]{.smallcaps} *supra* note Error:
    Reference source not found, *in* [Studies in Space Law,]{.smallcaps}
    at 426-28.

[^126]: Jakhu, *supra* note Error: Reference source not found, at
    337-38.

[^127]: *See id*.; *see also* [Bin Cheng]{.smallcaps}, *International
    Responsibility and Liability for Launch Activities*, 20 [Air & Space
    L.]{.smallcaps} 297 (1995), *reprinted in* [Studies in Space
    Law,]{.smallcaps} *supra* note Error: Reference source not found, at
    598, 615.

[^128]: *See* [Cheng,]{.smallcaps} *supra* note Error: Reference source
    not found, *in* [Studies in Space Law,]{.smallcaps} at 426-27; *see
    also* Jakhu, *supra* note Error: Reference source not found, at
    38-39 (discussing the various bases proposed for establishing the
    height of a boundary between air space and outer space).

[^129]: *See* [Cheng,]{.smallcaps} *supra* note Error: Reference source
    not found, *in* [Studies in Space Law,]{.smallcaps} at 615.

[^130]: *Id.*

[^131]: *Id.*

[^132]: Outer Space Treaty, *supra* note Error: Reference source not
    found, art. III.

[^133]: Charter of the United Nations, Jun. 26, 1945, 59 Stat. 1031,
    T.S. 993, 3 Bevans 1153, 1945 U.S.T. LEXIS 199 \[hereinafter [U.N.
    Charter\]]{.smallcaps}. Ratified by the United States on Aug. 8
    1945, entered into force on Oct. 24, 1945.

[^134]: *See* Ivan A. Vlasic, *Space Law and the Military Applications
    of Space Technology*, *in* [Perspectives on Int'l L.]{.smallcaps},
    *supra* note Error: Reference source not found, at 385, 394; *and*
    [Reijnen,]{.smallcaps} *supra* note Error: Reference source not
    found, at 102; *see also* [Manfred Lachs, The Law of Outer Space: An
    Experience in Contemporary Law Making]{.smallcaps} 14 (Sijthoff
    Leiden 1972) ("\[Article III\] obviously implies that in all their
    activities in regard to and within outer space and on celestial
    bodies States are subject to the rule of international law.").

[^135]: [Lachs,]{.smallcaps} *supra* note Error: Reference source not
    found, at 15.

[^136]: M. Chandrasekharan, Editorial Comment, *The Space Treaty*, 7
    [Indian J. Int'l L]{.smallcaps}. 61, 63 (1967).

[^137]: *See* Vlasic, *supra* note Error: Reference source not found,
    *in* [Perspectives on Int'l L.]{.smallcaps}, at 394; *and*
    [Hurwitz,]{.smallcaps} *supra* note Error: Reference source not
    found, at 71 (citing Chandrasekharan, *supra* note Error: Reference
    source not found, at 63).

[^138]: Article 2(4) states: "All Members shall refrain in their
    international relations from the threat or use of force against the
    territorial integrity or political independence of any state, or in
    any other manner inconsistent with the Purposes of the United
    Nations." [U.N. Charter]{.smallcaps}, *supra* note Error: Reference
    source not found.

[^139]: *See* Vlasic, *supra* note Error: Reference source not found,
    *in* [Perspectives on Int'l L.]{.smallcaps}, at 394; *and* Philip D.
    O'Neill, Jr., *The Development of International Law Governing the
    Military Use of Outer Space*, *in* [National Interests and the
    Military Use of Space 169]{.smallcaps}, 17[7 (]{.smallcaps}William
    J. Durch ed., 1984) \[hereinafter [National
    Interests\]]{.smallcaps}; *see also* Manfred Lachs, Preserving the
    Space Environment, Opening Address to the Symposium on the
    Conditions Essential for Maintaining Outer Space for Peaceful Uses
    (Mar. 12, 1984), *in *[Peaceful Purposes,]{.smallcaps} *supra* note
    Error: Reference source not found, at 5, 7.

[^140]: "Under present treaty rules and/or customary law, as
    demonstrated in practice, national statements, and United Nations
    resolutions... \[i\]nternational law including the United Nations
    Charter where appropriate, applies to acts in outer space. This
    expressly includes the right of self defense." [Lay &
    Taubenfeld,]{.smallcaps} *supra* note Error: Reference source not
    found, at 73; *see also* [Hurwitz,]{.smallcaps} *supra* note Error:
    Reference source not found, at 72 (the Legal Sub-Committee of the
    U.N. Com­mittee for the Peaceful Uses of Outer Space (COPUOS) has
    rejected the view that the right of self-defense is not applicable
    in regards to outer space); *and* [Gennadii Zhukov, International
    Space Law]{.smallcaps} 89 (Progress Publishers 1976) (states
    can lawfully use force in or through outer space in the process of
    self-defense); [J.E.S. Fawcett, International Law and the Use of
    Outer Space]{.smallcaps} 39 (Manchester Univ. Press 1968) (no
    provision of the Charter or rule of customary law imposes "any upper
    limit above the surface of the Earth on the legiti­mate exercise of
    the right of self-defense.").

[^141]: [Carl Q. Christol, The Modern International Law of Outer
    Space]{.smallcaps} 37 (Pergamon Press 1982).

[^142]: *See* White House Fact Sheet, National Space Policy (Sept. 1,
    1996), *available at* http://ast.faa.gov/
    licensing/regulations/nsp-pdd8.htm \[hereinafter National Space
    Policy (1996)\] ("National security space activities shall
    contribute to U.S. national security by... providing support for the
    United States' inherent right of self-defense... The United States
    considers the space systems of any nation to be national property
    with the right of passage through and operations in space without
    interference. Purposeful interference with space systems shall be
    viewed as an infringement on sovereign rights."); *see also*
    D[o]{.smallcaps}DD 3100.10, *supra* note Error: Reference source not
    found, para. 4.1-4.2, at 6; *and* [Commission to Assess U.S.
    National Security Space Mgmt. & Org., Report Pursuant to P.L.
    106-65]{.smallcaps}, at 37 [(]{.smallcaps}2001), *available at*
    http://sun00781.dn.net/spp/military/ commission/report.htm ("It is
    important to note... that by specifically extending the principles
    of the U.N. Charter to space, the Outer Space Treaty (Article III)
    provides for the right of individual and collective self-defense,
    including "anticipatory self-defense.").

