Routledge Handbook of Space Law

Ram Jakhu, Paul Stephen Dempsey, Ram Jakhu, Paul Stephen Dempsey, Ram S. Jakhu, Paul Stephen Dempsey

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317613725
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This handbook is a reference work providing a comprehensive, objective and comparative overview of Space Law.

The global space economy reached $330 billion in 2015, with a growth rate of 9 per cent vis-à-vis the previous year. Consequently, Space Law is changing and expanding expeditiously, especially at the national level. More laws and regulations are being adopted by space-faring nations, while more countries are adapting their Space Laws and regulations related to activities in outer space. More regulatory bodies are being created, while more regulatory diversity (from public law to private law) is being instituted as increasing and innovative activities are undertaken by private entities which employ new technologies and business initiatives. At the international level, Space Law (both hard law and soft law) is expanding in certain areas, especially in satellite broadcasting and telecommunications.

The Routledge Handbook of Space Law summarises the existing state of knowledge on a comprehensive range of topics and aspires to set the future international research agenda by indicating gaps and inconsistencies in the existing law and highlighting emerging legal issues. Unlike other books on the subject, it addresses major international and national legal aspects of particular space activities and issues, rather than providing commentary on or explanations about a particular Space Law treaty or national regulation.

Drawing together contributions from leading academic scholars and practicing lawyers from around the world, the volume is divided into five key parts:

• Part I: General Principles of International Space Law

• Part II: International Law of Space Applications

• Part III: National Regulation of Space Activities

• Part IV: National Regulation of Navigational Satellite Systems

• Part V: Commercial Aspects of Space Law

This handbook is both practical and theoretical in scope, and may serve as a reference tool to academics, professionals and policy-makers with an interest in Space Law.

Part I

General principles of international space law

1

Sources and law-making processes relating to space activities

Cassandra Steer

Introduction: contextualizing space law

While most people are familiar with the five core space treaties, there is much more to international space law than these five instruments. Because space law is embedded in the larger system of public international law, much of “general international law” applies to space and space activities. Furthermore, as discussed in the introductory chapter, space law is made up of national laws which interact with the international system. In order to understand the larger corpus juris spatialis, or body of space law, it is necessary to understand its place in both the international system and the various national systems. Since a comparative analysis of domestic laws is undertaken in Part III of this book, the intention here is to contextualize the different sources of space law and the different law-making processes.

Sources of law can be defined as the systems or processes that allow law to come into being.¹ If a rule or norm is attested by one of the recognized sources, then it may be accepted as part of the system of law.² If it cannot be attested by one of these sources, then it is a mere assertion, and cannot be binding on any international actor. Thus, understanding the doctrine of sources in public international law is necessary in order to clarify what is binding in space law and what is mere interpretation or assertion. It is also important to understand the relationship between national space laws and sources of international space law.

Law-making processes in the domestic context

In domestic legal systems, the sources of law are easily recognizable: primary legislation is passed according to the processes prescribed in the constitution of a State, and by the legislative bodies. Domestic space laws are applicable within a State’s jurisdiction; for example, in the United States (US), the Federal Aviation Authority (FAA) has been granted certain powers by the federal government to issue launch licenses to US companies as well as to foreign companies wishing to use US launch services. However, even though its legislation may have some effects on foreign companies or on relations between the US and other States, the US cannot legislate extra-territorially or internationally. Every State is sovereign, meaning no State can bind another with its legislation. This is both a limit on national sovereignty and also a protection of it, and, apart from being strongly asserted by States, it is also guaranteed in Article 2(7) of the Charter of the United Nations (UN).³

Law-making processes in the international context

In international law, there are no constitutional law-making mechanisms, and no centralized law-making powers.⁴ It may therefore not be obvious how law comes into being or who is authorized to make law. In the following section, attention will be paid to each of the traditionally recognized sources of law.

The traditional understanding of international law is that the content and normative force of international law are an expression of the will of States.⁵ International law is binding because States have consented to it through the creation and recognition of various obligations and rights. This consensual basis is, for most governments, what gives international law its legitimacy.⁶ However in recent decades there are more and more non-State actors, such as international organizations, corporate entities, and individuals, who play an increasingly important role in the international plane in many areas of law, e.g., human rights, environmental law, the law of armed conflict, international investment and trade law. These areas of law are also relevant for space activities. International law today is therefore recognized as an order governing international and transnational relations, including non-State actors.

While a formal understanding of the law-making processes in international law still recognizes States as the only legitimate lawmakers, some theories of law also accept that the law itself can come into being through the participation of non-State actors.⁷ One example in space law is the highly influential role played by commercial and private entities as ‘sector members’ of the International Telecommunications Union (ITU), where regulations are made regarding the registration and protection of orbital slots and radio frequencies.⁸ Some would argue that the influence of non-State actors on the content of the regulations is evidence of the fact that international law can be formed beyond the strict limits of State will. Conversely, others would contend that the role of private entities is merely influential, and that the regulations are only binding because they come into being through the Radio Regulations promulgated by the formal processes in the ITU, which was established by State will and consent.

