Mitigating International Norms Through Contestation: Peaceful Purposes in Space Law and the Security Dilemma

The present contribution proposes to analyse the evolution of the meaning of ‘peaceful’ in space law as an example of how international norms can be emptied of their substance without putting their legality into question. By highlighting different phases of the evolution of the ‘peaceful purposes’ principle and linking it to the peculiar context and security dilemmas of the time, the motivations and the form in which the principle was contested are fleshed out. Drawing on this case study of legislative contestation, it concludes that in matters related to international security, security dilemmas can shape subsequent State practice, allow for a translation of the power dynamics of the international community into international law, and lead to the erosion of norms. In these circumstances, the importance given to the subsequent practice of the states should be reduced in relation to the other interpretive tools.


Abstract
The present contribution proposes to analyse the evolution of the meaning of 'peaceful' in space law as an example of how international norms can be emptied of their substance without putting their legality into question.By highlighting different phases of the evolution of the 'peaceful purposes' principle and linking it to the peculiar context and security dilemmas of the time, the motivations and the form in which the principle was contested are fleshed out.Drawing on this case study of legislative contestation, it concludes that in matters related to international security, security dilemmas can shape subsequent State practice, allow for a translation of the power dynamics of the international community into international law, and lead to the erosion of norms.In these circumstances, the importance given to the subsequent practice of the states should be reduced in relation to the other interpretive tools.

I. Introduction
The preamble of the United Nations General Assembly (UNGA) resolution 76/231 '[urges] all States, when developing, planning and executing their space activities, to remain committed to the peaceful exploration and use of outer space'. 1 This resolution created the ongoing Open-Ended Working Group to reduce space threats through norms, rules, and principles of responsible behaviours (OEWG).Yet, the idea that space should be used for peaceful purposes is not new.The first resolution on outer space adopted by the UNGA in 1958 was titled 'Question of the peaceful use of outer space'. 2 It recognised that 'it is the common aim that outer space should be used for peaceful purposes only', wished 'to avoid the extension of present national rivalries into this new field', and established what would become the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS).Since then, the notion of 'peaceful purposes' has been a central issue of space law.Present in legally binding norms (notably Article IV of the Outer Space Treaty (OST) 3 and Article 3 of the Moon Agreement), 4 commonly found in the preambles of space treaties and resolutions, 'peaceful purposes' as the basic premise of space law is 'accepted in principle' but -due to the lack of a conventional definition and changing States positions -'contested in substance'. 5Two schools of thought in international public law scholarship have a diverging view about the exact meaning of keeping space for peaceful purposes.It is either understood as a ban on all possible military uses of space, or as a ban on aggressive military uses violating the United Nations (UN) Charter rules.While the first interpretation was supported by many early space law scholars,6 recent doctrine gives precedence to the interpretation of 'peaceful purposes' as non-aggressive military uses, based on State practice. 7By conflating it with Article 2(4) of the United Nations Charter, this new interpretation de facto mitigates, i. e. empties the principle of its substance.Despite the radicality of this shift, the doctrine does not address the causes nor the actions leading to this change of interpretation.This blind precedence given to State practice is not satisfactory on several grounds: first, it is necessary to look at the dynamics and the processes of past norm mitigation in order to detect and react adequately to the ongoing processes that are leading to norm erosion; second, it disregards the other means of interpretation recognised in the Vienna Convention on the Law of Treaties (VCLT), such as the context or ordinary meaning of the text.In our view, shedding light on how and why States change interpretation over time is thus essential to assessing the weight to give to subsequent State practice.Yet international law scholarship is ill-equipped to assess which States' motives impact their practice of international law and to describe the process of contestation leading to the erosion of a norm.
The following article will therefore look back on both the why and the how of this change in States' interpretation of the 'peaceful purpose' principle by using an interdisciplinary lens.Analysing the different stages of the evolution of the notion of 'peaceful purpose' since its inception, we will argue that the creation of the norm and its subsequent evolution are motivated by and create their own security dilemmas.We will distinguish several phases of evolution.In the early years, the United States (US) takes on the role of the norm entrepreneur, and all actors interpret 'peaceful' as 'non-military'.Responding to an evolving security context, the second phase describes how the US contested both the existence and content of the norm in a discreet manner, by introducing on record a new interpretation which conflated the norm with Article 2(4) UN Charter.This contestation was only partially successful at first, but laid the groundwork for the third phase, culminating with the adoption of the Outer Space Treaty (OST) and the Moon Agreement.These treaties are codified the obligation to use celestial bodies for peaceful purposes only, thus limiting the scope ratione loci of the binding norm.The last phase addresses the shift in State practice towards the interpretation of 'peaceful' as 'non-aggressive', reflected by discussions surrounding the Draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (PPWT).8Drawing on this case study, we will argue that in matters related to international security, security dilemmas can shape subsequent State practice, allow for a translation of the power dynamics of the international community into international law, and lead to norms' erosion.In these circumstances, the importance given to the subsequent practice of states should be reduced in relation to other interpretive tools.