[^143]: Vlasic, *supra* note Error: Reference source not found, *in*
    [Perspectives on Int'l L.]{.smallcaps}, *supra* note Error:
    Reference source not found, at 396.

[^144]: [Space Activities & Int'l Law]{.smallcaps}, *supra* note Error:
    Reference source not found, at 292 (noting that most publicists
    espouse this view); *see, e.g.*, [Bin Cheng]{.smallcaps}, *The
    Commercial Development of Space: the Need for New Treaties* (Adapted
    from a keynote address delivered at a Seminar on The Cape York Space
    Port: The Legal and Business Issues, Aug. 17, 1990), 19 [J. Space
    L]{.smallcaps}. 17 (1991), *reprinted in* [Studies in Space
    Law,]{.smallcaps} *supra* note Error: Reference source not found, at
    641, 651; [Christol,]{.smallcaps} *supra* note Error: Reference
    source not found, at 26; Nandasiri Jasentuliyana, The Moon Treaty,
    *in* [Peaceful Purposes,]{.smallcaps} *supra* note Error: Reference
    source not found, at 121, 127; [Reijnen,]{.smallcaps} *supra* note
    Error: Reference source not found, at 98; *cf. *Vlasic, *supra* note
    Error: Reference source not found, *in* [Perspectives on Int'l
    L.]{.smallcaps}, *supra* note Error: Reference source not found, at
    397 ("If one chooses to ignore the controversy concerning the 'true'
    meaning of 'peaceful' in the Outer Space Treaty, it is safe to
    conclude that the treaty permits the deployment in outer space of
    anti-satellite weapons, directed energy weapons, or any other kind
    of weapon, as long as these weapons are not in conflict with the
    provi­sions of Article IV of the Outer Space Treaty or some other
    agreement.").

[^145]: *See* Raju *in* [Peaceful Purposes]{.smallcaps}, *supra* note
    Error: Reference source not found, at 90, 91; *and* Ivan A. Vlasic,
    *The Legal Aspects of Peaceful and Non-Peaceful Uses of Outer
    Space*, *in* [Peaceful and Non-Peaceful Uses of Space]{.smallcaps}
    37, 42 n. 13 (B. Jasani ed., 1991) (citing A. Chayes, et al., *Space
    Weapons: the Legal Context*, *in* [Weapons in Space]{.smallcaps},
    No. 7, at 193-97) \[hereinafter [Peaceful Uses of
    Space\]]{.smallcaps}; *see also* Jasentuliyana, *supra* note Error:
    Reference source not found, *in* [Peaceful Purposes,]{.smallcaps} at
    126 ("\[A\]ny object carrying \[nuclear\] weapons in sub-orbital
    flights such as ICBMs is not included within the meaning of
    paragraph 1 since the phrase 'place in orbit' means that an object
    would have to complete a full orbit around the Earth in order to be
    covered by the Treaty.").

[^146]: Jasentuliyana, *supra* note Error: Reference source not found,
    *in* [Peaceful Purposes,]{.smallcaps} at 126.

[^147]: *Cf. id*. (discussing drafting history of Article IV, paragraph
    1, which suggests that the exclusion of the Moon from the provision
    was intentional); *and* Vlasic, *supra* note Error: Reference source
    not found, *in* [Perspectives on Int'l L.]{.smallcaps}, at 397
    (referring to the omission of the Moon from Article IV as an
    "oversight"); *also* [Christol,]{.smallcaps} *supra* note Error:
    Reference source not found, at 20 ("\[I\]n most instances the
    inconsistent and non-uniform use of 'outer-space,' 'the moon,'
    and 'other celestial bodies' can be laid to time constraints and
    other exigencies surrounding the drafting process."). The view of
    U.S. Ambassador to the United Nations, Arthur Goldberg, was that the
    prohibition in Article IV, paragraph 1, extended to "the Moon or any
    other celestial body." [Christol,]{.smallcaps} *supra*, at 21.

[^148]: *See* Jasentuliyana, *supra* note Error: Reference source not
    found, *in* [Peaceful Purposes,]{.smallcaps} at 127 ("It is
    \[likewise\] not clear from its language whether paragraph 1 applies
    to trajectories to and orbits around celestial bodies."); *but see*
    Vlasic, *supra* note Error: Reference source not found, *in*
    [Perspectives on Int'l L.]{.smallcaps}, at 397 ("\[I\]t should not
    be difficult to prove, relying on the overall spirit of the Treaty,
    that the prohibition on these weapons applies also to the moon and
    other celestial bodies.").

[^149]: Jasentuliyana, *supra* note Error: Reference source not found,
    *in* [Peaceful Purposes,]{.smallcaps} at 127.

[^150]: *See id*.; *see also* [Cheng,]{.smallcaps} *supra* note Error:
    Reference source not found, *in* [Studies in Space Law,]{.smallcaps}
    at 651 ("The only provision in the 1967 Treaty which limits the use
    of any part of outer space to 'exclusively... peaceful pur­poses' is
    to be found in the second paragraph of Article IV, but, in very
    explicit terms, it applies only to 'the moon and other celestial
    bodies.'"); Vlasic *in* [Peaceful Uses of Space]{.smallcaps},
    *supra* note Error: Reference source not found, at 42 ("\[T\]he
    'peaceful purposes' clause applies to the moon and other celestial
    bodies but not to 'outer space.'"); [J.E.S. Fawcett, Outer Space:
    New Challenges to Law and Policy]{.smallcaps} 15 (Clarendon Press
    1984) ("\[T\]here is no provision that outer space shall be used
    exclusively for peaceful purposes."); [Christol,]{.smallcaps}
    *supra* note Error: Reference source not found, at 25 (Art. IV,
    para. 2, does not require use of outer space "per se" for
    exclusively peaceful purposes); [Space Activities & Int'l
    Law]{.smallcaps}, *supra* note Error: Reference source not found, at
    291 ("\[Only\] the moon and other celestial bodies were made subject
    to greater restrictions on military activity pursuant to article IV,
    paragraph 2."); Raju *in* [Peaceful Purposes]{.smallcaps}, *supra*
    note Error: Reference source not found, at 91 ("Under the second
    paragraph of Article IV, the states parties to the 1967 treaty are
    under an obligation to use the Moon and other celestial bodies
    exclusively for peaceful purposes."); *and* [Zhukov,]{.smallcaps}
    *supra* note Error: Reference source not found, at 92-93 (the 1967
    Treaty does not provide for "the total demilitarization of outer
    space" as "just the Moon and other celestial bodies" are required
    "to be used for peaceful purposes *exclusively*"). Notably, the
    United States has extended application of the "peaceful purposes"
    requirement to all of outer space via statute. *See* 42 U.S.C. §
    2451(a) ("\[I\]t is the policy of the United States that activities
    *in space* should be devoted to peaceful purposes for the benefit of
    all mankind.") (emphasis added).

