Author:Durkee, Melissa J.


Conventionally, customary international law is developed through the actions and beliefs of nations. International treaties are interpreted, in part, by assessing how the parties to the treaty behave. This Article observes that these forms of uncodified international law--custom and subsequent treaty practice--are also developed through a nation's reactions, or failures to react, to acts and beliefs that can be attributed to it. I call this "attributed lawmaking. "

Consider the new commercial space race. Innovators like SpaceX and Blue Origin seek a permissive legal environment. A Cold-War-era treaty does not seem adequately to address contemporary plans for space. The treaty does, however, attribute private sector activity to nations. The theory of attributed lawmaking suggests that the attribution renders the activity of private actors in space relevant to the development of binding international legal rules. As a doctrinal matter, private activity that is attributed to the state becomes "state practice" for the purpose of treaty interpretation or customary international law formation. Moreover, as a matter of realpolitik, private actors standing in the shoes of the state can force states into a reactive posture, easing the commercially preferred rules into law through the power of inertia and changes to the status quo. Attributed lawmaking is not a new phenomenon but it may have increasing significance at a time when multilateral lawmaking is at an ebb, lines between public and private entities are blurring, and the question of attribution becomes both more complex and more urgent.

TABLE OF CONTENTS INTRODUCTION I. ATTRIBUTED LAWMAKING A. Who Makes International Law? B. Uncodified International Lawmaking 1. Customary International Law 2. Treaty Practice 3. Non-State Entities C. The Theory of Attributed Lawmaking 1. Attribution 2. Reactions II. CASE STUDY: COMMERCIAL USES OF SPACE RESOURCES? A. The Problem 1. The Facts 2. Contested Treaty Law i. The Outer Space Treaty ii. The Moon Treaty 3. The Interpretive Debate i. Common Ground: Non-Appropriation Principle ii. Does Non-Appropriation Apply to Private Parties? iii. What Is Meant by "Appropriation" and "Use"? iv. Does the Moon Treaty Help? B. Potential Solutions C. The Role of Subsequent Practice D. Attributed Lawmaking 1. Commercial Space Companies Offer Interpretations 2. Assessing the Evidence III. PUZZLES AND PAYOFFS A. Critiques and Open Questions 1. Is the Theory Constitutive? 2. What Is the Value of a Positivist Doctrinal Theory? 3. Is Space Law an Isolated Case? B. Implications for the Law of Attribution C. Implications of Corporate Lawmaking D. Beyond Doctrine: Private Common Law CONCLUSION INTRODUCTION

When Jeff Bezos, Elon Musk, and Google get behind a new idea, the world takes notice. All three are now entrants in the new commercial space race. (1) The result is Blue Origin, SpaceX, and the Lunar X Prize, and, according to Morgan Stanley, space may soon be a $1.1 trillion industry. (2) Yet much of the planned commercial activity may be technically illegal. The legal question is whether companies may make commercial use of outer space resources. The answer depends on the proper interpretation of a ColdWar-era international treaty called the Outer Space Treaty, whose meaning is contested at crucial junctures. (3) The debate about how to interpret this treaty is unfolding around the world at international institutions, think tanks, legislatures, and in the popular press. (4) Industry presses for a resolution in favor of commercial use, claiming that uncertainty leeches investment dollars, (5) strangles weaker entrants, (6) and stymies innovations that could solve critical problems on Earth. (7) Yet others argue that international space law unequivocally prohibits extending capitalist resource appropriation to outer space. (8) The debate is entrenched and, for the burgeoning space industry, existential.

The Article uses the space law debate as a test case for a theory of international lawmaking I call "attributed lawmaking." The theory asserts that private conduct can contribute to the formation of uncodified international law--customary international law and treaty practice--when that private conduct is attributed or imputed to the state. (9) The theory exposes the relevance of new facts that could (for better or for worse) resolve the space law debate. (10) Yet its implications reach far beyond this debate. It uncovers the potentially disquieting consequence that private business entities can have a legally sanctioned role to play in creating law in a variety of areas when the state fails so to do.

