The Dual‐Use Conundrum of the Lisbon Treaty Regarding Space Governance: Solutions Through International Legal Interpretation?

ABSTRACT 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.