In order to understand this dynamic properly, the traditional sources of international law will be discussed next, with reference to the kinds of space law found in these sources.

Traditional sources of international law

Article 38 of the Statute of the International Court of Justice

Although the international legal order lacks any central constitutional mechanisms, the UN Charter and the Statute of the International Court of Justice (ICJ) are both considered to be constitutive documents. They were drafted immediately following World War II when the UN was conferred certain powers in order to fulfill its primary purpose of promoting and protecting international peace and security.⁹ The ICJ is the “principal judicial organ” of the UN,¹⁰ and was established to offer a peaceful means of dispute resolution between States so as to avoid resorting to sanctions or the use of force.¹¹ The ICJ Statute was primarily written as a document organizing the composition, functioning and jurisdiction of the Court, and Article 38 directs the Court as to what sources it may apply in determining the content of international law.¹² Nonetheless it has come to represent the identification of sources of international law in general; even if it was not intended to “codify” such sources,¹³ it is generally seen as the authoritative list of formal sources of binding law.¹⁴

Article 38 of the ICJ Statute provides:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Paragraph 1 lists three primary sources, followed by two subsidiary sources under clause (d). Each of the sources listed will be discussed in turn here, with reference to their relevance for space law.

Treaties

Treaties are the first, and arguably ‘strongest’, source of law listed in Article 38. Agreements, conventions or protocols are all legally binding treaties, and there is no legal difference between any of these terms.¹⁵ The Vienna Convention on the Law of Treaties (VCLT) governs the application and working of all treaties, and it is therefore also applicable to international space law.¹⁶

International space law relies heavily on its treaties.¹⁷ The most important treaties are the five core treaties, namely the 1967 Outer Space Treaty,¹⁸ the 1968 Rescue Agreement,¹⁹ the 1972 Liability Convention,²⁰ the 1974 Registration Convention,²¹ and the 1979 Moon Agreement,²² as well as the UN Charter, the 1963 Partial Test Ban Treaty,²³ the VCLT, and the 2010 ITU Constitution and Convention.²⁴ There are also numerous treaties which do not specifically deal with outer space, but which will come into play with respect to specific space activities, such as the treaties governing the law of armed conflict and prohibiting specific weapons, trade and investment treaties, and human rights treaties.

Treaties act as international contracts between States. They are binding because States explicitly consent to their terms.²⁵ Usually the terms and provisions of a treaty are negotiated at a convention and is then opened for signature. Often, however, the signature itself is not enough; a State must also ratify the treaty, for instance by enacting it as one of its national laws. For some treaties, although it might be signed by States at a convention, it may not come into legal force until a designated number of States have also ratified it.²⁶ This is the reason why the 1996 Comprehensive Test Ban Treaty,²⁷ which was adopted to fill the lacunae of the 1963 Partial Test Ban Treaty, has never come into force: although 159 States have ratified it, this is not enough according to the terms of the 1996 Treaty.²⁸ On the other hand, as soon as a State has signed a treaty, even if it has not ratified it, the State is still obliged to refrain from acts that would defeat the object and the purpose of the treaty.²⁹ This is often seen as an extension of the rule known as pacta sunt servanda, i.e. every State which is bound by a treaty must perform its obligations in good faith.³⁰ Such good faith must apply from the moment of signature, since this is an international signal of the will of the State to become bound.

A treaty may never bind a third State without its consent.³¹ For this reason, the Liability Convention is only applicable to the 100 States that are parties to it, and the Moon Agreement is considered to be only marginally successful, since only 16 States have become parties, with a further four signatories which have not yet ratified it.³²

If the terms of a treaty allow it, an international organization – for example the UN, the European Union or the African Union – may also sign a treaty. None of the five space law treaties allows this, however the Liability Convention and the Registration Convention may apply to international organizations if they accept the terms of these treaties by declaration.³³ The European Space Agency (ESA) and EUTELSAT have made such declarations with respect to the Liability Convention, and the ESA, EUTELSAT, and EUMETSAT have made declarations with respect to the Registration Convention.³⁴

If a State acts in breach of a treaty provision, any other State that is injured by this may demand cessation of the activities, as well as an apology or reparation.³⁵ If the injurious State fails to respond, the injured State may bring a case before the...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Contributors
• Preface
• PART I General principles of international space law
• PART II International law of space applications
• PART III National regulation of space activities
• PART IV National regulation of navigational satellite systems
• PART V Commercial aspects of space law
• Index