II. Of Contestation and Security Dilemmas
Described as the 'quintessential dilemma', 9 the notion of the security dilemma was coined in the early 1950 s. 10 States, facing an unresolvable uncertainty as to the actions of other actors, 11 must be concerned about being attacked by other entities.In answer to this fear, 'they are driven to acquire more power', which in turn 'renders the others more insecure and compels them to prepare for the worst' and pave the way for a circle of power accumulation and competition. 12For Wheeler and Booth, a security dilemma is a 'two-level strategic predicament' consisting of a 'dilemma of interpretation about the motives, intentions and capabilities of the others', which creates a 'dilemma of response about the most rational way of responding'. 13s we will demonstrate by using the 'peaceful purpose' principle as an example, security dilemmas can spark a process of contestation and affect its outcome.In the case of norms on peace and security, we argue that States should be conceptualised as a risk-advert agent seeking to answer to security dilemmas.As such, the State will consider the existing normative structure and how it is (or is not) addressing the perceived security environment before contesting it.The contestation might in turn trigger security dilemmas for other States, which will shape their reactions to the contestation and might confirm or infirm the validity of the norm and its content.

III. The Evolution of the Notion of Peaceful Purposes Over Time
within the US defence community. 15Sputnik was considered proof that the Union of Soviet Socialist Republics (USSR) possessed long range missiles capable of delivering a nuclear bomb to United States soil, shaking confidence in the American nuclear umbrella, and putting outer space in the spotlight of the security agenda. 16his development created the first security dilemma that had an impact on the law of outer space.Facing a potential intercontinental nuclear strike capability, as well as the potential for military uses of space that could be developed in the future by a more advanced USSR, the US took on the role of 'norm entrepreneur' to mitigate these uncertain future uses, and lobbied to create a norm to ban all military uses of space.17As of January 1957, in the framework of the UN First Committee, the US proposed to establish a mechanism for space objects under 'international inspection and participation' as a 'first step toward the objective of assuring that future developments in outer space would be devoted exclusively to peaceful and scientific purposes'. 18This position was confirmed several times throughout the year, 19 also by the United Kingdom (UK), France, and Canada. 20In 1958, President Eisenhower wrote a letter to Soviet Premier Bulganin in which he proposed to agree that: '[…] outer space should be used only for peaceful purposes.'For him, 'both the Soviet Union and the United States [were] now using outer space for the testing of missiles designed for military purposes.The time to stop [was] now.' 21 Later on, '[…] the United States and its allies proposed a system to prevent the use of outer space for military purposes', 22 and made the peaceful use of outer space one of the end goals of a general disarmament agreement. 23The USSR also proposed 'the banning of the use of cosmic space for military purposes' in March 1958, 24 fleshing out its longstanding position regarding the peaceful use of outer space: the prohibition of the military uses of outer space cannot be disconnected from a general disarmament agreement, especially one considering foreign military bases.Only in that configuration was the USSR prepared to reach an agreement on the prohibition of the use of space for military purposes and to submit to an international verification system. 25hese early discussions on space in disarmament negotiations did not lead to any binding agreements.Leveraging the fear of the US in regard to the missile gap and its perceived military advantage in space, the USSR refused to consider keeping space for peaceful purposes as a stand-alone issue and linked it to the question of foreign military bases. 26Rapidly, the relative impossibility to achieve any kind of general disarmament treaty encouraged delegations to seek limited agreements.27Discussion on a ban on military uses shifted to the more urgent prohibition of the use of nuclear weapons in outer space and on earth, following the Star fish Prime high-altitude nuclear test, and resulted in the adoption of the Partial Test Ban Treaty of 1963 (PTBT). 28Yet, these discussions streamlined the idea that outer space should be reserved for peaceful purposes -an idea that still permeates all discussions on space law -and fleshed out its scope.Despite not being enshrined in a legally binding obligation, there was a consensus on the meaning of 'peaceful' at this early stage.It was used by all active players in disarmament discussions (namely the US, UK, France, Italy, Canada, and the USSR) as synonym of non-militarisation, thus implying a ban on all military uses.29 Outside these discussions, a critical amount of States adhered to the understanding of 'peaceful purposes' as a ban on militarisation and called for it.The majority of the UNCOPUOS membership was in favour of the creation of such a norm.By 1964, ten delegations had called for a binding peaceful purposes principle comprising the whole outer space, echoing each other, referring to it or to a ban on all military purposes as synonymous. 30One of them, the United Arab Republic (UAR, former Egypt), did so speaking on behalf of the whole Non-Aligned Movement, adding 47 voices in favour of such a principle.31

The Declaration of Legal Principles -Contesting the Existence and the Scope of the Norm
