18 May 2016. The world is advancing more rapidly than ever and all the technological development makes it highly unpredictable. In a dynamic situation like this, we still need some consistency and security. A legal order consisting of hard law norms provides this type of desired stabile governance, especially in areas dominated by technology, such as space law.
Yet, the generation of hard space law has undergone a thirty-plus year hibernation and since the late 80ies, we have not seen any new space treaty being adopted. The last hard law instrument dealing with space is the Cape Town Convention with its Space Asset Protocol. Even this attempt has turned out to be unsuccessful so far since only four states have signed the Protocol and none has ratified it so far. However, there are valuable lessons to be learned from this process that could help pave the “hard law” way forward.
This ESPI report offers a comprehensive analysis of the reasons why the Cape Town Convention was adopted in the first place, why a two-tier structure was chosen for the first time and why this could work for the Aircraft Protocol but not for the Space Asset Protocol. The report further reflects on the five space treaties, on the reason why states could draft them in the period of the high geopolitical tensions and nothing could be done for the subsequent thirty years. The new trend of developing only soft law norms is also addressed in this slightly updated version of report, as well as all the dangers that go with it.
After establishing all the causes for stalemate and all the issues with the existing hard law norm creation mechanisms in the space domain, an overall assessment of successful models from other areas of international law is offered. The report in particular puts the spotlight on how secondary law creating mechanisms from these other areas could be used to enhance the development of binding space law norms. Further, it stresses the importance of hard law provisions in order to prevent any future conflict, and underscores the role of hard law in ensuring that the space environment and sustainability are preserved, whilst encouraging new, advanced space missions. Most importantly, it reminds the international law community that creating binding norms is still possible, and highly desirable!