RIPPLES IN THE WATER

The Effects of State Actions on the Corpus of

International Space Law

BY:

MICHAEL J. LISTNER, ESQUIRE

FOUNDER & PRINCIPAL, SPACE LAW AND POLICY SOLUTIONS

Note: Photos in this presentation are either royalty free, copyrighted by the author or otherwise authorized for public use with proper

attribution.

Antarctic Treaty of 1959

Outer Space Treaty of 1967

Rescue Agreement of 1968

Registration Convention of 1968

Liability Convention of 1972

Moon Treaty of 1979

UNCLOS

INTERNATIONAL LAW, INCLUDING SPACE LAW,

IS A CREATURE OF BOTH TREATIES AND CUSTOM

International (space) law can also

be created by custom.

This was the case with the launch

of Sputnik-1 on October 4, 1957,

which created the customary

principle of free access to and

transit of outer space.

INTERNATIONAL LAW, INCLUDING SPACE LAW,

IS A CREATURE OF BOTH TREATIES AND CUSTOM

NASA Photo

CUSTOM CAN BE USED TO CREATE

INTERNATIONAL LAW AND LEGALLY-BINDING

NORMS

1. There must be a general and consistent practice of states.

2. There must be a sense of legal obligation, or opinio juris sive

necessitatis.

Definition of customary international law is nuanced because not

all States are equal when considering whether a practice and

opinio juris sive necessitatis reaches the level of customary

international law. (Emphasis added).

United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1252 (11th Cir. 2012)

CUSTOM CAN BE USED TO ADD TO EXISTING

INTERNATIONAL LAW AND LEGALLY-BINDING

NORMS

The corpus of international law

can be considered as a body of

water.

Both treaties and custom

contribute to and form that body

water.

CUSTOM CAN BE USED TO ADD TO EXISTING

INTERNATIONAL LAW AND LEGALLY-BINDING

NORMS

When custom acts like a raindrop, it

adds to and/or reinforces the corpus

of international (space) law.

Project Apollo acted like a raindrop

and reinforced the res communis

principle of the Outer Space Treaty.

NASA Photo

CUSTOM CAN ALSO AFFECT EXISTING

INTERNATIONAL LAW, INCLUDING EXISTING

TREATY LAW

Public Law 91-119, 18 November 1969,

Section 8 (83 Stat., 202), in National

Aeronautics and Space Administration

Authorization Act, 1970, addressed the

implantation of the U.S. flag on the Moon.

The legal effect of Section 8 disclaims

sovereignty from the act of planting the U.S.

flag and harmonizes the act with res

communis.

The wording of Section 8 makes it a legally-

binding position as it is not couched as a

“sense of Congress”, which would imply a

non-binding policy statement.NASA Photo

CUSTOM CAN ALSO AFFECT EXISTING

INTERNATIONAL LAW, INCLUDING EXISTING

TREATY LAW

“The flag of the United States, and no other

flag, shall be implanted or otherwise placed on

the surface of the moon, or on the surface of

any planet, by the members of the crew of any

spacecraft making a lunar or planetary landing

as a part of a mission under the Apollo program

or as a part of a mission under any subsequent

program, the funds for which are provided

entirely by the Government of the United

States. This act is intended as a symbolic

gesture of national pride in achievement and is

not to be construed as a declaration of national

appropriation by claim of sovereignty”

(Emphasis added).

NASA Photo

CUSTOM CAN ALSO AFFECT EXISTING

INTERNATIONAL LAW, INCLUDING EXISTING

TREATY LAW

The collection and possession of the lunar

samples by the U.S. government from

Project Apollo reinforces the res

communis doctrine of the Outer Space

Treaty.

The collection of the samples was done in

furtherance of scientific investigation

(Article I) and their legal status as public

property is consistent with res communis.

NASA Photo

CUSTOM CAN ALSO AFFECT EXISTING

INTERNATIONAL LAW, INCLUDING EXISTING

TREATY LAW

The Kosmos 954 incident on January 24, 1978

and the resultant negotiations between Canada

and the U.S.S.R acted as a rain drop as it

provided customary support and usage for the

Liability Convention of 1972.

The dispersion of the wreckage in Canadian

territory led to the first time the treaty was

invoked to present a claim, which gave

customary support for Article II’s strict

liability standard.

The incident also gave customary support to

the definition of “space object” in Article I(d)

to include debris from the spacecraft and not

just the whole spacecraft.