In 1963, the UNGA unanimously adopted the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space.Not a single change to the text was bilaterally negotiated between the US and the USSR. 32The Declaration states general principles of space law, notably the applicability of the UN Charter to outer space activities.Yet it only mentions 'the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes' in its preamble.Many delegations lamented during and after the discussions leading to the Declaration that it did not outlaw non-peaceful uses of outer space. 33Their acceptance of the Declaration can be linked to a security dilemma facing the arms race of the superpowers, as a normative response was purposes, yet both linked this realisation to disarmament discussions. 37ccording to the Soviet delegate, however, the lack of mention of the peaceful purposes' principle in the 1963 Declaration was due to a blockage by the US. 38ndeed, after taking the lead in the creation the norm, the US gradually changed its stance on the militarisation of outer space.To respond to the security dilemma sparked by the Cold War, the US did not only pursue a normative solution.It also turned to the development of secret military space programs which rapidly entered into tension with its advocacy to keep space for peaceful purposes only.Secret reconnaissance and earlywarning programs were launched to enquire on the potential missile gap and increase the nuclear umbrella in the face of a perceived threat.By the first successful launch of a Corona spy satellite, in 1960, 'space had become militarized'. 39The US lagged behind the USSR during the early years of the space race.In parallel, rumours of the USSR's Fractional Orbital Bombardment System (FOBS), a nuclear warheads delivery system transiting through outer space, were circulating in the US. 40The fear of a nuclear attack on US soil, of an attack on US space assets, and of the deployment of FOBS continued to fuel the security dilemma shaping the US position with regard to outer space.
In this uncertain context, Washington wanted to protect both its soil and space assets.The adoption of a norm banning military uses in space was no longer a possibility, as it would have prevented the acquisition of military advantages provided by reconnaissance and early-warning capabilities.Moreover, a general agreement on disarmament was deemed impossible.Yet the US did not outwardly change its stance on the issue.On the international scene, the US still emphasised the civilian use of outer space for peaceful purposes to deflect attention from its secret military programs to enhance the United States' image as defender of peace, and to ensure protection of its own satellites, for the US relied on them for intelligence and nuclear deter- 37 The USSR 'was in favor of using outer space exclusively for peaceful purposes.[…] that problem could not be dissociated from the solution of the disarmament problem.In fact, the former could only be solved within the framework of the latter.'The US 'had urged that effective measures should be taken to ensure that outer space was used exclusively for peaceful purposes' and to do so submitted proposals to the Eighteen-Nation Committee on Disarmament.UN Doc.A/AC.105/C.2/SR.29-37,108.rence, while the Soviet space program was a step ahead. 41At the same time, to allow for a continuation of the military uses of satellites by the US while ensuring that no harm would befall them, the US gradually changed its interpretation of peaceful.It was transformed from peaceful as non-militarised, to peaceful as non-aggressive.
This change in interpretation was not clear-cut nor linear, and it was only expressed in specialised fora.For instance, in an address to the General Assembly, President Eisenhower called for keeping outer space for peaceful purposes based on the demilitarisation clause of the Antarctic Treaty.Yet, when it came to a concrete proposal, it translated only to prohibiting 'warlike activities' on celestial bodies, which is narrower in both ratione materiae and ratione loci. 42Both the UK and Canada, when referring to Eisenhower's proposal, understood it as a ban on military purposes. 43Other US statements hinted that the notion of keeping space for peaceful purposes went further than applying the UN Charter to outer space.For instance, a ban on aggressive uses of space was seen as the first stage of disarmament, the end goal of which was to ensure peaceful uses of outer space. 44Moreover, the US urged for additional proposals, among them: extending the United Nations Charter to outer space and reserving it for peaceful purposes, thus indicating that both proposals did not coincide in terms of scope. 45Still, in at least two statements, the US explicitly defined 'peaceful' as 'non-aggressive' (and the first time as 'beneficial' as well), rather than 'non-military', setting the UN Charter as the threshold.The first occurrence of this position happened in 1962, 46 while the second took place in 1965. 47It is not clear how much this shift was known of or followed by allied States, as they grew more silent on the issue once it was debated outside of disarmament discussions.On record, only Japan hinted at an interpretation problem with regard to the term 'peaceful'. 48o answer its security dilemma, the US contested the existence of a binding obligation to use space for peaceful purposes only by refusing to mention it in the 1963 Declaration, despite numerous calls in favour of such a norm. 49t the same time, it contested the content of the norm itself, by introducing a new interpretation reducing its scope to the content of the UN Charter.None of these contestations happened in a straightforward manner.Instead, the US still choose to commit to preserve space for peaceful purposes after the conclusion of a global disarmament agreement, while introducing on record its interpretation in specialised fora only.This discreet change in interpretation allowed the US to respond to its security dilemma while maintaining its credibility on the international scene, avoiding triggering disputes with third States as a result of a harsh stance. .It requires, in fact, the constructing of adequate assurance that the exploration and use of outer space will be for peaceful purposes.[…] It is the view of the United States that outer space should be used only for peaceful -that is, non-aggressive and beneficial -purposes.The question of military activities in space cannot be divorced from the question of military activities on earth.To banish these activities in both environments we must continue our efforts for general and complete disarmament with adequate safeguards.Until this is achieved, the test of any space activity must be not whether it is military or non-military, but whether or not it is consistent with the United Nations Charter and other obligations of international law.There is, in any event, no workable dividing-line between military and non-military uses of space.' 47 'Since the beginning of the space age, the United States had constantly endorsed the principle that outer space should be used for peaceful purposes.In that context, "peaceful", meant non-aggressive rather than non-military.The United States space programme had been notable for its predominantly civilian character but military components and personnel had made indispensable contributions.[…] The test of any space activity must therefore be not whether it was military or non-military but whether it was consistent with the Charter and other obligations of international law.' UN Doc.

