Law, College of


Date of this Version



Published by von der Dunk in Proceedings of the Forty-First Colloquium on the Law of Outer Space 254-264 (1998).
Copyright 1998, F.G. von der Dunk. Used by permission.


Recently, the issue of the delimitation and definition of outer space has been put back on the agenda of the Legal Subcommittee of UNCOPUOS. This issue has of course many complex features. It effectively revisits the fundamental but rather theoretical debate between proponents of 'spatialism' and adherents to 'functionalism' when it comes to defining the essence of international space law. It reflects on a measure of absence of political will to establish any rigid delimitation and definition ahead of technical or other developments which may tend to ignore such legal borderlines. Moreover, even amongst those agreeing on the need to settle the issue, substantial differences of opinion rule as to for example where any borderline would have to be drawn.

Either way, the fact that the issue is back on the agenda of the world's most authoritative space law-making institution, signifies that no arguments have so far been able to settle the matter once and for all. The present paper represents an effort to add another perspective to this debate. It is clear, that in the absence of any unequivocal and authoritative agreement so far on the international level, no treaty law exists settling the matter. No uniform interpretation, definition and delimitation of outer space and outer space law can be distilled. However, this does not exclude the possibility of customary law taking the place of treaty provisions on such principled matters. For the formation of customary law, the opinio juris sive necessitatis of individual states is a crucial factor.

Especially important in this context is the opinio juris of states which occupy a special and outstanding position in the field at issue. Such an opinio juris of an individual state could, in principle, very well be given shape in the form of national legislation on the relevant issue. The paper presents an effort to analyze the five cases of national space legislation presently in existence from that perspective. This concerns, in a non-chronological order, the Russian Federation, the United States, the United Kingdom, Sweden, and South Africa. In other words: the first and second nation in space ever and today still the world's space superpowers, the third depositary of the first three space treaties, the state with the Northern-most operational space-base and the state with (in all probability) the Southern-most operational spacebase. Analysis of these cases thus might indeed have considerable relevance for the development of international space law on this issue.

After an overview of the main arguments and issues on the international level, it will be evaluated therefore, whether these cases can give a further clue as to the debate on the delimitation-and-definition issue. To what extent do these laws proceed, explicitly or implicitly, from the concept of outer space as a distinct legal realm? To what extent would they perhaps provide arguments to establish the borderline of outer space at a certain height, assuming that the need for such delimitation is confirmed? In sum, to what extent do these five pieces of domestic legislation contribute to the further codification and development of international space law, amongst others as undertaken by UNCOPUOS?