Softly, Softly Catchee Monkey: Informalism and the Quiet Development of International Space Law

• Publication year: 2021

87 Nebraska L. Rev. 725. Softly, Softly Catchee Monkey: Informalism and the Quiet Development of International Space Law

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Softly, Softly Catchee Monkey: Informalism and the Quiet Development of International Space Law

Gerardine Meishan Goh(fn*)

TABLE OF CONTENTS

I. Introduction ...................................................... 725

II. Informalism, Soft Law and International Space Law ................ 727
A. Interpreting Non-Treaty Agreements: Do They Bind
Parties? ...................................................... 728
B. Yea- and Naysayers to Non-Treaty Agreements ................... 731

III. Practically Speaking: Informalism in International
Space Law ....................................................... 736
A. Space Debris Mitigation and Re-Mediation ..................... 737
B. Prevention of the Weaponization of Outer Space ............... 740
IV. Beyond the Initial Panic: Informalism as a Positive
Development for Space Law-Proposals .............................. 743
V. Conclusion: Catching the Monkey at the Black-Tie
Soiree ............................................................ 745

I. INTRODUCTION

Questioning the juristic legitimacy of informalism and international soft law is not new. Despite the prevailing skepticism, the hard truth is that States and other actors on the international plane have always involved various methods of supplementing and avoiding legal obligations. The burgeoning ranks of stakeholders on the international level need international regulation to provide a consistent

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framework on which to base their activities. Where the traditional methods of international treaty-making have proven insufficiently efficient or up-to-date, recourse to informalism and soft law methods has provided the panacea.

This is particularly clear in the field of international space law. In the few years after the 1957 launch of Sputnik I shocked the world, the international community quickly cobbled together treaty agreements outlining the international obligations of States in relation to activities in outer space. The early glory days of rapid treaty-making quickly burnt out, however, with States choosing, from the 1980s, to stop the lawmaking process at the stage of United Nations General Assembly Resolutions instead. Recently, international space lawmaking has "softened" further--with substantive progress made by national agencies and professional experts through the drafting of Codes of Conduct and Best Practices Guidelines--with no move towards the adoption of another formal treaty. This in fact leaves international space law in quite a conundrum. Confronted with rapid technical, economic and policy changes in the field, legal regulation of space activities has not been able to keep pace.

The complexity of space activities has quickly outrun traditional methods of lawmaking. This has led to the necessitation of action from international organizations, specialized agencies, private bodies and professional associations that do not nicely fit into the State-centric paradigm of international lawmaking. These actors appear to undertake a "softly, softly, catchee monkey" approach--rather than rocking the stable international space law boat, they are choosing instead to focus on non-binding, non-treaty agreements. The motivation behind this approach seems to be a belief that behavior and action at the international level in space activities can be best influenced in a non-confrontational, informal way. The informalism of this approach has caused some controversy. The juristic value of informal non-treaty agreements and their role in the international legal framework have increasingly become issues that concern international space law.

This Article looks at the role of informalism and soft law in the contemporary formation of international space law. It first considers the theoretical issues related to informalism, and then looks at the advantages and disadvantages associated with non-treaty agreements. The practical usage of non-treaty agreements in international space law is examined through the developments in the mitigation and remediation of space debris, as well as in the prevention of the weaponization of outer space. Proposals are made with regard to informal non-treaty making, so as to offset the possible disadvantages of informalism.

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II. INFORMALISM, SOFT LAW AND INTERNATIONAL SPACE LAW

Myriad instruments delineating "soft" international agreements have long been sources of scholastic and practical controversy. Proponents of the supremacy of State consent have debated with those who favor international regulation.(fn1) What divides scholars so sharply is that this type of "law" is not among the sources of law listed in Article 38 of the Statute of the International Court of Justice ("ICJ Statute").(fn2) This "leads us into difficult and controversial dogmatic terrain."(fn3)

An amazingly varied tapestry of soft law instruments exists,(fn4) with various degrees of differences in form, language, parties, objectives and enforcement procedures.(fn5) Soft law includes binding instruments that only comprise soft obligations, as well as non-binding instruments that are accepted by States, international organizations and regional arrangements. This Article will focus on instruments outlining the commitments that States, international organizations and regional arrangements enter into without concluding a formal, binding treaty under international law. Hillgenberg termed these instruments "non-treaty agreements,"(fn6) a term that this Article will also use.

The crux of the concerns surrounding soft law involves the basic tenets of international law--the principles of sovereignty and consent. Continued debates relating to the definition, scope and role of soft non-treaty agreements manifest the long-running feud between those championing the overarching primacy of State consent and those who assert that there should be limitations on State behavior in the interest of international regulation. The positivist perspective stipulates that international law derives solely from the will of sovereign

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States.(fn7) Given that sovereign States are very unlikely to curtail their own sovereignty unless such curtailment were in their interest, it is not surprising that treaties are often long in the making, and face much reluctance in signature, ratification or accession.

Cue the entry of soft law, non-treaty agreements. Comprising all the functional aspects of the substantive discussions, without the legal import of a binding treaty framework, these non-treaty agreements are generally recorded in declarations or recommendations that evince a workable compromise.(fn8) It is precisely this dual-edged character-- being both "soft" and "law"(fn9)--that has given rise to the outcry, both for and against, the employment of non-treaty agreements in international law.

A. Interpreting Non-Treaty Agreements: Do they bind parties?

Some scholars have entirely rejected the notion of international regulation and law-making through such non-treaty agreements.(fn10) These scholars have argued that the criteria listed in Article 38(1) of the ICJ Statute, as have been applied by the Permanent Court of International Justice in the Lotus case,(fn11) must be fulfilled in order to ensure the formal legal validity of any instrument. As such, non-treaty agreements cannot possibly add to the matrix of international law, nor can they have any meaningful binding effect on parties. Yet, it can be seen that both binding frameworks and the "substrata of non-binding principles"(fn12) have been incorporated into the means by which normative standards of appropriate international action is regulated.

As Chinkin points out, this is precisely the "inevitable paradox" surrounding international non-treaty agreements.(fn13) In the majority of these cases, the adoption of an agreed compromise in a non-binding format was a deliberate choice. It seems then, that the question as to whether such agreements bind parties is moot--given that international law is premised on the consent of sovereign States, the mere fact that these States choose a non-binding arrangement must, in and

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of itself, be evidence of the fact that such non-treaty agreements cannot bind.

Or can they? Among the challenges facing the drafters of non-treaty agreements are: What are the applicable rules for interpretation? Are there consequences upon non-fulfillment? How can disputes relating to the agreement be settled? These questions lead to the heart of the inquiry as to whether non-treaty agreements carry legal force. The International Court of Justice, in the South West Africa case, opined that it was not the Court's business "to pronounce on political or moral duties."(fn14) Similarly, what matters is whether obligations in such agreements are legal--whether they carry binding force.

One of the precepts of international law is that parties are free to choose the design, form and content of agreements they enter into, provided jus cogens norms are not violated.(fn15) Non-treaty agreements are generally concluded when the parties want to ensure that there would not be a breach of international law (with the corresponding reprisal and compensatory consequences) in the case of non-fulfillment. As mentioned above, the overarching intention of the parties not to be bound therefore argues against the binding effect of such agreements.(fn16)

The interpretation of non-treaty agreements also takes cognizance of two principles of international law: bona fides (good faith),(fn17) and venire contra factum proprium (estoppel).(fn18) It may be argued that if parties enter into agreements in good faith, and then act in reliance on the rights and obligations enshrined in that agreement, the doctrine of...