Cassandra Steer (Institute of Air and Space Law) has posted Avoiding Legal Black Holes: International Humanitarian Law Applied to Conflicts in Outer Space (Proceedings of the 58th (2015) Colloquium on the Law of Outer Space, (Eleven International Publishing, Forthcoming)) on SSRN. Here is the abstract:
The applicability of international humanitarian law (IHL) is not dependent on any domestic legal system, however its enforcement is at least partially subject to domestic application. There are scenarios in which States assert they can derogate from IHL and other rules of international law due to emergency or threats to security. When it comes to hostilities that take place in or through Outer Space, the fact that Outer Space may not be appropriated as sovereign territory means that regulation of military activities and their consequences are truly international. No State can exert exclusive jurisdiction over a breach of IHL that takes place “in” Outer Space. However this also means there is a greater risk of abuse of the rules of IHL by the creation of new legal black holes; if it’s up to individual States to interpret and apply these rules, they may attempt to justify unlawful derogations in the name of emergency or security. Generally IHL must apply to space in the same ways it applies to terrestrial conflicts, in the sense that justifiable derogations for reasons of national security are truly exceptional and very limited. The question then arises, can States derogate from either the space treaties or from IHL under claims of State security? This paper argues that the international rule of law ensures their continued application in times of conflict in Outer Space, and provides a set of principles that ensure the risk of legal black holes is limited.