Is International Space Law Interactional

Is International Space Law Interactional? JACK WRIGHT NELSON* Scholars, states, and non-state organizations are intensifying their efforts to expand the legal regime governing outer space activities. But would an expanded space regime be effective in guiding and controlling behavior in space? In this Article, I argue that this question must be answered in the negative. My argument draws upon the interactional approach to international law. This approach posits that a regime will generate a sense of legal obligation among its subjects if it is based on shared understandings, satisfies eight criteria of legality, and is sustained by a practice of legality. Testing the space regime along these three axes, I conclude that key aspects of this regime—namely, the Outer Space Treaty and the International Telecommunications Union—are only partially compliant with the criteria and practice of legality. The results of this analysis suggest that we do not need more law in space. Rather, we need better use of the law we already have. INTRODUCTION ................................................................................ 332 I. THE INTERACTIONAL APPROACH TO THE SPACE REGIME ............. 350 A. From Norms to Legal Norms ......................................... 351 B. Benefits of an Interactional Approach to the Space Regime ...................................................................................... 355 II. THE SPACE REGIME’S SHARED UNDERSTANDINGS ..................... 363 A. The Need for the Space Regime .................................... 364 B. Decoupling and Fragmentation ...................................... 371 * McGill University and National University of Singapore. I am grateful to René Provost and Cassandra Steer for their comments on earlier drafts of this article. 332 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 III. THE OUTER SPACE TREATY AND THE CRITERIA OF LEGALITY ... 376 A. Generality ....................................................................... 378 B. Promulgation .................................................................. 380 C. Non-Retroactivity ........................................................... 382 D. Clarity ............................................................................ 383 E. Non-Contradiction .......................................................... 391 F. Not Asking the Impossible ............................................. 395 G. Constancy ....................................................................... 395 H. Congruence .................................................................... 396 IV. THE INTERNATIONAL TELECOMMUNICATIONS UNION AND THE PRACTICE OF LEGALITY ......................................................... 402 A. Promulgation .................................................................. 404 B. Non-Contradiction.......................................................... 406 CONCLUSION ................................................................................... 412 INTRODUCTION Global inequality in the exploration and use of outer space is longstanding. After all, the ‘Space Race’ of the 1950s and 60s only had two competitors: the United States and the Soviet Union.1 But this inequality is also persistent. More than six decades post-Sputnik,2 space remains effectively closed to all but a handful of space-faring states.3 Less than 20 states have independent launch capabilities,4 and only three states are currently capable of independent human spaceflight: the United States, Russia, and China.5 And, while private space actors are on the rise, in 2022, more than seventy percent of global private investment in space ventures went to companies in the 1. See generally ALAN J. LEVINE, THE MISSILE AND SPACE RACE (1994). 2. The Soviet Union launched the world’s first artificial Earth satellite into orbit in October 1957, marking the beginning of the “Space Age.” See Elina Morozova & Yaroslav Vasyanin, International Space Law and Satellite Telecommunications, in OXFORD RESEARCH ENCYCLOPEDIA OF PLANETARY SCIENCE (2019). 3. Cassandra Steer, Who Has the Power? A Critical Perspective on Space Governance and New Entrants to the Space Sector, 48 GA. J. INT’L & COMP. L. 751, 753 (2020). 4. Id. 5. Adam Gadd, The US Cooperates With Russia in Space. Why Not China?, DIPLOMAT (Sept. 30, 2021), https://thediplomat.com/2021/09/the-us-cooperates-with-russia-in-spacewhy-not-china/ [perma.cc/Y3JF-BDM5]. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 333 United States.6 And one-third of the U.S. share went to just one company: Space Exploration Technologies Corporation, better known as ‘SpaceX.’7 The inequality in space access contrasts sharply with the abundant participation in international space law’s foundational instrument, the Outer Space Treaty.8 Of the United Nations’ 193 Member States, 113 have ratified the Outer Space Treaty, and a further twenty-three have signed it,9 far exceeding the number of space-faring states. Why have so many states ratified the Outer Space Treaty, when so few states have space capabilities? Article I of the Outer Space Treaty suggests an answer. This article provides that space exploration and use “shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development and “shall be the province of all [hu]mankind.”10 Article I’s promise is that space exploration and use will still be possible as and when each state develops its own space capabilities. Until then, Article I implores space-capable states to do so with the goal of benefitting humanity. But ensuring that space exploration and use remains the province of all humankind is a complex regulatory challenge. Space presents enormous scientific and commercial opportunities, but also encompasses threats to national security,11 the Earth’s environment,12 and human well-being.13 These opportunities and threats arise in a tense political, military, environmental, and economic context. This tense context is aggravated by the physical 6. BryceTech, Start Up Space: Update on Investment in Commercial Space Ventures 17 (2023), https://brycetech.com/reports/report-documents/Bryce_Start_Up_Space_2023.pdf [perma.cc/R67E-PW77]. 7. Id. at 18. 8. See generally Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty]. 9. See Comm. on the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm. On Its Sixty-First Session, Status of International Agreements Relating to Activities in Outer Space as at 1 January 2022, U.N. Doc. A/AC.105/C.2/2022/CRP.10 (2022). 10. Outer Space Treaty, supra note 8, art. I. 11. See generally, from a U.S. perspective, DEF. INTEL. AGENCY, CHALLENGES TO SECURITY IN SPACE, SPACE RELIANCE IN AN ERA OF COMPETITION AND EXPANSION (2022). 12. Threats from Space, EUR. SPACE AGENCY (2022), https://www.esa.int/Science_Exploration/Space_Science/Space_for_you/Threats_from_spac e [perma.cc/4VY8-ZUJP]. 13. Id. 334 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 extremes of space. Satellites (and orbital debris) in low Earth orbit travel at over 28,000 kilometers per hour.14 Daily temperatures on the Moon vary between -130° and 120° Celsius.15 And the vacuum of space renders it inherently hazardous to human life.16 As such, it presents truly universal issues, with implications that extend well beyond Earth and far across time. In this respect, space represents an urgent collective action problem, akin to climate change, requiring broad-based international cooperation and multilateral decision making.17 How can we meet this complex regulatory challenge? The Outer Space Treaty establishes that space must be managed via broadbased international cooperation. The word “cooperation” appears seven times in the Outer Space Treaty18—more than other important concepts such as “liability,” “military,” “scientific,” or “jurisdiction.” Article IX notably calls upon states parties to “be guided by the principle of co-operation and mutual assistance” when exploring and using “outer space, including the moon and other celestial bodies.”19 This call has gone unheard. Space exploration and use is not carried on today for the benefit and interests of all humankind. Rather, space is increasingly congested, contested, and competitive.20 And the complex set of international space law and practice governing outer space—which I refer to generally as the “space regime”—is the law of begrudging coexistence rather than enthusiastic cooperation. And, when compared to its adjacent regimes governing international civil 14. Types of Orbits, EUR. SPACE AGENCY (Mar. 30, 2020), https://www.esa.int/ Enabling_Support/Space_Transportation/Types_of_orbits [perma.cc/A9TB-8GCR]. 15. Lunar Reconnaissance Orbiter: Temperature Variation on the Moon, NAT'L AERONAUTICS AND SPACE ADMIN. (2014), https://lunar.gsfc.nasa.gov/images/lithos/LROlitho 7temperaturevariation27May2014.pdf [perma.cc/8Z2L-NQ8Z]. 16. Primarily due to decompression and resulting ebullism, and secondarily due oxygen deprivation and resulting hypoxia. See Mark Springel, The Human Body in Space: Distinguishing Fact from Fiction, HARV. UNIV.: SCIENCE IN THE NEWS (July 30, 2013), https://sitn.hms.harvard.edu/flash/2013/space-human-body/ [perma.cc/N9QJ-WFL2]. 17. Steven R. Brechin, Climate Change Mitigation and the Collective Action Problem: Exploring Country Differences in Greenhouse Gas Contributions, 31 SOCIO. F. 846, 846 (2016). 18. Outer Space Treaty, supra note 8. Twice in the Preamble, and one count in each of arts. I, III, IX, X, and XI. 19. Outer Space Treaty, supra note 8, art. IX. 20. See generally Roger G. Harrison, Unpacking the Three C’s: Congested, Competitive, and Contested Space, 11 ASTROPOLITICS 123, 123 (2013). 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 335 aviation and the high seas, the space regime is particularly vulnerable to being viewed as “underdeveloped”21 and full of “gaps.”22 More specifically, it is often perceived as insufficient in the face of present and future challenges:23 A 2019 headline from The Economist simply declares that “Space Law is Inadequate for the Boom in Human Activity There.”24 This situation has fostered efforts to develop specific legal instruments, or amend existing instruments, to meet the challenges we face in space. Given the political impasse between the leading space powers,25 these efforts primarily focus on developing nonbinding instruments. These efforts—whether formally binding or not—will result in the space regime’s expansion. And the arguments made for this expansion point to rapidly increasing human space activity and the space regime’s undeniable gaps. However, in this Article, I do not investigate the merits of these efforts to expand the space regime. Instead, I critique these efforts—or, more specifically, I critique the core assumption that underpins these efforts. This assumption is that a new treaty or norm will resolve the challenges we face in space—if only such a treaty or norm could be agreed upon. As such, my primary research question is: Would an expanded space regime be effective in guiding and controlling behavior in space? In responding to this question, I rely on the interactional theory of international law developed by Jutta Brunnée and Stephen J. Toope. This theoretical approach26 posits that “three inter-related elements”— namely, “shared understandings, criteria of legality, and a practice of 21. Christopher ‘Kip’ Hale, Are We a Bigger Problem Than We Realize?, 20 J. INT’L CRIM. JUST. 293, 305 (2022). 22. Katherine Latimer Martinez, Lost in Space: An Exploration of the Current Gaps in Space Law, 11 SEATTLE J. TECH., ENVT. & INNOV. L. 322, 323 (2021). 23. See generally Lorenzo Gradoni, What on Earth Is Happening to Space Law?, EJIL: TALK! (July 31, 2018), https://www.ejiltalk.org/what-on-earth-is-happening-to-space-law-anew-space-law-for-a-new-space-race/ [perma.cc/M5P7-X2P2]. 24. Space Law Is Inadequate for the Boom in Human Activity There, ECONOMIST (July 18, 2019), https://www.economist.com/international/2019/07/18/space-law-is-inadequatefor-the-boom-in-human-activity-there [perma.cc/WR7R-B8RE]. Furthering the negative impression, the article is tagged on the Economist’s website under the heading “Lawless Wastes.” See id. 25. Steer, supra note 3, at 756. 26. By “theoretical approach,” I simply mean a grouping of principles, statements or insights that provide a way of thinking about law, norms, and regimes. 336 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 legality”—are “crucial to generating . . . a sense of commitment among those to whom law is addressed.”27 Only when all three elements are met “can we imagine agents feeling obliged to shape their behavior in the light of the promulgated rules.”28 This is because the combination of these three elements produces norms perceived as legitimate and legal. Norms that enjoy legitimacy and legality generate a sense of obligation among participants in the system.29 And, as Brunnée and Toope note, “[i]nternational lawyers should care about obligation because obligation is the value-added of law.”30 This is because obligation is, from the interactional perspective, a particularly effective means of guiding and controlling behavior—or, in the specific case of the space regime, ensuring the cooperation required to realize space exploration and use as the province of all humankind (rather than the province of whoever gets there first). Space law scholars have yet to embrace the interactional approach. This is unsurprising: Space law scholarship has historically eschewed theoretical perspectives other than traditional international legal positivism, the New Haven School’s policy-oriented jurisprudence,31 or Manfred Lach’s legal realist approach.32 Theoretical approaches to space law can be resisted on the grounds that space activities are a fundamentally practical endeavor. From this premise, it could be argued that their legal analysis should be similarly practical. But this aversion to theoretical approaches is changing. Critical space regime scholars such as Cassandra Steer,33 Cristian van 27. Jutta Brunnée & Stephen J. Toope, Interactional International Law: An Introduction, 3 INT’L THEORY 307, 308 (2011). 28. JUTTA BRUNNÉE & STEPHEN J. TOOPE, LEGITIMACY AND LEGALITY IN INTERNATIONAL LAW: AN INTERACTIONAL ACCOUNT 41 (2010). 29. Id. at 130. 30. Id. at 77. 31. See generally, e.g., MYERS S. MCDOUGAL, HAROLD D. LASSWELL & IVAN A. VLASIC, LAW AND PUBLIC ORDER IN SPACE (1963). 32. See generally MANFRED LACHS, THE LAW OF OUTER SPACE: AN EXPERIENCE IN CONTEMPORARY LAW-MAKING (1972). 33. See generally Cassandra Steer, “The Province of all Humankind” – A Feminist Analysis of Space Law, in COMMERCIAL AND MILITARY USES OF OUTER SPACE 169 (Melissa de Zwart & Stacey Henderson eds., 2021). 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 337 Eijk,34 Natalie Treviño,35 Timiebi Aganaba,36 and Edythe Weeks37 have developed new approaches to this regime that foreground its biases, discredit its claims to neutrality, and reveal aspects of it as selfcontradictory, biased, intentional indeterminate and ultimately exclusionary. Similarly, comparative studies between the space regime and the other branches of international law have attracted various commentators, notably Steven Freeland and Danielle IrelandPiper, regarding the space regime’s intersections with international human rights law.38 Further, the application of traditional international law doctrines has been recast in the space context. Melissa Durkee explores how, per Article VI of the Outer Space Treaty, “the actions of private space companies” are attributed to states, thereby becoming novel evidence of state practice.39 The principal consequence of this “attributed lawmaking” is that private companies have and will develop the space regime “by advancing the legal principles of their choice—to legislators, investors, and the popular press, and with their actual rocket launches.”40 Durkee argues that “the building blocks for customary international law are already forming in this area, and doing so in an underappreciated manner.”41 Despite these critical and doctrinal advancements, the space regime remains under-theorized. This is problematic because the space regime’s complexity renders it particularly amenable to theoretical analysis. As such, I posit that a theoretical approach is necessary to respond to the primary research question, given that this question concerns the space regime writ large. But before proceeding 34. Cristian van Eijk, Unstealing the Sky: Third World Equity in the Orbital Commons, 47 AIR & SPACE L. 1, 10 (2021). 35. Natalie B. Treviño, The Cosmos Is Not Finished, ELECTRONIC THESIS AND DISSERTATION REPOSITORY 1, 15 (2020). 36. Timiebi Aganaba-Jeanty, Introducing the Cosmopolitan Approaches to International Law (CAIL) Lens to Analyze Governance Issues as They Affect Emerging and Aspirant Space Actors, 37 SPACE POL’Y 3, 3 (2016). 37. EDYTHE WEEKS, OUTER SPACE DEVELOPMENT, INTERNATIONAL RELATIONS AND SPACE LAW: A METHOD FOR ELUCIDATING SEEDS 97 (2012). 38. Steven Freeland & Danielle Ireland-Piper, Space Law, Human Rights and Corporate Accountability, 26 UCLA J. INT’L L. FOREIGN AFF. 1, 1 (2022). 39. Melissa J. Durkee, Interstitial Space Law, 97 WASH. U. L. REV. 423, 428–29 (2019). 40. Id. at 428. 41. Id. at 429. 338 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 further, this term—“space regime”—requires some unpacking. For the purposes of this Article, Stephen Krasner’s definition of “regime” is applicable. As such, I use the word “regime” to mean “[a] set of implicit or explicit principles, norms, rules, and decision-making procedures around which actor expectations converge in a given area of international relations.”42 Such regimes, as Andreas Hasenclever et al. explain, “are intended to remove specific issue-areas . . . from the sphere of self-help behaviour.”43 This is achieved by “creating shared expectations about appropriate behaviour and by upgrading the level of transparency in the issue-area” such that states (and other actors) can “cooperate with a view to reaping joint gains in the form of additional welfare or security.”44 The space regime, therefore, denotes a whole system of international practices, customs, and usages45—in short, a collection of norms—that should facilitate the broad-based international cooperation envisioned in the Outer Space Treaty. This regime is the subject of this Article. Examples will be drawn from all aspects of this complex regime, including national legislation, international treaties, non-binding instruments, technical standards, and institutional practices. Each example will be analyzed through the interactional lens. As such, in addition to responding to the primary research question, this Article’s secondary objective is to further demonstrate the value of theoretical approaches to the space regime. There are two preliminary legal points to note at this early juncture, for the benefit of readers who are unacquainted with the space regime. First, international law continues to apply to states throughout outer space and on celestial bodies. This principle is affirmed by Article III of the Outer Space Treaty.46 This Article provides that: 42. INTERNATIONAL REGIMES 2 (Stephen D. Krasner ed., 1983). 43. Andreas Hasenclever, Peter Mayer & Volker Rittberger, Integrating Theories of International Regimes, 26 REV. INT’L STUD. 3, 3 (2000). 44. Id. 45. Jill Stuart treats each of the treaties governing outer space activities as constituting a distinct “outer space regime,” such that there is a collection of “outer space regimes.” See generally Jill Stuart, Regime Theory and the Study of Outer Space Politics, GLOB. POL. OP. (Sept. 30, 2013), https://www.globalpolicyjournal.com/blog/30/09/2013/regime-theory-andstudy-outer-space-politics [perma.cc/Y2HK-D9DK]. This more granular approach is useful for exploring regime formation. But as this article responds to varied proposals for new treaties and norms, a holistic approach is more appropriate. 46. Outer Space Treaty, supra note 8, art III. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 339 States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.47 As such, there is no legal vacuum in space; it is not the “Wild West.”48 Rather, states remain subjects of international law in space just as they are subjects of international law on Earth, including on the high seas, or in international airspace. The second preliminary point is that states bear international responsibility for the actions of their nationals in space—without needing to rely on customary concepts of attribution.49 This point requires further exposition because, as Bin Cheng notes, it represents a “fundamental innovation”50 in international law. The role of non-state actors in exploring and using space was a topic of intense debate between the United States and the Soviet Union in the early 1960s. This debate arose while the United States and the Soviet Union negotiated the Outer Space Treaty’s predecessor instrument, the Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space (hereinafter, Legal Principles Declaration).51 The Soviet Union argued that only states should perform space activities.52 Non-state actors were to be excluded entirely from all 47. Id. 48. David Kuan-Wei Chen, New Ways and Means to Strengthen the Responsible and Peaceful Use of Outer Space, 48 GA. J. INT’L. & COMP. L. 661, 663 (2020). 49. As James Crawford explains, “the general rule is that conduct attributed to the State . . . is [only] that of its organs of government, or of others who have acted under the direction, investigation or control of those organs, that is, as agents of the State.” James R. Crawford, State Responsibility, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW ¶ 18 (2006). A corollary of this rule is that the conduct of private persons is not generally attributable to a state. See Alexander Kees, Responsibility of States for Private Actors, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW ¶ 1 (2011). 50. Bin Cheng, Article VI of the 1967 Space Treaty Revisited: “International Responsibility,” “National Activities,” and “The Appropriate State,” 26 J. SPACE L. 7, 14 (1998). 51. See generally G.A. Res. 1962 (XVIII) (Dec. 13, 1963) (adopted without vote). 52. GENNADY ZHUKOV & YURI KOLOSOV, INTERNATIONAL SPACE LAW 65 (Boris Belitzky trans., 2d ed. 2014). 340 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 space activities. Unsurprisingly, the United States disagreed. As Frans von der Dunk summarizes: [T]rue to its communist ideology, [the Soviet Union] was squarely against any private activities in most economically-relevant areas of society, but certainly so in an area of such strategic concern as outer space. By contrast, the United States throughout its existence has usually presented itself as the champion of private enterprise, an approach also transpiring in its space policies.53 A negotiated compromise was reached and articulated in Paragraph 5 of the Legal Principles Declaration and further formalized in Article VI of the Outer Space Treaty.54 Article VI imposes “international responsibility” on States for “national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by nongovernmental entities.” 55 States are also required to “assure” that these “national activities are carried out in conformity with the provisions set forth in the [Outer Space] Treaty.”56 In addition, “[t]he activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”57 The impression was thereby created of “private activity but public responsibility.”58 The prevailing view59 is that Article VI means that “states are responsible for national activities and the activities of 53. Frans G. von der Dunk, The Origins of Authorisation: Article VI of the Outer Space Treaty and International Space Law, in NATIONAL SPACE LEGISLATION IN EUROPE: ISSUES OF AUTHORISATION OF PRIVATE SPACE ACTIVITIES IN THE LIGHT OF DEVELOPMENTS IN EUROPEAN SPACE COOPERATION 1, 1 (2011). 54. Outer Space Treaty, supra note 8, art. VI, ¶ 5. 55. Id. art. VI. 56. Id. 57. Id. 58. von der Dunk, supra note 53, at 5. 59. This view has, on occasion, been challenged. See generally Commercial Space Landscape: Hearing Before the S. Comm. on Space, Science and Competitiveness, 116th Cong. (2019) (Testimony of Laura Montgomery, Proprietor, Ground Based Space Matters, LLC); Commercial Space Landscape: Hearing Before the H. Comm. on Space, Science and Competitiveness, 115th Cong. (2017) (Testimony of Laura Montgomery, Proprietor, Ground Based Space Matters, LLC). 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 341 their nationals in outer space . . . [and] are under a duty to authorize and a continuing duty to supervise such activities.”60 Given this responsibility and duty, as well as the liability that states can face under Article V of the Outer Space Treaty and the Liability Convention,61 some states have specifically extended the application of their national laws to space. These national laws include comprehensive space laws62 to govern space activities generally, as well as national laws that address single space-related issues.63 Bringing these two preliminary points together, the impression created by Articles III and VI is that of a comprehensive legal arrangement across both axes: horizontal (i.e., between states) and vertical (i.e., between states and their nationals). Furthering this impression, the space regime includes other treaties that expand on the Outer Space Treaty. Specifically, Article V, concerning astronauts, is elaborated in the Rescue Agreement.64 Article VII, concerning liability for damage, is addressed in the Liability Convention.65 And Article VIII, concerning space object registration, is further developed in the Registration Convention.66 In addition, the Moon Agreement restates and expands upon the Outer Space Treaty in the specific lunar context.67 60. FRANCIS LYALL & PAUL B. LARSEN, SPACE LAW: A TREATISE 64 (2d ed. 2017). 61. Convention on the International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 961 U.N.T.S. 187 (entered into force Sept. 1, 1972) [hereinafter Liability Convention]. 