CUSTOM CAN ALSO ACT LIKE A STONE AND

DISTURB OR DIMINISH EXISTING

INTERNATIONAL LAW

While custom acts like a raindrop to

contribute to the body of international

law, it can also have the effect of a

stone, which can create unfavorable

ripples in the corpus of international

law and have unanticipated

consequences.

CUSTOM CAN ALSO ACT LIKE A STONE AND

DISTURB OR DIMINISH EXISTING

INTERNATIONAL LAW

Consider Article IX of the Outer Space Treaty, which contains two legal duties

and one legal right.

One of those legal duties requires:

“If a State Party to the Treaty has reason to believe that an activity or

experiment planned by it or its nationals in outer space, including the moon

and other celestial bodies, would cause potentially harmful interference

with activities of other States Parties in the peaceful exploration and use of

outer space, including the moon and other celestial bodies, it shall

undertake appropriate international consultations before proceeding with

any such activity or experiment.

CUSTOM CAN ACT LIKE A STONE AND DISTURB

OR DIMINISH EXISTING INTERNATIONAL LAW

Both the United States and the Soviet Union

performed destructive anti-satellite (ASAT)

tests in low-earth-orbit (LEO) during the Cold

War. These tests were not preceded by an

Article IX consultation.

These tests created a customary usage of the

legal duty in Article IX as to not only when a

consultation is required but also when the

consultation requirement need not be invoked,

i.e. during certain national security activities.

This customary practice was likely relied upon

by the People’s Republic of China when it

performed its 2007 ASAT test.

CUSTOM CAN ALSO DIMINISH EXISTING

INTERNATIONAL LAW

The customary practice with national

security activities was fortified as a

result of Operation Burnt Frost on

February 20, 2008, which involved

the de-orbit of USA-193 by a

capability ancillary to missile

defense.

NASA conferred with COPUOS just

prior to the first (and only) de-orbit

attempt, but the U.S. did not formally

invoke a consultation under Article

IX.

Burnt Frost further refined when the

Article IX obligation to consult must

be invoked and more importantly

when it need not be invoked.

NASA Photo

BOTTOM-UP MEASURES VIA DOMESTIC

LEGISLATION CAN ALSO AFFECT

INTERNATIONAL LAW THROUGH CUSTOM

Some states are pursuing a bottom-up

approach to customarily reinterpret

the corpus of international space law

through domestic laws that create

rights in “space resources”, including

the U.S. law found in Title 51,

Chapter 513 of the United States

Code and Luxembourg’s draft “space

resource” law.

Custom created through these laws

directly implicates the interpretation

of Article I and Article II of the Outer

Space Treaty and by extension the res

communis doctrine.

NASA Photo

BOTTOM-UP MEASURES VIA DOMESTIC

LEGISLATION CAN ALSO AFFECT

INTERNATIONAL LAW THROUGH CUSTOM

These domestic laws, which are

supported by political narrative,

act as a stone that creates ripples

through and obfuscates the res

communis principle of the Outer

Space Treaty.

They also create an interpretive

norm that could be applied

inconsistently by bottom-up

measures from other states,

which weakens the corpus of

international law as a whole.

NASA Photo

THE BOTTOM LINE

State practice and bottom-up measures are powerful tools to add to,

shape, and interpret the corpus of international (space) law.

Care and consideration must be taken to think-through the potential

ripples state practice and domestic laws will create and how they may

affect the corpus international (space) law.

Consideration must be given whether a proposed state practice or

domestic law will act as a raindrop or a stone, and what the potential

ripples of a proposed action or domestic law will have on the corpus of

international (space) law not only at its depths but in the shallows.

THE BOTTOM LINE

Will it flow gently into the

shallows of international

(space) law and

seamlessly add to and fill

the gaps of the existing

corpus?

THE BOTTOM LINE

Or will it act like a

tsunami when it reaches

the shallows of

international (space) law

and overwhelm,

displace, or erode the

corpus in favor of its

own interpretations?

BIOGRAPHY*

Michael Listner is the founder and principal of Space

Law and Policy Solutions. He is a 1998 graduate of

Franklin Pierce University and earned his JD from

Regent University School of Law in 2001. Michael is

member of the New Hampshire Bar, and is admitted

to practice before the state and federal courts of that

state. Michael is also the owner and editor of the

space law and policy briefing letter, The Précis.

*Thanks to Justin Rostoff, 3L, New England School of

Law, for his assistance with editing and proof-reading.