The Methodological Challenges of Space Law in the Light of the Emerging Privatization of Outer Space

The overarching aim of this dissertation is to investigate the methodological challenges of international lawmaking in outer space, considering that non-governmental entities are increasingly becoming the primary actors. To arrive at an answer, the dissertation asks two additional sub-questions. First, whether the general methodological challenges of the sources of international law can be said to be different for space law than for general international law, and if so, how? This is not intended to be a comprehensive clarification of all issues in international law but focuses on the most common problems. The purpose of this is to see if there may be differences in the issues that could be significant when nongovernmental entities become involved in the discussion. The next question is whether non-governmental actors can play a role in rule development in space, and if so, how?

The dissertation consists of four parts. Part 1 comprises of chapters 1-3 and constitutes the framework of the dissertation. Thus, the first chapter consists of the introduction to the dissertation’s topic, research questions, delimitation, and structure. Chapter 2 presents the dissertations methodology, which uses a public international law methodology. Chapter 2 also presents the types of sources used. The last chapter in Part 1 introduces the relevant actors for the dissertation and clarifies some terminological uncertainties. The treaties that regulate space were developed in the 1960s and 1970s and laid the groundwork for public international law in a completely new area. This means that some expressions have been used that are not known from elsewhere and whose precise meaning there is not complete agreement upon. Therefore, four expressions relevant to understanding the dissertation topic have been chosen, analyzed, and then it is concluded how they should be understood when used in the dissertation. The first expression is “space activity,” which the dissertation understands broadly to cover all activities related to space research, exploration, and use, as well as the launch of a space object, everything related to its time in space, and the object's return. Next, the concept of “national activity” as found in the Outer Space Treaty (OST”) Article VI is examined. This term is relevant because all national activity in space is attributed to the state, regardless of whether it is the state's own activity or that of a non-governmental actor. The term is also open to which state is involved, but in the dissertation, it is understood as the state, or states, that have jurisdiction over the nationals performing the activity, over the space object used for the activity, and over the territory from which the activity is carried out. Then the expression “launching state,” as described in Article VII of the OST, is examined as the state or states from whose territory or launch facility the launch takes place, and the state or states that either launch or procure the launch. The expression “procure” and whether this term applies to purely private launches is particularly debatable, but the dissertation concludes that it applies to private launches. The last expression is “registering state,” which it is determined generally does not present problems in terms of clarification. According to OST Article VIII, it is the state that can have control and jurisdiction over a space object. According to Article II of the Registration Convention (“REG”), it is a launching state that can register.

Part 2 describes in chapters 4-6 why it is necessary to discuss the methodology of space law. The relationship between international law and space law is described, the sources of international law are presented, and the relationship between the state and non-governmental actors is uncovered in both public international law and space law. It is clear from OST Articles I and III that international law is applicable in space and that space activities must not conflict with international law. Space law, however, contains provisions that differ from general international law, and it can be established that the treaties thus constitute lex specialis, and that space law is a special regime. The primary sources of international law, as found in Article 38 of the Statute of the International Court of Justice, are the same as for space law. These sources, characterized by creating legally binding obligations and rights for states that accept them, consist of international treaties, international customs, and general principles of law. Where space law begins to diverge significantly from general international law is in relation to how the actions of non-governmental actors are attributed to the state. Under general international law, it takes a lot for the state to be held responsible for the actions of non-governmental actors. The descriptions of this can be found in the Articles on State Responsibility by the International Law Commission. Among other things, it states that a state must have accepted the actions of the actor as its own, or that the state must have exercised effective control over the actions of the non-governmental actor. In space law, the situation is different. According to Article VI of the OST, all national activity is attributed to the state, and the state must also authorize and continuously supervise the space activities of non-governmental entities. Usually, in international law, states and non-governmental entities are divided into subjects and objects, respectively. Subjects are distinguished by having international legal capacity, including the ability to create rights and obligations for themselves. Objects, on the other hand, only have the rights and obligations given to them by the state. Some authors, such as Higgins, argue against this view and prefer to see non-governmental entities as participants in international law, who can have rights and can be involved in developing international law. The close connection between the state and the nongovernmental actor in the form of Article VI of the OST makes the concept of participants even more relevant in space law, as the state may need to respond to the actions of non-governmental entities more. Non-governmental entities, however, are still not directly subject to international law, which means they are not entirely subjects, but also not entirely objects, as they can act to some extent. It can therefore be said that the state’s international subjectivity has been expanded to also include the actions of nongovernmental entities, making non-governmental entities participants.