62. See, e.g., Australia’s Space (Launches and Returns) Act 2018 (Cth), available at: https://www.legislation.gov.au/Details/C2021C00394 [https://perma.cc/LR6Q-U3CW]. 63. See, e.g., the Spanish legislation governing space object registration: Royal Decree 278/1995 of 24th February 1995, establishing in the Kingdom of Spain of the Registry foreseen in the Convention adopted by the United Nations General Assembly on 2nd November 1974 (R.C.L. 1995, 278), available at: https://www.unoosa.org/oosa/en/ourwork/spacelaw /nationalspacelaw/spain/royal_decree_278_1995E.html [perma.cc/ZM58-HZZM]. 64. Agreement on the Rescue of Astronauts, the Return of Astronauts, and Return of Objects Launched into Outer Space, Apr. 1968, 672 U.N.T.S. 119 (entered into force Dec. 3, 1968) [hereinafter Rescue Agreement]. 65. Liability Convention, supra note 61. 66. Convention on Registration of Objects Launched into Outer Space, June 6, 1975, 1023 U.N.T.S. 15 (entered into force Sept. 15, 1976) [hereinafter Registration Convention]. 67. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, art. 1(1), Dec. 18, 1979, 1363 U.N.T.S. 3 (entered into force July 11, 1984) [hereinafter Moon Agreement]. The Moon Agreement is also relevant to other celestial bodies within the solar system, “other than the Earth, except insofar as specific legal norms enter into force with respect to any of these celestial bodies.” See id. art. 1(1). 342 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 The space regime is often analogized to the well-developed regimes that govern international aviation and the high seas. The appropriateness of these analogies is debatable. Elizabeth Mendenhall argues that these analogies mislead by glossing over the unique aspects of outer space and the space regime.68 These unique aspects include environmental aspects, such as the nature of orbital mechanics, as well as legal aspects, such as the novel attribution mechanism under Article VI of the Outer Space Treaty. I would add that aviation and maritime issues are much higher on the political and economic agenda than space for most, if not all, states. As such, expecting the space regime to be as comprehensive as the aviation and maritime regimes is unrealistic. Rather, the space regime’s relative lack of comprehensiveness indicates that the gravitational pull of economic and political priorities remains more pronounced in terrestrial domains. Nonetheless, where these key differences are kept in mind, analogies can be additive. As Lauryn Hallet explains: the aim of analogies [in space law] … is not to take the Law of the Sea at face value and copy and paste it onto space law, but to make an empirical analysis of similar circumstances, because such an analysis is not yet possible for many space problematics, and the object of the exercise is to anticipate and prevent challenges.69 Analogies between the space regime and adjacent regimes are most clearly problematic when a direct comparison is made because the space regime will invariably pale in comparison. Neither the Outer Space Treaty nor the other space treaties are as comprehensive as the Convention on International Civil Aviation70 or the United Nations Convention on the Law of the Sea (UNCLOS).71 Turning to the space regime’s institutional aspects, the primary focal points are the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) 68. Elizabeth Mendenhall, Treating Outer Space Like a Place: A Case for Rejecting Other Domain Analogies, 16 ASTROPOLITICS 97 (2018). 69. Lauryn Hallet, Rise of Mega Constellations: A Case to Adapt Space Law Through the Law of the Sea, 31 in LEGAL ASPECTS AROUND SATELLITE CONSTELLATIONS 179, 180 (Annette Froehlich ed., 2021). 70. Convention on International Civil Aviation, Dec. 7, 1944, 15 U.N.T.S. 295 [hereinafter Chicago Convention]. 71. Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS]. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 343 and its secretariat, the United Nations Office of Outer Space Affairs (UNOOSA). But neither COPUOS nor UNOOSA can match the institutional power wielded by the International Civil Aviation Organization (ICAO)72 or the International Maritime Organization.73 Even the International Telecommunication Union (ITU), often viewed as the most effective component of the space regime,74 plays a predominantly coordinating role.75 The ITU is the United Nations specialized agency responsible for coordinating the international management of the radio-frequency spectrum and satellite orbits on which most space activities depend. The ITU’s coordination activities are underpinned by the Constitution of the International Telecommunication Union (ITU Constitution), which provides that: radio frequencies and geostationary-satellite orbit are limited natural resources and that they must be used rationally, efficiently and economically, in conformity with the provisions of the Radio Regulations, so that countries or groups of countries may have equitable access to those orbits and frequencies, taking into account the special needs of the developing countries and the geographical situation of particular countries.76 While the ITU plays a vitally important role, it—as Ram Jakhu explains—does not “possess any mechanism nor power of enforcement nor imposition of sanctions against the violators of its rules and regulations.”77 Of course, given the lack of a global 72. See generally About ICAO, INT'L CIV. AVIATION ORG. (2022), https://www.icao.int/about-icao/Pages/default.aspx [perma.cc/2KD8-7PYH]. 73. See generally Introduction to IMO, INT'L MAR. ORG. (2022), https://www.imo.org/en/About/Pages/Default.aspx [perma.cc/JGX8-MRRF]. 74. See GLOBAL SPACE GOVERNANCE: AN INTERNATIONAL STUDY, 35 (Ram S. Jakhu & Joseph N. Pelton eds., 1st ed. 2017); see also Icho Kealotswe-Matlou, The Rule of Law in Outer Space: A Call for an International Outer Space Authority, in WAR AND PEACE IN OUTER SPACE 91, 104 (Cassandra Steer & Matthew Hersch eds., 2020). 75. See generally Ram S. Jakhu, Regulatory Process for Communications Satellite Frequency Allocations, in HANDBOOK OF SATELLITE APPLICATIONS 1 (Joseph N. Pelton, Scott Madry, & Sergio Camacho-Lara eds., 2016). 76. Constitution of the International Telecommunication Union art. 44(2), Dec. 22, 1992, 1825 U.N.T.S. 3 (entered into force July 1, 1994) [hereinafter ITU Constitution]. 77. Ram Jakhu, Dispute Resolution Under the ITU Agreements 5 (2010) (discussion paper submitted to the PCA Advisory Group) (on file with the Secure World Foundation), https://swfound.org/media/48115/jakhu-dispute%20resolution%20under%20the%20itu%20 agreements.pdf [perma.cc/TC4Y-C73C]. 344 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 executive, enforcement should not be the measure of any international legal regime—lest we be inclined to despair of all international legal regimes. Increasing human space activity has given rise to three specific challenges in space. First, space debris78 proliferates in near-Earth space, polluting the space environment and jeopardizing space access and assets.79 The uncontrolled re-entry of space debris also threatens lives on Earth.80 Second, the enduring perception of space as a military domain—the “ultimate high ground”81—creates ever stronger pressures for states to test and deploy space weapons. To this end, the United States Space Force was established in 201982—and, as Steer notes, “[i]f the United States is attempting to gain dominance in space, we cannot expect China or Russia to withhold from the same attempt.”83 Third, commercial competition is increasing. The current space era—often referred to as ‘NewSpace’—is characterized by the This increasing commercialization of space activities.84 commercialization means that private entities, “driven by entrepreneurs using equity funding” are increasingly predominant in space.85 These entities are focused on economic rather than scientific 78. As Jack Beard summarizes, “[s]pace debris consists of all manner of ‘junk’ left in space, including defunct satellites, rocket stages used in previous launches, nose cones, payload covers, shrouds, bolts, solid propellant slag, space activity cast-aways, deterioration fragments (peeled paint, etc.) and fragments from exploding batteries, fuel tanks, and collisions.” Jack Beard, Soft Law’s Failure on the Horizon: The International Code of Conduct for Outer Space Activities, 38 U. PA. J. INT’L L. 335, 340 (2017). 79. See Martha Mejía-Kaiser, Space Law and Hazardous Space Debris, in OXFORD RESEARCH ENCYCLOPEDIA OF PLANETARY SCIENCE 1, 9 (2020). 80. See generally Denise Chow, Russian Rocket Part to Make Uncontrolled Re-Entry Toward Earth, NBC (Jan. 5, 2022), https://www.nbcnews.com/science/space/russian-rocket15-abbruzzese-rcna11093 [perma.cc/EG9M-VJFK]. 81. See generally BENJAMIN S LAMBETH, MASTERING THE ULTIMATE HIGH GROUND: NEXT STEPS IN THE MILITARY USES OF SPACE (2003). 82. Chelsea Gohd, Everyone Wants a Space Force — but Why?, SPACE.COM (Sept. 11, 2020), https://www.space.com/every-country-wants-space-force.html [perma.cc/28CG2PD7]. 83. Cassandra Steer, Global Commons, Cosmic Commons: Implications of Military and Security Uses of Outer Space, 18 GEO. J. INT’L AFF. 9, 13 (2017). 84. Matthew Weinzieri & Mehak Sarang, The Commercial Space Age Is Here, HARV. BUS. R. (Feb. 12, 2021), https://hbr.org/2021/02/the-commercial-space-age-is-here [https://perma.cc/EU9V-YCMH]. 85. Walter Peeters, Evolution of the Space Economy: Government Space to Commercial Space and New Space, 19 ASTROPOLITICS 206, 208 (2021). 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 345 returns, as they (for example) race to build large constellations of communications satellites in low Earth orbit—so-called ‘megaconstellations.’86 These constellations monopolize our limited supply of radio-frequency spectrum and satellite orbits while also impeding Earth-based astronomy,87 citizen science,88 and Indigenous knowledge systems.89 These three challenges—pollution, weaponization, and commercialization—are of course interconnected. And each arises from strong and likely irresistible political, economic, and technological trends. Yet the space regime’s seeming inability to respond to these challenges perpetuates the view that space is the province of whoever gets there first, rather than the province of all humankind. As such, the space regime has attracted significant criticism.90 More specifically, calls for expanding the space regime— primarily through new treaties, amendment of existing treaties,91 or even an “International Outer Space Authority”92—have long featured in the specialist space regime literature. Yet, non-binding instruments on limited and specific issues have been the primary driver of the space regime since the perceived failure of the Moon Agreement in 1979. This perception arises because neither the United States nor the Soviet Union ratified that treaty in 1979. Since then, more comprehensive or binding instruments have faced an uphill battle: A European initiative 86. See generally Matt Weinzierl & Mehak Sarang, The Commercial Space Age Is Here, HARV. BUS. REV. (Feb. 12, 2021), https://hbr.org/2021/02/the-commercial-space-age-is-here [perma.cc/U5SF-FDG5]. 87. Tereza Pultarova, International Astronomical Union Launches New Center to Fight Satellite Megaconstellation Threat, SPACE.COM (Feb. 7, 2022), https://www.space.com/iaucenter-protect-astronomy-megaconstellation-threat [perma.cc/KL3C-KL2J]. 88. The Impact of Mega-Constellations on Astronomy, PHYSICS & ASTRONOMY BLOG (Aug. 5, 2021), https://staffblogs.le.ac.uk/physicsastronomy/2021/08/05/the-impact-of-megaconstellations-on-astronomy-zooniverse-project/ [perma.cc/R578-LB9G]. 89. Becky Ferreira, SpaceX’s Satellite Megaconstellations Are Astrocolonialism, Indigenous Advocates Say, VICE (Oct. 5, 2021), https://www.vice.com/en/article/k78mnz/ spacexs-satellite-megaconstellations-are-astrocolonialism-indigenous-advocates-say [perma.cc/79JJ-88YF]. 90. See generally Gradoni, supra note 23. 91. Francesco Gaspari & Alessandra Oliva, The Consolidation of the Five UN Space Treaties into One Comprehensive and Modernized Law of Outer Space Convention: Toward a Global Space Organization, in THE SPACE TREATIES AT CROSSROADS 183 (George D. Kyriakopoulos & Maria Manoli eds., 2019); see also Promit Chatterjee, Legality of AntiSatellites Under the Space Law Regime, 12 ASTROPOLITICS 27, 40–41 (2014). 92. Kealotswe-Matlou, supra note 74, at 102. 346 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 for an international code of conduct for space activities has stalled,93 as have Chinese and Russian efforts to conclude a treaty regarding the weaponization of space,94 and nascent efforts within the United States and Canada to conclude a space preservation treaty.95 More recently, U.S. think tanks have embraced efforts to expand the space regime. In March 2021, the Carnegie Endowment for International Peace published an article concluding that “[t]he only way to effectively govern state and commercial space activities is to settle on and abide by common norms or rules,” and that “[w]ithout new [binding] governance agreements, problems related to debris, heavy orbital traffic, and harmful interference will only intensify.”96 The following month, the Atlantic Council released a paper titled The Future of Security in Space: A Thirty-Year US Strategy.97 This paper concludes that “[t]he international law of space, centered on the [Outer Space Treaty], is outdated and insufficient for a future of space in which economic activity is primary.”98 As such, its central recommendation is the development of an entirely new, comprehensive treaty to replace the Outer Space Treaty.99 93. Rajeswari Pillai Rajagopalan, Fresh Calls for Space Security Governance Measures Unlikely to Yield Results, OBSERVER RSCH. FOUND. (2021), https://www.orfonline.org/research/fresh-calls-for-space-security-governance-measuresunlikely-to-yield-results/ (last visited Feb. 14, 2022). For a critical perspective on this code, see Beard, supra note 78, at 344. 94. Letter from the Permanent Representative of the Russian Federation and the Permanent Representative of China to the Conference on Disarmament addressed to the Secretary-General of the Conference transmitting the Russian and Chinese texts of the draft “Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects” introduced by the Russian Federation and China, (Feb. 12, 2008), https://digitallibrary.un.org/record/633470?ln=en [perma.cc/Z846-LQXL]; see also Steer, supra note 3, at 757. 95. Paul Meyer, Arms Control in Outer Space: Mission Impossible or Unrealized Potential?, CAN. GLOB. AFF. INST. (2020), https://www.cgai.ca/arms_control_in_outer_ space_mission_impossible_or_unrealized_potential [perma.cc/E6KR-CVBF]. 96. Benjamin Silverstein & Ankit Panda, Space is a Great Commons: It’s Time to Treat It as Such, CARNEGIE ENDOWMENT FOR INT'L PEACE (Mar. 9, 2021), https://carnegieendowment.org/2021/03/09/space-is-great-commons.-it-s-time-to-treat-it-assuch-pub-84018 [perma.cc/DW5B-35D2]. 97. CLEMENTINE G. STARLING ET AL., THE FUTURE OF SECURITY IN SPACE: A THIRTYYEAR US STRATEGY 1 (2021). 98. Id. at 20. 99. Id. at 61. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 347 Six months later, the Woodrow Wilson International Center for Scholars released a paper on space governance that calls for a global space regulator with lawmaking powers.100 The paper concludes that “[o]f the many challenges facing global space governance … none can be addressed without reinstating intergovernmental bodies with the ability to develop an effective outer space regime.”101 This flurry of think tank activity coincided with developments within the United Nations. Upon a proposal from the United Kingdom, in December 2021, the United Nations General Assembly adopted a resolution convening an open-ended working group on reducing space threats (Space Threats Working Group).102 The Space Threats Working Group’s mandate expressly includes “mak[ing] recommendations on possible norms, rules and principles of responsible behaviours relating to threats by States to space systems, including … how they would contribute to the negotiation of legally binding instruments, including on the prevention of an arms race in outer space.103 In addition to these calls for new binding treaties, the development of non-binding instruments has gained momentum. On October 13, 2020, the Administrator of the U.S. National Aeronautics and Space Administration (NASA)104 and the representatives of eight other space agencies signed the Artemis Accords (Accords).105 100. See generally Sophie Goguichvili et al., The Global Legal Landscape of Space: Who Writes the Rules on the Final Frontier? WOODROW WILSON INT'L CTR. FOR SCHOLARS (2021). 101. Id. 102. See generally G.A. Res. 76/231 (Dec. 30, 2021). The resolution voting record was as follows: Yes: 150; No: 8; Abstentions: 7; Non-Voting: 28. Both China and Russia voted against the resolution, together with Cuba, North Korea, Iran, Nicaragua, Syria, and Venezuela. 103. Id. ¶ 5(c). The Space Threats Working Group is due to submit a report to the General Assembly in September 2023. 104. The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes, Oct. 13, 2020 [hereinafter Accords]. 105. The original signatories were representatives from Australia, Canada, Italy, Japan, Luxembourg, the United Arab Emirates, the United Kingdom, and the United States. Id. Angola, Argentina, Bahrain, Brazil, Bulgaria, Czech Republic, Colombia, France, Iceland, India, Israel, Mexico, Netherlands, Nigeria, New Zealand, Poland, South Korea, Romania, Rwanda, Saudi Arabia, Singapore, Spain, Ukraine, and the Isle of Man have since signed. Artemis Accords, U.S. Department of State, https://www.state.gov/artemis-accords/ [https://perma.cc/QTG5-YHYM]. 348 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 Initiated, drafted, and promoted by the United States, the Accords are a non-binding, “political commitment”—an example of “soft law”106—intended to “increase the safety of operation, reduce uncertainty, and promote the sustainable and beneficial use of space for all humankind.”107 Then, in July 2021, U.S. Secretary of Defense Lloyd Austin signed a memo pledging that the U.S. Department of Defense would follow five “tenets of responsible behavior in space.”108 And on April 18th, 2022, U.S. Vice President Kamala Harris announced a moratorium on destructive anti-satellite weapons (ASAT) tests—and that the United States seeks “to establish this [moratorium] as a new international norm for responsible behavior in space.”109 In this Article, I problematize these efforts to expand the space regime. I have structured this Article as follows. Part I addresses the space regime’s complexity and the benefits of an interactional approach to this regime. In Parts II, III and IV, I interrogate specific aspects of the space regime in line with Brunnée and Toope’s three inter-related elements: shared understandings, criteria of legality, and practices of legality. In Part II, I explore the shared understanding regarding the need for the space regime. In Part III, I test the space regime’s foundational instrument—the Outer Space Treaty—against the criteria of legality. I then use the same criteria in Part IV to determine whether the space regime is sustained by continuous practices to realize the criteria of legality. The case study chosen for this analysis is the ITU’s practices and procedures (which I will refer to generally as ‘ITU practice’). 106. For a critical view on space regime soft law, see generally Beard, supra note 78. 107. Jack Wright Nelson, The Artemis Accords and the Future of International Space Law, 24 AMERICAN SOC'Y INT'L L. INSIGHTS 1 (2020), https://www.asil.org/ insights/volume/24/issue/31/artemis-accords-and-future-international-space-law [perma.cc/B3Q2-MVXP]. 108. Namely, “[o]perate in, from, to, and through space with due regard to others and in a professional manner; [l]imit the generation of long-lived debris; [a]void the creation of harmful interference; [m]aintain safe separation and safe trajectory; [c]ommunicate and make notifications to enhance the safety and stability of the domain.” Memorandum from the United States Department of Defense (DoD) to DoD Component leaders (July 7, 2021) (on file with author). 109. Bryan Bender, U.S. Vows Not to Conduct Anti-Satellite Tests, POLITICO (Apr. 18, 2022), https://www.politico.com/news/2022/04/18/u-s-vows-no-anti-satellite-tests-00026144 [perma.cc/B7VC-2LTF]. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 349 The conclusions reached in this Article are somber. While there is a shared understanding regarding the need for normativity in space, the Outer Space Treaty only partially satisfies the eight criteria of legality. Further, ITU practice is not readily accessible, and there is a fundamental contradiction between the ITU’s equitable ideals and its ‘first come, first serve’ practice. These conclusions do not mean that the space regime, the Outer Space Treaty, or the ITU are failures. But these conclusions do suggest that while the space regime is likely viewed as legitimate, the legality that it does enjoy is being inhibited. As such, the sense of obligation that the space regime generates is unlikely to be sustained over time. As I argue in the conclusion, these conclusions cast doubt on the assumptions underlying efforts to expand the space regime. More specifically, the space regime’s inability to respond to today’s challenges will not be remedied by expanding the regime. A regime that cannot sustainably generate a sense of obligation does not need expansion—it needs repair. In short: not more law, but better use of the law we have. As such, I argue that priority should be given to enhancing and sustaining legality within the space regime rather than expanding it. Otherwise, efforts to conclude further treaties may come to naught: such treaties may be, as the song goes, mere “words” that “slip [] across the universe” without “chang[ing] [the] world.”110 In this respect, this Article resonates with two key insights from the interactional approach. First, that formally binding law-making does not necessarily enhance legality.111 Second, that the “hard work of international law” is not negotiating and concluding a regime.112 Rather, it is the day-to-day work of sustaining that regime or norm over time. Before proceeding further, three caveats are necessary. First, there is not always a clear distinction between the interactional approach’s three elements. As such, the three elements are best construed as lines of inquiry that share similar themes but with different focuses. The practical result is that there is partial overlap between Parts II, III and IV, but I have endeavored to show how the 110. THE BEATLES, Across the Universe, on LET IT BE (London: Universal Music Group, 1970). 111. BRUNNÉE AND TOOPE, supra note 28, at 201. 112. Id. at 352. 350 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 focus changes when examining shared understandings, as opposed to the criteria and practice of legality. The second caveat is that the interactional approach permits various levels of analysis. Brunnée and Toope use the interactional approach like a telescopic lens: They analyze the broad international regime relating to climate change, as well as specific instruments and norms within that regime.113 Similarly, in this Article, I focus on the space regime, but attention will also be given to specific instruments and norms within that regime. To avoid having to write ‘norms and regimes’ throughout, the usage of word ‘norm’ should generally be read in this Article as including ‘regime’ (and vice versa). Specific distinctions between norms and regimes will be made as necessary. My final caveat is that the space regime, like any complex international regime, has aspects that work well, and aspects that do not work as well. In a non-exhaustive study such as this, I have attempted to ensure that the aspects of the regime chosen for analysis are broadly representative. I readily concede that focusing on different aspects could lead to different conclusions. Nonetheless, even if the conclusions reached here do not hold for every aspect of the space regime, then they at least appear to apply to key parts of it. I. THE INTERACTIONAL APPROACH TO THE SPACE REGIME What is the interactional approach to the space regime, and what are the benefits of this approach? In this Part I, I respond to these preliminary questions. I have structured this Part as follows. In Section A, I outline the interactional approach’s three elements: shared understandings, criteria of legality, and practice of legality. In Section B, I argue that the interactional approach is particularly suited to space regime analysis because it embraces the space regime’s inherent pluralism, is not impeded by the stark ideological differences among space powers, and does not insist on a strict delineation between binding and non-binding norms. 113. See generally id. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 351 A. From Norms to Legal Norms The interactional approach is an inquiry into how norms can attract not just social adhesion, but rather how they can generate a sense of obligation such that they become legal norms—or ‘law.’ Obligation is crucial because it is obligation that enables what Philip Allott describes as the “threefold social function” of law.114 First, “[l]aw carries the structures and systems of society through time.”115 This carriage is facilitated by the commitment to those structures and systems that is engendered by obligation. Second, “[l]aw inserts the common interest of society into the behavior of society-members.”116 This is achieved through the sense of duty that arises from obligation, even for those society-members who may not share that common interest. Third, “[l]aw establishes possible futures for society, in accordance with society’s theories, values and purposes.”117 It is much easier to predict future actions if a strong sense of obligation vis-à-vis established norms can be seen amongst relevant actors; in particular, actors will be able to pursue their purposes and organize their interactions through law. A norm that generates obligation will generally do so because it satisfies the interactional approach’s three elements.118 First, a norm must be grounded in shared understandings. A norm that is so grounded enjoys legitimacy. Second, a norm must satisfy the eight criteria of legality. A norm that complies with these criteria enjoys legality. Third, a norm must be supported by a practice of legality. A norm that does so will be sustained over time. The meaning of each element will be demonstrated in this Article via application to the space regime in Parts II, III and IV. However, it is useful to further contextualize each element now to better understand their subsequent application. The first element, shared understandings, draws heavily upon constructivist international relations theory. Such theory, as Sarina Theys explains, “sees the world, and what we can know about the 114. (2002). 115. 116. 117. 118. PHILIP ALLOTT, THE HEALTH OF NATIONS: SOCIETY AND LAW BEYOND THE STATE 290 Id. Id. Id. BRUNNÉE AND TOOPE, supra note 28, at 94. 352 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 world, as socially constructed.”119 As such, it emphasizes, per Brunnée and Toope, that “[t]here is no possibility of simply imposing significant social change by fiat in the absence of some degree of social consensus.”120 Rather, from an interactional perspective, “legal norms can only arise in the context of social norms based on shared understandings.”121 The essential shared understanding is that there is a need for normativity:122 that is, there is a shared understanding regarding the need for norms in relation to a particular area of human activity. If this understanding is shared by relevant actors, then those norms will be considered legitimate. Who precisely the relevant actors are will invariably change according to the regime under analysis. This consideration highlights the significant growth in the number of relevant actors in the space regime. When the Outer Space Treaty was opened for signature on January 27, 1967, states were the relevant space actors—and in practice, just the United States and the Soviet Union. Over time, more states gained space capabilities. Some states pooled their resources to create international organizations, such as the European Space Agency (ESA).123 And, slowly but surely, commercial enterprises began to engage in space activities—first in conjunction with states as contractors,124 now with increasing independence. As such, the range of relevant actors for the space regime presently includes, as Durkee summarizes, “classic space powers, new entrants, and non-space faring nations, as well as civilian space agencies, national militaries, and commercial [entities].”125 All these actors constitute the space regime’s subjects for this Article’s purposes. 119. Sarina Theys, Constructivism, in INTERNATIONAL RELATIONS THEORY 36, 36 (Stephen McGlinchey, Rosie Walters, & Christian Scheinpflug eds., 2017). 120. BRUNNÉE AND TOOPE, supra note 28, at 32. 121. Jutta Brunnée, Sources of International Environmental Law: Interactional Law, in THE OXFORD HANDBOOK ON THE SOURCES OF INTERNATIONAL LAW 960, 963 (Samantha Besson & Jean D’Aspremont eds., 1st ed. 2017) (emphasis added). 122. BRUNNÉE AND TOOPE, supra note 28, at 351. 123. History of Europe in Space, EUROPEAN SPACE AGENCY, https://www.esa.int/About_Us/ESA_history/History_of_Europe_in_space [perma.cc/F8AW67EB]. 124. ORIGINS OF THE COMMERCIAL SPACE INDUSTRY, FED. AVIATION ADMIN. (2023). 125. Melissa J. Durkee, The Future of Space Governance, 48 GA J. INT’L & COMP L. 711, 712 (2020). 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 353 However, even if all these relevant actors share an understanding regarding a norm, this does not mean that the norm— while legitimate—will enjoy legality. This is because “[m]any social norms exist that never reach a threshold of legal normativity.”126 Rather, legitimate social norms must then be translated into legal commitments. The typical method for achieving this is to locate those legitimate social norms within a formal source of law. The classic formulation of these sources derives from Article 38(1) of the Statute of the International Court of Justice,127 which provides that the International Court of Justice (ICJ): shall apply … international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; [and] subject to the provisions of Article 59,128 judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.129 This formulation is increasingly debated.130 And space regime scholarship has introduced some important refinements: notably, Bin Cheng’s concept of “instant” customary international law arising from specific United Nations General Assembly resolutions relating to space,131 as well as Durkee’s attributed lawmaking theory. However, the interactional approach places little weight on defining the exact sources of law, or any proposed hierarchy thereof. This is because, as Brunnée and Toope explain, “what distinguishes legal norms from 126. BRUNNÉE AND TOOPE, supra note 28, at 351. 127. Statute of the International Court of Justice art. 38(1), Apr. 18, 1946, 33 U.N.T.S 993 [hereinafter ICJ Statute]. 128. Article 59 of the ICJ Statute states that “[t]he decision of the [ICJ] has no binding force except between the parties and in respect of that particular case.” Id. art. 59. 129. Id. art. 38(1). 130. See generally THE OXFORD HANDBOOK ON THE SOURCES OF INTERNATIONAL LAW (Samantha Besson & Jean D’Aspremont eds., 1st ed. 2017). 131. Bin Cheng, United Nations Resolutions on Outer Space: “Instant” International Customary Law?, 5 INDIAN J. INT’L L. 35, 136–37 (1965). For a critical view on “instant” customary international law, see Prosper Weil, Towards Relative Normativity in International Law?, 77 AM. J. INT’L L. 413, 435 (1983). 354 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 other types of social norms is not form or pedigree.”132 Rather, the distinguishing feature of legal norms is their adherence to eight criteria of legality. These criteria were first identified by Lon Fuller. He identified them as “the principles of law’s inner morality”133 towards which a system of rules should strive.134 I summarize them as follows. First, legal norms must be general. Second, they must be promulgated. Third, they must be prospective. Fourth, legal norms must be clear. Fifth, they must not be contradictory. Sixth, they must not demand the impossible. Seventh, they must remain relatively constant. Eighth, there must be congruence between the legal norm and its administration—that is, the actions of officials and other relevant persons that operate under the law. On Fuller’s account, a true “legal system” arises when all eight criteria are upheld to at least some degree with that system.135 He concedes that they may not be perfectly realized in every situation but argues that they are nonetheless important goals to work toward. As Kristen Rundle explains, it is only a legal system’s “total failure to meet these eight principles” that will result in something that is not, in Fuller’s view, properly considered to be a legal system at all.136 Brunnée and Toope expand on Fuller’s ideas and posit that “adherence to the criteria of legality facilitates interaction on the basis of mutual respect and reciprocity and, therefore, [at the international level] fosters the commitment of states and other actors to their joint enterprise.”137 Conversely, a norm that fails to satisfy one or more of these criteria will be commensurately less likely to guide and control 132. BRUNNÉE AND TOOPE, supra note 28, at 351. This contrasts with Weil’s views on soft law. Weil accepts that whether a rule is “hard” or “soft” does not affect its “normative character.” However, he sees the proliferation of “soft” norms as “not help[ing] [to] strengthen the international normative system.” See Weil, supra note 131, at 415. 133. LON L. FULLER, THE MORALITY OF LAW 182 (1st ed. 1964). This description famously attracted critique from HLA Hart, who questioned how they could be moral when they appeared to be entirely instrumental; see generally Frank Lovett, Lon Fuller, The Morality of Law, in THE OXFORD HANDBOOK OF CLASSICS IN CONTEMPORARY POLITICAL THEORY (Jacob T. Levy ed., online edn., 2015). 134. Kristen Rundle, ‘Fuller’s Internal Morality of Law’: Fuller’s Internal Morality of Law, 11 PHIL. COMPASS 499, 500 (2016). 135. FULLER, supra note 133, at 39. 136. Rundle, supra note 134, at 500 (emphasis added). 137. BRUNNÉE AND TOOPE, supra note 28, at 76. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 355 behavior. This is because that norm may be viewed in accordance with the criteria of legality that it fails to satisfy. For example, a norm that demands the impossible may be viewed as aspirational (or maddening). A retroactive norm could be viewed as unjust; same for an unpromulgated norm. A non-general norm may be seen as arbitrary, while a non-constant norm may strike its objects as capricious. As such, a norm’s failure to satisfy one or more of the criteria of legality degrades the perceived legality of that norm in the eyes of its subjects. To take stock: a norm endowed with legitimacy, derived from shared understandings, and legality, derived from satisfying the eight criteria of legality, will be a legal norm. Such norms generate obligation, which is, from the interactional perspective, a particularly effective means of guiding and controlling behavior. However, a legal norm will not be effective unless it is sustained over time. This leads us to the third element of the interactional approach: the practice of legality. This element directs us to consider the day-to-day application of the norm, by reference to the eight criteria of legality outlined above. A legal norm that is not regularly applied in line with these criteria will fade over time. Ultimately, it will be destroyed.138 Importantly, this dimension recognizes that norms do simply appear in the world, fully formed and fully effective. Rather, they must be built and implemented over time. As such, this third element adds an important temporal dimension to the interactional approach. B. Benefits of an Interactional Approach to the Space Regime I have already outlined the traditional resistance to theoretical approaches in much space regime scholarship. Indeed, the positivist pull on space law scholarship has been particularly strong—likely because, as Brunnée and Toope note, “positivism promises easy intelligibility: law can be found, defined, and labelled.”139 This may be oversimplifying positivism’s appeal: more modern positivist approaches hardly promise such easy intelligibility. Indeed, they often 138. Id. at 355. This aligns with Robert Cover’s view regarding the “interpretative commitments … of officials and of others [that] do determine what the law means and what law shall be:” Robert M. Cover, The Supreme Court, 1982 Term, 97 HARV. L. REV. 4, 7 (1983). 139. BRUNNÉE AND TOOPE, supra note 28, at 10. 356 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 concede that the arguments made are just that—arguments, that may or may not reflect what judges, states, officials, or other relevant actors ultimately decide. Nonetheless, the prospects of intelligibility are attractive when dealing with a realm as strange and as distant as space. As such, much space law scholarship seeks to build on the various treaties’ often terse provisions, to construct a more precise legal framework comprising definitive rules that clearly state the conduct required, authorized, or proscribed. This approach has significant merit. It has been used to great effect by Cheng, among others, to clarify, elaborate and navigate the many gaps in the space regime.140 And, as will be discussed in Part III, the Outer Space Treaty suffers from a lack of clarity that positivist analysis can potentially remedy. But positivism has less to say about the primary research question: would an expanded space regime be effective in guiding and controlling behavior in space? By contrast, the interactional approach is particularly wellsuited to responding to this question. This is because the interactional approach embraces the space regime’s inherent pluralism; I have already outlined the diminished role of the state in modern space activities. The further this role diminishes, the more it compels a pluralistic approach to the space regime. This is because, as René Provost explains, that while “positivism warrants a narrow focus on state-driven normativity” legal pluralism “explodes the limits of our conception of law to encompass forms of normativity beyond those connected to the state in any way.”141 Consider the operation of the International Space Station (ISS). The world’s most expensive human-made object142 is also one of its most legally pluralistic. The ISS is governed under an intergovernmental agreement (ISS Agreement)143 between the United 140. See, e.g., Cheng, supra note 50; see also Bin Cheng, Definitional Issues in Space Law: “Space Objects”, “Astronauts”, and Related Expressions, in STUDIES IN INTERNATIONAL SPACE LAW 492, 492 (1997). 141. RENÉ PROVOST, REBEL COURTS: THE ADMINISTRATION OF JUSTICE BY ARMED INSURGENTS 12 (2021). 142. Most Expensive Man-Made Object, GUINNESS WORLD RECORDS, https://www.guinnessworldrecords.com/world-records/most-expensive-man-made-object [perma.cc/4NQ2-XFVC]. 143. International Space Station Intergovernmental Agreement art. 1, Jan. 29, 1998, T.I.A.S. No. 12,927 [hereinafter ISS Agreement]. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 357 States, Russia, Japan, Canada, and the member states of the ESA. Under the ISS Agreement, these entities retain “jurisdiction and control” over the modules they provide.144 As such, inventions that take place in these modules are deemed to occur within the territory of these entities.145 However, criminal jurisdiction over ISS crew follows the nationality of the alleged perpetrator, regardless of which module they are in.146 The ISS’ pressurized modules are owned by three different states (the United States, Russia, and Japan) and ESA. As I write these words in October 2023, seven crew are on board the ISS as Expedition 70—three Russians, two Americans, and one crew-member each from Denmark and Japan.147 Accordingly, as these astronauts and cosmonauts float through the ISS, they can pass through four different jurisdictions for intellectual property purposes, all the while remaining subject to the criminal jurisdiction of their home states. The analogy is imperfect, but there is an interesting historical parallel: the ISS’ pluralism is reminiscent of the pluralism that prevailed in medieval Europe, where, as Andrea Bianchi notes, “[j]urisdictional rules depended on … the status of the person, or the subject matter, or both.”148 But a unique feature of the space regime is that there is no territorial sovereignty in space. Nor are there any recognized legal delineations. This is unlike the oceans, punctuated as they are by islands, territorial seas, and Exclusive Economic Zones. It is also unlike international airspace, which is divided into “Flight Information Regions” by ICAO149 (together with less recognized, but nonetheless important “Air Defense Identification Zones”150 and “Naval Exclusion 144. Id. art. 5(2). 145. Id. art. 21. 146. Id. arts. 5, 22. 147. Mark Garcia, Expedition 70, NAT'L AERONAUTICS AND SPACE ADMIN. (2023), http://www.nasa.gov/mission_pages/station/expeditions/expedition70/index.html (last visited Oct. 21, 2023). 148. ANDREA BIANCHI, INTERNATIONAL LAW THEORIES: AN INQUIRY INTO DIFFERENT WAYS OF THINKING 228 (1st ed. 2016). 149. Flight Information Regions, INT'L CIV. AVIATION ORG. (2022), https://www.icao.int/nacc/pages/firs.aspx (last visited Aug. 3, 2022). 150. See generally Peter A. Dutton, Caelum Liberum: Air Defense Identification Zones Outside Sovereign Airspace, 103 AM. J. INT’L L. 691 (2009); Jinyuan Su, The Practice of 358 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 Zones”151). It is also unlike Antarctica, which has claimed but not widely recognized sovereignties.152 As such, the ISS’ pluralism is compelled by the limited, extraterritorial jurisdiction that states can exercise over spacecraft under the Outer Space Treaty153 and the personal jurisdiction that they can exercise over their nationals under general international law. Similar pluralisms can be found in other space activities, including non-crewed activities. Consider the launch of a commercial telecommunications satellite. This will involve local rules governing the spaceport, national rules regarding rocket launches and payloads, and the international responsibility and liability of involved states.154 Complex contractual arrangements must be finalized prior to launch. This will involve satellite procurement and launch services agreements, telemetry, tracking and control agreements, as well as the insurance policies that cover a satellite’s pre-launch, launch, and inorbit phases.155 The preference for project financing of satellite projects further complexifies these arrangements,156 as lenders seek broad security packages.157 These contractual arrangements are invariably governed by different national laws, as well as international standards relating to financing and insurance.158 States on Air Defense Identification Zones: Geographical Scope, Object of Identification, and Identification Measures, 18 CHINESE J. INT'L L. 812 (2019). 151. Daryl A. Mundis, The Law of Naval Exclusion Zones (May 2008) (Ph.D. thesis, London School of Economics and Political Science) (on file with London School of Economics and Political Science). 152. Claims have been made by Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom. Some parties to the Antarctic Treaty do not recognize any territorial claims and others have reserved the right to make a claim. See generally Antarctic Territorial Claims, AUSTL. ANTARCTIC PROGRAM, https://www.antarctica.gov.au/aboutantarctica/law-and-treaty/history/antarctic-territorial-claims/ [perma.cc/2W6F-LSJL]. 153. GLOBAL SPACE GOVERNANCE, supra note 74, at 123. 154. Primarily under the Outer Space Treaty and the Liability Convention. See Outer Space Treaty, supra note 8, art. VI; Liability Convention, supra note 61, art. III. 155. See Jack Wright Nelson, NewSpace, Old Problems: Asset-Based Satellite Financing in the Asia-Pacific, SING. J. LEGAL STUD. 354, 360 (2021). 156. ROY GOODE, OFFICIAL COMMENTARY ON THE CONVENTION ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT AND PROTOCOL THERETO ON MATTERS SPECIFIC TO SPACE ASSETS 158 (2013). 157. Nelson, supra note 155, at 354. 158. This situation will attract a further layer of complexity if the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 359 Getting to space also requires navigating airspace. This triggers national and international air law.159 And, once a satellite is operational, the ground stations that transmit signals to and receive signals from the satellite can be stationary or mobile, located anywhere in the world.160 Control over the satellite can even be effected through cloud-based and globally distributed tracking, telemetry and control services.161 This means that satellite control can change jurisdiction multiple times a day. With respect to both the ISS and commercial telecommunication satellites, the traditional focus on “official lawmaking bodies” would invariably miss what Berman describes as “the potent power of non-state lawmaking.”162 In particular, a complex bartering system has developed with respect to the ISS, whereby the ISS partners trade everything from air to water to launches amongst themselves.163 Moreover, mission controllers within the lead agencies—NASA and its Russian counterpart Roscosmos—have reportedly developed internal practices to insulate themselves from broader geopolitical tensions between the United States and Russia.164 But some space actors have seized upon the lack of territorial sovereignty in space as leaving the door open to non-state sovereignties. This argument was first tentatively made by Stephen Gorove165 but rejected by other commentators.166 Nevertheless, Assets enters into force. See generally SANAM SAIDOVA, SECURITY INTERESTS UNDER THE CAPE TOWN CONVENTION ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT (2020). 159. Gérardine Goh Escolar, Satellite Communications: Regulatory, Legal, and Trade Issues, in HANDBOOK OF SATELLITE APPLICATIONS 1, 3 (Joseph N. Pelton, Scott Madry, & Sergio Camacho-Lara eds., 2016). 160. See generally Nelson, supra note 155. 161. See, e.g., AWS Ground Station, AMAZON WEB SERVICES, https://aws.amazon.com/ground-station/ [perma.cc/P3KW-T9FN]. 162. Paul Schiff Berman, Understanding Global Legal Pluralism: From Local to Global, from Descriptive to Normative, in THE OXFORD HANDBOOK OF GLOBAL LEGAL PLURALISM xiv, 2 (Paul Schiff Berman ed., 2020). 163. Rosario Avveduto, Past, Present, and Future of Intellectual Property in Space: Old Answers to New Questions, 29 WASH. INT’L L. J. 203, 225 (2019). 164. Joey Roulette, NASA-Russia Alliance Is Shaken by Events on Planet Earth, N.Y. TIMES (Dec. 27, 2021), https://www.nytimes.com/2021/12/27/science/russia-nasa-spacexasat.html [perma.cc/Z8X6-4K6V]. 165. Stephen Gorove, Interpreting Article II of the Outer Space Treaty, 37 FORDHAM L. REV. 349, 349 (1968). 166. GLOBAL SPACE GOVERNANCE, supra note 74, at 393. 360 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 elements within the commercial space industry have adopted a similar position. Consider SpaceX’s bold assertion, in the terms of service for their Starlink satellite service, that Mars is a “free planet” and that “no Earth-based government has authority or sovereignty over Martian activities.”167 Accordingly, SpaceX asserts that any disputes “will be settled through self-governing principles, established in good faith, at the time of Martian settlement.”168 There is little value in engaging with this bold assertion at the international level, given that these terms and conditions apply between private entities.169 That these “self-governing principles” will effectively be SpaceX’s principles is clear; that SpaceX would become sovereign is implied. But SpaceX’s assertion does appear to echo two central pluralist themes. First, that law “has no necessary connection to or relationship with state or sovereignty.”170 To this end, it underscores a point made by Brunnée and Toope: “that law is not a product that is manufactured in centralized, hierarchical systems and merely distributed to social actors for consumption.”171 Complications are to be expected. Rather, those social actors are “active agents” in the “continuing enterprise of lawmaking.”172 Complications and conflicts between different legal orders in space are to be expected, particularly as space becomes more accessible. Consider how SpaceX’s assertion also highlights how the prospect of non-state law can “open[] new grounds, fuel[] new hope, and create[] a sense of potential for transformation and change.”173 To this end, as Berman explains, assertions such as SpaceX’s “tend to seep into consciousness, such that the mere existence of these commands, whether enforced or not, may sometimes alter the power dynamics or 167. Starlink Terms of Service, STARLINK, https://www.starlink.com/legal/ documents/DOC-1020-91087-64 [perma.cc/FET5-KR6G]. 168. Id. 169. A state could conceivably sign up for the Starlink service, and thereby agree to these terms and conditions. However, this would still only be an agreement between a state and a private entity. 170. BRIAN Z. TAMANAHA, LEGAL PLURALISM EXPLAINED: HISTORY, THEORY, CONSEQUENCES 148 (2021) (emphasis added). 171. BRUNNÉE AND TOOPE, supra note 28, at 55. 172. Id. 173. BIANCHI, supra note 148, at 227. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 361 options placed on the table in policy discussions.”174 Bawaka Country175 recognizes this, and offers a strident critique, based primarily on Australian Indigenous ontologies.176 This critique focuses on the presumptions underlying SpaceX’s proposed “Martian settlement.”177 They argue that NewSpace entrepreneurs, modernist states, academics and scientific establishments … see what they call ‘outer space’ as a new frontier, source of power and site of capital accumulation. These colonial cosmologies of space assume that there are no people or other beings Indigenous to ‘outer space,’ and that there is no life there to harm. They see ‘outer space’ as separate from earth, as a site where harmful effects of extraction can be externalized … [yet] we know … that ‘outer space’ is the ancestral domain of many Indigenous cultures, of diverse Aboriginal nations through Australia, of many First Nations throughout the world, and indeed of many diverse non-Indigenous cultures in every continent . . . .178 This critique raises the question of how various societal groups (as well as other private space actors) will respond to SpaceX’s plans, should they come to pass. Some may well view SpaceX’s settlement as trespass—or even heresy. Others may want to join them, only to find that their ideals for Mars are not shared by their fellow settlers.179 Ultimately, in the absence of sovereignty, conflict, competition, or 174. Berman, supra note 162, at 3. 175. A writing collective including the land, water, humans, fauna, flora, rocks, thoughts, and songs that comprise the Yolŋu homeland in North East Arnhem Land, Australia. See Bawaka Country et al., Co-Becoming Bawaka: Towards a Relational Understanding of Place/Space, 40 PROGRESS HUM. GEOGRAPHY 455, 456 (2016). 176. See generally Bawaka Country, Dukarr Lakarama: Listening to Guwak, Talking Back to Space Colonization, 81 POL. GEOGRAPHY 102218 (2020). 177. Id. 178. Id. at 102219. 179. Igor Levchenko et al., Mars Colonization: Beyond Getting There, 3 GLOB. CHALLENGES 1800062 (2019). These themes have been thoroughly explored in science fiction. See generally, e.g., KIM STANLEY ROBINSON, RED MARS (1993). 