The Outer Space Treaty -Shrinking the Scope of Peaceful Purposes to Celestial Bodies
The OST negotiations' process and outcome revealed that the US contestations were not totally maintained nor successful from the start, and were met with resistance.Contestation on the existence of the norm itself waned in the aftermath of the first successful lunar probe by the soviet LUNA IX. 50At the time, it was uncertain what materials could be found on the Moon, and for which potentially menacing uses they could be exploited.The USSR had an apparent advantage with its lunar probe, which compelled the US to act in light of the perceived threat and agree to a legally binding instrument regulating space activity.In 1966, two draft proposals -one authored by the USSR and one by the US -51 circulated as competing bases for negotiations. 52As it was impossible to know who would be able to achieve manned landing first, both drafts reserved, in their operative part, the Moon and celestial bodies for peaceful purposes only. 53Despite other delegations calling for an extension of it to the whole of outer space, 54 the final text adopted by the General Assembly prohibited the placement of nuclear weapons and other Weapons of Mass Destruction (WMD) in outer space (Article IV [1]), and only reserves the Moon and celestial bodies 'exclusively for peaceful purposes' (Article IV [2]).Despite its short-comings, the OST was widely supported by non-spacefaring States, as it ensured some limits on the actions of the two superpowers in a very tense context. 55otwithstanding the final agreement on a limited scope ratione loci of Article IV[2], the interpretation of the term 'peaceful' was still different between the US and its counterparts.This led to delegations either reiterating their interpretation or more outwardly opposing the US' position.Many delegations still understood 'non-militarization' and 'peaceful purposes' as synonyms, as was the case of the USSR, 56 the UAR, France, and Belgium. 57n the same direction, some delegations deplored that the norm on peaceful purposes did not encompass the whole of outer space, but only celestial bodies, yet recalled that despite the limited scope of Article IV [2], not all military activities were legal in space as the UN Charter was still applicable to them, thereby hinting that the UN Charter provided for a lesser ban than Article IV [2]. 58The superpowers refusal to expand Article IV[2] to 'void' outer space, where the UN Charter is applicable as per Article III OST, is another sign that the notion 'peaceful' was understood as more restrictive than Article 2[4] of the Charter. 59Only two statements hinted at an existing diverging interpretation in the travaux préparatoires of the OST.Hungary requested that 'peaceful' be defined as 'some authorities in the United States understood "peaceful use" to mean non-aggressive rather than non-military use', then underlined that such meaning was 'improper'. 60It later referred to the position of the US as 'inconsistent'. 61The Indian delegate regretted that 'it was emphatically asserted that "peaceful" meant not "non-military" but merely "non-aggressive"' in the context of the use of military personnel and equipment for peaceful purposes. 62The US did not repeat on record its interpretation of peaceful purposes during the negotiations.Certain statements by its delegates were in contradiction with the interpretation of 'peace- ful' as 'non-aggressive'.For instance, the US expressed the wish to base the Outer Space Treaty on the Antarctic Treaty of 1959,63 especially in regard to the ban on non-peaceful uses. 64Yet Article 1 of the Antarctic Treaty expressly reserved Antarctica for peaceful purposes only and prohibited any measure of military nature. 65At the time when the OST was adopted, 'peaceful' was still widely understood as non-military, despite cognisance of the somewhat murky US interpretation.Moreover, the limited scope of Article IV[2] OST attests that a critical amount of States still adhered to the understanding of 'peaceful purposes' as a ban of militarisation: the risk that 'peaceful' would be understood as non-militarisation was too high to expand it to outer space.We can therefore assert that, based on States' positions until 1967, the good faith interpretation of 'peaceful' was 'non-military'.