[^151]: *See* [Christol,]{.smallcaps} *supra* note Error: Reference
    source not found, at 24-25; *and* Raju *in* [Peaceful
    Purposes]{.smallcaps}, *supra* note Error: Reference source not
    found, at 91.

[^152]: *See* [Christol,]{.smallcaps} *supra* note Error: Reference
    source not found, at 24; Jasentuliyana, *supra* note Error:
    Reference source not found, *in* [Peaceful Purposes,]{.smallcaps} at
    127; *and* Raju *in* [Peaceful Purposes]{.smallcaps}, *supra* note
    Error: Reference source not found, at 92.

[^153]: [Christol,]{.smallcaps} *supra* note Error: Reference source not
    found, at 24. Before 1961, "\[w\]ith the exception of the highly
    classified CIA involvement, the existence of a US satellite
    reconnaissance program had been openly admitted in Congress."
    [Stares,]{.smallcaps} *supra* note Error: Reference source not
    found, at 62. The Soviet Union, on the other hand, "used to
    controlling the media---at least at home---and distorting facts,
    simply denied that it ever engaged in such internationally 'illegal'
    activity as spying on anyone, especially from outer space, even
    though it was obviously indulging in it." [Cheng,]{.smallcaps}
    *supra* note Error: Reference source not found, *in* [Studies in
    Space Law,]{.smallcaps} at 650. "\[Nevertheless\] statements of the
    significance of military space activities in Soviet planning...
    emerged on a number of occasions." [Stares,]{.smallcaps} *supra*
    note Error: Reference source not found, at 148-49.

[^154]: Richard A. Morgan, *Military Use of Commercial Communication
    Satellites: A New Look at the Outer Space Treaty and "Peaceful
    Purposes,"* 60 [J. Air L. & Com]{.smallcaps}. 237, 300 (1994); *see
    also* sources cited *supra* note Error: Reference source not found.

[^155]: Morgan, *supra* note Error: Reference source not found, at 299;
    *accord.* [J.N. Singh, Outer Space, Outer Sea, Outer Land and
    International Law]{.smallcaps} 85-86 (Harnam Publ'ns 1987) ("Outer
    space, minus celestial bodies, by no justification, can legally be
    used for purposes other than peaceful... The obligation to explore
    and use outer space for peaceful purposes exists even independent of
    the provisions of the Outer Space Treaty."). For a breakdown of U.N.
    General Assembly Resolutions, Charter provisions, and other sources
    of international law, including the portions of the Outer Space
    Treaty Preamble and other articles of the treaty that support this
    interpretation, *see* Morgan, *supra* note 154, at 301-302
    nn.338-40.

[^156]: Morgan, *supra* note Error: Reference source not found, at 302
    (footnotes omitted); *see* [Singh]{.smallcaps}, *supra* note Error:
    Reference source not found, at 80-88; *see also* Marko G. Markoff,
    *Disarmament and "Peaceful Purposes" Provisions in the 1967 Outer
    Space Treaty*, 4 [J. Space L]{.smallcaps}. 3, 10-11 (1976)
    (suggesting that the principle of non-military use of space could
    arguably be advanced as part and parcel of the "common interest"
    principle), *cited in* Morgan, *supra*, at 302 n.341.

[^157]: Markoff, *supra* note Error: Reference source not found, at 5.

[^158]: Vlasic *in* [Peaceful Uses of Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 37-38.

[^159]: 1998 IGA, *supra* note Error: Reference source not found, art.
    1, para. 1.

[^160]: *See* text accompanying notes Error: Reference source not
    found-Error: Reference source not found.

[^161]: [U.N. Charter]{.smallcaps}, art. 1, para. 3.

[^162]: Declaration on Principles of International Law Concerning
    Friendly Relations and Cooperation Among Member States in Accordance
    with the U.N. Charter, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp.
    No. 28, at 121, U.N. Doc. A/5217 (1970).

[^163]: [Space Activities & Int'l Law]{.smallcaps}, *supra* note Error:
    Reference source not found, at 348-49 (citing Outer Space Treaty,
    *supra* note Error: Reference source not found, art. I).

[^164]: *Id.* at 350-51.

[^165]: [Reijnen,]{.smallcaps} *supra* note Error: Reference source not
    found, at 134.

[^166]: [Bin Cheng]{.smallcaps}, *The 1967 Outer Space Treaty*, 95
    [Journal du Droit International]{.smallcaps} 532 (1968), *reprinted
    in* [Studies in Space Law,]{.smallcaps} *supra* note Error:
    Reference source not found, at 215, 249; *see also*
    [Reijnen,]{.smallcaps} *supra* note Error: Reference source not
    found, at 139.

[^167]: [Cheng]{.smallcaps}, *supra* note Error: Reference source not
    found, *in* [Studies in Space Law,]{.smallcaps} at 249. Such a right
    is implicit under principles of international law. *See*
    [Restatement (Third) of the Foreign Relations Law of the United
    States]{.smallcaps} § 335 (1986) (this section follows Article 60(1)
    and (2) of the Vienna Convention on the Law of Treaties, May 23,
    1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980; the
    United States is not a party to the treaty)).

[^168]: "The United States... \[sought\] to preserve the effective
    operation of the free access clause... \[and thus\] made it clear...
    that neither \[the advance notice\] requirement or the condition of
    reciprocity implied any 'veto right.'" [Cheng]{.smallcaps}, *supra*
    note Error: Reference source not found, *in* [Studies in Space
    Law,]{.smallcaps} at 249-50.

[^169]: *Id*. at 250; *see also* Harminderpal Singh Rana, *The "Common
    Heritage of Mankind" & the Final Frontier: A Revaluation of Values
    Constituting the International Legal Regime for Outer Space
    Activities*, 26 [Rutgers L. J.]{.smallcaps} 225, 245 (1994) (noting
    that "\[t\]he visits and assistance contemplated in \[Article XII\]
    are probably intended to be *infor*­*mational*, rather than use
    oriented" (emphasis added)); *compare* Heidi Keefe, *Making the
    Final Frontier Feasible: A Critical Look at the Current Body of
    Outer Space Law*, 11 [Computer & High Tech. L. J.]{.smallcaps} 345,
    352 n.47 (1995) (arguing that the same "reciprocity requirement"
    that applies on the moon and other celestial bodies theoretically
    ought apply to outer space as well).