362 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 collaboration among various non-state actors becomes much harder to predict as they construct or deny “quasi-sovereignties.”180 Space is not necessarily unique in this regard. Philipp Dann and Julia Eckert explain that norm-generative interactions between “actors such as international organizations, corporations, epistemic communities, and social movements” and “processes that leave behind formal locations of lawmaking” have “been a central feature of globalization since the 1980s.”181 But this tendency is particular strong with respect to the space regime: As Durkee explains, private space actors “are articulating norms that may come to have legal valence not because those norms are produced by official lawmakers, but simply because they are being articulated and publicized and acted upon.”182 Accordingly, the space regime is pluralistic not just because the term encompasses local, national, and international laws, and both binding rules and non-binding rules. It is pluralistic because it contains a series of overlapping, functional normative orders and a wide range of state and non-state actors that shape it.183 It is a domain of relative, rather than absolute, authorities—a situation emphasized by the lack of territorial sovereignties in space. Understanding these orders and actors is essential to understanding the space regime in practice. Given the pluralist reality of the space regime, the growing role played by non-state actors, and the attribution mechanism under Article VI of the Outer Space Treaty, the interactional approach is well-suited to examining this regime. In particular, the interactional approach embraces the reality that non-state actors are increasingly norm-generating: This approach “supports the participation of a range of non-state actors in productive power, thereby recognizing a reality of contemporary legal discourse.”184 As such, this framework can 180. Cf. Lauren Benton, From International Law to Imperial Constitutions: The Problem of Quasi-Sovereignty, 1870–1900, 26 L. & HIST. REV. 595, 619 (2008). 181. Philipp Dann & Julia Eckert, Norm Creation beyond the State, in THE OXFORD HANDBOOK OF LAW AND ANTHROPOLOGY 808, 808 (Marie-Claire Foblets et al. eds., 2020). This is particularly in light of projects such as Copenhagen Suborbitals, a non-commercial organization that aims to launch a crewed rocket from the high seas. About Us, COPENHAGEN SUBORBITALS, https://copenhagensuborbitals.com/ [perma.cc/L9XA-YT4V]. 182. Durkee, supra note 39, at 478. 183. Frédéric Mégret, International Law as a System of Legal Pluralism, in THE OXFORD HANDBOOK OF GLOBAL LEGAL PLURALISM 533, 534 (Paul Schiff Berman ed., 2020). 184. BRUNNÉE AND TOOPE, supra note 28, at 85. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 363 “accommodate[] both the continuing pre-eminence of states in the international legal system and the rise of non-state actors”185—a situation that aptly describes the modern space regime. Broadly, the interactional approach helps us to make sense of existing patterns of participation in international law-making where norms, although formally sanctioned by states alone, in fact are influenced strongly by a diversity of actors.186 Ultimately, an interactional approach facilitates understanding of both the opportunities for and limits to law-making and enforcement under conditions of deep diversity187— such conditions being exactly what we find today in the space domain. II. THE SPACE REGIME’S SHARED UNDERSTANDINGS From an interactional perspective, regimes must be based on shared understandings to enjoy legitimacy. But is the space regime grounded in shared understandings? In this Part, I respond to this question. However, constraints of time and space preclude considering the entirety of the space regime’s stock of shared understandings. Instead, in Section A, I examine the primary shared understanding that all regimes require: the shared understanding regarding the need for normativity. With respect to the space regime, this is the shared understanding that space should not be a lawless and ungoverned domain. I argue that there is such a shared understanding, and that its existence is best demonstrated by the vitality of the space regime’s people and places— in other words, the space regime’s transnational community. However, as described in Section B, this shared understanding is challenged by the near-term fragmentation of the space regime that will accompany the United States-Russia decoupling. Section C then offers a final comment on reinforcing the space regime’s shared understandings. 185. Id. at 8. 186. Id. at 36. 187. Id. at 82. 364 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 A. The Need for the Space Regime The space regime’s progressive evolution, and its persistence over time, suggests that there is a shared understanding regarding the need for the space regime. Indeed, it may seem facile to inquire whether there is a shared understanding regarding the need for a particular legal regime when that legal regime is clearly operational. In such circumstances, common sense strongly suggests that the need for the regime is at least shared amongst the regime’s participants, even if they may disagree on the actual norms that comprise that regime. Nonetheless, there is significant value in examining the shared understanding regarding the need for the space regime. More specifically, such an examination focuses our attention on the people and places that are instrumental to that regime. The importance of people and places is often forgotten during regime analysis. Instead, the focus is often on the instruments that form the regime’s parameters. With respect to shared understandings, a focus on instruments may lead us to the argument that the broad membership of the Outer Space Treaty—112 ratifications188— demonstrates that there is a broadly shared understanding regarding the need for the space regime. After all, if no such shared understanding existed, then why would these states sign on to the treaty? This argument fails from an interactional perspective. Inclusiveness and representativeness are essential to the interactional approach.189 As such, it could be pointed out that the ratifying parties and signatories do not represent every state—let alone the fact that many space actors, being non-states, cannot sign the Outer Space Treaty (which is only open to states).190 There are 193 United Nations Member States. As such, more than 50 Member States have neither signed nor ratified. This diverse group includes Andorra, Grenada, Serbia, Timor-Leste, and Zimbabwe.191 Overall, the ratification 188. See Comm. on the Peaceful Uses of Outer Space, supra note 9. 189. BRUNNÉE AND TOOPE, supra note 28, at 196. 190. G.A. Res. 2222 (XXI), art. XIV(1), Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including Moon and Other Celestial Bodies (Dec. 19, 1966). 191. See Outer Space Treaty, supra note 8; see also Comm. on the Peaceful Uses of Outer Space, supra note 9. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 365 status of the Outer Space Treaty in raw numbers tell us little about the shared understandings that may or may not underpin the space regime. However, it does invite consideration of why more than 50 states have refrained from ratification,192 and how these states may view efforts to expand the space regime. Even universal membership of the Outer Space Treaty would be insufficient to conclude that there is a shared understanding regarding the need for normativity in space.193 After all, an in-force, universally-ratified treaty can still be a “paper tiger”—that is, entirely ineffective in enabling and guiding interactions among states and other international actors.194 Further, participation in the space regime is entirely possible without ratifying the Outer Space Treaty195—a further example of what Andrew Friedman describes as “compliance without ratification.”196 As such, it cannot be inferred from the fairly widespread and longstanding membership of the Outer Space Treaty that there is a shared understanding regarding the need for space regime. This inference would be particularly problematic given that the Outer Space Treaty was negotiated by a small circle of states. 192. The reasons why some states have elected to remain outside the Outer Space Treaty undoubtedly vary. But a key reason may be the simplest one: The Outer Space Treaty largely restates the principles set out in the Legal Principles Declaration. Given that the Legal Principles Declaration was adopted without a vote by the United Nations General Assembly in 1963, it may be that some states view accession to the Outer Space Treaty as unnecessary (rightly or wrongly). Indeed, some scholars view the Outer Space Treaty as predominantly codifying customary international law. See generally Ram S. Jakhu & Steven Freeland, The Relationship between the Outer Space Treaty and Customary International Law, 59 PROC. INT’L INST. SPACE L. 183 (2016). The apparently customary status of some of the Outer Space Treaty’s provisions may further suggest to non-signatories that they need not accede to the Outer Space Treaty. 193. BRUNNÉE AND TOOPE, supra note 28, at 142. 194. Id. at 73. 195. Guatemala is but one example. Having neither signed nor ratified the Outer Space Treaty, Guatemala launched its first satellite—Quetzal-1—from the Japanese module on the ISS on April 28, 2020. Guatemala then transmitted the relevant information regarding Quetzal-1 to United Nations Secretary-General for inclusion on Register of Objects Launched into Outer Space. See generally Comm. on the Peaceful Uses of Outer Space, Information Furnished in Conformity with General Assembly Resolution 1721 B (XVI) by States Launching Objects into Orbit or Beyond, U.N. Doc A/AC.105/INF/440 (2020). 196. See generally Andrew Friedman, Compliance without Ratification: Using International Law in Non-Binding Scenarios, HORS-SÉRIE REVUE QUÉBÉCOISE DE DROIT INT’L 137 (2021). 366 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 Following an extensive review of the Outer Space Treaty’s travaux préparatoires, van Eijk finds that [t]he US and USSR negotiated nearly all of the [Outer Space Treaty] bilaterally and in secret during the second half of 1966. . . . The US then consulted the UK, Canada, Australia, and France . . . and then a select group [of states] which excluded Egypt, Morocco, Sierra Leone, Chad, and India.197 This effectively prevented the Global South from meaningful contribution to the [Outer Space Treaty]—changes to the pre-negotiated draft required both [American and Soviet] approval . . . .198 It is arguable that this process resulted in a treaty that favored the then-space powers by preserving their freedom of actions vis-à-vis space. However, it is the manner in which certain states were prevented from contributing that is more problematic from an interactional perspective. As Brunnée and Toope note, “[i]f the imbalance of power between [treaty] parties is great, if there is no real opportunity for negotiations, and if no mutual sense of duty is evident, then states have not really created a treaty at all. . . .”199 Rather, they “have merely acted in the form of treaty.”200 In such circumstances, “[t]he ‘participation’ of many other states in law-making is often merely formal; there is no real inclusion, no engagement.”201 Yet this aptly describes the Outer Space Treaty’s law-making process. Barton Beebe provides a related perspective. He posits that the space regime’s “Golden Age”—the period from 1967 to 1979 that saw the conclusion of the Outer Space Treaty, the Rescue Agreement, the Liability Convention, the Registration Convention, and the Moon Treaty—was a fundamentally reactionary era.202 Under the guise of 197. van Eijk, supra note 34, at 32 n.62 (emphasis added). Additional exclusions were Sweden, Lebanon, and Iran. Id. Brazil was, however, consulted and successfully negotiated the inclusion of “irrespective of their degree of economic or scientific development . . . .” Id. n.63, art 1. 198. Id. at 32. 199. BRUNNÉE AND TOOPE, supra note 28, at 40. 200. Id. at 40–41. 201. Id. at 73. 202. See generally Barton Beebe, Law’s Empire and the Final Frontier: Legalizing the Future in the Early Corpus Juris Spatialis, 108 YALE L. J. 1737 (1999). 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 367 extending the rule of law to space, he argues that the space regime’s development was driven by lawyers’ desire to protect their privileged position in an increasingly scientific age.203 To support his argument, Beebe reconstructs the lively discourse at lawyers’ conferences and within law faculties that followed the launch of the first artificial satellite, the Soviet Union’s Sputnik, in 1957. He posits a sociological fact: that lawyers feared a decline in their relative prestige in the space age.204 Beebe’s analysis suggests that there was no shared understanding regarding the need for normativity during the regime’s early years. There was no drive to ensure that outer space exploration and use would be the province of all humankind. Rather, there was a shared understanding among lawyers that they needed to secure their prestige (and their jobs). But Beebe’s analysis overstates the role of lawyers, at the risk of neglecting the various other interested parties— officials, diplomats, scientists—that surrounded the space regime during the Golden Age, and that continue to support the regime. Such parties can be analyzed together as transnational communities of practice. Such communities, as Emanuel Adler explains, “cut across state boundaries and mediate between states, individuals, and human agency, on [the] one hand, and social structures and systems, on the other.”205 These communities are often both the source and repository of shared understandings. However, as Brunnée and Toope note, these transnational communities do not necessarily share a common goal.206 Indeed, such communities are often riven by internal disputes and rivalries. Fortunately, “[i]t is not necessary to have a morally cohesive ‘community’ before lawmaking is possible.”207 And despite their disagreements, transnational communities generally share an understanding of what they are doing, and why they are doing it.208 Accordingly, the existence of a broad and strong transnational community supporting the space regime indicates that there are some 203. Id. at 1741. 204. Id. 205. EMANUEL ADLER, COMMUNITARIAN INTERNATIONAL RELATIONS: THE EPISTEMIC FOUNDATIONS OF INTERNATIONAL RELATIONS 14 (2005). 206. BRUNNÉE AND TOOPE, supra note 28, at 44. 207. Id. 208. Id. at 13. 368 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 shared understandings (at least within that community). After all, while there may be other reasons to support a regime,209 it is reasonable to infer that the primary reason why a transnational community would support a regime is that the members of this community share an understanding of the need for that regime.210 Is there a broad and strong transnational community of practice supporting the space regime? I argue that there is. First and foremost, the space regime engages a wide range of people. Alongside government space lawyers, diplomats and officials, the space regime also engages academic space lawyers, commercial space lawyers, and legal professionals in cognate fields, including space insurance, financing, regulatory engineering, and lobbying. These people have their own longstanding, international professional association, the International Institute of Space Law,211 as well as local bar associations and interest groups. 212 These people are then brought together in various places— sometimes physical, sometimes virtual. Universities worldwide maintain research and teaching institutes dedicated to the space regime.213 National space agencies typically have dedicated space law centers, such as the China National Space Administration’s Space Law Center.214 Conferences occur throughout the year, most notably the Colloquia on the Law of Outer Space that takes place at each annual International Astronautical Congress.215 The locus of this community is easily identifiable: COPUOS. First established in 1958 as an ad hoc United Nations committee, 209. This includes compulsion, strategic alignment, or what might be called “optics”— that is, public perception of state behavior. 210. This inference is based on the simple intuition that a person or entity is unlikely to support a regime, particular over the long term, unless they perceive that there is a need for that regime. 211. About, INT’L INST. SPACE L. (last visited Dec. 2, 2023), https://iisl.space/index.php/about/ [perma.cc/5W8J-68S4]. 212. See, e.g., Forum on Air & Space Law, A.B.A. (last visited Dec. 2, 2023), https://www.americanbar.org/groups/air_space/. 213. U.N. Office for Outer Space Affairs, Education Opportunities in Space Law: A Directory (last visited Dec. 2, 2023), https://www.unoosa.org/documents/pdf/spacelaw/ eddir/EducationOpportunitiesinSpaceLaw2020.pdf [perma.cc/7KH3-VKZT]. 214. Prof. Li Shouping, China’s Concept and Practices on Global Governance of Outer Space, Presentation at Space Law Center of China National Space Administration (2022). 215. See, e.g., Symposia and Events, INT’L INST. SPACE L., supra note 211. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 369 COPUOS has long served, as Annette Froehlich notes, “as a central platform for international cooperation in the field of outer space activities.”216 As the “focal point for international cooperation” in relation to space, COPUOS is engaged in diverse issues including space debris, the use of nuclear power sources in space, global navigation satellite systems, safe orbital operations, and planetary defense.217 In 1959, (when COPUOS became a permanent committee of the United Nations), COPUOS membership stood at 24 states.218 It now includes exactly 102 states, with all regions represented.219 But what makes COPUOS transnational, rather than merely international, is that it includes an ever-increasing number of non-state observer entities. Presently numbering close to 50,220 these entities are accredited to COPUOS, participate in and present during COPUOS meetings, and are generally engaged with the various aspects of the committee’s work. However, it remains to be seen if and how COPUOS will accommodate private entities. No commercial space enterprise is an observer. Nonetheless, many commercial space enterprises remain deeply entwined with their respective states. To return to the example of SpaceX, they can count on having their opinions heard in COPUOS through the public input mechanisms of the United States government.221 This entanglement may loosen over time so as to warrant separate representation. Nonetheless, it presently appears that, 216. Annette Froehlich, Vincent Seffinga & Ruiyan Qiu, The Development of the Mandates of the Committee on the Peaceful Uses of Outer Space (COPUOS) and the Conference on Disarmament (CD) and the Collaboration Between the Forums, in 21 THE UNITED NATIONS AND SPACE SECURITY 29 (Annette Froehlich & Vincent Seffinga eds., 2020). 217. Id. at 14. 218. Committee on the Peaceful Uses of Outer Space: Membership Evolution, U.N. OFFICE FOR OUTER SPACE, https://www.unoosa.org/oosa/en/ourwork/copuos/members/ evolution.html [perma.cc/VHM3-YARM]. 219. Id. 220. Id. 221. See, for example, the public input request relating to the Long-Term Sustainability Guidelines. Notice 11630: Seeking Private Sector Written Input on Implementation of the 21 Guidelines for the Long-Term Sustainability of Outer Space Activities, U.S. DEP’T OF STATE (July 8, 2022), https://www.state.gov/remarks-and-releases-bureau-of-oceans-andinternational-environmental-and-scientific-affairs/notice-11630-seeking-private-sectorwritten-input-on-implementation-of-the-21-guidelines-for-the-long-term-sustainability-ofouter-space-activities/ [perma.cc/6LQR-4CFX]. 370 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 despite not having commercial space enterprises as stand-alone observers, COPUOS represents the focal point of the space regime’s transnational community. Together, these actors use COPUOS to pursue diverse—and often competing—objectives. They share no common outlook regarding all aspects of the space regime. But what these diverse actors have in common is that all speak the space regime’s scientific and legal language.222 Indeed, in some sense they are forced to speak this language by COPUOS’ consensus process of decision-making.223 “Consensus,” Allott explains, “means that, instead of adopting treat[ies] [or other] texts by majority voting, negotiation continues until there is no further significant opposition to a text.”224 As Steer notes, the size of COPUOS’ current membership means that reaching consensus on new issues is very difficult.225 Adam Routh notes that “international [space] governance” needed to “ensure space is developed sustainably . . . remains largely stagnant” and attributes this situation to COPUOS’ consensus approach.226 However, this approach can be defended from an interactional perspective. Allott notes that the negotiations resulting in UNCLOS—which also adopted a consensus procedure—were “prolonged,” “intense” and 227 “painful[].” But he also notes a redeeming feature of this consensus process: “it initiates the task of mutual education which is the essence of participation in a society.”228 This is because, “in a consensus system . . . all members of society must take steps to learn the situation, interests, aspirations, and attitudes of all other members.”229 As such, “[t]o win support, to reduce opposition, to adjust and mediate and 222. Cf. BRUNNÉE & TOOPE, supra note 28, at 143–44 (making the same point in relation to the climate regime). 223. Steer, supra note 3, at 756. 224. Philip Allott, Making the New International Law: Law of the Sea as Law of the Future, 40 INT’L J. 442, 443 (1985). 225. Steer, supra note 3, at 756. 226. Adam Routh, The Space Industry Needs COPUOS to Rethink Its Approach to Decision-Making, SPACENEWS (May 15, 2023), https://spacenews.com/the-space-industryneeds-copuos-to-rethink-its-approach-to-decision-making/ [perma.cc/M2XB-UX8W]. 227. Allott, supra note 224, at 448. 228. Id. 229. Id. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 371 reconcile, it is necessary to have an understanding of the real positions of all other participants.”230 These aspects of consensus procedures resonate strongly with interactional themes. But to have consensus work in the context of the space regime, all parties must speak the space regime’s scientific and legal language. By speaking this language, participants evidence an understanding of the unique physical and legal environment of space and an appreciation of the main negotiating and policy issues. And through other actions—by attending or dialing into COPUOS meetings in Vienna each year, giving presentations, participating in debates, and even holding side events—they evidence the vitality of the space regime’s transnational community.231 B. Decoupling and Fragmentation The vitality of the space regime’s transnational community is an important source of strength for the regime. However, there are challenges on the horizon for this community. Specifically, how will the community, and its central pillar COPUOS, respond to the ongoing decoupling of the U.S. and Russian space programs? To answer this question, it is necessary to look back over the space regime’s historical development. I divide this development into four stages.232 The first stage stretched from the early 1950s to 1967. The key space regime instruments during this first stage were policy declarations from the space superpowers, the United States and the Soviet Union. These declarations were gradually formalized in a series of General Assembly resolutions.233 The most notable among these was the Legal Principles Declaration. This declaration was the first substantive General Assembly resolution regarding international space law. Yet it was negotiated privately by the United States and the Soviet Union, building upon a series of bilateral agreements between 230. Id. 231. Cf. BRUNNÉE AND TOOPE, supra note 28, at 22. 232. Such divisions are ultimately arbitrary, but nonetheless have explanatory power. For alternative divisions, see Froehlich, Seffinga & Qiu, supra note 216, at 29 (dividing this historical development into three sections), and Chen, supra note 48, at 674 (dividing the space regime’s history into segments lasting approximately two decades). 233. Cassandra Steer, Sources and Law-Making Processes Relating to Space Activities, in ROUTLEDGE HANDBOOK OF SPACE LAW 1, 20 (2016). 372 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 NASA and the Soviet Academy of Sciences.234 The final draft of the Legal Principles Declaration was then submitted by the United States and the Soviet Union to COPUOS for endorsement and comment— but not amendment.235 Given this fait accompli, the French COPUOS delegation welcomed the draft to COPUOS “from the secluded places in which it was negotiated,” commended the “spirit of compromise demonstrated by its authors,” but lamented “that their concern for preserving the equilibrium of their edifice” made them fearful that “the moving of a single comma might lead to its collapse.”236 Alongside these resolutions, and the establishment of COPUOS as an ad hoc committee in 1958, this first stage also saw the conclusion of the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, signed on August 5, 1963 (Partial Test Ban Treaty).237 This treaty forbids its parties from conducting, permitting, or encouraging any nuclear explosion in outer space, as well as in the atmosphere or underwater.238 Again, it was primarily a United States and Soviet project.239 The second stage consisted of adopting international treaties— most notably the Outer Space Treaty—under the auspices of the United Nations. I have already outlined how the negotiation and drafting of the Outer Space Treaty was a small-circle exercise, with every word requiring both American and Soviet approval. The process for the Rescue Agreement, the Liability Convention and the Registration Convention was more open, but the heavy hand of the United States and the Soviet Union remained. This second stage ended when the Moon Agreement was signed in 1979, without gaining American or Soviet signatures. 