Similar to the OST, the Moon Agreement of 1979 contained an operative provision on the peaceful uses of celestial bodies in its Article 3. It was not the most contentious article of the Agreement, as it repeated the status quo existing of 1963. 66On the side of non-space faring states, a total ban on the military uses of space might have been less pressing, as space capabilities had acquired a stabilising role.They rendered possible the Mutually Assured Destruction (MAD) doctrine by giving both superpowers half-an-hour notice -enough retaliation-time in case a nuclear attack was spotted -, by mitigating the uncertainty of the military build-up of the opponent, and allowing for the verification of the implementation of disarmament treaties. 67ince the 1960 s, the notion that space as a whole should only be used for peaceful purpose is present in the vast majority of outcome documents on outer space, for example in the resolutions' preamble: keeping space for peaceful purposes was still the end goal. 68We can gather from the draft proposals made throughout the negotiations on the Moon Agreement that the same divergent interpretations subsisted. 69While the Moon Agreement was an attempt to 'define and develop' Article IV OST, 70 it fell short of defining what 'peaceful purposes' entailed. 71As Zedalis underlines, the Moon Agreement does not indicate a change in meaning, a departure from the notion of 'peaceful' used in the OST. 72Yet, certain States changed their interpretation.For instance, France departed from its previous interpretation of 'peaceful' as 'non-military' to align itself with the US.France felt compelled to make an interpretative declaration upon signature, according to which Article III '[…] cannot be construed as anything other than a reaffirmation […] of the principle of the prohibition of the threat or use of force, which States are obliged to observe in their international relations, as set forth in the United Nations Charter'. 73is demonstrated that, for the French government, in 1979, 'peaceful' was still widely understood as 'non-military'.It is also interesting to note that the interpretative declaration was a more formal contestation than the reveal of the US interpretation in two marginal statements.Yet it did not trigger reaction on the international scene.This silence might be read as the acquiescence of the international community to this interpretation, yet we should be more cautious for several reasons.First, States do not automatically react when a diverging interpretative declaration is put forward by another State.Second, interpreting mere silence as a form of acquiescence is contested in the context of military uses of outer space: silence can be linked more to a United Nations Committee on the Peaceful Uses of Outer Space, and the organisations of global Conferences on the Exploration and Peaceful Uses of Outer Space (the UNISPACE Conferences, held in 1968, 1982, 1999, and recently in UNISPACE + 50 in 2018).It is also found in foundational texts of regional international organisations, such as the Asia-Pacific Space Cooperation Organization, the European Space Agency, and the Inter Islamic Network on Space Sciences and Technology.lack of interest, of knowledge, or of manpower rather than to an underlying agreement on the meaning of the law. 74In the early 1980 s especially, outer space was not a domain that attracted the level of international attention it enjoyed in the late 1960 s: its days as a strategic field of competition were over.Space technologies had not yet acquired the strategic and tactical relevance they are known for today, and only a handful of States possessed space capabilities.In the case of the Moon Agreement, the focus of the remaining interested States was not on the question of military uses of space, but on the legal regime pertaining to the exploitation and appropriation of resources. 75Because of its treatment of this topic, the Moon Agreement failed to attract international support, with only 18 ratifying States in 2022. 76In this context, many States could have overlooked the interpretative declaration of France.However, one could argue that the mere existence of the divergent interpretation from the US slowly normalised the possibility to interpret 'peaceful' as 'non-aggressive', and rendered it possible to put forward such an interpretative declaration without an outcry from the international community.

The Draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects -Blurring of the Two Legal Regimes
Since the adoption of the Moon Agreement, the codification of binding norms on space security has been in a deadlock.The use of space for military purposes, however, did not stop with the fall of the Berlin Wall.In the 1990 s, space capabilities acquired their current function of conventional force multiplier, 77 while the fall of a global order based on nuclear deterrence and the emergence of new threats led the US to focus once more on its conventional forces. 78The Persian Gulf War of 1991 is identified as the 'quantum leap in the reliance on satellites' because of the decisive role of Global Positioning System (GPS), telecommunications, and earth-imagery in Operation Desert Storm. 79he strategic edge given by space technologies came with the price of a perceived potential vulnerability.US national space policies from Reagan onwards framed US space activities as respecting the commitment to use space for peaceful purposes, without distinguishing activities happening on celestial bodies from the ones in outer 'void' space. 80These policies restate the US' non-aggressive interpretation by reserving their right of self-defence in outer space.Since 1988, US policies define 'peaceful' as allowing activities in pursuit of national security goals. 81The Rumsfeld Report of 2001 warned about the possibility of a 'Space Pearl Harbor'. 82For a number of officials and scholars, satellites were the 'soft ribs' of conventional forces, painting a target for weaker opponents, such as China. 83In the face of this potential vulnerability and perceived threat, the spiralling logic of a security dilemma arose again.China was perceived as a threat to US space assets, provoking an openly aggressive US space policy in the form of the full spectrum dominance doctrine, which not only aimed at defending space assets, but reserved the possibility to 'deny an adversary freedom of action in space.' 84 China in turn answered with the successful test of an anti-satellite capability in 2007, which fuelled US concerns regarding China's aggressive intentions in outer space. 85The tense Sino-US space relationship triggered a security 'trilemma' between China, India, and Pakistan, 86 which gave incentive to involved States to depart from the militarisation of outer space and to consider its weaponisation. 87By adopting a permissive interpretation and policies enabling space militarisation, the US encouraged other States to adopt the same stance, not out of will but out of a defensive posture, as an answer to their security dilemmas.The current trend is to consider space a domain for war, develop counterspace capabilities, adopt space security strategies, and develop the chain of command for outer space. 88y not discriminating in its national legislation between the programmatic goal of peaceful purposes found throughout space law, and the legally binding norm reserving celestial bodies for peaceful purposes, the US continued to discreetly contest the content of Article IV[2] OST to assert its dominance in space.It encouraged a blurring of the line between the two legal regimes, which led to the conflation of Article IV[2] OST with the threshold of Article 2(4) UN Charter. 89The recent efforts to revive discussions on the Prevention of an Arms Race in Outer Space (PAROS) in the Disarmament Commission (CD) attest to this conflation.The draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects, jointly submitted by China and Russia in 2008 and updated in 2014, was preceded by informal meetings to discuss the issue.Over 50 States attended and sought to clarify the notion of 'peaceful' as 'prohibiting weapons in space but allowing military uses of space'. 90According to the meeting records, '"peaceful purposes" included "non-aggressive" military use of outer space', 91 and 'appropriate defence activities in pursuit of national security and other goals'. 92It translated in Article II and IV of the draft PPWT, which prohibits the placement of weapons and the threat or the use of force in outer space, but reserves the inherent right of self-defence, in accordance with Article 51 of the UN Charter.Similarly, within the CD, a major shift occurred following the drafting of the OST.While attending delegations agreed that outer space should be used exclusively for peaceful purposes, 93 they defined 'peaceful' as 'non-aggressive'. 94The distinction between outer void space and celestial bodies seems to be forgotten, but for a Canadian statement. 95The notion of 'peaceful purposes' was thus emptied of its legal significance to equate the ban of Article 2[4] UN Charter without putting its validity into question.
The ongoing discussions on space security seem to confirm this conclusion.In December 2021, the UNGA recognised the need to discuss the mitigation of space threats through norms, rules, and principles of responsible behaviour, and established an OEWG on the subject matter at the initiative of the UK. 96At the time of writing, the OEWG had its first two sessions.During the first session, delegations took stock of the existing legal framework, while they considered present and future space threats during the second session.The notion that space should be kept for peaceful purposes is hardly featured in the advanced unedited Chair's Summaries of the discussions. 97While it still regularly appears in the texts, 98 the term 'peaceful' is not mentioned a single time in the Chair's Summary of the discussion on the existing legal framework. 99Article 2[4] UN Charter is explicitly mentioned.Delegations discussed the need for a common understanding of what would amount to a use of force in outer space. 100It was also suggested that States should reach common understanding on 'undesirable acts that fall into a socalled grey area, beneath the threshold for what is commonly considered to be an armed attack or a use of force'. 101That the illegality of these acts were not mentioned under the peaceful purposes principle seems to further con- firm the reduction of its scope through its conflation with Article 2[4] UN Charter.This trend might not stop there.The scope of the peaceful purposes principle, now reduced to the scope of the prohibition of the use of force, can be further restricted by contesting the jus ad bellum, either through a restrictive interpretation of what constitutes a 'use of force' or through a permissive interpretation of self-defence.First steps were taken in that direction during discussions on the PPWT drafts, the US considered that the term 'use of force' in the space context was 'unclear'. 102Similarly, the advanced unedited version of the Chair's Summary of the OEWG hinted at a lack of consensus as to what could constitute a use of force in outer space. 103It may pave the way for States to adopt a definition other than the one generally admitted in the framework of Article 2[4] UN Charter.If the logic of the security dilemma is confirmed, a first State may interpret the prohibition of the use of force in a restrictive manner to enjoy a greater freedom of movement.Other States may follow suit, and keeping in line with the current interpretation might be perceived as insufficient protection in the face of a new interpretation.This logic would continue to undermine the meaning of peaceful purposes, but also Article III of the OST and the jus ad bellum itself.