[^170]: Outer Space Treaty, *supra* note Error: Reference source not
    found, art. V, para. 1.

[^171]: [Reijnen,]{.smallcaps} *supra* note Error: Reference source not
    found, at 107; *but see* [Cheng]{.smallcaps} *in* [Studies in Space
    Law]{.smallcaps}, *supra* note Error: Reference source not found, at
    417 (noting that during negotiations of the Outer Space Treaty, the
    representative from Hungary put forward the view that "as 'envoys'
    astronauts should enjoy jurisdictional immunity"; the Soviet
    representative indicated that, to the contrary, the expression
    "envoys of mankind" merely "served to justify the legal obligations"
    in the rest of the article and had "no special legal significance").

[^172]: [Lachs,]{.smallcaps} *supra* note Error: Reference source not
    found, at 79.

[^173]: [Reijnen,]{.smallcaps} *supra* note Error: Reference source not
    found, at 157.

[^174]: Rescue Agreement, *supra* note Error: Reference source not
    found, art. 6. "\[W\]here an international inter-governmental
    organization is respon­sible for launching, \[the term 'launching
    authority' shall refer to\] that organization, *provided* that that
    organization declares its acceptance of the rights and obligations
    provided for in \[the Rescue\] Agreement and a majority of the
    States members of that organization are Contracting Parties to
    \[the\] Agreement and to the \[Outer Space Treaty\]" *Id*. (emphasis
    added); *see also* Outer Space Treaty, *supra* note Error: Reference
    source not found, art. VI ("\[States\] bear international
    responsibility for national activities in out space").

[^175]: Rescue Agreement, *supra* note Error: Reference source not
    found, art. 1 and art. 5, para. 1.

[^176]: *Id*., art. 2; *see* [Cheng]{.smallcaps} *in* [Studies in Space
    Law]{.smallcaps}, *supra* note Error: Reference source not found, at
    419 ("\[T\]he launching authority... apparently is not responsible
    for the expenses incurred by other contracting States in rescuing
    and returning astronauts.").

[^177]: Rescue Agreement, *supra* note Error: Reference source not
    found, art. 5, paras. 2 and 3.

[^178]: *Id*. art. 5, para. 5.

[^179]: [Christol,]{.smallcaps} *supra* note Error: Reference source not
    found, at 89.

[^180]: [Lachs,]{.smallcaps} *supra* note Error: Reference source not
    found, at 121.

[^181]: *Id*.

[^182]: *See* [Cheng,]{.smallcaps} *supra* note Error: Reference source
    not found, *in* [Studies in Space Law,]{.smallcaps} at 603-4
    ("Liability represents merely one aspect of responsibility"); *see
    also* Bin Cheng, *Article VI of the 1967 Space Treaty Revisited:
    "International Responsibility," "National Activities," and "the
    Appropriate State*,*"* 26 [J. Space L]{.smallcaps}. 7, 9 (1998).

    > Responsibility means answerability, answerability for one's acts
    > and omissions, for their being in conformity with whichever sys­tem
    > of norms... may be applicable.... Responsibility... \[does\] not
    > necessarily involve payment of compensation, especially when no
    > damage has been caused, \[but, rather, can take the form of\] for
    > example assurances of nonrepe­tition. The term liability is used to
    > specifically denote the obligation to bear the consequences of a
    > breach of legal duty, in particular the obligation to make
    > reparation for any damaged caused.... \[R\]espsonsibility is a
    > broader concept than liability.

    *Id*.

[^183]: [Christol,]{.smallcaps} *supra* note Error: Reference source not
    found, at 91.

[^184]: *See e.g.*, Edward G. Lee, *Liability for Damage Caused by Space
    Debris: The Cosmos 954 Claim*, in 26 [The Canadian Yearbook of
    International Law 273, 278]{.smallcaps} (C.B. Bourne ed., 1988)
    (discussing the relationship between Article V of the Rescue
    Agreement and the Liability Convention).

[^185]: Liability Convention[,]{.smallcaps} *supra* note Error:
    Reference source not found, art. I.

[^186]: *Id.* art. III.

[^187]: *Id*.

[^188]: 1998 IGA, *supra* note Error: Reference source not found, art.
    16.

[^189]: *Id.* art. 16.3(a).

[^190]: *Id*. art. 17, para. 1. The ISS cross-waiver of liability only
    applies to claims for damage arising out of "Protected Space
    Operations," as defined in Article 16.2(f). *See also* Moenter,
    *supra* note Error: Reference source not found, at 1047-48
    (describing the cross waiver of liability of the 1998 IGA).

[^191]: *See* 1998 IGA, *supra* note Error: Reference source not found,
    art. 12(2).

[^192]: Liability Convention[,]{.smallcaps} *supra* note Error:
    Reference source not found, art. V; *see also* 1998 IGA, *supra*
    note Error: Reference source not found, art. 17.3 (Partners may
    conclude separate agreements regarding the apportionment of any
    joint and several liability arising out of the Liability
    Convention).

[^193]: "The term 'space object' includes component parts of a space
    object as well as its launch vehicle and parts there­of."
    Registration Convention, *supra* note Error: Reference source not
    found, art. I. For purposes of international law, "space object" can
    be defined as "an object designed and intended to penetrate into
    outer space." *See supra* text accompanying notes Error: Reference
    source not found-31.

[^194]: [Myers S. McDougal, et al., Law and the Public Order in Outer
    Space]{.smallcaps} 585-86 (Yale Univ. Press 1963).

[^195]: Registration Convention, *supra* note Error: Reference source
    not found, art. II, para. 1.

[^196]: *Id*. art. I.

[^197]: Moenter, *supra* note Error: Reference source not found, at
    1044.

[^198]: Reynolds, *supra* note Error: Reference source not found, at
    115.

[^199]: [Bin Cheng]{.smallcaps}, *The Moon Treaty; Agreement Governing
    the Activities of States on the Moon and Other Celestial Bodies
    within the Solar System other than Earth*, 33 CLP 213 (1980),
    *reprinted in* [Studies in Space Law,]{.smallcaps} *supra* note
    Error: Reference source not found, at 357. According to Cheng, the
    Moon Treaty is also perhaps the most poorly drafted of the five
    treaties that have emanated from COPUOS. *Id*. at 374.