Part 3 focuses on the sources and on answering the two sub-questions of the dissertation. Chapter 7 deals with treaties, Chapter 8 with customs, and Chapter 9 with general principles of law. The structure in each chapter is generally the same. First, the source is presented, and then the primary methodological challenges are examined. Subsequently, the source is examined in the context of space law and what methodological challenges can be identified there. Finally, each chapter concludes by discussing the possible role of non-governmental entities in developing or influencing the source in outer space. Thus, for treaties, the general methodological challenges are the existence of the treaty, where the requirements for terminology, form, and intention to be bound are examined. Furthermore, the primary source on interpretation rules for treaties, as found in articles 31 and 32 of the Vienna Convention on the Law of Treaties, is outlined. In relation to space law, treaty-making does not pose significant challenges, as no treaties have been created since the Moon Agreement in 1979. However, it is discussed whether the new non-binding Artemis Accords might be seen as a potential treaty, which is ultimately dismissed. The main challenge for the space treaties is, on the other hand, source conflict. The general source conflict rules are then presented, followed by a discussion of space treaties in this regard. This allows for a general discussion of space treaties as lex specialis. It is established that the space treaties are lex specialis. It is also established that the OST, as the primary treaty for outer space, is also lex generalis for space law, and that subsequent treaties, which to some extent alter certain provisions of the OST, can therefore be considered lex specialis in relation to the OST. This is followed by an analysis of a rule conflict between two lex specialis areas, namely space law and EU law. A conflict is identified between the OST requirement to authorize and supervise, and the EU's free movement of services across borders. Should a company offer a space service across a border, it would require authorization from both states under the OST, but under EU law, citizens have the right to free movement of services. Since the dissertation has an international legal perspective, and supranational EU law differs from this, it is determined that the analysis should take the reader through much of the basics of EU law to discuss the situation correctly. The solution, due to the two systems' view of being above the other, is not clearly resolvable. It is concluded, however, from an international law perspective, that the OST must take precedence over EU law due to the OST's status as fundamental for states' common use of outer space.

In relation to non-governmental entities in treaty law for space, the legal theory of “Attributed Lawmaking” is discussed. The theory describes that when the activities of non-governmental entities is attributed to the state, the non-governmental entity have the opportunity to step into the state's place and act on its behalf. The state can then choose to respond by either accepting or rejecting the behavior. If the state does not respond when it is responsible for the behavior, the action is attributed to the state. The theory here suggests that this is particularly applicable in space due to Article VI. In relation to treaties, the theory suggests that nongovernmental entities' behavior can be seen as either an interpretation of treaty rules or subsequent practice. This is then discussed in relation to various examples and challenges from space law. It is concluded from the analysis that non-governmental entities can influence treaties in outer space by performing actions that can lead to subsequent practice and interpretation, but that the state can stop this by reacting to the practice.

Finally, treaties in both international law and space law in light of non-governmental entities are discussed, and it is concluded that the interpretation of treaty provisions is an area where space law differs significantly because non-governmental entities can influence this. This requires the state to supervise but also to monitor other states' non-governmental entities if they perform activities the state does not desire. It is suggested that one way to regulate this is to take inspiration from the Artemis Accords and create non-binding agreements to regulate different parts of outer space and guide the practice.

For customary international law, the classic methodological challenges in creating it require proving both state practice and opinio juris, each element having its own challenges. This is evident in space law, where there seems to be a general consensus in legal literature that the OST represents a source of customary law. This is relevant because there are states that are not parties to the OST and are beginning to engage in activities in space. As a result, it is risked that there may be both governmental and non-governmental entities not being bound to follow the rules because the launching state is not a party to the OST. The chapter discusses that if OST were to be analyzed in relation to the general rules for customary law identification, there may be issues in meeting these criteria. However, it is suggested that if a case were to come before the International Court of Justice on this matter, the courts would need to be pragmatic and conclude that a customary law exists, as failure to do so could threaten the coherence of space law. One area where space law further distinguishes itself is in the possibility of accelerated customary law development. There are examples of this from the early days of space law, and thus several theories attempt to explain this phenomenon.

