New Perspectives for the Making of Space Law: UNIDROIT’s Cape Town Approach Compared with Traditional UNCOPUOS Law-Making

Abstract

The United Nations Committee for the Peaceful Uses of Outer Space (UN and UNCOPUOS) drafted the five outer space treaties in little more than a decade and created a completely new specialisation in international law. This, of course, happened when states and state agencies were the only participants in the use and exploration of outer space. Since then, new non-governmental actors have entered the space market, aspects of which were privatised and commercialised. Yet, despite the pressing need for international legislation, since 1979 UNCOPUOS has proved incapable of producing another treaty on space law. The author examines why the UNCOPUOS, established to make international law of outer space, stopped making outer space treaties and how the International Institute for the Unification of Private Law (Institute International pour l’unification du Droit Privé or UNIDROIT), a non-UN entity established to unify private law, created its 2012 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets (Space Protocol), what is allegedly the first outer space treaty in (then) thirty-two years. The UNCOPUOS system of public international law treaty-making is compared with the UNIDROIT private international law one, and the question of whether UNIDROIT has created a new method of treaty-making is addressed. The conclusions are that a functioning space law regime exists, hard law is preferable to non-binding soft law, UNCOPUOS cannot produce any further outer space treaties, the Space Protocol can only form part of space law if one accepts a fourth stage of development of space law as part of a redefining of space law sensu lato, UNIDROIT’s Cape Town Approach is more suitable to modern space law treaty-making, and treaty-drafting is a special art of the international lawyer.