[^200]: *Id.* at 357 (noting that, heretofore, international law divided
    the world into three parts: "(i) national territory, (ii) r*es
    nullis*, *i.e*., areas which may be acquired as national territory,
    and (iii) *res extra commercium*, *i.e*., areas which by law are not
    susceptible to national appropriation); *compare*
    [Christol,]{.smallcaps} *supra* note Error: Reference source not
    found, at 318-19 ("\[T\]he \[Moon\] Treaty allows for exploitation
    by both public and private legal persons of natural resources that
    have been reduced to possession by the act of removing them from
    their original in place location. Once such materials and resources
    are no longer in place the possessor may maintain pro­prietary
    rights."). For discussion of the provisions in the Moon Treaty that
    together define the territorial status labeled "the common heritage
    of mankind," see [Cheng]{.smallcaps}, *supra* note Error: Reference
    source not found, at 367-74.

[^201]: Vlasic *in* [Peaceful Uses of Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 43; *cf.* Vlasic, *supra* note
    Error: Reference source not found, *in* [Perspectives on Int'l
    L.]{.smallcaps}, *supra* note Error: Reference source not found, at
    397 (noting that the Moon Treaty (art. 1 and 3) corrects an omission
    in OST Article IV(1), by expressly prohibiting the stationing of
    weapons of mass destruction in orbits around the Moon and other
    celestial bodies or tra­jectories to or around them); *and see
    generally* [Bin Cheng,]{.smallcaps} Definitional Issues in Space
    Law: the "Peaceful Use" of Outer Space, including the Moon and other
    Celestial Bodies (Adapted from the paper *The Status of Outer Space
    and Relevant Issues: Delimitation of Outer Space and Definitions of
    "Peaceful Use,"* 11 [J. Space L]{.smallcaps}. 89 (1983)),
    *in *[Studies in Space Law,]{.smallcaps} *supra* note Error:
    Reference source not found, at 513, 532-34 (discussing the
    provi­sions of the Moon Treaty related to the military use of space).

[^202]: *See generally supra* note Error: Reference source not found and
    Error: Reference source not found.

[^203]: Limited-Test-Ban Treaty, *supra* note Error: Reference source
    not found, art. I.

[^204]: Outer Space Treaty, *supra* note Error: Reference source not
    found, art IV, para. 1.

[^205]: *Id.* art IV, para. 2.

[^206]: *Id*. For a comprehensive summary of military activities
    prohibited and permitted by treaty or customary international law,
    *see* Vlasic *in* [Peaceful Uses of Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 47-50.

[^207]: Outer Space Treaty, *supra* note Error: Reference source not
    found, art IV, para. 2; *see also* sources cited *supra* note Error:
    Reference source not found.

[^208]: 1998 IGA, *supra* note Error: Reference source not found, art.
    1, para. 1.

[^209]: Vlasic *in* [Peaceful Uses of Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 37; *see also* Bhupendra
    Jasani, *Introduction* to [Peaceful Uses of Space,]{.smallcaps}
    *supra* note Error: Reference source not found, at 1, 7.

[^210]: Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 72,
    1959 U.S.T. LEXIS 420 (ratified by the United States on Aug. 18,
    1960; entered into force on Jun. 23. 1961).

[^211]: [Reijnen,]{.smallcaps} *supra* note Error: Reference source not
    found, at 88.

[^212]: *See* Vlasic *in* [Peaceful Uses of Space]{.smallcaps}, *supra*
    note Error: Reference source not found, at 41 n.12; *see also* Aldo
    A. Cocca, Historical Precedents for Demilitarization, in [Peaceful
    Purposes,]{.smallcaps} *supra* note Error: Reference source not
    found, at 29, 41-42.

[^213]: Vlasic *in* [Peaceful Uses of Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 41.

[^214]: *See* [Cheng,]{.smallcaps} *supra* note Error: Reference source
    not found, *in* [Studies in Space Law,]{.smallcaps} at 650-51.

[^215]: Outer Space Treaty, *supra* note Error: Reference source not
    found, art. IV, para. 2.

[^216]: *Id*. art. III; *see also supra* text accompanying notes Error:
    Reference source not found-35.

[^217]: *See* Jasentuliyana, *supra* note Error: Reference source not
    found, *in* [Peaceful Purposes,]{.smallcaps} at 128; *and* Stephen
    Gorove, Article IV of the Outer Space Treaty and Some Alternatives
    for Further Arms Control, *in* [Peaceful Purposes,]{.smallcaps}
    *supra* note Error: Reference source not found, at 77, 82 (asserting
    that the drafters intended to give "peaceful" a distinct meaning
    within the context of the treaty itself); *cf.* [Cheng,]{.smallcaps}
    *supra* note Error: Reference source not found, *in* [Studies in
    Space Law,]{.smallcaps} at 650 (arguing that Article I of the
    Antarctic Treaty, in which the word "peaceful" is used in
    contradistinction to "military," was "very much on the minds of
    those who drew up the 1967 Space Treaty"). In this regard, the
    argument that the Outer Space Treaty prohibits all military
    activities on the Moon and other celestial bodies, *except* those
    expressly permitted by the treaty (*see e.g*., [Lachs,]{.smallcaps}
    *supra* note Error: Reference source not found, at 106-08), would
    appear to gain support from the fact that at the time the treaty was
    adopted, military activities were not being carried out in these
    areas.

[^218]: *See* Vlasic *in* [Peaceful Uses of Space]{.smallcaps}, *supra*
    note Error: Reference source not found, at 42, 45. Vlasic notes that
    at the time negotiations on the Outer Space Treaty began, the United
    States and Soviet Union were both already "using outer space for a
    variety of military purposes" (*e.g.*, surveillance, communications,
    navigation, etc.), which the United States openly regarded as
    "peaceful." While the Soviet Union publicly opposed these
    activities, it secretly engaged in them as well, and thus acquiesced
    to the U.S. interpretation."

[^219]: [Cheng,]{.smallcaps} *supra* note Error: Reference source not
    found, *in* [Studies in Space Law,]{.smallcaps} at 515; *see also*
    Morgan, *supra* note Error: Reference source not found, at 304
    nn.353-55.

[^220]: *E.g.*, National Security Council Action No. 1553 (Nov. 21,
    1956) (outlining a U.S. disarmament proposal to prohibit "the
    production of objects designed for travel in or projection though
    outer space for military purposes," which would have ultimately
    banned ICBMs as well as military satellites), *quoted in*
    [Stares,]{.smallcaps} *supra* note Error: Reference source not
    found, at 54 ("It is difficult to assess how sincere Eisenhower and
    his administration were with these proposals."); *see also* Vlasic
    *in* [Peaceful Uses of Space]{.smallcaps}, *supra* note Error:
    Reference source not found, at 39.