234. See Letter dated Aug. 22, 1963 from the Permanent Reps. of the Union of Soviet Socialist Republics & the U.S. to the U.N. addressed to the Sec’y-Gen., U.N. Doc. A/5482 (Aug. 26, 1963). 235. BIN CHENG, STUDIES IN INTERNATIONAL SPACE LAW 153 (1997). 236. See Comm. on the Peaceful Uses of Outer Space, Verbatim Rec. of the TwentyFourth Meeting of the Comm., U.N. Doc. A/5549/Add.1, at 18 (Nov. 27, 1963). 237. Nuclear Test Ban Treaty, JOHN F. KENNEDY PRESIDENTIAL LIBRARY AND MUSEUM, (2020), https://www.jfklibrary.org/learn/about-jfk/jfk-in-history/nuclear-test-ban-treaty [perma.cc/R6CZ-HZX9]. 238. Id. 239. Id. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 373 The third stage of the space regime’s development ran from 1979 to 2020. It consisted of a return to predominantly non-binding instruments. This stage began inauspiciously. In 1982, there was a significant disagreement between the United States and the Soviet Union regarding the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting.240 This episode concluded with the United Nations General Assembly passing a resolution relating to such broadcasts with the strong support of the Soviet Union, its allies, the concurring votes of most of the Group of 77,241 but against the contrary or abstaining votes of the United States and its allies.242 But change followed the collapse of the Soviet Union. Agreement was reached on several space regime instruments. This included the Principles Relevant to Use of Nuclear Power Sources in Outer Space243 in 1992, and the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries244 in 1996. Then, in 1998, the signing of the ISS Agreement marked the start of sustained in-space collaboration between the United States and Russia. Subsequent General Assembly resolutions throughout the 2000s and 2010s were adopted without a vote, having proceeded there from COPUOS with joint American and Russian support (or at least no objection). This third stage closed on October 13, 2020, with the signing of the Accords. While they have already attracted more signatories than the Moon Agreement, the Accords also attracted strident criticism 240. This dispute largely boiled down to a “freedom of information” versus “national sovereignty” debate. 241. Eduardo D. Gaggero, Quo Vadis COPUOS?, 2 SPACE POL’Y 196, 197 (1986). 242. Voting Record: Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, U.N. DIGIT. LIBR., (1982), https://digitallibrary.un.org/record/1493353 [perma.cc/QQ28-JY86]. 243. See generally G.A. Res. 47/68 (Dec. 14, 1992) (adopted without vote). 244. See generally G.A. Res. 51/122 (Dec. 13, 1996) (adopted without vote). Steer notes that while the existence of this resolution is “a positive sign . . . it has little normative weight as a General Assembly resolution and has had arguably little to no impact.” See Steer, supra note 3, at 758. 374 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 from other space powers,245 notably Russia and China.246 The thenAdministrator of Roscosmos responded to news of the Accords in a since-deleted tweet that likened the Accords to an invasion of the Moon, a new Operation Iraqi Freedom to be performed by a new “coalition of the willing.”247 The vitriol that the Accords attracted suggests that the Accords represent a paradigm shift. Russia and China now look set to publish their own framework instrument to govern their planned “International Lunar Research Station.”248 While the Accords have been tabled at COPUOS, I identify the Accords as marking the beginning of a further, fourth stage in the development of the space regime. An increasingly fragmented space regime marks this stage. It appears that the future period of lunar exploration will differ from the previous period of lunar explanation in an important way. During the previous lunar exploratory phase, both American Apollo missions and Soviet Luna missions—as well as the joint Apollo-Soyuz Test Project—operated under the same legal framework (at least in theory).249 Similarly, as Matthew G. Looper notes, the ISS has “principally been a joint Russian-American endeavor,”250 governed by the ISS Agreement. By contrast, the coming phase of lunar exploration looks set to be governed by two separate instruments. There is no guarantee of compatibility between these instruments regarding contentious issues such as buffer or “safety zones” around future lunar installations.251 As such, fragmentation of the space regime as applied 245. Kiran Vazhapully, Space Law at the Crossroads: Contextualizing the Artemis Accords and the Space Resources Executive Order, OPINIO JURIS (July 22, 2020), http://opiniojuris.org/2020/07/22/space-law-at-the-crossroads-contextualizing-the-artemisaccords-and-the-space-resources-executive-order/ [perma.cc/85LW-YANQ]. 246. See generally Paul Stimers & Audrey Jammes, The Space Review: The Artemis Accords After One Year of International Progress, SPACE REV. (Oct. 18, 2021), https://www.thespacereview.com/article/4267/1 [perma.cc/99YP-Y3PV]. 247. Joey Roulette, “Star Trek, Not Star Wars:” NASA Releases Basic Principles for Moon Exploration Pact, REUTERS (May 15, 2020), https://www.reuters.com/article/us-spaceexploration-artemis-idUSKBN22R2Z9 [perma.cc/TLS8-UJWZ]. 248. Stimers and Jammes, supra note 246. 249. At that time, the framework consisted of the Outer Space Treaty, the Rescue Agreement, and the Liability Convention. 250. Matthew Looper, International Space Law: How Russia and the U.S. Are at Odds in the Final Frontier, 2 S.C. J. INT’L L. & BUS. 111, 111 (2022). 251. See generally Jack Wright Nelson, Safety Zones: A Near-Term Legal Issue on the Moon, 44 J. SPACE L. 604 (2020). 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 375 on the lunar surface looks increasingly likely. To take stock: American and Russian engagement has been key to the previous three stages of the space regime’s development. They have been the “indispensable states” in this regime. And, as Looper explains, “historically the U.S. and Russia have seen eye to eye on international space law.”252 But, as Durkee notes: “the world has changed, and so has space. A bi-polar world has become multipolar, and an optimistic period of multilateralism has given way to a decline in robust international cooperation. Meanwhile, developments in outer space have exploded in complexity, ambition and commercial promise.”253 As such, the fourth stage’s fragmentation is unsurprising given the ongoing decoupling between the United States and Russia. This decoupling is reflected in recent developments across the space regime. Russia (along with China) voted against the creation of the Space Threats Working Group in December 2021254 (although both states are nonetheless participating in the working group). And the decoupling has accelerated rapidly since Russia further invaded Ukraine on February 24, 2022. Most recently, the newly installed Administrator of Roscosmos stated that Russia will pull out of the ISS in 2024—only to swiftly row those comments back.255 Nonetheless, the ISS will likely eventually be decommissioned. The ISS Agreement, various memoranda and other legal instruments, as well as the previously mentioned bartering practice will all fall away. The proposed fate of the ISS is a stark illustration of the destruction of places where people interacted, and by those interactions, contributed to the vitality of the space regime’s transnational community. Indeed, it appears that United StatesRussian cooperation may have been the fulcrum of that community. I do not doubt that this community—and its central pillar, COPUOS— will survive decoupling. And the space regime itself will not disappear. But, as Eduardo Gaggero notes, “COPUOS is only a mirror 252. Looper, supra note 250, at 115. 253. Durkee, supra note 125, at 711. 254. Zhanna Malekos Smith, Putin and Xi’s Pact for Outer Space, LIEBER INST. (Apr. 18, 2022), https://lieber.westpoint.edu/putin-xis-pact-outer-space/ [perma.cc/X2XC-Y4CD]. 255. Loren Grush, Russia Reportedly Tells NASA It’s Staying with the International Space Station Until at Least 2028, VERGE (July 27, 2022), https://www.theverge.com/ 2022/7/27/23281086/nasa-roscosmos-russia-international-space-station-2028-partnership [perma.cc/2RAZ-C6VT]. 376 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 of the world around it.”256 As such, the vitality of the space regime’s transnational community appears to be in jeopardy in this fourth stage of the space regime’s development. Of course, reinforcing this transnational community is possible. Various ways to do just that will be presented in the conclusion to this Article. But such reinforcements can only be a first step. This is because “shared understandings alone do not make law.”257 These shared understandings can give rise to social norms, and changing shared understandings can change those same social norms. But “what distinguishes legal norms from other types of social norms is not form or pedigree, but adherence to specific criteria of legality.”258 As such, I turn now to consider the eight criteria of legality in relation to the space regime’s cornerstone instrument, the Outer Space Treaty. III. THE OUTER SPACE TREATY AND THE CRITERIA OF LEGALITY In this Part, I test the Outer Space Treaty against each of the eight criteria first identified by Fuller and further developed by Brunnée and Toope: “generality, promulgation, non-retroactivity, clarity, non-contradiction, not asking the impossible, constancy, and congruence between rules and official action.”259 The conclusion reached is that the Outer Space Treaty only partially satisfies the criteria of legality, thus degrading the Outer Space Treaty’s legality in the eyes of its subjects. Before proceeding to the analysis, two preliminary questions arise. The first question is: Why the Outer Space Treaty? The Outer Space Treaty is just one instrument amongst the many that comprise, in part, the space regime. It is not even the first treaty governing space activity—an honor that goes instead to Partial Test Ban Treaty.260 And, contrary to the views of some commentators261 and COPUOS 256. Gaggero, supra note 241, at 197. 257. Brunnée and Toope, supra note 27, at 310. 258. Id. (emphasis added). 259. BRUNNÉE AND TOOPE, supra note 28, at 6. 260. The Partial Test Ban Treaty was signed in 1963. Nuclear Test Ban Treaty, supra note 237. 261. See, e.g., John Bergstresser, To Boldly Go: An Analysis of Luxembourg Space Resources Law in Light of the EU Treaty, 42 BUS. L. REV. 143, 144 (2021). 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 377 representatives,262 the Outer Space Treaty is not a constitution or Magna Carta for outer space or the space regime.263 Rather, it is a treaty like any other, subject to the primacy of the UN Charter264 and subsequent treaties.265 It does, however, occupy a central place in the space regime due to its heritage266 and its wide acceptance.267 Its status as the space regime’s fundamental instrument makes it a suitable instrument to be tested against the criteria of legality, as the perceived legality of the Outer Space Treaty has significant consequences for the space regime as a whole. Analyzing the Outer Space Treaty in this broad manner is somewhat artificial, given that each provision of the Outer Space Treaty could be tested against the criteria of legality. However, such analysis would be in many cases highly repetitive (for example, with respect to promulgation). Further, this Article investigates the space regime as a whole—as such, there is a risk to over-atomizing the components of that regime, and in this way losing the forest for the trees. As such, while I examine the Outer Space Treaty generally, I will also drill down into specific norms that are formalized in the Outer Space Treaty. The prohibition of national appropriation of outer space and celestial bodies—as formalized in Article II of the Outer Space Treaty268—will receive a particular focus. I refer to this prohibition as the “PNA.” My focus on the PNA is justified by the importance of 262. See Comm. on the Peaceful Uses of Outer Space, Responses to the Set of Questions Provided by the Moderator and Vice-Moderator of the Scheduled Informal Consultations on Space Resources at 13–25, U.N. Doc. A/AC105/C.2/2021/CRP.8 (May 27, 2021) (representative of Mexico). 263. Michelle L. D. Hanlon, The Middle Kingdom’s Shrewd Strategy to Become the Centre of the Universe, 41 ANNALS AIR & SPACE L. 287, 291–92 (2016). Hanlon describes these views as “dangerously simplistic and misleading,” given that while the Outer Space Treaty “is inspirational, aspirational, and offers guidance,” it “falls far short of organizing a governing regime for outer space.” Id. at 292. 264. U.N. Charter art. 103. 265. By operation of lex posterior derogate priori. See AARON X. FELLMETH & MAURICE HORWITZ, GUIDE TO LATIN IN INTERNATIONAL LAW 174 (1st ed. 2009). 266. That is, its derivation from the Legal Principles Declaration. 267. See Comm. on the Peaceful Uses of Outer Space, supra note 9, at 3. 268. This Article provides 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.” Outer Space Treaty, supra note 8, art. II. 378 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 this prohibition to the space regime269 and the increasingly diverging interpretations of the PNA among various space actors. A. Generality The first criterion of legality requires that laws take the form of generally applicable rules that prohibit or permit behavior of certain kinds.270 This criterion distinguishes law from, for example, the discretionary decisions of a monarch: While such decisions may have legal effect, they are not considered sufficiently general from the interactional perspective. And, as Frank Lovett notes, “there simply would be no system of rules . . . if public officials adjudicated all controversies on a case-by-case basis.”271 Satisfying the generality criterion is not difficult. Written laws—such as the Outer Space Treaty—usually satisfy this criterion. However, this criterion has a particular resonance for space activities. This is because space activities are inherently global: Space is variously described as a “domaine commun,”272 a “global commons,”273 “res communis”274 or as “Sky Country.”275 It is unnecessary to wade into the ongoing debate between these terms here, other than to note that they generally reflect the idea of space as an inherently global concern. Humanity depends on space assets across various sectors, including the telecommunications, financial, and transportation sectors. As Jakhu, Steer, and Kuan-Wei (David) Chen summarize, all these sectors are broadly “dependent on services provided” by 269. Durkee, supra note 39, at 455. 270. Colleen Murphy, Lon Fuller and the Moral Value of the Rule of Law, 24 L. & PHIL. 239, 240 (2005). 271. Lovett, supra note 133, at 4. 272. Camille Toussaint & Hervé Dumez, Gérer un Méta-Problème: Le Cas des Débris Spatiaux, in LES ANNALES DES MINES 1, 7 (2020) (italics added). 273. Steer, supra note 3, at 753. 274. See generally Martin Svec, Outer Space, an Area Recognised as Res Communis Omnium: Limits of National Space Mining Law, 60 SPACE POL’Y 101473 (2022). 275. Bawaka Country, supra note 176, at 2. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 379 satellites of various nations and companies.276 As such, space “has become fully integrated with our daily lives” across the globe.277 The inherently global nature of space activities stands in contrast to the fact that only a small number of states enjoy independent space access.278 Accordingly, generality is a particularly important angle by which to interrogate the Outer Space Treaty, as it is through its generality that the Outer Space Treaty can promote the idea that it represents universal values rather than just the values of the space-capable states. To this end, the generality criterion invites consideration of whether the Outer Space Treaty differentiates between states. Differentiation among states can undermine a treaty’s generality. To this end, the Outer Space Treaty does differentiate between “Depository Governments”279 and other states. In particular, the Outer Space Treaty’s entry into force required ratifications by the Depository Governments. They also have certain administrative functions imposed on them.280 However, these points of Such procedural differentiation are procedural in nature.281 282 differentiation is common treaty practice and is unlikely, in my view, to impede the legitimacy of a treaty. Importantly, there are no material differences in the obligations imposed on, or rights granted to, the Depository Governments as opposed to other states.283 Overall, this procedural differentiation does not render the Outer Space 276. Ram S. Jakhu, Cassandra Steer & Kuan-Wei (David) Chen, Conflicts in Space and the Rule of Law, SPACE POL’Y, at 1 (unpublished manuscript) (on file with Social Science Research Network). 277. Id. 278. Steer, supra note 3, at 753. 279. These are the “Governments of the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics and the United States of America.” See Outer Space Treaty, supra note 8, art. XIV. 280. See id. arts. XIV, XVI, and XVII. 281. The multiple “Depository Governments” were introduced so that states not universally recognized could still sign the treaty, provided that one of the Depository Governments recognized them. 282. See, e.g., Shabtai Rosenne, The Depositary of International Treaties, 61 AM. J. INT’L J. 923 (1967) (describing differing depositary practices across states and international organizations). 283. See id. 380 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 Treaty insufficiently general for the purposes of the generality criterion. A different type of differentiation is the Outer Space Treaty’s various usage of “States” and “States Parties to the Treaty.” Unfortunately, it is not always clear from the text why this distinction is made in some places and not others. Both formulations can be seen in relation to obligations. For example, per Article IV, “States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction.”284 But then, in Article I, “States shall facilitate and encourage international co-operation in [scientific] investigation” of outer space.285 A related example is provided by Article II of the Outer Space Treaty, which embodies the PNA.286 This Article plainly prohibits “national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”287 As such, the PNA is phrased as a generally applicable rule. But the formulation in Article II avoids using the words “States” or “States Parties to the Treaty.” While using “States” could be perceived as enhancing the PNA’s generality it potentially poses a problem vis-à-vis the principle of privity.288 Nonetheless, this further differentiation does not render the Outer Space Treaty insufficiently general for the purposes of the generality criterion. B. Promulgation The second criterion of legality requires that laws are widely promulgated and publicly accessible. This ensures that the subjects of 284. Outer Space Treaty, supra note 8, art. IV (emphasis added). 285. Id. art. I (emphasis added). 286. Outer Space Treaty, supra note 8, art. II. 287. Id. The wording used in the Legal Principles Declaration is materially identical. Paragraph 3 of the Legal Principles Declaration provides that “[o]uter space and celestial bodies are not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” G. A. Res. 1962 (XVIII), at ¶ 3 (Dec. 13, 1963) (adopted without vote). 288. See generally Michael Waibel, The Principle of Privity, in CONCEPTUAL AND CONTEXTUAL PERSPECTIVES ON THE MODERN LAW OF TREATIES 201 (Michael J. Bowman & Dino Kritsiotis eds., 1 ed. 2018) . 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 381 the law know what it requires.289 To this end, the Outer Space Treaty is readily and freely available in the six official languages of the United Nations.290 In addition, UNOOSA has compiled and published the Outer Space Treaty’s travaux préparatoires online.291 As such, the promulgation criterion is clearly satisfied by the Outer Space Treaty. However, this criterion also invites consideration of linguistic issues, which are intrinsically linked to promulgation. English predominates within COPUOS and UNOOSA. Many documents emanating from UNOOSA are marked in the upper right-hand corner: “English only.”292 Indeed, the entire UNOOSA website is only available in English, as are UNOOSA’s annual reports. The global predominance of English has been criticized more generally.293 This Article is not the place for engaging in this important debate. But, once again, this invites consideration of accessibility issues: Will efforts to expand the space regime be linguistically inclusive? Or, will all the preparatory materials, all the drafts, and all the additional information invariably be produced in “English only”?294 A similar point could be made concerning the wealth of literature built around the PNA (and the Outer Space Treaty more generally). The PNA has attracted many commentators. As Durkee notes, law students are particularly engaged in complex questions regarding space resource extraction,295 and have published numerous 289. Murphy, supra note 270, at 240. 290. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, U.N. OFFICE FOR OUTER SPACE AFFS., https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspace treaty.html [perma.cc/ZY6D-4QT8] (discussing the availability of the Outer Space Treaty). 291. Travaux Préparatoires, U.N. OFFICE FOR OUTER SPACE AFFS., https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/travauxpreparatoires/outerspacetreaty.html [perma.cc/88UZ-U7T8]. 292. See, e.g., Comm. on the Peaceful Uses of Outer Space, supra note 9. 293. Melissa C. Márquez & Ana Maria Porras, Science Communication in Multiple Languages Is Critical to Its Effectiveness, 5 FRONT. COMMUN. 31 (2020); see generally Jacob Mikanowski, Behemoth, Bully, Thief: How the English Language Is Taking Over the Planet, GUARDIAN (July 27, 2018), https://www.theguardian.com/news/2018/jul/27/englishlanguage-global-dominance [https://perma.cc/L4D3-D8NJ]. 294. See supra text accompanying note 292. 295. Durkee, supra note 39, at 455 n.173. 382 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 notes and articles analyzing the issues in significant detail. However, much of this literature is locked away in paid databases. This situation is hardly uncommon. In many jurisdictions, legislation is freely and widely available, but the commentary and judicial decisions necessary to interpret that legislation are not. However, equality of access to scholarship is a particular issue in relation to the space regime. This is because much of its subject matter remains theoretical. As such, the relevant debates often take place in pages of academic journals that are not always freely available.296 So while the promulgation criterion is satisfied by the Outer Space Treaty, this same criterion also suggests that expanding access to the various materials that analyze this treaty would enhance its legality. C. Non-Retroactivity The third criterion of legality requires that laws address future behavior, rather than behavior that occurred in the past.297 In Fuller’s original conception of this criterion, this element has primary relevance to criminal law.298 Brunnée and Toope broaden the criterion to consider not just strict, criminal retroactivity but rather also retroactive effects.299 In the context of the Outer Space Treaty, there may be a slight retroactive effect in relation to the PNA. This is because the phrasing of Article II300 means that even objects launched prior to the entry into force of the Outer Space Treaty do not, by virtue of occupying a part of outer space, appropriate that part of space. While the Article II prohibition can therefore have a retroactive effect, this argument could be met by noting that the substantive provisions of the Outer Space Treaty predate the Treaty itself, having been first established in the Legal Principles Declaration—and that paragraph 3 of the Legal 296. While open access academic publishing is increasingly popular, equity concerns nonetheless persist. See Benjamin Plackett, Equity Concerns Persist over Open-Access Publishing, NATURE INDEX (Mar. 9, 2021), https://www.nature.com/nature-index/newsblog/equity-concerns-persist-over-open-access-publishing [perma.cc/GZ35-JEUX]. 297. Murphy, supra note 270, at 240. 298. Lovett, supra note 133, at 6. 299. BRUNNÉE AND TOOPE, supra note 28, at 179. 300. Outer Space Treaty, supra note 8, art. II. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 383 Principles Declaration is materially identical to Article II of the Outer Space Treaty. D. Clarity The fourth criterion of legality requires that law be clear. This does not require that law’s meaning remains fixed over time, nor does it require absolute clarity. Rather, this criterion requires that law’s subjects are able to identify what the law prohibits, permits, or requires.301 In this respect, the Outer Space Treaty is not a paragon of clarity. In particular, the Outer Space Treaty relies on certain key concepts—such as “astronaut”302 and “national activities”303—without defining these terms. “Celestial bodies,” another key term in Outer Space Treaty,304 is also undefined. There are a wide variety of natural objects in space: planets, stars, asteroids, black holes, comets, clouds of dust, and gas. As Lachs asks, are all such objects ‘celestial bodies’ despite varying massively in size and proximity to Earth?305 These questions remain unaddressed (other than in the literature itself).306 In particular, the Outer Space Treaty does not actually define “outer space.”307 The result is that the boundary between outer space and airspace is not fixed. Instead, it has remained, as Joanne Irene Gabrynowicz notes, on the COPUOS agenda for more than thirty-five years.308 It could be argued that this lack of clarity is mandated by the sheer audacity of the Outer Space Treaty (and the space regime more generally). The Outer Space Treaty is not spatially 301. 