The 60th anniversary of Sputnik-1 by the Soviet Union is rightfully recognized as marking a significant step in the space age, but equally important is its contribution to space law in that essentially brought space law out of theory and into practice. Up until that time, there were two conflicting views of the accessibility of outer space: the Soviet view that sovereign territory extended from the ground to outer space above it and the view sought by the United States in particular the Eisenhower Administration where there was free passage through outer space much in the same way the oceans provide free passage.
Ironically, the launch of Sputnik-1 put the Soviet view in question and supported the U.S. position of free passage, which created a customary norm of international law that remains today. Indeed, it was the launch of Sputnik-1 and the creation of the customary norm of free passage through outer space that laid the foundation for and was incorporated in a sense into the Outer Space Treaty ten years later.
Now some may comment the customary norm of free passage is moot because the Outer Space Treaty supersedes it. This takes a dim view of the durability of custom but more importantly the role custom plays not only in the creation of international law but also how the international community interprets treaties. That is to say, the role of custom does not cease when a treaty is created. Rather, it continues to flow throughout the existence of treaties. Certainly, even after the signing of the Outer Space Treaty, state actions, which are at the heart of custom, by the United States in particular with regards to Apollo concerning the planting of the U.S. flag on the Moon and collection of lunar samples gave credence to the Outer Space Treaty. Despite the power and influence of custom on the corpus of international law and international space law in general, some dismiss it pointing to bodies of treaty law as controlling. Yet, looking to the written word only ignores the unwritten influence of custom that powers and gives legitimacy to treaties and sustains the corpus of international law.
As we approach the 50th anniversary of the Outer Space Treaty, we are entering a time when the jurisprudence of outer space is taking a turn back towards custom as opposed to written treaties. A prime example is the space resource law enacted by the United States in 2015, which is a legal and political interpretation of Article I and Article II of the Outer Space Treaty and represents a posture for a future customary interpretation of these two provisions. More so, with outer space recognized as a domain of war and the resulting national security implications, custom will be applied to fill the gaps of the Outer Space Treaty with regards to these activities.
The era of multilateral treaties is over and no new space law treaties will be created nor will the current treaties be amended. On the other hand, custom will continue to be applied to interpret the current treaties and may in effect constitute de facto amendment or even withdrawal depending on the customary interpretation applied. All in all, custom provides the flexibility for ambiguous treaties (there is a question whether that is an oxymoron) to continue their existence while the realities of technology and geopolitics evolve. With the demise of the era of treaties, so-called no-binding norms and guidelines and other soft-law methodologies are becoming the favored tool to address the explosion of outer space activities, including civil, national security and the burgeoning private space sector. However, while these “soft-law” methodologies are touted as not legally-binding or otherwise voluntary, custom will be active in their application and interpretation and will cloud whether these methodologies will indeed be innocuous or have unexpected legal teeth.
On the other hand, there are some who say custom is the “boogey-man” of international law. There are two ways to look at that perception: either custom is vastly overrated and states do not need to worry about it or analogies like this applied to custom is a veil to lull states into complacency so those who seek to legally-bind the activities and sovereignty of states with regards in this case to outer space activities can asymmetrically utilize the power of custom to supplant state sovereignty with global governance and its ideals.
So, as we contemplate the launching of the world’s first artificial satellite, consider all the contributions it made, including those we take for granted in our daily lives. Moreover, as we prepare to celebrate the 50th anniversary of the Outer Space Treaty coming into force on October 12th, it is appropriate to save some candles and big slice of cake for the legal contributions the launch of Sputnik-1 made and for the real birth of space law 60 years ago today.