[^221]: *See* [National Security Council, Preliminary U.S. Policy in
    Outer Space (NSC 5814/1)]{.smallcaps} (Jun. 20, 1958), *reprinted
    in* [Organizing for Exploration,]{.smallcaps} 1 [Exploring the
    Unknown: Selected Documents in the History of the U.S. Civil Space
    Program]{.smallcaps} (J. Logsdon ed., 1998); *quoted in*
    [Stares,]{.smallcaps} *supra* note Error: Reference source not
    found, at 55; *cf.* Vlasic *in* [Peaceful Uses of
    Space]{.smallcaps}, *supra* note Error: Reference source not found,
    at 40 ("\[A\]s early as 1958-59, the legal position of the United
    States with respect to the meaning of the phrase "peaceful uses"
    became crystallized along lines quite dissimilar from the initial
    rhetoric.").

[^222]: National Aeronautics and Space Act of 1958, Pub. L. No. 85-568,
    72 Stat. 426 (1958) (unamended) (codified as amended at 42 U.S.C.
    §§ 2451 et seq. (2000)) \[hereinafter 1958 Space Act\].

[^223]: *Id.* §102.

[^224]: *See* [Stares,]{.smallcaps} *supra* note Error: Reference source
    not found, at 59-71; *see also* [Spires,]{.smallcaps} *supra* note
    Error: Reference source not found, at 108-12.

[^225]: Morgan, *supra* note Error: Reference source not found, at 305;
    *see* [U.N. Charter]{.smallcaps}, *supra* note Error: Reference
    source not found, art. 1, para. 1, and art. 2, para. 3.

[^226]: *Id.* at 305 n.357.

[^227]: Vlasic *in* [Peaceful Uses of Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 40; *see also* Dembling &
    Arons, *supra* note Error: Reference source not found, at 434.
    Commenting on the prospect of future efforts to address the
    non-incorporation of outer space into the Outer Space Treaty
    provision in Article IV(2), which confines all activities on the
    Moon and other celestial bodies to solely "peaceful purposes,"
    Dembling, then General Counsel of NASA, writes: "In the interim, one
    might conclude that any military use of outer space must be
    restricted to *nonaggressive purposes* in view of Article III, which
    makes applicable international law including the Charter of the
    United Nations" (emphasis added). *But cf.* [Cheng,]{.smallcaps}
    *supra* note Error: Reference source not found, *in* [Studies in
    Space Law,]{.smallcaps} at 651-52 (proposing that the U.S.
    interpretation of "peaceful" as meaning "non-aggressive" is due to
    "an initial misreading of the Treaty and the erroneous belief that
    the restriction of the use for 'exclusively peaceful purposes'...
    extends to the whole of outer space.").

[^228]: *See* [Stares,]{.smallcaps} *supra* note Error: Reference source
    not found, at 69.

[^229]: Vlasic *in* [Peaceful Uses of Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 40. "For more than twenty
    years scholars of international law in the Soviet Union have
    unanimously stated that 'use for peaceful purposes' should be
    interpreted as 'nonmilitary use.'" *Id*. at n.11.

[^230]: *See* Morgan, *supra* note Error: Reference source not found, at
    304; *and* [Cheng,]{.smallcaps} *supra* note Error: Reference source
    not found, *in* [Studies in Space Law,]{.smallcaps} at 650.

[^231]: *See* [Stares,]{.smallcaps} *supra* note Error: Reference source
    not found, at 71 ("Soviet diplomatic opposition to U.S.
    reconnaissance satellites effectively ceased in September 1963.").
    S*ee also* Vlasic *in* [Peaceful Uses of Space]{.smallcaps}, *supra*
    note Error: Reference source not found, at 42; *and* Morgan, *supra*
    note Error: Reference source not found, at 304.

[^232]: Vlasic *in* [Peaceful Uses of Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 45 n.16 (noting that "\[a\]
    rule becomes a rule of customary international law when a
    significant majority of states, including states whose interests are
    specifically affected, act in accordance with that rule because they
    believe it to be binding... \[and\] state practice... \[is\] both
    extensive and virtually uniform." (citing The North Sea Continental
    Shelf (F.R.G. v. Den. and Neth.), 1969 I.C.J. 3, 46, para. 73 (Feb
    20)).

[^233]: This debate "has not been resolved and may never be." Morgan,
    *supra* note Error: Reference source not found, at 241; *see also*
    [Cheng,]{.smallcaps} *supra* note Error: Reference source not found,
    *in* [Studies in Space Law,]{.smallcaps} at 650-52.

[^234]: Vlasic *in* [Peaceful Uses of Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 45.

[^235]: Morgan, *supra* note Error: Reference source not found, at 303
    (quoting Reed & Norris, supra note Error: Reference source not
    found, at 678). In practice, this has led to an understanding among
    the major space actors that all military activities in outer space
    are permissible, unless specifi­cally prohibited by treaty or
    customary international law. Vlasic *in* [Peaceful Uses of
    Space]{.smallcaps}, *supra* note Error: Reference source not found,
    at 38, 45.

[^236]: Manfred Lachs, *Views from the Bench: Thoughts on Science,
    Technology and World Law*, 86 A.J.I.L. 673, 686 (1992).

[^237]: Outer Space Treaty, *supra* note Error: Reference source not
    found, art. IV; *see also* Vlasic *in* [Peaceful Uses of
    Space]{.smallcaps}, *supra* note Error: Reference source not found,
    at 50.

[^238]: Vlasic *in* [Peaceful Uses of Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 50.

[^239]: Outer Space Treaty, *supra* note Error: Reference source not
    found, art. IV, para. 2. For the full text, *see supra* text
    accompanying notes Error: Reference source not found43-44. The
    identical language is used in the Moon Treaty, *supra* note Error:
    Reference source not found, art. III, para. 4.

[^240]: 1998 IGA, *supra* note Error: Reference source not found, art.
    1, para. 1, and art. 14, para. 1; *see supra* text accompanying note
    Error: Reference source not found.

[^241]: *See* [Doyle]{.smallcaps}, *supra* note Error: Reference source
    not found, at 85.