Conventionally, customary international law is the product of acts and assertions of nations that aggregate over time like precedents in a common law system. (11) When a sufficient number of nations have converged upon a legal rule through their actions or reactions, the rule becomes binding law, (12) and can be invoked in national and international courts, as well as in diplomatic contexts. (13) Customary international law was once the predominant form of international law, and its importance persists. Indeed, in an era of nationalist retraction, where major multilateral treaty regimes are facing existential threats, (14) international custom may be experiencing a resurgence. (15)

The conventional account of how customary international law is created is, however, incomplete. (16) It does not account for the acts and assertions of private business entities, which take on lawmaking significance in certain circumstances. (17) In particular, the theory of attributed lawmaking asserts that when the conduct of a private actor becomes attributed or imputed to the state under existing international legal doctrines, this conduct counts among the behavioral building blocks that contribute to the formation of customary international law. That is, because the private conduct is attributed to the state, it contributes to the formation of a customary legal rule. The challenge is to determine when private conduct becomes attributed to the state. For example, a private business entity can be an "organ" or "agent" of the state, (18) or nations can take responsibility for certain business activity through treaties. (19) These principles are not new. What the attributed lawmaking theory contributes is the observation that attribution for the purposes of state responsibility also has significant and underappreciated lawmaking implications.

Space law offers a case study. In the space law arena, it is possible to argue that private companies are themselves developing the international law of outer space. They can do this by advancing the legal principles of their choice--to legislators, investors, and the popular press, and with their actual rocket launches. (20) Under this argument, the behavior of these companies is itself the "subsequent practice" that determines how the Outer Space Treaty should be interpreted. (21) Because private missions are defined by the Outer Space treaty as "national" missions, which are attributed to the home nation and for which home nations are responsible, (22) these private acts can also be attributed to those nations for the purposes of customary law formation and treaty interpretation. This is because when a corporation whose activity is attributed to the state publicly asserts a legal rule and acts on it, and a nation does nothing, that nation implicitly accepts the corporate rule. (23) In the absence of direct evidence of a nation's acts and assertions in support of a customary rule, the actions of private space companies--which are attributed to the nation--become the best evidence of a nation's embrace of a particular interpretation of the Outer Space Treaty.

The result, the Article shows, is that private companies may be forcing development of an international legal rule that is permissive to appropriation of space resources. The Article stops short of concluding that attributed lawmaking offers a final resolution to the debate. (24) Rather, it identifies a potential legal argument that attributed treaty practice on this topic exists and bolsters arguments that the Outer Space Treaty does not prohibit commercial appropriation.

The theory's implications might be unsettling. Attributed lawmaking raises legitimate concerns about market actors shaping international law, and doing so without a deliberative process. It may also exacerbate existing concerns about customary international law and treaty practice that stem from their characteristics as uncodified, behaviorally-based law, such as the possibility of structural inequities, indeterminacy, lack of sovereign equality, procedural deficits, or legitimacy problems. Moreover, the theory of attributed lawmaking extends beyond space law to other arenas where corporate acts can become attributed to the state, such as, potentially, human rights, cyberspace, and the laws of war, where corporate lawmaking could conceivably threaten the public interest. (25) Yet nations are not helpless in the face of these potential implications. Governments can trump attributed state practice or treaty practice by asserting their lawmaking authority. They can generate opinio juris, clarify their treaty practice, or form new international agreements. In sum, nations retain choices about how international law develops.

The space law case study suggests that when nations do not exploit the choice to proactively develop international law, private actors can shape it instead. The attributed lawmaking theory shows that private actors can contribute to formal lawmaking by standing in the shoes of the state--they are lawmakers by attribution. Yet even when private entities do not stand in the shoes of the state, their assertions and behavior can come to have legal relevance. When space companies launch, extract, and sell outer space resources, they force their home states and others into a...

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