Regarding non-governmental entities, the theory of Attributed Lawmaking is again presented, suggesting that activities of nongovernmental entities can constitute practice in customary law development. However, the second element, opinio juris, is more difficult to argue for. Another theory proposing that opinio juris of non-governmental entities can be found through various analyses is discussed and rejected. It is acknowledged that non-governmental entities may engage in practices towards customary law, but they cannot establish opinio juris, which remains the domain of states as controlling entities.

In the discussion, it is noted that accelerated customary law development can occur in space, although the opportunity for this is extremely rare. Furthermore, general customary law development in space is not significantly different from that in general international law. The distinction arises in the context of non-governmental entities' ability to generate practices, which could potentially impact rapid customary law development seriously. Additionally, it is noted that when the OST represents both customary law and treaty, distinguishing between subsequent practice and practice against customary law development becomes challenging. It is suggested that perhaps this distinction may not be crucial precisely because the OST serves both functions. Viewing this as two sides of a whole is proposed, where the treaty represents the agreement, and the customary aspect represents how things are implemented in practice.

The last source of international law is general principles of law. The major challenge with general principles is defining what they are and where they originate from. It is then examined how the International Law Commission has proposed to interpret them in their report, the reactions of states, and what the literature says. Since this does not provide a clear answer beyond their broad and overarching nature, some recognized legal principles are listed, and it is suggested that due to their broad nature, diversity, and their use not as foundational principles but as arguments leading to a judgment, they should be viewed as the underlying rationale of international law. Determining the origin of general principles of law is no easier than defining what they are. The International Law Commission suggests they can be derived both through analysis of national legal systems and through analysis of sources of international law. The latter proposal faces opposition from several states as they could not see how this source was then differentiated from customary law, and did not believe the description of the source allows for internationally generated principles. However, there is agreement that they originate from national systems.

When examining general principles of law in space law, a theory is explored that these can be derived from states' implementation of space regulations in national law. The thesis then suggests that this could mean general principles of law can be derived from international sources. Under Article VI of the treaty, states are required to ensure that national activities conform to space treaties, indicating that provisions must be implemented. If general principles can be derived from national laws, and space treaties must be implemented, principles can be directly derived from the treaties. The treaty is subsequently analyzed, and several provisions have the same degree of broad and overarching formulations that would be consistent with principles. It is then suggested that the treaty could be considered to constitute general principles of space law.

Regarding non-governmental entities and general principles of law, it is difficult for non-governmental entities to influence their development. Principles are generally derived directly from rules and judicial decisions. However, it is suggested that non-governmental entities' activities through campaigns and lobbying can influence the interpretation of principles, especially when these represent an underlying rationale. Moreover, through their behavior in space, which must be assumed to be conducted under the belief that it is lawful, non-governmental entities can also represent an interpretation of a principle.

Finally, general principles of law are discussed in relation to the findings. It is proposed that general principles of space law can develop in international space law and not only from national law. The opportunity for non-governmental entities within this source is generally limited, but not entirely absent. However, since the OST represents all three sources, it becomes difficult to distinguish what behavior represents which. But if we consider general principles of space law as the underlying rationale behind the law, it becomes less important again. Thus, general principles of space law could be the third pillar in space law, alongside agreements (treaties), practice (customs), and the underlying rationale (principles). Depending on the aim of the behavior, it could then constitute practice towards one of the three pillars.

Part 4 summarizes and discusses the findings of the thesis, starting with addressing each of the sub-research questions before consolidating the answers into a conclusion for the overarching research question. Firstly, it answers whether there is a difference in the methodological challenges between outer space law and general international law and what these differences are. It can then be observed that there is not much variation regarding treaties, slightly more for customary law regarding the possibility of accelerated customary law development, and more in principles in that they are in the treaty and can be developed directly in outer space law.

Regarding the second research question about the role of nongovernmental actors, it can be seen that they have a role in both treaties, customary law, and principles because their behavior is attributed to the state and can thus be subsequent practice, practice in custom, and interpretation of general principles. However, it is noted that even though private actors have a role, they can only develop one element out of two necessary for a source. Thus, they can perform subsequent practice with regard to treaties but only if the state does not respond. They can develop practice against a custom but not opinio juris. Finally, they can work for an interpretation of principles, but only if this interpretation is accepted by the state. Non-governmental actors, therefore, have a role, but only to the extent that the state does not block this. This leads to the final conclusion that the method in outer space law for rule development in the light of non-governmental actors' activities is a special regime with variations compared to general international law, the biggest of which is that non-governmental actors can be participants in development unless actively blocked by the state.