[^242]: Agreement on the International Telecommunications Satellite
    Organization (Intelsat), Aug. 20, 1971, 23 U.S.T. 3810, 1971 U.S.T.
    LEXIS 157 (entered into force on Feb. 12 1973) \[hereinafter
    Intelsat Agreement\], *reprinted in* 4 [U.S. Space Law]{.smallcaps},
    *supra* note Error: Reference source not found, § II.A.9 (Oct.
    1986); Operating Agreement Relating to the International
    Tele­communications Satellite Organization (Intelsat), Feb. 12 1973,
    23 U.S.T. 4091, 1973 U.S.T. LEXIS 302), *reprinted in* 4 [U.S. Space
    Law]{.smallcaps}, *supra* note Error: Reference source not found, §
    II.A.10 (Oct. 1986).

[^243]: The Intelsat Agreement prohibits use of its space segment to
    provide "specialized communication services" for military purposes.
    Intelsat Agreement, supra note Error: Reference source not found,
    art. III, paras. (d) and (e). However, the services provided to
    [DoD]{.smallcaps} are considered "public communication services"
    available to the military forces of any signatory State. Since
    Intelsat does not provide any "specialized services" (which
    evidently would require equipping satellites with special hardware)
    to anyone at this time, military use of the system is not an issue.
    Morgan, *supra* note Error: Reference source not found, at 293-94.

[^244]: [Doyle]{.smallcaps}, *supra* note Error: Reference source not
    found, at 86.

[^245]: Convention on the International Maritime Satellite Organization
    (Inmarsat), Sept. 3, 1976, 31 U.S.T. 1, 1976 U.S.T. LEXIS 309
    (entered into force on Jul. 16, 1979) \[hereinafter Inmarsat
    Convention\], *reprinted in* 4 [U.S. Space Law]{.smallcaps}, *supra*
    note Error: Reference source not found, § II.A.12 (Oct. 1986);
    Operating Agreement on the International Maritime Satellite
    Organization (Inmarsat), Jul. 16, 1979, 31 U.S.T. 135, 1979 U.S.T.
    LEXIS 309, *reprinted in* 4 [U.S. Space Law]{.smallcaps}, *supra*
    note Error: Reference source not found, § II.A.13 (Oct. 1986).

[^246]: Morgan, *supra* note Error: Reference source not found, at 280.

[^247]: "The Organization shall act exclusively for peaceful purposes."
    Inmarsat Convention, *supra* note Error: Reference source not found,
    art. 3(3). S*ee also* Nick Rowe, Peaceful Purposes (1999) (fact
    sheet published by the Inmarsat Legal Services Dept.) (on file with
    author) ("Whilst Inmarsat is now privatized and is no longer subject
    to the Convention, it is nevertheless obliged under its Public
    Services Agreement to continue to act exclusively for peaceful
    purposes.").

[^248]: *See* Morgan, *supra* note Error: Reference source not found, at
    265-70 (discussing military satellite use during regional
    conflicts).

[^249]: [Doyle]{.smallcaps}, *supra* note Error: Reference source not
    found, at 91.

[^250]: *Id.* at 88, 90 (*Leasat* had a design life beyond the time
    period of the Navy's needs and, thus, under Hughes' lease
    arrangement, Hughes retained the right to recover the satellite
    after the expiration of the Navy's lease and revert the balance of
    its useful life to commercial applications).

[^251]: For a historical overview of the U.S. policy of segregating
    military and civilian space activities, *see* Christopher M. Petras,
    The Convergence of U.S. Military and Commercial Space Activities
    (2001) (unpublished LL.M. thesis, McGill University) (on file with
    author).

[^252]: *See* Hettena, supra note Error: Reference source not found
    (quoting U.S. Senator Mikulski discussing the growing cooperation
    between the military and NASA).

[^253]: *See e.g.*, *supra* note Error: Reference source not found.

[^254]: 42 U.S.C. § 2451(d)(6).

[^255]: *See* Craig Covault, *Navy Enlists NASA In the War on Terror*,
    [Aviation Wk. & Space Tech.]{.smallcaps}, Apr. 8, 2002, at 30; *see
    also* Hettena, supra note Error: Reference source not found
    (According to NASA, the images that the U.S. military used in
    Afghanistan were "available to 'anyone and everyone,' including a
    host of federal agencies and foreign governments.").

[^256]: Act of Oct. 30, 1987, *supra* note Error: Reference source not
    found, § 106. Section 108 of the same law provides for "development
    of the space station... \[as\] part of a balanced *civilian* space
    program." (emphasis added).

[^257]: *See generally* S. Neil Hosenball, The Space Station---Past,
    Present and Future with some Thoughts on some legal Questions that
    need to be addressed, *in* [Space Stations]{.smallcaps}, *supra*
    note Error: Reference source not found, at 36 ("The Space Station
    has been fully justified as a *civil and commercial space
    facility*... No national security related funds will be used \[for
    Space Station development\].") (emphasis added).

[^258]: [Cheng,]{.smallcaps} *supra* note Error: Reference source not
    found, *in* [Studies in Space Law,]{.smallcaps} at 653 n.44
    (emphasis added).

[^259]: *Id*.

[^260]: Belgium-Denmark-France-Federal Republic of
    Germany-Italy-Netherlands-Spain-Sweden-Switzerland-United Kingdom:
    Convention for the Establishment of a European Space Agency, May 30,
    1975, art. II, 14 I.L.M. 855, 865-66 (1975) (entered into force Oct.
    30, 1980) \[hereinafter ESA Convention\].

[^261]: [Cheng,]{.smallcaps} *supra* note Error: Reference source not
    found, *in* [Studies in Space Law,]{.smallcaps} at 652.

[^262]: Moenter, *supra* note Error: Reference source not found, at
    1045.

[^263]: *See supra* text accompanying notes Error: Reference source not
    found5-51; *and supra* text accompanying notes Error: Reference
    source not found8-Error: Reference source not found8.

[^264]: *Cf*. [Cheng,]{.smallcaps} *supra* note Error: Reference source
    not found, *in* [Studies in Space Law,]{.smallcaps} at 651-52.

[^265]: [U.N. Charter]{.smallcaps}, *supra* note Error: Reference source
    not found, arts. 25, 39, 42, and 48.

[^266]: *See* Schmitt, *supra* note Error: Reference source not found,
    at 1087; *see also* Morgan, *supra* note Error: Reference source not
    found, at 295 ("'peaceful purposes' does not exclude military
    activities so long as those activities are consistent with the
    United Nations Charter").