302. 303. 304. Murphy, supra note 270, at 240–41. Outer Space Treaty, supra note 8, art. V. Id. art. VI. See generally Outer Space Treaty, supra note 8. 305. LACHS, supra note 32, at 44. 306. See, e.g., Frans G. von der Dunk, Defining Subject Matter Under Space Law: Near Earth Objects versus Space Objects, PROC. OF THE INT’L INST. OF SPACE L. (2008); see also Thomas Cheney et al., Planetary Protection in the New Space Era: Science and Governance, 7 FRONT. IN ASTRONOMY & SPACE SCI. 1 (2020). 307. See generally THOMAS GANGALE, HOW HIGH THE SKY? THE DEFINITION AND DELIMITATION OF OUTER SPACE AND TERRITORIAL AIRSPACE IN INTERNATIONAL LAW (2018). 308. Joanne Irene Gabrynowicz, Some Legal Considerations Regarding the Future of Space Governance, 48 GA. J. INT’L & COMPAR. L. 739, 742 (2020). 384 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 bound—it dares to apply throughout the whole universe. And the universe is a vast place. As Marina Koren explains: We live in the inner rim of one of the Milky Way’s spiral arms, a shimmery curve against inky darkness. Travel for thousands of light-years in one direction, past countless stars, countless planets, and countless moons, and you’d reach the outer edge of the Milky Way, where the last bits of our galaxy give way to the sprawling stillness of the intergalactic medium. Travel about the same distance in the other direction, past still more stars and planets and moons, through glittering clouds of dust, and you’ll end up in the heart of the galaxy, at one of the most mysterious landmarks in the universe.309 How could mere treaty definitions attempt to capture all this? Perhaps there was wisdom in the drafters’ choice to not even attempt this task—and the clarity criterion does not require that meaning remains fixed over time. But the Outer Space Treaty’s lack of clarity is not just in relation to definitions, it also affects key substantive provisions. For example, Article IX(2) of the Outer Space Treaty mandates that “States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination . . . and, where necessary, shall adopt appropriate measures for this purpose.”310 As Tanja Masson-Zwann and Mahulena Hofmann explain, “[t]his term [i.e., harmful contamination] is not sufficiently precise”311 because it does not “identify which types of degradation of the outer space environment are prohibited and to what extent.”312 The Outer Space Treaty’s confused drafting also suggests distinctions that may have not been intended, further contributing to the overall lack of clarity. I have already described the differentiation between “States” and “States Parties to the Treaty” in relation to the 309. Marina Koren, Behold, the Bottomless Pit Holding Everything Together, ATLANTIC (May 12, 2022), https://www.theatlantic.com/science/archive/2022/05/sagittarius-a-blackhole-milky-way/629838/ [perma.cc/H54S-R5QE]. 310. Outer Space Treaty, supra note 8, art. IX(2) (emphasis added). 311. TANJA L. MASSON-ZWAAN & MAHULENA HOFMANN, INTRODUCTION TO SPACE LAW 92 (4th ed. 2019). 312. Id. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 385 generality criterion. But consider further that the Outer Space Treaty frequently uses the specific phrasing “outer space, including the moon and other celestial bodies.” For example, Article XI provides that: In order to promote international co-operation in the peaceful exploration and use of outer space, States Parties to the Treaty conducting activities in outer space, including the Moon and other celestial bodies, agree to inform the Secretary-General of the United Nations . . . of the nature, conduct, locations and results of such activities.313 Clearly, Article XI covers all space activities, regardless of where they take place. Contrast this with Article V, which provides that: In carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties.314 Does Article V’s omission of the word “Moon” mean that “all possible assistance” is not required if carrying on activities on the Moon? It is difficult to justify such an interpretation. Yet the exclusion of the Moon would be supported by applying the presumption of consistent usage.315 From this perspective, the exclusion of “Moon” is not a mere drafting oversight; rather, it must be a deliberate exclusion, given that the Outer Space Treaty’s provisions consistently use “outer space, including the Moon and other celestial bodies.”316 Of course, this argument would have to overcome the fact that there is no sensible reason for excluding the Moon from the scope of Article—and it surely would not align with the Outer Space Treaty’s object and purpose.317 As such, the drafting 313. Outer Space Treaty, supra note 8, art. XI (emphasis added). 314. Id. art. V (emphasis added). 315. This presumption provides that a phrase is presumed to bear the same meaning in a text, while a variation in that phrase will suggest a variation in meaning. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 170 (2012). 316. See generally Outer Space Treaty, supra note 8. 317. Vienna Convention on the Law of Treaties, art. 31(1), May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980). Reliance on the Vienna Convention to interpret the Outer Space Treaty is subject to two criticisms. First, the Outer Space Treaty predates the 386 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 inconsistencies here adversely affect the Outer Space Treaty’s clarity by potentially opening the door to apparently valid but ultimately spurious arguments. A further example is provided by the articulation of the PNA in Article II of the Outer Space Treaty. I repeat Article II here for ease of reference: Outer 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.318 Core to this articulation of the PNA is the concept of “national appropriation.” This concept is undefined. Even Article II’s catch-all text—“or by any other means”—may not broaden the scope of the prohibition (as Christol argues was intended).319 Rather, it could potentially be read down in line with the ejusdem generis canon of interpretation.320 The argument here would be that “by any other means” must be restricted to other means like “use” or “occupation.” Given these issues, and the increasing commercial interest in space, the exact meaning of Article II is increasingly contested. There is an extensive debate regarding whether Article II prohibits commercial exploitation of space resources. As Fabio Tronchetti notes, an “analysis of . . . [Article II] reveals that while the legal status of the Moon and other celestial bodies is virtually uncontroversial, that Vienna Convention. The Vienna Convention expressly provides that it does not apply to treaties that precede its coming into force. Second, the Outer Space Treaty has many more signatories than the Vienna Convention. The United States is a notable example among the independently space-capable states. The United States has ratified the Outer Space Treaty but has not ratified the Vienna Convention. Both objections can be met on the grounds that it is trite law that Vienna Convention arts. 31–33 represent rules of customary international law. See RICHARD GARDINER, TREATY INTERPRETATION 161 (1st ed.). Accordingly, the Vienna Convention can be applied to the Outer Space Treaty on this basis. 318. Outer Space Treaty, supra note 8, art. II. 319. Carl Quimby Christol, Article 2 of the 1967 Principles Treaty Revisited, 9 ANNALS AIR & SPACE L. 217, 241 (1984). 320. JOSEPH KLINGER, YURI PARKHOMENKO & CONSTANTINOS SALONIDIS, BETWEEN THE LINES OF THE VIENNA CONVENTION? CANONS AND OTHER PRINCIPLES OF INTERPRETATION IN PUBLIC INTERNATIONAL LAW 34 (2018). This canon provides that where general words follow a list of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 387 of the natural resources contained therein remains uncertain.”321 Can these resources be extracted? If so, can they be owned? Can they be sold? These questions are unresolved—what exactly would amount to “national appropriation” under Article II is far from clear. And, as Durkee notes, settled answers to these questions “would determine the prospects of a burgeoning, billion-dollar industry that currently rests on an unstable legal foundation.”322 The issue of commercial space resource extraction has been the subject of extensive and ongoing academic debate. Lachs, writing while he was a sitting judge on the International Court of Justice in 1972, argues that the PNA clearly prohibits commercial resource extraction.323 He asserts that national appropriation would cover not only sovereign rights but also property rights.324 As such, both types of rights are prohibited under the PNA. But many other space regime scholars, including Carl Christol,325 Daniel Goedhuis,326 Stephen Hobe,327 and Stephen Gorove328 take the opposing view. Jakhu and Freeland chart a middle ground, arguing that: [O]ff-Earth mining for space resources would be legal as long as it is for the benefit of all [hu]mankind. Conversely, it would not be in accordance with international space law if such mining is carried out only for ‘exclusive’ interests.329 I earlier outlined the centrality of COPUOS to the space regime’s transnational community. Given this centrality, it is unsurprising that COPUOS took up this academic debate and sought 321. Fabio Tronchetti, Title IV – Space Resource Exploration and Utilization of the US Commercial Space Launch Competitiveness Act: A Legal and Political Assessment, 41 AIR & SPACE L. 143, 145 (2016). 322. Durkee, supra note 39, at 450. 323. LACHS, supra note 32, at 44. 324. Id. at 42–43. 325. Christol, supra note 319, at 218–19. 326. Daniel Goedhuis, Some Recent Trends in the Interpretation and the Implementation of the Rules of International Space Law, 19 COLUM. J. TRANSNAT’L L. 213, 232 (1981). 327. Stephan Hobe, Adequacy of the Current Legal and Regulatory Framework Relating to the Extraction and Appropriation of Natural Resources in Outer Space, 32 ANNALS OF AIR & SPACE L. 115, 120, 204, 213 (2007). 328. STEPHEN GOROVE, INTERNATIONAL SPACE LAW IN PERSPECTIVE - SOME MAJOR ISSUES, TRENDS AND ALTERNATIVES 374 (1983). 329. Jakhu and Freeland, supra note 192, at 198–99. 388 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 to resolve it. Throughout the 1970s, work proceeded on a treaty addressing lunar commercial space resource extraction.330 This work produced the Moon Agreement, which opened for signature on 18 December 1979.331 Article 11 of the Moon Agreement simply restates the PNA, in nearly identical language to Article II of the Outer Space Treaty: “The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.”332 However, this same Article also provides that: The Moon and its natural resources are the common heritage of mankind,” and that “States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible.333 Does Article 11 impose a moratorium on exploitation pending the establishment of the envisaged “international regime”?334 Christol, based on an exhaustive analysis of the Moon Agreement’s travaux préparatoires, argues that no such moratorium was intended by the negotiators.335 Gorove agrees with this assessment.336 Nonetheless, the Moon Agreement is widely viewed as a failure. While in force, none of the ratifying states have comprehensive space capabilities.337 330. Carl Quimby Christol, The 1979 Moon Agreement: Where Is It Today?, 27 J. SPACE L. 1, 6–7 (1999). 331. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 5, 1979, 1363 U.N.T.S. 23002. 332. Id. art. 11(2). 333. Id. arts. 11(1), 11(5). 334. Diego Zannoni, The Dilemma Between the Freedom to Use and the Proscription against Appropriating Outer Space and Celestial Bodies, 19 CHINESE J. INT’L L. 329, 340 (2020). 335. CARL Q. CHRISTOL, THE MODERN INTERNATIONAL LAW OF OUTER SPACE 298 (1982). 336. GOROVE, supra note 328, at 374. 337. Nelson, supra note 107. Even more problematically, Saudi Arabia has notified the United Nations Secretary-General of its withdrawal from the Moon Agreement. This is the first time that any state has withdrawn from any of the space treaties. Tellingly, notification of their withdrawal came less than six months after Saudi Arabia signed the Accords. See Stefan-Michael Wedenig & Jack Wright Nelson, The Moon Agreement: Hanging by a Thread?, COMMENTARIES ON AIR & SPACE L. ISSUES (2023), https://www.mcgill.ca/iasl/ article/moon-agreement-hanging-thread [perma.cc/WF9G-K89R]. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 389 As such, the Moon Agreement has not resolved the issue—rather, it simply added a further layer to the confusion. More recently, the debate about Article II and the PNA has been localized within a COPUOS working group—the Working Group on Legal Aspects of Space Resources Activities (Space Resources Working Group). The Space Resources Working Group was established in 2021.338 A questionnaire, prepared by Greece, for circulation among COPUOS members asks several questions relating to the clarity of Article II. These questions include whether Article II should be amended, whether it should be “subject to a commonly accepted interpretation,” and whether there should “be a review of the concept of celestial bodies, so as to narrow the scope of Article II (e.g., as regards comets and asteroids).”339 Responses can be expected throughout 2023. However, reflecting the complexity of the issues, and the intense interest it attracts, the current work plan for the Space Resources Working Group does not envisage releasing guidance until 2025, potentially for endorsement by the General Assembly by way of resolution. It remains to be seen if and how the Space Resources Working Group will be impacted by the United States-Russia decoupling outlined in the Part II. Nonetheless, this is a valuable step toward introducing more clarity into the PNA and by extension the Outer Space Treaty. In the interim, the PNA as embodied in Article II bears out the following comment from Sir Hersch Lauterpacht: [O]nce we approach at close quarters practically any branch of international law, we are driven, amidst some feeling of incredulity, to the conclusion that although there is as a rule a consensus of opinion on broad principle—even this may be an overestimate in some 338. Rep. of the Comm. on the Peaceful Uses of Outer Space, Sixty-Forth Session, U.N. Doc. A/76/20, at 53–54 (2021). 339. See Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., Questionnaire Related to the Discussion of Item 15 on Potential Legal Models for the Exploration, Exploitation, and Utilization of Space Resources, Sixty-First Session, U.N. Doc. A/AC.105/C.2/2022/CRP.13, at 2 (Mar. 28, 2022). 390 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 cases—there is no semblance of agreement in relation to specific rules and problems.340 Overall, the Outer Space Treaty cannot be described as a clear instrument. However, in the international law context, the clarity criterion should not be applied too strictly. As Susanne Therese Hansen notes, “[a]mbiguity, vagueness, legal and linguistic indeterminacy, interpretive leeway, and loopholes” are all “common features of international law.”341 This view is shared by Anthony D’Amato. He comments that “[m]ost treaty provisions are ambiguous because the parties were able to agree only on studied ambiguity instead of concrete particularity.”342 As such, a lack of clarity can be seen as a necessary evil, to enmesh states in the agreement, or simply inevitable given the nature of human languages. Indeed, Lon Fuller does not expect perfect clarity; he recognizes rendering laws perfectly understandable (if possible) could readily conflict with other important principles.343 The question then becomes: Is the Outer Space Treaty substantially less clear than other contemporary treaties? The answer to this is no: While the drafting is at times confusing, and broad and undefined terms are frequently used, these attributes are common in treaties to the present day. Indeed, on some analysis, all such texts are marked by what George Atkins calls an inherent “instability” that arises due to the unavoidable distance between the drafter’s purposes and the words on the page.344 As such, while the Outer Space Treaty could not be described as clear, the lack of clarity does not amount to 340. H. Lauterpacht, Codification and Development of International Law, 49 AM. J. INT’L L. 16, 17 (1955), quoted in 178 OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 67 (1982). 341. Susanne Therese Hansen, Taking Ambiguity Seriously: Explaining the Indeterminacy of the European Union Conventional Arms Export Control Regime, 22 EUR. J. INT’L RELS. 192, 193 (2016). Cf. Oscar Schachter, who remarks that international legal “texts bring clarity and precision where there had been obscurity and doubt.” SCHACHTER, supra note 340 at 91. 342. Anthony D’Amato, Purposeful Ambiguity as International Legal Strategy, in THEORY OF INTERNATIONAL LAW AT THE THRESHOLD OF THE 21ST CENTURY 109, 109 (Jerzy Makarczyk ed., 1996). Durkee expresses a contrary view, commenting that “[t]reaties offer the benefit of focusing on explicit agreement, textual clarity, and speed in formation.” Durkee, supra note 39, at 434. 343. FULLER, supra note 133, at 44–45. 344. G. DOUGLAS ATKINS, READING DECONSTRUCTION, DECONSTRUCTIVE READING 10 (1983). 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 391 what Kristen Rundle would describe as “a total failure,”345 given the inevitable ambiguities of treaties (and language more generally). As such, it satisfies the clarity criterion. This does not mean that improvements would not be beneficial—it simply indicates that, from an interactional perspective, that the Outer Space Treaty is not so unclear as to be entirely incapable of enjoying legality. E. Non-Contradiction The fifth criterion of legality requires that laws should “avoid contradiction” by “not requiring or permitting and prohibiting at the same time.”346 As Rundle explains, this criterion “speak[s] primarily to the problem of poor draftsmanship, and how this can render the law unable to be followed.”347 There are no clear contradictions among the Outer Space Treaty’s provisions. However, some provisions can give rise to paradoxes and tensions. Consider Article I of the Outer Space Treaty. This Article proclaims that “[o]uter space, including the moon and other celestial bodies, shall be free for exploration and use by all States.”348 However, this freedom to explore and use space is not unlimited. Rather, it is subject to the restrictions set out elsewhere in the Outer Space Treaty—most notably, the PNA as expressed in Article II.349 Further, the nature of the Outer Space Treaty qua law inevitably restrains the very same freedoms that the Treaty purports to grant—after all, states were free to explore and use space before the Outer Space Treaty took effect.350 This gives rise to a paradox: By stating the freedom to explore and use space, the Outer Space Treaty constrains that freedom. 345. Rundle, supra note 134, at 500. 346. BRUNNÉE AND TOOPE, supra note 28, at 256. 347. KRISTEN RUNDLE, FORMS LIBERATE: RECLAIMING FULLER 91 (2012). 348. Outer Space Treaty, supra note 8, art. I. THE JURISPRUDENCE OF LON L. 349. Id. art. II. 350. This is aptly demonstrated by Sputnik 1, Explorer 1, and the various other spaceflights that occurred prior to the Outer Space Treaty’s entry into force on Oct. 10, 1967. 392 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 The paradox is heightened when we consider the discourse relating to the so-called ‘freedom of space.’351 Moreover, space regime scholarship is not immune to this freedom discourse, which tends to emphasize state freedom of action rather than constraint.352 This discourse focuses on space as a wide-open frontier, far from Earth-based jurisdictions (and their courts). As such, as Aganaba explains, “the prevailing view of the freedom . . . [to explore and use space] is best explained as negative freedom: an absence of constraint rather than the enabling of an outcome.”353 The view of the Article I freedom as a negative freedom broadly aligns with the limited state practice relating to it, which Cheng pithily summarizes as “first come, first served.”354 The paradox raised here can be readily resolved on the grounds that Article II is a limitation on the Article I freedom. As Hobe explains, Article I is in fact “designed not so much through the ambit of the freedoms for the respective activities, but rather through its respective limitations.”355 While this resolves the seeming paradox, tension remains regarding the interactions between these articles, even if they do not rise to level of direct contradiction. The non-contradiction criterion also invites consideration of whether a law’s provisions align with that law’s broader object or purpose. To this end, Judge Abdul Koroma posits that the object and purpose of the Outer Space Treaty is to facilitate the peaceful use of outer space.356 This object and purpose is supported by the Outer Space Treaty’s repeated invocations of the concept of peace. Most 351. Notably, what became the ISS was initially called “Space Station Freedom.” See Space Station Freedom, PLANETARY SOCIETY, https://www.planetary.org/spaceimages/space-station-freedom [perma.cc/A9VN-9JFL]. 352. See, e.g., Joshua J. Wolff, Space Law: What Is It and Why It Matters, 5 ARMY LAW. 67 (2020). 353. Timiebi Aganaba, Introducing the Cosmopolitan Approaches to International Law (CAIL) Lens to Analyze Governance Issues As They Affect Emerging and Aspirant Space Actors, 37 SPACE POL’Y 3, 5 (2016). 354. BIN CHENG, STUDIES IN INTERNATIONAL SPACE LAW 566 (1997). The speed with which this freedom discourse has melded into a neo-colonialist view of space has been strongly criticized. See Bawaka County, supra note 176, at 1. 355. Stephan Hobe, Article I, in COLOGNE COMMENTARY ON SPACE LAW 42 (Stephan Hobe, Bernhard Schmidt-Tedd, & Kai-Uwe Schrogl eds., 2009). 356. Judge Abdul Koroma, Int'l Ct. of Just., Third Nandasiri Jasentuliyana Lecture on Space Law at the Sixty-Second International Astronautical Congress (Oct. 4, 2011). 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 393 notably, the Preamble recognizes “the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes”357 and describes the Outer Space Treaty as “contribut[ing] to … the legal aspects of the exploration and use of outer space for peaceful purposes.”358 To this end, Article IV(2) provides that “[t]he moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes.”359 Yet there are notable tensions between this object and purpose and the Outer Space Treaty’s carefully phrased provisions relating to weapons and the military uses of outer space. Indeed, a notable feature of Article IV(2) is that only “[t]he moon and other celestial bodies” are reserved for exclusively peaceful purposes.360 As Cheng notes, “there is no provision … anywhere in the…[Outer Space] Treaty which reserves the whole of outer space exclusively for peaceful use.”361 This was at the insistence of the United States and the Soviet Union: Neither state could countenance restrictions on the use of their military reconnaissance satellites.362 As such, each state required that outer space remain open for military uses—in clear tension with the Outer Space Treaty’s broader object and purpose. With respect to weapons, Article IV(1) provides that: States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.363 The wording of this provision was insisted upon by the United States and the Soviet Union to permit nuclear weapons and other weapons of mass destruction that pass through outer space without 357. Outer Space Treaty, supra note 8, pmbl (emphasis added). 358. Id. (emphasis added). 359. Id. art. IV(2) (emphasis added). 360. Id. 361. Bin Cheng, Properly Speaking, Only Celestial Bodies Have Been Reserved for Use Exclusively for Peaceful (Non-Military) Purposes, but Not Outer Void Space, 75 INT’L. L. STUD. 81, 107 (2000) (emphasis added). 362. HANDBOOK OF SPACE LAW 31 (Frans G. von der Dunk & Fabio Tronchetti eds., 2017). 363. Outer Space Treaty, supra note 8, art. IV(1). 394 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 entering orbit.364 The reason for this was that both states relied on intercontinental ballistic missiles (ICBMs) that carried nuclear warheads.365 ICBMs typically have trajectories that take them through outer space, but without completing a full Earth orbit. As such, Article IV(2)’s careful phrasing—“undertake not to place in orbit around the earth”366—means that this article does not prohibit ICBMs. Accordingly, while the Outer Space Treaty was intended to facilitate the peaceful uses of outer space, it was deliberately designed to not preclude one of the most destructive uses of outer space: namely, the use of space to rain down nuclear destruction. Again, there is clear tension here. This tension first arose during the drafting of the Outer Space Treaty. The problem was, as Cheng relates, that there was “an almost universal desire” among the United Nations membership “for the exclusively peaceful uses of [all] outer space.” 367 As such, repeated references to the peaceful uses of outer space were inserted into the Preamble, and Article IV(2) was carefully drafted to create what Cheng describes as “a highly misleading impression that … the whole of outer space was to be used exclusively for peaceful purposes”368 when in fact only the Moon and other celestial bodies were subject to this limitation. As Chen summarizes, “the Outer Space Treaty does not expressly prohibit military uses of outer space … and only partially de-weaponizes it in relation to nuclear weapons and [other] weapons of mass destruction.”369 There is a clear disconnect between the ideas behind the Outer Space Treaty and its actual provisions. While speaking of freedom, the Outer Space Treaty limits that freedom. Similarly, while speaking of the peaceful uses of outer space, the Outer Space Treaty effectively carves out ICBMs and military reconnaissance satellites. In both cases, the tension arises because the Outer Space Treaty gives the impression of doing one thing, but does the other—in this way, it 364. See HANDBOOK OF SPACE LAW, supra note 362, at 201. 