Soft Law's Failure on the Horizon: The International Code of Conduct for Outer Space Activities

Abstract

On January 11, 2007, the People’s Republic of China conducted a successful test of an anti-satellite weapon against one of its own aging weather satellites that produced a massive cloud of long-lasting orbital debris in space. The test highlighted both the growing possibility that orbital debris may ultimately render space unusable for all activities there and the reality of an increasingly militarized, contested and insecure geopolitical space environment. Largely in response to this incident, and in an effort to enhance the safety, security and sustainability of space activities, the European Union developed a draft “International Code of Conduct for Activities in Outer Space” (the ICOC or the Code) in 2008. The proposed Code, which continues to be debated by the international community, is an example of a legally non-binding “soft law” instrument which also contains broad, imprecise statements of principles. While soft law has made important contributions to the legal and administrative framework that governs space, the Code does not hold such promise. Instead, this article argues that the Code is a case study in the limitations of soft law, particularly when employed as a mechanism to regulate military activities and weapons in a highly insecure environment. Moreover, it is notably ill-suited in this context and in its design to successfully address the critical problem of orbital space debris. As a soft law instrument with both soft law’s general limitations and its own particular shortcomings, the Code is an ineffective measure that distracts attention from more meaningful initiatives to reduce orbital debris while at the same time risking increasing tensions in space, diminishing the existing legal framework governing space activities, and negatively affecting the future development of space law.

Keywords: International Law, Soft Law, Space Law, Arms Control, Outer Space, International Agreements, Satellites, International Security, Space Debris, Weapons, Code of Conduct

JEL Classification: K33