Article review : How to deal with the slow-down in International law-making for outer space ?

Interdisciplinary Research: Law and Politics

Article review : How to deal with the slow-down in International law-making for outer space ?

A law and political article review of Danilenko G. (2016) “International law-making for outer space” Space law, 37, 179-183, https://www.sciencedirect.com/science/article/abs/pii/S0265964616301461

The author of the article, Danilenko Gennady, is a professor at the Institute of State and Law, USSR Academy of Sciences in Moscow. In addition to writing on space law, he is also interested in constitutional law, legal positivism and natural law.

Introduction

Space law is related to international law, which is a field that followed me throughout my studies in college. I had the opportunity to study it in environmental law, concerning space debris, but also when I had to make a complete presentation on the problems concerning outer space in my university of origin, I notably studied space treaties, bodies, the difficulty of consensus... Having already some knowledge in mind, it will then be easier for me to criticize an article dealing with this subject. Indeed, I am particularly interested in space law. While there is still so much to do in this field, so many stakes (military, environmental...), space law is very little active since the last treaty of 1984 (The Moon Treaty). Some will even say that outer space is an exotic field of law and will ask themselves why deal with such distant problems when there are already enough problems on earth that are waiting for a solution. But isn't it fascinating to be confronted with new legal issues in this new world that goes far beyond anything man has ever achieved? In this spirit of contradiction, here are the reasons for my interest in the article entitled "International law-making for outer space", which shows that space law is a law that deserves to be actively regulated and recognized as of paramount importance on the international scene.

This article focuses on the political and legal problems leading to the slowdown in the law-making process and different solutions. According to the author, the main problem lies in establishing a real consensus between countries regarding the creation and ratification of treaties. In the first part of the paper the author starts from the principle that space law concerns everyone and that it is therefore necessary to have multilateral negotiations with a legal regime of universal scope. But it is sometimes complicated to obtain a consensus between the States, some deciding not to ratify certain treaties or to interpret them in their own way. Indeed the economic value of the space increases and therefore the countries want to establish a right of equal participation concerning the legislation and each one signs the treaty that satisfies its own interest. The question then arises as to how to improve the negotiation procedure in order to achieve the objectives of all States through law. The author explores in particular anticipatory regulation, which is good if it is not abused when the subject is too complex, but on the other hand it should not be used to postpone ratification. He also explores the problem of the proliferation of different negotiating forums due to the diversity of the subjects addressed, which requires greater coherence and coordination of legislative activities or there will be inconsistent positions in various international and national bodies that may adopt contradictory rules. Also, it highlights the fragmentation of the legal regime, i.e., states have divided attitudes on controversial issues with limited agreements reflecting their preferences. But this tendency is limited by the fact that new space treaties generally repeat general provisions that have already been approved by earlier treaties. Finally, the solution he is debating with himself is the idea of creating a harmonious corpus with a codification of space law in a single comprehensive convention governing all space activities and this idea should be supported legally and politically. On the other hand, it would be premature because space law is still at an early stage of development and politically, there will be a tendency to reflect the preferences of the numerical majority and not of the countries that have the most influence. Finally, even if the author has succeeded in targeting and delimiting the problem concerning the lack of consensus, the author does not really give a solution and is content to comment legally and politically different approaches, moreover one can reproach him for having forgotten some space issues.

Summarize

The author tries to understand why there is a slowdown in the law making concerning space law. His main idea is based on the fact that there is no real consensus between the nations even though they are more or less all concerned. Nevertheless, this is precisely the problem, the fact that there is an increase in ownership of the negotiating forums gives rise to divergences, oppositions, leading to fragile consensus which do not give rise to ratifications by all. He takes in particular the example of the Moon Treaty which has not been ratified by the largest space powers. Moreover, the latter find themselves in a minority while the majority tends to use their numerical strength by controlling the agenda and by pressing for solutions which satisfy their own interests. It is then necessary to review the way of negotiating, because as long as the consensus will be taken according to the criterion of quantity and not quality, it will not be sufficient to make the great powers want to get involved. According to him, anticipatory regulations, the proliferation of negotiating forums and confining provisions elaborated in the same negotiating forum leads to the fragmentation of the legal regime, to this lack of consensus and thus to a slowing down of the law making process.

Indeed, one reason against the law-making procedure is that space law is based on anticipatory regulation, a strategy that is defensible, but has its pitfalls. Indeed, it is risky in cases where detailed regulation of complex technical or economic issues is required. People are not well enough informed, it is complicated to foresee in advance this field and therefore there are too many assumptions and ideas that are often not feasible. And on the other hand, these doubts lead many countries not to ratify treaties like the one about the moon, because they think that it is premature.

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