The Role of the Air-Space Boundary in Regulating Military Use of Outer Space

Whereas the existence of space law as the specific body of law applicable to either outer space as an area or to outer space activities tacitly implies a distinction between space law and general international law, thus presenting the question of its territorial or material scope, military activities have developed without regard for such theoretical divides. Instead, they operate in a continuum of physical and military opportunity, ever seeking for advantage over the adversary. This does not imply that no law applies to them. What it does imply, however, is that applying discrete legal systems to continuous activities may not be straightforward. This article seeks answers to two interrelated questions: which bodies of law apply to military space activities, and what can the practical application of these bodies of law to military space activities teach us about their respective scope? In answering the first question, the article, in its second and third sections, presents an overview of the main concepts and practical implications of concurrently applying general international law, the law of armed conflict, and international space law to military space activities. In doing so, it highlights a number of practical questions and manifest voids that, today, preclude the coherent regulation of military space activities. In spite of these voids, the article finds that existing legal systems contain most, if not all of the principles that, if applied creatively and in good faith, should permit the rule of law to govern military space activities. De lege ferenda, the article concludes that the law should evolve to become more reflective of practice, and rely less on artificial distinctions. To this end, it advocates a nuanced interpretation of existing space law provisions and the development of authoritative interpretations that allow the practical application of international humanitarian law in a space context.status: publishe