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may be nationalized under international law.102  Space and telecommunications systems are also intertwined, including in such functions as: communications relay, imagery collection, missile warning, navigation, weather forecasting, and signals intelligence.103 However, the limitations inherent in applying space law104 to cyberspace are illustrated in space law’s failure to address whether the legal regime applies during armed conflict.105  There exists also no legal prohibition against developing and using space weapons besides the placement of nuclear weapons into orbit.106

The military use of space was not completely forbidden by the 1967 U.N. Outer Space Treaty, as can be observed by the existence of earth-orbit military reconnaissance satellites, remote-sensing satellites, military global-positioning systems, and space-

102 The OST, dubbed the Magna Carta for space, states that “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.”  OST Preamble; Interview with Steve Doyle, Executive Vice President, Clean Energy Systems in Sacramento, CA (Oct. 2, 2007).

103 DOD, supra note 33.

104 Since its inception after the launch of Sputnik in 1958, space law has created a whole new field of legal terminology that has challenged national governments and international institutions to redefine ideals for space operations.  This is made evident by the five principal space law treaties signed between 1967 and 1981.  These were the first international treaties to employ the terms “mankind” and “people” rather than “states,” “nations,” or “international community,” and affirmatively recognized the quasi-subject status of non-governmental organizations.  Space law considers the welfare of people as the beginning and end of all human activity and recognizes all humans as the holders of fundamental, non-transferable rights.  This puts it at odds with traditional notions of Westphalian sovereignty by limiting the positive rights of states, and thereby raising the profile of non-state actors in ways that are now being challenged as technology opens up the final frontier.

105 An example of this phenomenon is the context of space law occurred when both the U.S. and U.S.S.R. began launching spy satellites that crossed over one another’s territory.  If both nations had objectively analyzed the situation beforehand, they likely would have wished to prevent espionage on this scale.  Since both countries were already engaging in this practice, though, it soon became part of customary international law, which entered into the 1967 Outer Space Treaty and as a result laid the foundation for the governance regime of outer space.  In contrast, air law was developed at a time when many nations were fielding air forces together and as such had a mutual stake in creating a highly restricted regime based on severe conceptions of sovereignty and territorial integrity.  An applicable Civil Aviation accord includes the 1944 Convention on International Civil Aviation (Chicago Convention).  This treaty codifies safe passage and service (Article 28), and compliance with international standards (Article 37).  Most of the provisions of the Chicago Convention are “inconsistent with a state of armed conflict.” Chicago Convention, Art. 89.

106 In 1989 a US Congressional study called ‘Military Space Forces: The Next 50 Years,’ was envisioning the day when aerospace corporations would “mine the sky” for profit.  The study cited US plans to establish military bases on the Moon and control the shipping lanes from the Earth.  See generally John Collins, Military Space Forces: The Next 50 Years (1989).  

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