The Space (innovation) Race : The Inevitable Relationship between Military Technology and Innovation

Access to outer space is becoming more achievable by a wider array of state and non-state actors. This access is partly fuelled by the constant development of technology that brings down the cost of such access and makes actual space activities more varied and widespread. Associated with these developments is the correlative use of space by military forces, thus manifesting an enduring competition for strategic ascendancy. The combination of multiple actors, advancing technology and the ever-present reality of geopolitical contention in space has put pressure on the existing outer space treaty regime. This treaty regime was primarily drafted in a different era where the realities of contemporary civil–military space activity could only be imagined. This article surveys the development of technology and the nature of civil–military activity in space. It argues that while the outer space treaty regime provides a sound starting point for addressing technological development and military activity in space, there is a strong case for invoking other principles and rules of international law to tackle emerging issues. Presciently, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (‘Outer Space Treaty’) actually envisages this application of general international law, but there has been a tendency to marginalise this invocation and assimilation. This article argues that the time has come to reconcile differing legal regimes to craft solutions for the current space realities. Moreover, creative thinking in merging ‘soft’ international law with ‘hard’ domestic law, reaching past the inertia that current international decision-making bodies seem to exhibit, and rethinking interpretations of some Outer Space Treaty provisions by having regard to actual state practice, are areas which need to be fully explored. More strategically, creating a new appreciation and legal mindset for tackling the exponential growth of technology and civil–military space activity is required if space exploration and use is to be sustainably undertaken