States appear reluctant to explicitly put forward their understanding of self-defence in outer space.One exception is the 2019 French Space Defense Strategy, which has foreseen the deployment of laser and bodyguard satellites to defend space assets. 104Beyond forecasting the weaponisation of space, the Strategy fleshes out the concept of 'active defence'.According to the French Minister of the Armed Forces, Florence Parly, France would answer perceived threats, namely 'those who come too close', by using high-powered lasers deployed from French satellites or patroller nanosatellites. 105In her speech Parly insisted that active defence did not mean offensive strategy, but self-defence. 106Yet this understanding of self-defence does not fit well with 105 Address from the French Minister of the Armed Forces, Florence Parly, 25 July 2019, broadcast, available at <https://twitter.com/i/broadcasts/1OyJApEqAnoGb?ref_src=twsrc% 5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1154343383772618753 %7Ctwgr%5E% 7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.defense.gouv.fr%2Factualites%2Farticles%2Fflorence-parly-devoile-la-strategie-spatiale-francaise-de-defense>, (last accessed 10 January 2023).
106 Parly (n.105).Parly used the French term auto-défense instead of the term légitime défense featured in Article 51 UN Charter.
the traditional understanding of self-defence.The mere approach of a space object by another space object does not automatically qualify as an 'armed attack'.For instance, a spy satellite coming close to the space object of another State would constitute an unfriendly act, but would not fall within the scope of the jus ad bellum.Moreover, 'active defence' also stretches the scope ratione temporis of the right of self-defence.In the first decades following the adoption of the United Nations Charter, it was commonly accepted by States and legal doctrine alike that Article 51 UN Charter closed the door on the possibility of anticipatory self-defence, 107 but for the minority view arguing that a customary right of self-defence with a lower threshold existed alongside Article 51 of the UN Charter. 108The minority view usually follows the Caroline requirement (also referred to as the 'Webster formula'), of the instant and overwhelming necessity to use self-defence, leaving no choice of means nor moment for deliberation. 109'Active defence' leans towards the doctrine of preventive self-defence put forward by the Bush Administration after 9/11, which goes further than the traditional Webster formula to allow for the prevention of hostile acts. 110The 2020 US Space Policy, according to which the United States will seek to deter, counter, and defeat threats in the space domain that are hostile to the national interests of the United States and its allies, also appears to be in line with the Bush doctrine of preventive self-defence doctrine. 111These developments aim to extend the scope of the right of self-defence, therefore restricting the scope of the prohibition of the use of force and further undermining the principle according to which outer space should be used for peaceful purposes only.

IV. Conclusion
The first proposal to keep space for peaceful purposes answered the security dilemma of the US facing a USSR with uncertain space capabilities and intentions.Its internalisation by the majority of States happened fast and continues to influence States' positions today.The best proof is the apparent need for States to frame their space activities as 'for peaceful purposes', despite that the only legally binding norms on the matter cover the moon and celestial bodies.The programmatic principle to keep the whole of outer space for peaceful purposes only appears in treaties and resolution preambles.Yet, in States positions and in legal discussions, the distinction between outer 'void' space and celestial bodies appears to be blurry.This slip can be linked to decades of low-key contestation by the US, through reiterated national policies describing the peaceful purposes principle encompassing outer space as a whole, at a time when its weight was increased in space, as on earth, due to its position as hegemon.Based on this long-standing position, and the renewed importance of space systems as conventional force multipliers, UN discussions during the past decades reveal that more and more States abide by the idea that space should be used in a peaceful -non-aggressive -way.
Study of the notion of 'peaceful purposes' in space law leads us to two interesting considerations.First of all, challenges to the existence and scope of the norm are related to what Max Lesch and Christian Marxsen pinpoint as 'legislative contestation'. 112Contesting the content of a norm does not need to involve a blatant violation nor a clear statement, but can be done in a surreptitious manner.A stifled change in interpretation in specialised fora instead of contestation of its validity, overshadowed by a public discourse in favour of peace in outer space, allowed the US to gradually undermine the meaning of 'peaceful' without triggering a process of argumentation which could have led to the reaffirmation of the norm instead of its weakening.Therefore, this example partially challenges the idea put forward by Nicole Deitelhoff and Lisbeth Zimmermann, that contestation on the level of norms applications, by opposition to their validity, can strengthen international norms rather than weakening them. 113econd, in security affairs the occurrence of security dilemma logic may affect how States are interpret and apply a norm.A State might be tempted to contest a norm and adopt a permissive interpretation, allowing for more leeway to protect its security interests (for instance, by reducing the scope of an arms control agreement).Depending on other States' perception of it, this interpretation will benefit from an enormous weight.Indeed, the new interpretation can trigger a new uncertainty in States' relations: what was clearly forbidden might now be undertaken.The permissive interpretation, even if adopted by a lone actor, is thus considered to assess the uncertainty facing all States.Other States may therefore answer their dilemma by adopting a similar interpretation, not out of good faith, but to ensure an equal freedom of movement.A permissive interpretation may thus trigger a snowball effect, gradually weakening the norm at stake.In other words, a security dilemma might trigger the adoption of a permissive interpretation by a State tempted to have freer hands, which might in turn trigger a security dilemma for the remaining States who might adopt the permissive interpretation to benefit from the same strategic edge.This could fuel a spiralling security dilemma and lead to the emergence of a new, even more permissive, interpretation of the contested norm.The cycle might therefore repeat time and time again.In our case, fearing for a potential missile gap, the US changed its interpretation and pursued the militarisation of space.The militarisation of space and the increased reliance on space assets paved the way for the adoption of the space dominance doctrine, which started a new and particularly acute security dilemma for Russia and China.In answer to this dilemma, they (along with other States) changed their interpretation and pursued a similar interpretation road.One could argue that we entered the early stage of a second contestation cycle in our case too considering the recent discussions on what could constitute a use of force and the conditions to be met to take defensive actions in outer space.
