Winner takes all? Legal implications of autonomous weapons systems and the militarization of outer space

The increasing integration of artificial intelligence (AI) into space-related activities is, in many respects, creating a new era of innovation and efficiency. AI algorithms can play a crucial role in optimizing mission planning and execution, analysing vast amounts of data from satellites, and contributing to discoveries in astronomy and astrophysics, as well as enabling autonomous spacecraft maneuvering and enhanced autonomy of rovers. However, such technological developments also present challenges for existing international space law, especially in what concerns the implications of any potential AI-supported military activities in outer space, including the deployment of autonomous weapons systems. This article examines such challenges with reference to fundamental principles set out in the 1967 Outer Space Treaty, including Article IV, which does not expressly address the use of AI-enabled weapons; the notion of ‘control’ under Article VIII, due to the increasingly autonomous features of AI systems; and Article I, given that additional power imbalances arising from the use of AI in space may not be consistent with the principles of ‘free access’ and ‘non-discrimination’. It also includes an analysis of the European AI Act, specifically the express provisions removing from its scope the use of AI systems in military applications, as well as the concepts of jus ad bellum and jus in bello, specifically the Laws of Armed Conflicts. Further, it includes a series of recommendations for establishing a future legal framework applicable to autonomous weapons systems, on Earth and in outer space.