Date of this Version
Georgia Journal of International and Comparative Law 48:3 (2020), pp. 645-659.
II. The Structure of Governance under International Space Law: The Problems
III. The Structure of Governance under International Space Law: The Solutions?
Outer space is widely considered to be something of a global commons, an international domain outside the jurisdiction of any country that “belongs to no state and is, in law, as such not subject to appropriation, though its resources are.” This is also reflected by key provisions of the 1967 Outer Space Treaty, the most comprehensive convention on outer space and space activities, notably that “[o]uter space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means” and that “[o]uter space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law . . . .”
The governance of such a “global commons” therefore cannot follow from the authority of a single nation. Such governance requires a foundation in international law, read effectively international treaty law. While customary international law constitutes the other primary source of international law, due to its fluidity, as long as not codified, it would be rather ill equipped to offer something like a governance structure at the required level of precision.
It is through such a structure, that the substance of any limitations to the baseline freedom of activities (“exploration and use,” in the terms of Article I of the Outer Space Treaty) in outer space would be provided. The substance would come from international treaty law, such as the Outer Space Treaty itself, or in this context possibly also as coming from customary international law, general principles of international law, or any other relevant sources of international law.
Consequently, as states are still the primary makers and breakers of international law, the core of the governance structure for outer space and activities conducted in that realm lies in the role that each state has to fulfill with respect to activities by other categories of legal subjects active in this “global commons,” notably intergovernmental organizations and private sector entities. That role is essentially defined by a limited set of clauses of the Outer Space Treaty, some of which have been further elaborated, notably by the 1972 Liability Convention and the 1975 Registration Convention.