Speaker
Description
Does the prohibition on the use of force apply to space objects, which are registered by international intergovernmental organisations? Art 2(4) UN Charter provides that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. The Charter prohibition on the use of force relies on the then and now dominant concept of territorial sovereignty. Of course, there is no territorial sovereignty in outer space, rather a quasi-personal jurisdiction over space objects by way of registration; not unlike the flag state principle for ships on the High Seas. Except for pirate vessels, every ship will bear a state’s flag, even if owned by an international organisation. Thus, a use of force against it may, subject to the circumstances, be considered a use of force against the flag state. In outer space, however, exists the remarkable situation of publicly operated space objects, which are registered to international organisations and are not on the territory or under the jurisdiction of any single state. While an international organisation may internally determine, which member state’s law applies to such an object, externally, that is not binding. The UN Charter prohibition on the use of force prohibits the use of force against the territorial sovereignty or political independence of any state. Art III OST clarifies that the prohibition is applicable to outer space as part of the Charter. A textual interpretation alone doesn’t appear to permit an inclusion of international organisations into the protective scope of this prohibition. However, taking it in its context of the phrase “or in any other manner inconsistent with the Purposes of the United Nations” and its object and purpose, another conclusion may possibly be arrived at. Once subject to the protective scope of the prohibition, one may ponder the consequences: Does a use of force for example against a ESA-registered space object, if it amounted to an armed attack, give a right to individual or collective self-defence to ESA member states? In light of contemporary doctrine on the international legal personality of international organisations, being more than just the sum of their parts, questions to this respect may arise. The right to self-defence, as regulated in Art 51 UN Charter, is inherent to states. Only the state, which falls victim to an armed attack is entitled to exercise individual self-defence against the aggressor. Collective self-defence may be exercised by other states to aid the state, which is a victim of an armed attack. What now is the situation if an armed attack is carried out against ESA-registered space objects and, thus, there is no victim state, but only a “victim international organisation”? What measures are ESA member states entitled to adopt, to protect the organisation’s space objects?
