Legal Challenges in the Context of the European Space Policy

Authors

Frans von der Dunk, University of Nebraska College of LawFollow

Date of this Version

2019

Citation

Chapter 4 in A European Space Policy: Past Consolidation, Present Challenges and Future Perspectives, edited by Thomas Hoerber and Sarah Lieberman, Space Power and Politics Series, London: Routledge/Taylor & Francis Group, 2019.

Comments

Copyright © 2019 Frans G. von der Dunk. Used by permission.

Abstract

Introduction

If institutionalism is about the extent to which institutions influence the political and legal realms, and (political) neoinstitutionalism in that respect stresses the extent to which decisions by political actors are framed by institutions, European space policy would present a very interesting example thereof.

It should be noted, however, that this contribution addresses the issue of European space policy from a predominantly legal vantage point, not that of political science, meaning that even such concepts as “policy” and “institution” are first and foremost being discussed in their legal connotation and context, read from the perspective of a lawyer. Such a vantage point certainly also determines the extent to which the analysis undertaken will shed light on the theory of “neoinstitutionalism,” a political-science theory focusing on the role and nature of institutions as “collections of interrelated rules and routines that define appropriate actions in terms of relations between roles and situations.”

From the—in this respect narrower—legal perspective, only institutions of the well-elaborate, structured, and substantive kind, with personnel, buildings, and money at their disposal are relevant. “Weak” social drivers such as social manners, customs, and resulting behavior might still be seen as such “collections of interrelated rules and routines,” yet from a legal vantage point at best may exercise some background influence, being unable to directly establish law or be directly subjected to it.

Certainly, in the context of European space policy as it is addressed here, there is a sufficient number of the “strong” brand of institutions playing key roles for the present article not to go into much detail into the “weaker” ones; it is the totality of these “stronger” institutions, “true” institutions from the legal perspective, which serve as a filter of a range of policy choices in a close and complex interrelationship with the law. After all, from the other end such institutions, due to their formal nature, size, importance, and stability, are almost invariably a product of law—international organizations of treaties, national organizations of constitutions, laws, regulations, statutes or charters.

Already, however, the mere notion of a “European space policy” raises a number of questions as to which institutions are playing which key roles in its context, both at the European level itself and at the level of the individual Member States. Thus, this chapter will focus on the way in which a European space policy, as the idea has been developed over the last few decades, has been addressed by way of efforts to elaborate and implement it in the legal arena and how it has been given some shape or form using existing institutions and existing law, respectively, by developing new institutions and/or law. Given the complexity of the matter, it is important at the outset to precisely determine the key concepts of, and main parameters for, such an analysis: which “Europe” are we addressing, and how do the twin notions of “institutions” and “law” work together in that particular environment to result in something which—perhaps—could be called a “space policy”?