365. Michael Listner, The Space Review: FOBS, MOBS, and the Reality of the Article IV Nuclear Weapons Prohibition, THE SPACE REV. (2022), https://www.thespacereview.com/ article/4466/1 [perma.cc/YK3Q-CCJ7]. 366. Outer Space Treaty, supra note 8, art. IV(2) (emphasis added). 367. Cheng, supra note 361, at 107 (emphasis added). 368. Id. at 82. 369. Chen, supra note 48, at 667. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 395 misdirects its audience. Nonetheless, tensions do not equal contradictions. As such, the Outer Space Treaty satisfies the noncontradiction criterion—but this criterion does suggest that managing these tensions would enhance the treaty’s legality. F. Not Asking the Impossible The sixth criterion of legality requires that a law not ask the impossible of its subjects.370 This criterion is not problematic in relation to the prohibitory provisions of the Outer Space Treaty. Such provisions require refraining from particular actions, which is always within a state’s power. In relation to the PNA as embodied in Article II, refraining from making a sovereign claim to a part of outer space is clearly within the power of all states. Similarly, the Outer Space Treaty’s mandatory or permissive provisions do not conflict with the prohibitory provisions such that an impossibility would result. As such, the Outer Space Treaty satisfies the non-impossibility criterion. G. Constancy The seventh criterion of legality requires that law not change too frequently.371 While Article XV of the Outer Space Treaty provides that “[a]ny State Party to the Treaty may propose amendments to this Treaty,”372 no such amendments have been proposed. However, other instruments have aimed to clarify aspects of the Outer Space Treaty. These instruments were passed during the space regime’s third stage of development, as outlined in Part II.373 For example, Resolution 62/101 of December 17, 2007 aimed to clarify the operation of Articles VIII and XI in the context of space object registration.374 However, these instruments are not formal 370. Murphy, supra note 270, at 241. 371. Id. Rundle explains that the requirement of constancy through time is one that expresses recognition of how too-frequent change in the law can amount to something akin to retroactivity, in so far as citizens are unable to know, or at least are impaired in being able to know, precisely which laws apply to them at a given point in time.” See RUNDLE, supra note 347, at 91. 372. Outer Space Treaty, supra note 8, art. XV. 373. See infra Part II. 374. See G.A. Res 62/101, at 1 (Jan. 10, 2008). 396 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 amendments—and even if they were, they are infrequent. Moreover, fewer such instruments can be expected in the space regime’s current fourth stage of development. As such, the Outer Space Treaty satisfies the constancy criterion. H. Congruence The eighth and final criterion of legality requires congruence between law and its administration.375 As Lovett explains, “the mere existence of rules capable of governing conduct is not sufficient to constitute a legal system unless those rules are actually observed by the relevant parties.”376 As such, “there must in practice be a congruence between the actions of public officials and the declared legal rules.”377 With respect to treaties, it is tempting to view this criterion as simply demanding compliance by states with the treaty or the existence of active enforcement of the treaty. However, the criterion is more nuanced and recognizes that even if generally complied with, a treaty can be undermined or evaded by acts that do not technically constitute breaches but that may nonetheless compromise the treaty by suggesting that it is a ‘paper tiger’ rather than an effective legal instrument.378 Overall, as Rundle explains, this criteria “requires an appreciation, on the part of the relevant legal and administrative actors, of the purposes that [a] legal order . . . is intended to fulfil.”379 The Outer Space Treaty has faced its fair share of practical challenges. ASAT testing is a prime example. The Soviet Union performed numerous ASAT tests throughout the 1970s. The United States tested its own ASAT system in 1985 and 2008; China did the same in 2007. India tested an ASAT system in 2019. Most recently, Russia performed an ASAT test in 2021.380 Each of these tests has 375. BRUNNÉE AND TOOPE, supra note 28, at 282. 376. Lovett, supra note 133. 377. Id. 378. BRUNNÉE AND TOOPE, supra note 28, at 73; see also Brunnée and Toope, supra note 27, at 355. 379. RUNDLE, supra note 347, at 91. 380. See generally Sa’id Mosteshar, Space Law and Weapons in Space, in OXFORD RESEARCH ENCYCLOPEDIA OF PLANETARY SCIENCE (online edn., 2019); see also Ashley J. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 397 produced orbital debris. The nature of the orbital environment means that this debris can potentially stay in orbit—and therefore remain hazardous to spacecraft—for thousands of years.381 For example, the 2007 Chinese test produced debris that remains in orbit today and the ISS had to maneuver to avoid debris generated by Russia’s 2021 test.382 The problems posed by such debris are well-known. In short, debris may destroy other spacecraft through impact. Less destructive, but also critical, is that debris may force other spacecraft to use precious fuel to avoid impact. These avoidance maneuvers shorten a spacecraft’s operational life (and as such, can have a significant commercial impact). Space debris also poses a direct risk to the Earth (and its airspace) in the form of possible uncontrolled re-entries—such as the recent re-entry of a Chinese launcher near the island of Borneo.383 A broader concern is that using an ASAT could trigger a Kessler Syndrome event, whereby the entire orbital environment becomes inaccessible to humanity due to the cascading and exponential growth in space debris.384 Given the broad, downstream usage of orbiting satellites by civilians worldwide, such a result would have a severe and global impact across many different sectors. Tellis, India’s ASAT Test: An Incomplete Success, CARNEGIE ENDOWMENT FOR INT'L PEACE (Apr. 15, 2019), https://carnegieendowment.org/2019/04/15/india-s-asat-test-incompletesuccess-pub-78884 [perma.cc/XM4A-UBQS]. See also Vought ASM-135A Anti-Satellite Missile, NAT'L MUSEUM U.S. AIR FORCE, https://www.nationalmuseum.af.mil/Visit/MuseumExhibits/Fact-Sheets/Display/Article/198034/vought-asm-135a-anti-satellitemissile/https%3A%2F%2Ffanyv88.com%3A443%2Fhttps%2Fwww.nationalmuseum.af.mil%2FVisit%2FMuseumExhibits%2FFact-Sheets%2FDisplay%2FArticle%2F198034%2Fvought-asm-135a-antisatellite-missile%2F [perma.cc/UJ5H-98T8] (regarding the 1985 test); see also, regarding the 2021 test, Jackie Wattles & Katie Hunt, International Space Station Swerves to Avoid Russian Space Debris, NASA Says, CNN (2022), https://www.cnn.com/2022/10/25/world/issmaneuver-russia-space-junk-scn/index. html# [perma.cc/6GAZ-ACA2]. 381. See generally Mosteshar, supra note 380. 382. Joey Roulette, The Space Station Just Dodged Debris From a 2007 Chinese Weapons Test, N.Y. TIMES (Nov. 10, 2021), https://www.nytimes.com/2021/11/10/ science/china-debris-space-station.html [perma.cc/ZQ7T-DE3A]; see Wattles & Hunt, supra note 380. 383. Emma Roth, China’s Uncontrolled Rocket Crashes Down Over the Indian Ocean, VERGE (July 30, 2022), https://www.theverge.com/2022/7/30/23285239/china-uncontrolledrocket-crashes-down-indian-ocean-long-march-5b-borneo [perma.cc/AS4G-2QPC]. 384. See generally Jakub Drmola & Tomas Hubik, Kessler Syndrome: System Dynamics Model, 44 SPACE POL’Y 29 (2018). 398 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 The difficulties in predicting debris patterns following an ASAT test, and the potentially catastrophic effects of space debris, make it difficult to reconcile these tests with Article IX of the Outer Space Treaty. This Article provides that: [i]f a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space … would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space … it shall undertake appropriate international consultations before proceeding with any such activity or experiment.385 Textually, the threshold for requiring consultations— “potentially harmful interference”—is quite low. Yet, as Russia’s COPUOS delegation noted in a working paper, “[f]inding a precise method to be used for determining, in an objective way, what constitutes harmful interference does not seem a fairly easy thing to do.”386 This appears to be correct, and the relevant travaux préparatoires do not shed light on the exact threshold. Nonetheless, I argue that ASAT tests do not require a “precise method” because it is common knowledge that such tests generate significant amounts of uncontrollable space debris, and that this debris has a deleterious effect on satellites and the broader space environment. As such, “appropriate international consultations” would be required before conducting any ASAT test. In some cases, notification has been given by the relevant state prior to the test.387 This raises the unresolved question of what exactly constitutes “appropriate international consultations” under Article IX. As Gorove points out, the details of these consultations are not spelled out: “[T]here is no indication of how many states a party… [must] consult. There is no procedure outlined and no authority set up to 385. Outer Space Treaty, supra note 8, art. IX (emphasis added). 386. Comm. on the Peaceful Uses of Outer Space, Survey of the Problem of Discretion Exercised by States in Interpreting Basic Legal Principles and Norms Related to Safety and Security in Outer Space: Working Paper Submitted by the Russia Federation, ¶ 12, U.N. Doc. A/AC.105/2018/CRP.17, (2018), quoted in Chen, supra note 48, at 668. 387. See, e.g, China Confirms Anti-Satellite Missile Test, GUARDIAN (Jan. 23, 2007, 4:08 AM), https://www.theguardian.com/science/2007/jan/23/spaceexploration.china [perma.cc/HT4Y-SPQ7]. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 399 determine the procedure. There is no provision in case the consultations end in a deadlock.”388 Nonetheless, it is unlikely that a notification could suffice, given that consultation implies two-way communication. This is supported by consideration of Article XII of the Outer Space Treaty which provides for reciprocal visits by State representatives to “stations, installations, equipment and space vehicles on the moon and other celestial bodies.”389 To this end, it provides that “representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held.”390 Clearly, mere notification is not tantamount to consultation for the purposes of Article XII. Rather, notification is simply a preliminary step to consultation. Applying the presumption of consistent usage,391 notification cannot satisfy Article IX’s consultation requirement. As such, there is an arguable incongruence between the Outer Space Treaty and ASAT testing by the United States, China, India, and Russia. Indeed, it may be that these apparent breaches of Article IX have been so widespread and consistent that the rule requiring consultation has been—from an interactional perspective— destroyed.392 To this end, rather than label ASAT tests as requiring consultations under Article IX, it is notable that the United States announced a moratorium on such testing, without suggesting that there were any specific legal obligations attached to these tests. Of course, Article IX is just one of the Outer Space Treaty’s various provisions. Further, it is arguably a more procedural than substantive provision. However, the identity of the states that have conducted ASAT tests—four of the leading space powers—makes the lack of congruence with Article IX particularly impactful. Consideration of the PNA as embodied in Article II also illustrates the tensions that can arise between the Outer Space Treaty and state practice. Of course, there have been no recorded instances of states outright appropriating any part of space or a celestial body. 388. Stephen Gorove, Contamination and the Outer Space Treaty, 14 PROC. ON L. OUTER SPACE 63, 65 (1971); see also Chatterjee, supra note 91, at 31. 389. Outer Space Treaty, supra note 8, art. XII. 390. Id. (emphasis added). 391. SCALIA AND GARNER, supra note 315, at 170. 392. BRUNNÉE AND TOOPE, supra note 28, at 282. 400 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 But national legislation is also a form of practice. To this end, the legislation authorizing commercial space resource extraction in the United States and Luxembourg could be viewed as incongruent practice vis-à-vis the Outer Space Treaty. On November 25, 2015, U.S. President Barack Obama signed into law the Commercial Space Launch Competitiveness Act (United States Space Resources Legislation).393 Section 51303 of the United States Space Resources Legislation provides that a United States citizen engaged in commercial recovery of an “asteroid resource” or a “space resource” is “entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained.”394 On July 20, 2017, the Grand Duke of Luxembourg signed a law “sur l’exploration et l’utilisation des ressources de l’espace” (Luxembourg Space Resources Legislation).395 The first Article of the Luxembourg Space Resources Legislation boldly states that space resources are capable of being owned.396 While, as John Bergstresser explains, the United States Space Resources Legislation “is not nearly as expansive as the [Luxembourg Space Resources Legislation]” they both “achieve the same intended end: ownership of space resources for commercial purposes.”397 Both the United States Space Resources Legislation and the Luxembourg Space Resources Legislation create “a potential conflict by investing rights to space resources to private entities which prima facie appears to be in direct contradiction” with Article II of the Outer Space Treaty.398 Indeed, given that “international space law does not clarify whether space resources can be appropriated and used for commercial purposes,” Tronchetti notes that the enactment of the United States Space Resources Legislation “has been deemed by some 393. U.S. Commercial Space Launch Competitiveness Act, 51 U.S.C. §§ 51301–51303 (2015) [hereinafter United States Space Resources Legislation]; see generally Tronchetti, supra note 321. 394. United States Space Resources Legislation, § 51303. 395. Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace, Mémorial A674 7093 (2017) (Luxembourg) [hereinafter Luxembourg Space Resources Legislation]; see generally Bergstresser, supra note 261. 396. Luxembourg Space Resources Legislation art. 1. 397. Bergstresser, supra note 261, at 144. 398. Id. at 146. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 401 commentators to amount to a breach of the international obligations of the [United States].”399 The existence of such a breach of course depends on how Article II is interpreted. To this end, Froehlich et. al. note that Russia “heavily protested the U.S. position on the exploitation of natural resources in outer space” as set out in the United States Space Resources Legislation because it was contrary to the Outer Space Treaty.400 Similar, although less heated, reactions followed the enactment of the Luxembourg Space Resources Legislation.401 The argumentation used in this ongoing debate varies and has already been outlined above in relation to the clarity criterion. However, such argumentation is not my focus in this Article. Rather, returning to the criteria of legality, these legislative actions do not necessarily indicate incongruence. Indeed, they could be argued to show that the practice of states within the space regime is in fact strongly shaped by the Outer Space Treaty, given the attention paid in both the United States Space Resources Legislation and the Luxembourg Space Resources Legislation to each states’ international obligations. The Luxembourg Space Resources Legislation states that an authorized space resource operator must perform their activities in conformity with the conditions of their authorization and the international obligations of Luxembourg.402 For its part, the United States Space Resources Legislation specifies that rights to resources from asteroids are conferred if those resources they are obtained in accordance with international law.403 However, the practical reality is that the United States and Luxembourg have decided to preempt the ongoing discussion that was taking place through COPUOS and elsewhere in relation to Article II. And such preemption therefore suggests incongruence. Viewed alongside the concerns about Article IX, it appears that the Outer Space Treaty can only partially satisfy the congruence criterion. The importance of the congruence criterion arises because a key premise of the interactional framework is that law 399. Tronchetti, supra note 321, at 143. 400. Froehlich et al., supra note 216, at 35. 401. Justin Calderon, The Tiny Nation Leading a New Space Race, BBC (Jul. 16, 2018), https://www.bbc.com/future/article/20180716-the-tiny-nation-leading-a-new-space-race [https://perma.cc/9WDS-ZQR6] (noting the legal concerns raised by Allen & Overy). 402. Luxembourg Space Resources Legislation, supra note 395, art. 2(3). 403. United States Space Resources Legislation, supra note 393, § 51303. 402 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 cannot exist solely on paper or in people’s minds.404 Rather, it must be reflected in actions if it is to count as law. As such, the seeming abandonment by some leading space powers of the Article IX consultation requirement—at least in relation to ASAT tests—is highly problematic. Similarly, legislation in the United States and Luxembourg relating to commercial space resources challenges the broader space regime by preempting ongoing discussions within COPUOS and the broader transnational community, as well as the efforts of the Space Resources Working Group. Overall, incongruence—even with respect to specific articles—degrades the legality of the Outer Space Treaty as a whole. IV. THE INTERNATIONAL TELECOMMUNICATIONS UNION AND THE PRACTICE OF LEGALITY Is the space regime sustained by a continuous effort to realize all the criteria of legality?405 Recall that a regime, even if it enjoys legitimacy and legality, must be supported by a practice of legality to be sustained over time. There is a rich array of practices that are relied upon daily in relation to space activities. Examples of such fundamental practices include those relating to the space object registration regime, as facilitated by UNOOSA,406 and the complex contractual regimes that support commercial satellite transactions.407 The negotiations that take place in and around COPUOS are another key form of practice, and one that has attracted many writers.408 Analysis of these practices is beyond the scope of this Article. As such, in this Part, I focus on a particularly valuable example of space regime practice: ITU practice. As Paul Larsen notes, a satellite is “useless without a cleared radio-frequency [spectrum] and an exclusive orbit.”409 And satellites still constitute most space 404. See ADLER, supra note 205, at 15. 405. See BRUNNÉE AND TOOPE, supra note 28, at 283. 406. Ram S. Jakhu, Bhupendra Jasani & Jonathan C. McDowell, Critical Issues Related to Registration of Space Objects and Transparency of Space Activities, 143 ACTA ASTRONAUTICA 406, 407 (2018). 407. See generally Nelson, supra note 155, at 357–62. 408. See, e.g., Froehlich et al., supra note 216; see also Gaggero, supra note 241. 409. Paul B. Larsen, Small Satellite Legal Issues, 82 J. AIR L. & COM. 275, 283 (2017). 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 403 activity.410 As such, the common denominator for most space activities is the ITU—the United Nations specialized agency responsible for coordinating the international management of radiofrequency spectrum and satellite orbits. The ITU aims to ensure that radio-frequency spectrum and orbits are used rationally, efficiently, and economically as well as equitably.411 Given this focus, it is a heavily technical institution. The highly technical character of the ITU regime means that it generally satisfies the criteria of generality, non-retroactivity, clarity, nonimpossibility, and constancy.412 At the heart of the ITU regime is the knowledge that interference will affect all—that is, without effective coordination, all will be denied use of radio-frequency spectrum through the laws of physics (rather than the laws of states or whims of people). This knowledge induces compliance, but also ensures that the practices within the ITU are generalized across all relevant parties, are forward-looking, are clear (to a technical audience), and reflect reality. However, issues relating to the promulgation and non-contradiction criteria are not so easily resolved, as outlined in Sections A and B below. I conclude that ITU practice faces issues relating to promulgation and non-contradiction. The result is that a core aspect of practice within the space regime is not sustained by a continuous effort to realize all the criteria of legality. While neither issue seems to be actively inhibiting daily ITU practice, it is difficult to conclude that this practice fully realizes all the criteria of legality. This calls into question the ability of ITU practice to sustain the broader space regime, given the centrality of the former to the latter. It should be noted that applying the criteria of legality to practice represents a novel extension of Fuller’s ideas by Brunnée and Toope. This extension is necessary because “law does not exist merely because legal norms are declared.”413 Rather, “they must be 410. Michael Sheetz, The Space Industry Is on Its Way to Reach $1 Trillion in Revenue by 2040, Citi Says, CNBC (May 21, 2022), https://www.cnbc.com/2022/05/21/spaceindustry-is-on-its-way-to-1-trillion-in-revenue-by-2040-citi.html [perma.cc/Q6N3-V7PQ]. 411. ITU Constitution, supra note 76, art. 44(2). 412. The criterion of congruence is not addressed specifically. This exclusion is justified on the grounds that the entire concept of analyzing practices of legality derives from the congruence criterion. See BRUNNÉE AND TOOPE, supra note 28, at 282. 413. Id. at 352. 404 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 continuously maintained or they can be destroyed.”414 The interactional approach takes Fuller’s criteria well beyond their original field of application. As such, the analysis in this Part differs from the Part III’s more rigid analysis. My focus here is on those criteria that are engaged by practice within the space regime. I do not address each criterion seriatim. Further, the field of investigation is large: ITU practice is expansive and incredibly complex. While it is possible to analyze parts of this practice, I have chosen to analyze the practice generally. Again, this choice is motivated by my research question, which addresses the space regime at large. Too granular an analysis may impede the extrapolation necessary to respond to my research question. A. Promulgation The highly technical nature of ITU practice poses problems regarding the promulgation criterion. The ideal behind the promulgation criterion is access: All relevant parties should be able to readily access information about that practice. This is invariably hard: A large part of practice within various institutions and regimes is invariably either unwritten, or even contrary to what practices may be written. This is often referred to as ‘institutional knowledge.’ However, ITU practice is notably inaccessible. More specifically, the ITU implements cost-recovery across many of its key databases and programs that restricts access to important data and information. The ITU’s Space Network System database requires either an annual subscription or ITU membership.415 This database provides data of geostationary and non-geostationary satellite filings, as well as Earth station filings. Similarly, the ITU’s International Frequency Information Circular (Space Services)—which sets out the particulars of frequency allotments and space services assignments—is restricted 414. Id. 415. Space Network Systems Online, INT'L TELECOMM. UNION (last revised Apr. 5, 2022), https://www.itu.int:443/en/publications/ITU-R/Pages/publications.aspx [perma.cc/8CLHUKL8]. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 405 to paying subscribers or ITU national administrations (i.e., national telecommunications authorities).416 It could be argued that these are highly technical databases that are suitable for analysis by no one other than experts. However, this argument does not align with my own experience: I have been confronted with the roadblocks presented by the ITU’s cost recovery processes while investigating various satellite systems and filings (including for this Article). The ITU itself notes that the Space Network System database “is an essential reference tool for government agencies, public and private telecommunication operating agencies, manufacturers, scientific/industrial entities, international organizations, consultants, technical colleges, universities, etc.”417 Its apparently essential nature is all the more troubling when considering that the Space Network System database is only accessible in English,418 despite the ITU having six official languages.419 Cost-recovery processes within international organizations are not uncommon.420 They can be argued against on various grounds, including equitable access. The interactional approach does not disregard these concerns: Rather, it adds a further concern—that over time, locking core parts of a regime behind paywalls degrades the practice of legality within that regime. As such, from an interactional perspective, the limitations on these and other key tools degrades the practice of legality within the ITU. This is because access to both databases is essential to understanding ITU practice, and locking the databases further hides the ITU’s important work. To this end, a headline article from the Center for Strategic and International Studies is unsurprising, yet troubling from an interactional perspective: “The 416. BR IFIC (Space Services), INT'L TELECOMM. UNION (2023), https://www.itu.int:443/en/ITU-R/space/Pages/brificMain.aspx [perma.cc/5Y8U-QM2L]. 