Norm Formation in Space Law

Kimitake Nakamura, Ph.D. (2024) is Director-General for Disarmament, Non-Proliferation and Science, Ministry of Foreign Affairs of Japan (Ambassador), specializing in international law and national security. He is a non-resident scholar at the Space Policy Institute, George Washington University, and a visiting lecturer at the Waseda Graduate School of Law (Tokyo).

• PrefaceAcknowledgementsList of FiguresRelevant Previous PublicationsIntroductionPart 1The Basic Structure of Space Law1 Components of Space Law1 Treaties and Customary International Law1.1 Treaties1.1.1 Space Treaties and the Moon Agreement1.1.2 Treaties in Other Areas1.1.3 Treaties Establishing International Organizations Related to Space Activities1.1.4 Treaties for the Joint Implementation of Space Activities1.2 Customary International Law2 Non-legally Binding Norms2.1 The Importance of Focusing on Non-legally Binding Norms2.2 Examples of Non-legally Binding Norms2.2.1 Multilateral Non-legally Binding Norms2.2.2 Statements of Intent2.2.3 Functions of Non-legally Binding Norms3 Domestic Norms3.1 Types of Domestic Norms3.1.1 Organizational Laws and Laws on Basic Space Policy3.1.2 Laws for the Self-Regulation of Space Activities3.1.3 Laws for Domestic Acceptance of International Norms3.1.4 Laws for Clarifying Interpretations of Space Treaties3.2 Functions of Domestic Norms in the Formation of International Norms2 The History of the Formation of the Basic Structure of Space Law1 The History of the Development of the Law of the Sea and the Aviation Law1.1 The Territorial Sea System and the High Seas System1.2 Air Space above Territories2 The History of the Development of the Basic Space Treaty System2.1 Space Treaties2.1.1 History of Negotiations2.1.2 Structure for Balancing Interests2.1.3 Interim Conclusion2.1.4 Significance of the Consensus Method2.2 Multilateral Non-legally Binding Norms2.2.1 History of Negotiations2.2.2 Structure for Balancing Interests3 The Origins of the Structure for Balancing Interests3.1 Physical Characteristics of Outer Space3.2 Undefined Boundaries with Airspace3 Contemporary Issues Concerning Space Activities1 Increase in Space Debris1.1 What Is Space Debris?1.1.1 Definition1.1.2 Causes of Space Debris1.1.3 Orbit Lifetime1.1.4 The Current Status of Orbital Congestion1.1.5 Threats Posed by Debris1.2 Impact of Military Activities2 Increased Number of Satellites2.1 Small Satellites2.2 Large Constellations3 Increased Risk of Radio Frequency InterferencePart 2Norm Formation on Contemporary Issues4 Ex Post Facto Remedies for Damage1 The Liability System for Damage1.1 The Structure of the Outer Space Treaty and the Liability Convention1.2 The Principle of Liability for Risk1.3 Liability for Damage Caused at a Location Other than the Earth’s Surface1.4 Joint and Several Liability for Damage Caused to a Third Party by the Collision of Two Space Objects2 Damage Caused by Space Debris2.1 Space Debris as a “Space Object”2.2 Identification of the Launching States2.3 Scope of Claims2.3.1 Scope of “Damage”2.3.2 Meaning of “Caused by Space Objects”2.3.3 Damage to Debris2.4 Absolute Liability for Surface Damage2.5 Issues Concerning Fault-Based Liability2.5.1 Academic Theories2.5.2 Consideration2.5.3 Limitations of the Principle of Fault-Based Liability3 Characteristics of Norm Formation3.1 Efforts to Supplement the System3.1.1 Remedies Other Than the Liability System for Damage3.1.2 Proposals for New Multilateral Treaties3.1.3 Mandatory Insurance Coverage for Launching Operators and Government Indemnification3.2 Significance and Limitations of the Liability System for Damages5 Space Debris Mitigation1 Space Debris Countermeasures1.1 Developing Awareness of the Problem1.2 Existing Countermeasures1.2.1 Space Object Surveillance1.2.2 Improvement of Technical Specifications and Operational Modes1.2.3 Development of International Guidelines1.2.4 Norm Formation by Non-governmental Organizations2 Space Debris Mitigation and International Law2.1 Provisions of the Space Treaties2.2 Academic Theories3 Characteristics of Norm Formation6 On-Orbit Servicing (oos) and Active Debris Removal (adr)1 Content of Services and Norms in the Process of Formation1.1 Content of Services1.1.1 On-Orbit Servicing1.1.2 Active Debris Removal1.2 Emerging Norms2 Legal Issues Related to Service Implementation2.1 Treatment of the Jurisdiction of the States of Registry2.1.1 Status of Debris in Space Treaties2.1.2 Jurisdiction of the States of Registry and adr2.1.3 Unregistered or Unidentifiable Space Objects2.1.4 Other Issues2.2 Liability for Damage3 Characteristics of Norm Formation7 Mechanisms for the Sustainable Implementation of Active Debris Removal1 Direction of Potential Legal Frameworks1.1 Scholarly Discussions1.1.1 Theories Advocating Projects by International Organizations1.1.2 Theories Advocating Implementation by Each Country (at Least for the Time Being)1.1.3 Theories on Sharing the Burden of Debris Removal Costs1.2 Factors to Consider1.2.1 The Necessity of Identifying Legal Interests or Benefits1.2.2 Concepts in International Environmental Law1.2.3 Position of Debris Countermeasures under International Law1.2.4 Problems with the Environmental Damage Approach1.2.5 Other Theories2 Other Potential Approaches2.1 Precautionary Principle2.2 The Concept of Development Assistance3 Characteristics of Norm Formation8 Space Traffic Management: A Comprehensive Approach to Addressing Contemporary Issues1 Development of the Notion of Space Traffic Management1.1 Development in the United Nations and Other Fora1.2 Policies of the United States1.3 Policies of the European Union2 Basic Elements of Space Traffic Management2.1 Overview of the iaa Reports and spd-32.1.1 The iaa Reports2.1.2 spd-32.2 Comparison of the iaa Reports and spd-32.2.1 Differences in Regulatory Philosophy2.2.2 Need for the Specific Coordination of Space Activities3 Characteristics of Norm Formation3.1 Challenges in Future Norm Formation3.1.1 Constraints Stemming from the Characteristics of Outer Space and the Availability of Technology3.1.2 Constraints Due to Defense Policy and Corporate Proprietary Interests3.1.3 Difficulties Associated with the Coordination of Specific Activities3.2 Impact of stm on Norm Formation in Space LawPart 3Characteristics of Norm Formation in Space LawClosing Chapter1 Trends in Norm Formation on Contemporary Issues1.1 The Evolution of the Structure for Balancing Interests1.2 Towards Global Administrative Law1.3 From Responsibility to Prevention2 Implications for Basic Theories of International Law and Future Research Questions2.1 Implications for the Basic Theories of International Law2.1.1 Characteristics of the Choice of the Form of Norms in Space Law2.1.2 The Importance of Viewing the Norms of Space Law as Norms of Conduct2.1.3 The Regulatory Force of Non-legally Binding Norms2.2 Future Research QuestionsBibliographyIndex