The principle of good faith has a key role to play to counter the eroding effect of spiralling security dilemmas on norms dealing with peace and security.As Articles 26 and 31 VCLT stress, a treaty shall be performed and interpreted in good faith.Yet, good faith may be missing when State practice is motivated solely by security interests.Indeed, a State might search to empty a norm of its legal substance knowingly, not to obey its opinio iuris, but to ensure its security from a perceived threat. 114In these circumstances, the good faith principle requires a reassessment of the importance given to subsequent State practice when interpreting a norm. 115As underlined by the International Law Commission, the interpretation of a norm should not solely rely on State practice: subsequent practice and agreement are not in themselves conclusive and must be seen in interaction with all the means of interpretation, as listed in Articles 31-32 VCLT.116However, the door for evolutive interpretation should remain open in this domain to ensure the resiliency of the legal framework and keep up to date with technology development and new realities.A certain level of flexibility is granted by the appreciation of the good faith of States. 117In the case of a security dilemma, we would argue that State practice should still be considered, however, the weight given to State practice motivated by security concerns should only diminish in relation to the other criterion listed in Articles 31-32 VCLT.

21
Letter from President Eisenhower to the Soviet Premier (Bulganin), 12 January, 1958, as printed in Documents on Disarmament 1945-1959, Vol.II 1957-1959, 938-939; the proposal is once again underlined in: Letter From President Eisenhower to the Soviet Premier (Khrushchev) on Nuclear Tests, 8 April 1958, Documents on Disarmament 1945-1959, Vol.II 1957-1959, 984. 22Statement by the United States Representative (Lodge) to the Disarmament Commission, 16 August 1960, as printed in Documents on Disarmament 1960, Department of State Publication, U. S. Government Printing Office, Washington DC (1961), 214 and ff, [5]. 23Western Paper Submitted to the Ten Nation Committee on Disarmament: A Plan for General and Complete Disarmament in a Free and Peaceful World, 16 March 1960, UN Doc.TNCD/3; Western Proposal Submitted to the Ten Nation Committee on Disarmament: Principles and Conditions for General and Complete Disarmament Under Effective International Control, 26 April 1960, UN Doc.TNCD/5.Both were submitted by Canada, France, Italy, the UK, and the US; Tripartite Draft Resolution, 14 October 1960, UN Doc.A/C.1/L.250,introduced by Italy, the United Kingdom, and the United States. 24Soviet Proposal on the Question of the Banning of the Use of Cosmic Space for Military Purposes, the Elimination of Foreign Military Bases on the Territories of Other Countries, and International Cooperation in the Study of Cosmic Space, 15 March 1958, UN Doc.A/3818. 25See notably UN Doc.A/3929; Letter from the Soviet Premier (Khrushchev) to President Eisenhower, 22 April 1958, as printed in Documents on Disarmament 1945-1959, Vol.II 1957-1959, 1001. 26This position was first fleshed out in: UN Doc.A/3818, The Banning of the Use of Cosmic Space for Military Purposes, the Elimination of Foreign Bases on the Territories of other Countries, and International Cooperation in the Study of Cosmic Space, Note dated 15 March 1958 addressed to the Secretary-General by the Permanent Representative of the Union of Soviet Socialist Republics.

46
Statement by the United States Representative (Gore) to the First Committee of the General Assembly: Peaceful Uses of Outer Space (Extracts), 3 December 1962, as printed in Documents on Disarmament 1962, vol.II, Department of State Publication, U. S. Government Printing Office, Washington DC (1963), 1119 and ff: 'The development of law for outer space requires more, though, than the formulation of general principles, […] A/C.1/SR.1422,429.The statement was made in a somewhat unrelated context, as it was done during discussions on the draft at the basis of UNGA RES 2130(XX) of 21 December 1965. 48UN Doc.A/AC.105/PV.29,11; UN Doc.A/AC.105/PV.30,60. 49 One could advocate that the sheer number of calls for this norm could have created instant customary law, on the model of the right of overfly.