Presentation at Michigan Law Symposium, February 19, 2017

1. RIPPLES IN THE WATER
The Effects of State Actions on the Corpus of
International Space Law
BY:
MICHAEL J. LISTNER, ESQUIRE
FOUNDER & PRINCIPAL, SPACE LAW AND POLICY SOLUTIONS
Note: Photos in this presentation are either royalty free, copyrighted by the author or otherwise authorized for public use with proper
attribution.

2. Antarctic Treaty of 1959
Outer Space Treaty of 1967
Rescue Agreement of 1968
Registration Convention of 1968
Liability Convention of 1972
Moon Treaty of 1979
UNCLOS
INTERNATIONAL LAW, INCLUDING SPACE LAW,
IS A CREATURE OF BOTH TREATIES AND CUSTOM

3. International (space) law can also
be created by custom.
This was the case with the launch
of Sputnik-1 on October 4, 1957,
which created the customary
principle of free access to and
transit of outer space.
INTERNATIONAL LAW, INCLUDING SPACE LAW,
IS A CREATURE OF BOTH TREATIES AND CUSTOM
NASA Photo

4. CUSTOM CAN BE USED TO CREATE
INTERNATIONAL LAW AND LEGALLY-BINDING
NORMS
1. There must be a general and consistent practice of states.
2. There must be a sense of legal obligation, or opinio juris sive
necessitatis.
Definition of customary international law is nuanced because not
all States are equal when considering whether a practice and
opinio juris sive necessitatis reaches the level of customary
international law. (Emphasis added).
United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1252 (11th Cir. 2012)

5. CUSTOM CAN BE USED TO ADD TO EXISTING
INTERNATIONAL LAW AND LEGALLY-BINDING
NORMS
The corpus of international law
can be considered as a body of
water.
Both treaties and custom
contribute to and form that body
water.

6. CUSTOM CAN BE USED TO ADD TO EXISTING
INTERNATIONAL LAW AND LEGALLY-BINDING
NORMS
When custom acts like a raindrop, it
adds to and/or reinforces the corpus
of international (space) law.
Project Apollo acted like a raindrop
and reinforced the res communis
principle of the Outer Space Treaty.
NASA Photo

7. CUSTOM CAN ALSO AFFECT EXISTING
INTERNATIONAL LAW, INCLUDING EXISTING
TREATY LAW
Public Law 91-119, 18 November 1969,
Section 8 (83 Stat., 202), in National
Aeronautics and Space Administration
Authorization Act, 1970, addressed the
implantation of the U.S. flag on the Moon.
The legal effect of Section 8 disclaims
sovereignty from the act of planting the U.S.
flag and harmonizes the act with res
communis.
The wording of Section 8 makes it a legally-
binding position as it is not couched as a
“sense of Congress”, which would imply a
non-binding policy statement.NASA Photo

8. CUSTOM CAN ALSO AFFECT EXISTING
INTERNATIONAL LAW, INCLUDING EXISTING
TREATY LAW
“The flag of the United States, and no other
flag, shall be implanted or otherwise placed on
the surface of the moon, or on the surface of
any planet, by the members of the crew of any
spacecraft making a lunar or planetary landing
as a part of a mission under the Apollo program
or as a part of a mission under any subsequent
program, the funds for which are provided
entirely by the Government of the United
States. This act is intended as a symbolic
gesture of national pride in achievement and is
not to be construed as a declaration of national
appropriation by claim of sovereignty”
(Emphasis added).
NASA Photo

9. CUSTOM CAN ALSO AFFECT EXISTING
INTERNATIONAL LAW, INCLUDING EXISTING
TREATY LAW
The collection and possession of the lunar
samples by the U.S. government from
Project Apollo reinforces the res
communis doctrine of the Outer Space
Treaty.
The collection of the samples was done in
furtherance of scientific investigation
(Article I) and their legal status as public
property is consistent with res communis.
NASA Photo

10. CUSTOM CAN ALSO AFFECT EXISTING
INTERNATIONAL LAW, INCLUDING EXISTING
TREATY LAW
The Kosmos 954 incident on January 24, 1978
and the resultant negotiations between Canada
and the U.S.S.R acted as a rain drop as it
provided customary support and usage for the
Liability Convention of 1972.
The dispersion of the wreckage in Canadian
territory led to the first time the treaty was
invoked to present a claim, which gave
customary support for Article II’s strict
liability standard.
The incident also gave customary support to
the definition of “space object” in Article I(d)
to include debris from the spacecraft and not
just the whole spacecraft.

