Is International Space Law Interactional?

Jack Wright Nelson*

Scholars, states, and non-state organizations are intensifying their efforts to expand the legal regime governing outer space activities. But would an expanded space regime be effective in guiding and controlling behavior in space? In this Article, I argue that this question must be answered in the negative. My argument draws upon the interactional approach to international law. This approach posits that a regime will generate a sense of legal obligation among its subjects if it is based on shared understandings, satisfies eight criteria of legality, and is sustained by a practice of legality. Testing the space regime along these three axes, I conclude that key aspects of this regime—namely, the Outer Space Treaty and the International Telecommunications Union—are only partially compliant with the criteria and practice of legality. The results of this analysis suggest that we do not need more law in space. Rather, we need better use of the law we already have.

*McGill University and National University of Singapore. I am grateful to René Provost and Cassandra Steer for their comments on earlier drafts of this article.