417. Space Network Systems (SNS), INT'L TELECOMM. UNION (2022), https://www.itu.int/pub/R-SOFT-SNS%20 [perma.cc/92H3-3F6F] (emphasis added). 418. Space Network Systems (SNS), INT'L TELECOMM. UNION (2022), https://www.itu.int/pub/R-SOFT-SNS-2022 [perma.cc/XM48-PP9V]. 419. Arabic, Chinese, English, French, Russian and Spanish. ITU Constitution, supra note 76, art. 29(1). 420. See, e.g., WHO's Cost-Recovery Mechanisms: Programme Support Costs, WORLD HEALTH ORG. (Apr. 23, 2021), https://apps.who.int/gb/wgsf/pdf_files/wgsf2/WGSF2_5en.pdf [perma.cc/FR74-9688]. 406 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 International Telecommunication Union: The Most Important UN Agency You Have Never Heard Of.”421 B. Non-Contradiction Consideration of the non-contradiction criterion highlights how the ITU’s practices face a perennial conflict. On the one hand, the ITU Constitution refers to equitable access to radio-frequencies spectrums and satellite orbits as a goal (and, as Schachter notes, “implicitly an obligation”)422 of its member states. On the other hand, ITU practice is fundamentally a practice of coordination and cooperation. The ITU summarizes its practice as a “cooperative system” whereby: ITU Member States provide the characteristics of their intended use of orbit/spectrum resources, the ITU Radiocommunication Bureau examines their compliance with the Radio Regulations, and then publishes them so that they can be coordinated with other ITU Member States who have satellite projects that could be affected.423 Coordination between ITU Member States is fundamentally a bilateral negotiation.424 Upon the conclusion of this process, the relevant details are included in the “Master International Frequency Register” where they “enjoy the legal rights (mainly of operating free from harmful interference) obtained in conformity with the [ITU’s] Radio Regulations.”425 It is not empowered to enforce coordination or compel cooperation, and by its practices does not do so. Broadly, this 421. Kristen Cordell, The International Telecommunication Union: The Most Important UN Agency You Have Never Heard Of, CTR. FOR STRATEGIC & INT'L STUD. (Dec. 14, 2020), https://www.csis.org/analysis/international-telecommunication-union-most-important-unagency-you-have-never-heard [perma.cc/3TKF-KJVH] (emphasis added). 422. SCHACHTER, supra note 340, at 88. 423. Satellite Communications: An Essential Link for the Connected World, INT'L TELECOMM. UNION (May 11, 2020), https://www.itu.int/hub/2020/05/satellite-commu nications-an-essential-link-for-a-connectedworld/#:~:text=These%20procedures%20are%20based%20on,be%20coordinated%20with% 20other%20ITU [perma.cc/UE3M-3SV9]. 424. JAKHU, supra note 77, at 3. 425. ITU, Satellite Communications, supra note 423. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 407 means that the ITU practice is ‘first come, first serve.’ The ITU explains the history of this practice as follows: [i]n the process of establishing the ITU’s space-related regulations, emphasis was laid from the outset on efficient, rational and cost-effective utilization. This concept was implemented through a ‘first come, first served’ procedure. This procedure … is based on the principle that the right to use orbital and spectrum resources for a satellite network or system is acquired through negotiations with the [national] administrations concerned by actual usage of the same portion of the spectrum and orbital resource. If applied correctly (i.e., to cover genuine requirements), the procedure offers a means of achieving efficient spectrum/orbit management.426 The most valuable orbital slots are those in the geostationary orbit, around 35,800 kilometers above the Earth’s equator.427 There are a limited number of these slots.428 It should come as no surprise that developed states and their companies control most of these geostationary orbital slots and have done so since the beginning of space exploration.429 As such, the reality of ITU practice seems to contradict the goals established in the ITU Constitution. This contradiction was recognized in the early days of the space regime, and came to a head in 1976, with the Declaration of the First Meeting of Equatorial Countries430—better known as the “Bogotá Declaration.” This declaration, made by seven states431 situated along the equator, asserted sovereignty over those 426. ITU Radio Regulatory Framework for Space Services, INT'L TELECOMM. UNION (2016), https://www.itu.int/en/ITU-R/space/snl/Documents/ITU-Space_reg.pdf [perma.cc/97VW-G68W]. 427. Theodora Ogden, Wealthy Nations Are Carving Up Space and Its Riches – and Leaving Other Countries Behind, CONVERSATION (May 11, 2022), http://theconversation.com/wealthy-nations-are-carving-up-space-and-its-riches-andleaving-other-countries-behind-182820 [perma.cc/4HWG-L6ND]. 428. 1,800 slots are currently marked out. See id. 429. SCHACHTER, supra note 340, at 88. 430. Declaration of the First Meeting of Equatorial Countries, Dec. 3, 1976, https://www.jaxa.jp/library/space_law/chapter_2/2-2-1-2_e.html [perma.cc/GMX6-LZQT]. 431. Brazil, Colombia, Congo, Ecuador, Indonesia, Kenya, Uganda, and Zaire (now the Democratic Republic of the Congo). See id. 408 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 geostationary orbital slots that lay above their respective territories. This initiative was met with strong resistance,432 contrary as it was to the PNA (and the interests of the space powers). The initiative was ultimately abandoned. But it is instructive to consider the specific reasons used to justify this bold assertion of sovereignty. The Bogotá Declaration specifically cites concerns about the saturation of the geostationary orbit, and dismisses solutions proposed by the ITU—which reserved some slots to non-space faring states but did not fundamentally displace the “first come, first serve” practice433—as “impracticable and unfair.”434 More specifically, the Bogotá Declaration states that the ITU’s solutions: would considerably increase the exploitation costs of this resource [i.e., the geostationary orbit] especially for developing countries that do not have equal technological and financial resources as compared to industrialized countries, who enjoy an apparent monopoly in the exploitation and use of its geostationary synchronous orbit.435 The Bogotá Declaration then expressly references the ITU Constitution’s provisions relating to equitable access, and states that: both the geostationary orbit and the frequencies have been used in a way that does not allow the equitable access of the developing countries that do not have the technical and financial means that the great powers have. Therefore, it is imperative for the equatorial countries to exercise their sovereignty over the corresponding segments of the geostationary orbit.436 In other words, for this group of states, the lack of their material ability to access the geostationary orbit could only be remedied by asserting sovereignty over that part of outer space. The Bogotá Declaration supports its claims on the basis that the Outer Space Treaty 432. Roy Balleste, Space Horizons: An Era of Hope in the Geostationary Orbit, 35 J. ENVT’L L. & LITIG. 165, 183 (2020). 433. These solutions have since been implemented. See ITU Radio Regulatory Framework for Space Services, supra note 426, ¶ 4. 434. Declaration of the First Meeting of Equatorial Countries, supra note 430. 435. Id. 436. Id. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 409 does not define the term “outer space” and asserts that the geostationary orbit is in fact not part of “outer space”—such arguments being available due to the Outer Space Treaty’s lack of clarity, as described in Part III. The Bogotá Declaration also argues that the Outer Space Treaty cannot be considered as a final answer to the problem of the exploration and use of outer space, even less when the international community is questioning all the terms of international law which were elaborated when the developing countries could not count on adequate scientific advice and were thus not able to observe and evaluate the omissions, contradictions and consequences of the proposals which were prepared with great ability by the industrialized powers for their own benefit.437 This is fundamentally a call for equity. And the problems identified in the Bogotá Declaration remain today. Indeed, more recent developments relating to megaconstellations have been presented as a way of improving equity, yet they seem more likely to reinforce these contradictions than resolve them. Megaconstellations, as Francis Kinsella explains, “are systems utilizing hundreds to tens of thousands of satellites in Low Earth Orbit (LEO) to deliver low latency broadband data [and imagery] services anywhere on the planet.”438 They provide extensive opportunities, particularly for tackling inequality. In a 2020 report, the United Nations Children’s Fund and the ITU found that two-thirds of the schoolchildren globally lack home internet access.439 This “digital divide” has been exacerbated by the ongoing pandemic (and the consequent heavy reliance on distance education).440 437. Id. 438. Francis Kinsella, Megaconstellations in Space: Revolutionising the Satellite Industry, AIRBUS (2022), https://securecommunications.airbus.com/en/meet-the-experts/ mega-constellations-in-space-revolutionising-satellite-industry [perma.cc/SK8F-KY6S]. 439. How Many Children and Young People Have Internet Access at Home?, UNICEF (Dec. 2020), https://data.unicef.org/resources/children-and-young-people-internet-%20access -at-home-during-covid19/,%20 [perma.cc/HG96-YJLV]. 440. Douglas Broom, Coronavirus Has Exposed the Digital Divide Like Never Before, WORLD ECON. F. (2020), https://www.weforum.org/agenda/2020/04/coronavirus-covid-19pandemic-digital-divide-internet-data-broadband-mobbile/ (last visited Apr. 25, 2022). 410 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 Megaconstellations offer a potential solution to these problems by “leapfrogging” technological and infrastructure gaps globally. However, the challenges presented by megaconstellations are equally significant. The impact on astronomy has had a remarkably high media resonance.441 Concerns regarding astrocolonialism have also been raised.442 There is also a significant risk of orbital debris.443 Overall, the advent of megaconstellations means that LEO will soon become as crowded as Earth’s shipping lanes and air routes. Clearly, effective LEO governance is necessary to manage these risks and prevent inequitable distribution of orbits. However, as Jakhu and Pelton explain, “[t]he issue of who should control and oversee the number of satellites that should be deployed in LEO”—especially for megaconstellations—“is far from clear.”444 Importantly, there are “no accepted international regulations as to systematic control of satellite constellations in LEO and no enforcement process for ensuring that satellites are deorbited” rather than abandoned.445 Given this legal and institutional context, governance of megaconstellations occurs primarily within national legal systems, subject to coordination through ITU practice.446 To this end, the ITU previously had a single system for satellite filings that only distinguished between satellites in geostationary orbit and nongeostationary orbit. Most filings were for single satellites or small constellations of eight to twelve satellites. Then, in 2019, SpaceX submitted a filing (through the relevant U.S. authorities) for 30,000 441. See e.g., Paul Sutter, Megaconstellations Could Destroy Astronomy and There’s No Easy Fix, SPACE.COM (Oct. 6, 2021), https://www.space.com/megaconstellations-coulddestroy-astronomy-no-easy-fix [perma.cc/Q78K-7ZNG]; Lyndie Chiou, Satellites Threaten Astronomy, but a Few Scientists See an Opportunity, N.Y. TIMES (Apr. 17, 2023), https://www.nytimes.com/2023/04/17/science/astronomy-starlink-spacex-kuiperamazon.html [https://perma.cc/26ZV-8VVW]. 442. Ferreira, supra note 89. This term generally refers to the erasure by Western science and technology of non-Western cultural links, knowledge systems, and understandings relating to outer space. 443. See generally Mejía-Kaiser, supra note 79. 444. GLOBAL SPACE GOVERNANCE, supra note 74, at 443. 445. Id. 446. See generally About ITU, INT'L TELECOMM. UNION (2022), https://www.itu. int:443/en/about/Pages/default.aspx (last visited Feb. 15, 2022). 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 411 satellites.447 Other companies and states soon followed, with Rwanda filing in late 2021 for 327,320 satellites.448 It is doubtful whether Rwanda actually intends to deploy these satellites, or if their intentions are more strategic.449 Nonetheless, the filing pressure compelled the ITU to develop dedicated systems to handle these applications450—but without changing the fundamental practice of “first come, first serve.”451 As such, the contradiction between ITU practice and the ITU Constitution’s equitable goals is intensified in the age of megaconstellations.452 Consideration of the changes in ITU practice compelled by megaconstellations highlights a central pluralist theme: that “the law is constantly being reinvented by its subjects even as they may seem to be merely complying with it.”453 This aptly describes the ITU’s experience concerning SpaceX and other private actors. And it appears likely that these non-state actors will continue to shape the ITU regime in ways that will not tend toward equality. Instead, they will pursue strategic changes that will benefit their own projects and weaken those of their competitors. As such, the drive toward megaconstellations seems likely to exacerbate contradictions in ITU practice. 447. See Neel V. Patel, SpaceX just filed a request to run 30,000 more Starlink satellites in orbit, MIT TECH. REV. (Oct. 15, 2019), https://www.technologyreview.com/ 2019/10/15/102541/spacex-just-filed-a-request-to-run-30-000-more-starlink-satellites-inorbit/ [https://perma.cc/BN6W-DTCA]; see also Jeff Foust, Satellite Operators Criticize “Extreme” Megaconstellation Filings, SPACENEWS (Dec. 14, 2021), https://spacenews.com/ satellite-operators-criticize-extreme-megaconstellation-filings/ [perma.cc/KP5W-KAUL]. 448. See Patel, supra note 447; see also Foust, supra note 447. 449. For example, Rwanda could use their filing as a ‘bargaining chip’ in negotiations with other ITU Member States. 450. Sharm El-Sheikh, ITU World Radiocommunication Conference Adopts New Regulatory Procedures for Non-Geostationary Satellites, INT'L TELECOMM. UNION (Nov. 20, 2019), https://www.itu.int:443/en/mediacentre/Pages/2019-PR23.aspx [perma.cc/8RK2KUY3]. 451. Given that these megaconstellations are predominantly planned by private companies, they further illustrate Durkee’s argument that “private entities make law by thrusting states into a reactive position and changing the status quo against which international law develops.” See Durkee, supra note 39, at 431. 452. Balleste also points out the contradiction between the ITU practice and Article I of the Outer Space Treaty. See Balleste, supra note 432, at 182. 453. Mégret, supra note 183, at 551. 412 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 CONCLUSION Would an expanded space regime be effective in guiding and controlling behavior in space? The interactional analysis presented in this Article suggests a negative response to this question. From an interactional perspective, the space regime is defective. While there is a shared understanding regarding the need for normativity in space, the Outer Space Treaty and ITU practice only partially satisfy the eight criteria of legality. Extrapolating these findings across the broader space regime suggests that this regime enjoys legitimacy but a degraded and incompletely sustained legality. This leads to the regime generating a weak sense of obligation among the various space actors —perhaps explaining, in part, some of the challenges we face in space today. Expanding the space regime to address these challenges, without first remedying the regime’s underlying legality issues, appears unlikely to be effective in guiding and controlling behavior in space. This conclusion suggests that the solution to the space regime’s problems is not more norms or even ‘better’ norms, but better use of the norms we have. Such a conclusion is hardly radical. But in the foregoing analysis of the space regime, the details have undoubtedly obscured the whole. Accordingly, it is necessary to first, restate the various findings and, second, outline the consequences of these findings. Having argued in Part I in favor of an interactional approach to the space regime, in Part II, I established that there is a shared understanding regarding the need for the space regime. This shared understanding is demonstrated by the vitality of the space regime’s transnational community. However, this understanding is challenged by the near-term fragmentation of the space regime arising from United States-Russia decoupling. In Part III, I demonstrated that the Outer Space Treaty meets many of the criteria of legality. However, there are challenges surrounding the clarity criteria, and the congruence criterion is vexed by legislative practices that preempt Article II and disregard of Article IX vis-à-vis ASAT testing. These challenges degrade the legality of the Outer Space Treaty as a whole. Finally, in Part IV, I identified ITU practice as degraded by promulgation and non-contradiction issues. Cost-recovery requirements inhibit access to essential aspects of ITU practice, and 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 413 there is a fundamental contradiction between the ITU’s equitable ideals and its “first come, first serve” practice. Each of these findings is suggestive of various remedies, and four potential themes for further action can be readily identified. First, reinforce the vitality of the space regime’s transnational community. From an interactional perspective, the space regime’s people and places must be strongly supported (particularly following the inevitable downturn in physical interactions during the pandemic). To this end, conferences, side events, symposiums, and debates are all constitutive of the space regime’s transnational community and should be facilitated by universities, national space agencies, scientific institutions, and private enterprises. Such reinforcement would support a broadly shared understanding regarding the need for norms in space. This shared understanding is essential to the space regime and cannot be taken for granted. Second, enhance the clarity of core norms through working groups. Establishing the Space Threats Working Group and the Space Resources Working Group was a necessary first step to bring greater clarity to, or perhaps even resolve, longstanding debates. These working groups can often force relevant actors to ‘put their cards on the table’ and openly ventilate their views, concerns, and objections on specific topics. These processes engender a commitment to communication, and at their best they can encourage “openness to reciprocal modification of outlook.”454 To this end, consideration should be given to establishing a similar working group within COPUOS to address harmful interference under Article IX. Resolution of this issue would generally enhance the space regime’s legality. Third, develop further international manuals. These documents are drafted by international experts with the goal of clearly and neutrally stating the law as it applies within a particular domain. From an interactional perspective, the fact that these manuals—such as the recently published McGill Manual on International Law Applicable to Military Uses of Outer Space455—are entirely non- 454. BRUNNÉE AND TOOPE, supra note 28, at 82. 455. MCGILL MANUAL ON INTERNATIONAL LAW APPLICABLE TO MILITARY USES OF OUTER SPACE (Ram S. Jakhu & Steven Freeland eds., 2022); see also Chen, supra note 48, at 667. 414 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [62:2 binding is of little importance. What is important is that both the instruments themselves, and the transnational processes that produce those documents, can assist in setting baselines and expectations across the regime.456 Fourth, facilitate greater access to the space regime. There are two angles to this. First, ensuring linguistic equality across the space regime. Second, removing cost barriers to essential tools and data. While space activities are highly technical, they should not be hidden behind paywalls or membership requirements—and nor should space regime literature. These four themes for action may be dismissed by some as mere window dressing, given that the pressures of space debris, weaponization, and commercialization are upon us now (and in light of the deteriorating geopolitical situation). However, regardless of what drastic changes may be required, the political realities are such that drastic change is largely precluded. This reflects a core concern of Brunnée and Toope: that “law-makers may have to be modest in their aspirations if a sustainable community of legal practice is to emerge.”457 As such, I suggest that the modest themes for action outlined above should have a higher priority than the development of new treaties or norms—that is, the expansion of the space regime. This is because these themes are conditions antecedent to the effective expansion of that regime. Alongside providing a response to the primary research question, this Article’s secondary objective has been to demonstrate the utility of the interactional approach to the space regime, and to generally illustrate the benefits of theoretical approaches to this regime. The international approach is certainly not the only theoretical perspective that can provide insight into the space regime. Different theoretical approaches will deconstruct and reconfigure the space regime in different ways. Each approach will present a different 456. As Steer explains, manuals “have been incorporated into national military manuals and are in the hands of military legal advisors during tensions and hostilities. They, therefore, affect decision making and, potentially, the formation of customary law through state practice and explicit agreement that their content reflects the law.” Steer, supra note 83, at 14. For a critical perspective on manuals generally, and the Tallinn Manual on the International Law Applicable to Cyber Warfare specifically, see generally Dan Efrony & Yuval Shany, A Rule Book on the Shelf? Tallinn Manual 2.0 on Cyberoperations and Subsequent State Practice, 112 AM. J. INT’L L. 583 (2018). 457. BRUNNÉE AND TOOPE, supra note 28, at 71. 2024] IS INTERNATIONAL SPACE LAW INTERACTIONAL? 415 picture of that regime, with different issues and different solutions. The resulting heterogeneity can be confusing, but it is to be expected: as Jörg Kammerhofer summarizes, “[l]egal theorizing means making stark choices and provoking incommensurability.”458 I suggest that we should not be overly concerned with such incommensurability vis-à-vis the space regime. This is because incommensurability does not, as Ruth Chang notes, “entail incomparability.”459 While each theoretical approach will rely on different assumptions and have different focus points, it is nonetheless possible to compare two theoretical analysis of the space regime and find one more insightful than the other. Indeed, the space regime remains nascent: differing views should be encouraged. Space involves big questions; our thinking must be equally broad. Broad thinking can be fostered by further theoretical analysis of the space regime and its key concepts. To this end, further theoretical exploration is not only useful, but entirely necessary: As the space regime comes to encompass more actors, theoretical approaches to the space regime will be needed to better understand the resulting complexity. The proliferation of space actors brings me to my final point. While the conclusions reached in this Article are somber, the interactional approach suggests hope. Normative convergence remains possible, despite political tensions. This convergence requires ensuring communication and dialogue—in a single word, interaction (even in the absence of agreement). As such, the more that non-state actors engage with and contribute to the space regime, the more effective the space regime is likely to be. The challenge will be how to keep non-state actors interacting with the regime, rather than trying to extricate themselves from it—in other words, how to keep the space regime truly universal, rather than regional or sectional. 458. Jörg Kammerhofer, International Legal Positivism, in THE OXFORD HANDBOOK OF THEORY OF INTERNATIONAL LAW 407, 426 (Anne Orford, Florian Hoffmann, & Martin Clark eds., 2016). This term—“incommensurability” —refers to a concept in the philosophy of science. See generally Eric Oberheim & Paul Hoyningen-Huene, The Incommensurability of Scientific Theories, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., 2018). As Ruth Chang explains it, “[w]hen two items are incommensurable, they ‘lack a common measure.’” Ruth Chang, Incommensurability (and Incomparability), in THE INTERNATIONAL ENCYCLOPEDIA OF ETHICS 1, 1 (Hugh LaFollette ed., 2013). 459. Chang, supra note 458, at 7. THE