11. CUSTOM CAN ALSO ACT LIKE A STONE AND
DISTURB OR DIMINISH EXISTING
INTERNATIONAL LAW
While custom acts like a raindrop to
contribute to the body of international
law, it can also have the effect of a
stone, which can create unfavorable
ripples in the corpus of international
law and have unanticipated
consequences.

12. CUSTOM CAN ALSO ACT LIKE A STONE AND
DISTURB OR DIMINISH EXISTING
INTERNATIONAL LAW
Consider Article IX of the Outer Space Treaty, which contains two legal duties
and one legal right.
One of those legal duties requires:
“If a State Party to the Treaty has reason to believe that an activity or
experiment planned by it or its nationals in outer space, including the moon
and other celestial bodies, would cause potentially harmful interference
with activities of other States Parties in the peaceful exploration and use of
outer space, including the moon and other celestial bodies, it shall
undertake appropriate international consultations before proceeding with
any such activity or experiment.

13. CUSTOM CAN ACT LIKE A STONE AND DISTURB
OR DIMINISH EXISTING INTERNATIONAL LAW
Both the United States and the Soviet Union
performed destructive anti-satellite (ASAT)
tests in low-earth-orbit (LEO) during the Cold
War. These tests were not preceded by an
Article IX consultation.
These tests created a customary usage of the
legal duty in Article IX as to not only when a
consultation is required but also when the
consultation requirement need not be invoked,
i.e. during certain national security activities.
This customary practice was likely relied upon
by the People’s Republic of China when it
performed its 2007 ASAT test.

14. CUSTOM CAN ALSO DIMINISH EXISTING
INTERNATIONAL LAW
The customary practice with national
security activities was fortified as a
result of Operation Burnt Frost on
February 20, 2008, which involved
the de-orbit of USA-193 by a
capability ancillary to missile
defense.
NASA conferred with COPUOS just
prior to the first (and only) de-orbit
attempt, but the U.S. did not formally
invoke a consultation under Article
IX.
Burnt Frost further refined when the
Article IX obligation to consult must
be invoked and more importantly
when it need not be invoked.
NASA Photo

15. BOTTOM-UP MEASURES VIA DOMESTIC
LEGISLATION CAN ALSO AFFECT
INTERNATIONAL LAW THROUGH CUSTOM
Some states are pursuing a bottom-up
approach to customarily reinterpret
the corpus of international space law
through domestic laws that create
rights in “space resources”, including
the U.S. law found in Title 51,
Chapter 513 of the United States
Code and Luxembourg’s draft “space
resource” law.
Custom created through these laws
directly implicates the interpretation
of Article I and Article II of the Outer
Space Treaty and by extension the res
communis doctrine.
NASA Photo

16. BOTTOM-UP MEASURES VIA DOMESTIC
LEGISLATION CAN ALSO AFFECT
INTERNATIONAL LAW THROUGH CUSTOM
These domestic laws, which are
supported by political narrative,
act as a stone that creates ripples
through and obfuscates the res
communis principle of the Outer
Space Treaty.
They also create an interpretive
norm that could be applied
inconsistently by bottom-up
measures from other states,
which weakens the corpus of
international law as a whole.
NASA Photo

17. THE BOTTOM LINE
State practice and bottom-up measures are powerful tools to add to,
shape, and interpret the corpus of international (space) law.
Care and consideration must be taken to think-through the potential
ripples state practice and domestic laws will create and how they may
affect the corpus of international (space) law.
Consideration must be given whether a proposed state practice or
domestic law will act as a raindrop or a stone, and what the potential
ripples of a proposed action or domestic law will have on the corpus of
international (space) law not only at its depths but in the shallows.

18. THE BOTTOM LINE
Will it flow gently into the
shallows of international
(space) law and
seamlessly add to and fill
the gaps of the existing
corpus?

19. THE BOTTOM LINE
Or will it act like a
tsunami when it reaches
the shallows of
international (space) law
and overwhelm,
displace, or erode the
corpus in favor of its
own interpretations?

20. BIOGRAPHY*
Michael Listner is the founder and principal of Space
Law and Policy Solutions. He is a 1998 graduate of
Franklin Pierce University and earned his JD from
Regent University School of Law in 2001. Michael is
member of the New Hampshire Bar, and is admitted
to practice before the state and federal courts of that
state. Michael is also the owner and editor of the
space law and policy briefing letter, The Précis.
*Thanks to Justin Rostoff, 3L, New England School of
Law, for his assistance with editing and proof-reading.