[^267]: *See* Sean R. Mikula, *Blue Helmets in the Next Frontier: The
    Future is Now*, 29 [Ga. J. Int'l & Comp. L.]{.smallcaps} 531, 549-50
    nn.85-87 (2001) and sources cited (discussing the international
    conference on preventing an arms race in space that was initiated
    and hosted by Russian President Vladimir Putin in April 2001).

[^268]: *See e.g.*, Draft Treaty on the Prohibition of the Stationing of
    Weapons of Any Kind in Outer Space, U.N. GAOR, 36th Sess., Annex,
    U.N. Doc. A/36/192 (1981) (presented to the U.N. Secretary-General
    by the U.S.S.R. Minister for Foreign Affairs on Aug. 10, 1981).

[^269]: *See supra* notes Error: Reference source not found, Error:
    Reference source not found; *see also* [Stares,]{.smallcaps} *supra*
    note Error: Reference source not found, *passim*.

[^270]: David Tan, *Towards a New Regime for Protection of Outer Space
    as the "Province of All Mankind,"* 25 [Yale J. Int'l L.]{.smallcaps}
    145, 167 n.100 (2000), citing Albert Gore, Jr., *Outer Space, the
    Global Environment, and International Law: Into the Next Century*,
    57 [Tenn. L. Rev.]{.smallcaps} 329, 332 (1990).

[^271]: *See* Mikula, *supra* note Error: Reference source not found, at
    550.

[^272]: For an in-depth discussion of the history of Soviet military
    space capabilities, *see* [Nicholas L. Johnson, Soviet Military
    Strategy in Space]{.smallcaps} (Jane's Publishing Co. 1987); *see
    also* Tan, *supra* note Error: Reference source not found, at 167
    n.100.

[^273]: Outer Space Treaty, *supra* note Error: Reference source not
    found, art. IV, para. 2.

[^274]: Gorove, *supra* note Error: Reference source not found, *in*
    [Peaceful Purposes,]{.smallcaps} *supra* note Error: Reference
    source not found, at 82; *see also* [Cheng]{.smallcaps}, *supra*
    note Error: Reference source not found, at 369 ("\[T\]he 1967 Space
    Treaty in its Article 1(3) asserts a general freedom of scientific
    investigation in outer space.").

[^275]: Gorove, *supra* note Error: Reference source not found, *in*
    [Peaceful Purposes,]{.smallcaps} *supra* note Error: Reference
    source not found, at 82;

[^276]: *E.g.*, Limited-Test-Ban Treaty, *supra* note Error: Reference
    source not found, forbids State parties from carrying out the
    explosion of nuclear devices in outer space; *see also, e.g.*, Outer
    Space Treaty, *supra* note Error: Reference source not found, art.
    IV (bans placement of nuclear weapons or other weapons of mass
    destruction in earth orbit); *and* Convention on the Prohibition of
    Military or Any Other Hostile Use of Environmental Modification
    Techniques, Dec. 10, 1976, U.N. GAOR, 31st Sess., Supp. No. 39, at
    36, U.N. Doc. A/RES/31/72 (1977), 31 U.S.T. 333 (ratified by the
    United States on Dec. 13, 1979; entered into force on Jan. 17, 1980)
    (prohibits military or other hostile use of environmental
    modification techniques---*i.e.*, the deliberate manipulation of
    natural processes---that are widespread, long lasting, or severe, to
    include changes to the dynamics, composition or structure of outer
    space).

[^277]: *See* Morgan, *supra* note Error: Reference source not found,
    at 306 ("\[S\]tate practice appears to confirm that 'use' is to be
    distinguished from 'purpose.' Take, for example, the 'Star Wars'
    program... Although arguably 'non-peaceful' or 'aggressive' uses
    might be made of space, the stated purpose of the program was to
    defend the U.S., a peaceful 'purpose' \[of\] self-defense.
    Therefore, the drafters very deliberately distinguished between
    'use' from 'purpose' and intentionally chose the latter. As a
    result, through the use of the term 'purpose,' the drafters of the
    Outer Space Treaty incorporated a 'rightful intent' test.").

[^278]: *See* sources cited *supra* note Error: Reference source not
    found.

[^279]: 1998 IGA, *supra* note Error: Reference source not found, art.
    1, para. 1.

[^280]: *Cf.* Logsdon, *supra* note Error: Reference source not found,
    at 245 ("Among the many unresolved issues \[with respect to ISS
    commercialization\] are... the legal issues associated with
    commercial research aboard the ISS.").

[^281]: 1998 IGA, *supra* note Error: Reference source not found, art.
    5, para. 1.

[^282]: *Id*. art. 1, para. 3, and art. 7, para. 1; *see also* NASA-ESA
    MOU, *supra* note Error: Reference source not found, art. 8. *See*
    text accompanying notes 40-51 (discussing the ISS "consensus
    management" regime).

[^283]: 1998 IGA, *supra* note Error: Reference source not found, art.
    9, para. 3(b).

[^284]: *Id*. art. 1, para. 1, and art. 2, para. 1.

[^285]: Outer Space Treaty, *supra* note Error: Reference source not
    found, art. IX; *see also* 1998 IGA, *supra* note Error: Reference
    source not found, art. 9, para. 4 ("\[E\]ach Partner... is to avoid
    causing serious adverse effects on the use of the Space Station by
    the other Partners.").

[^286]: 1998 IGA, *supra* note Error: Reference source not found, art.
    7, para. 3; art. 9, para. 3; and art. 1, para. 1.

[^287]: *See supra* text accompanying notes Error: Reference source not
    found-69.

[^288]: *See* *supra* sources cited at note Error: Reference source not
    found.

[^289]: 1998 IGA, *supra* note Error: Reference source not found, art.
    23, para. 1-2 (emphasis added); NASA-ESA MOU, *supra* note Error:
    Reference source not found, art. 18.

[^290]: *Id.* art. 23, paras. 2 and 4.

[^291]: *Id*. art. 9, para. 3(a).

[^292]: *Id.* art. 9, para. 3(b).

[^293]: *See e.g.*, *supra* text accompanying notes Error: Reference
    source not found-59.

[^294]: *See* Logsdon, *supra* note Error: Reference source not found,
    at 245-46.

[^295]: [Doyle]{.smallcaps}, *supra* note Error: Reference source not
    found, at 3. Each of the main uses of a permanent manned orbiting
    space station, including "observation," "space labs," and "mission
    staging" represent dual civil/military capabilities.
    [Doyle]{.smallcaps}, *supra*, at 4.