An inherent divide features within the Lisbon Treaty between civilian and military/security competences; something previously more obvious via the ‘pillar system's’ separations. This division follows the Member States (MS) (natural) protection of their military/defence autonomy; their core sovereign powers. Such powers are thus not conferred upon the Union. This constitutes a fundamental challenge for EU space governance, because space assets are, overwhelmingly, ‘Dual-Use’ assets: with clear civilian and military applications simultaneously. This entanglement, paired with aforementioned differences in conferred competence, makes EU actions in the area of space activities problematic. The restrictive EU legal bases for space activities reflect this. This is exacerbated by the little CJEU case law regarding Dual-Use systems that is near-absolutist in nature. The CJEU interprets any Dual-Use item except specifically for the most narrow/exclusive military use as ‘civilian’; EU competence applies to the greatest extent possible. Application of this legal theory to space assets would exacerbate MS' concerns. A solution may lie in emerging international legal discussions and norms, some of which make a far more nuanced differentiation between different types of Dual-Use assets. Through application of these principles, the EU may be more able to produce a pragmatic solution to its Dual-Use conundrum.
Policy implications
- The EUs constitutional composition is a unique one, with unique legal challenges within certain areas of competence. Space is one of them. As a result, methods and principles of governance and regulation that work in other jurisdictions cannot simply be copied without consideration of these unique factors. Thorough constitutional impact assessments must precede such measures. Failure to do so may add significant strain to the relationship between the EU and its Member States (MS) in sensitive areas such as defence and foreign policy – and at a time when it may be considered particularly politically unwise to do so.
- Current CJEU interpretations of the term ‘Dual-Use’ are problematically absolutist in their determination in the context of determining where EU competences lie. The EU Commission and Legislature should investigate what legal means can be taken to mitigate this absolutism, to ensure nuanced designations that respect the legitimate interests of all parties.
- Enhancement of the currently lacking and absolutist interpretation of ‘Dual-Use’ within EU law may be aided by emerging norms applicable to International Space Law. Alignment with these initiatives would not only develop Union law in a way of pragmatic benefit, but furthermore help strengthen important international norms that aid the outer space security nexus—which the Union has previously expressed concern toward and support for developing.
- Failure to adopt to these required conditions may also entail strain in other areas straddling the civil-miliary nexus within EU law, since the implications of the CJEU's interpretation of Dual-Use assets go far beyond only the space sector. This is especially so given the current turmoil in that sector resulting from multiple geopolitical crises.
Photo by MELQUIZEDEQUE ALMEIDA