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any disobedience of the latter will not invoke legal responsibility, since it is
just a voluntary rule. The term “soft law” is used often after the
establishment of the UN, referring to those rules recognised widely by
countries via political process, but they still have no legally binding force,
lacking any formal legal procedures. A good example of this is the UNGA
resolutions, intended to make rules for the international society. The UNGA
resolution creates no legal obligation, even if it contains rules that look like
“law.” Only when there is additional evidence to support the conclusion that
rules in the resolution is law, can it be regarded as law. The mere fact that the
resolution is passed by many countries is not enough evidence to establish
“law.”
“Soft law” can help the establishment of “hard law.” Though it is not law, it
can be used to forge consensus among the international community, which is
the first place to create “hard law.” As “hard law,” a treaty means an
international “agreement” concluded between subjects of international law.
Consensus is the basis of the “agreement.”
Forging consensus usually is the first step of making a treaty. Ubisocietas, ibi
jus. Where there is a society, there is law. Law comes after social activities that
establish certain norms of behaviour. The first man-made satellite was
launched into outer space in 1957, but the UN Resolution regarding the legal
principles of space activities was passed five years later in 1962, and the first
space treaty, OST, was concluded another five years later in 1967 based on
those legal principles of the space activities in the resolution. Even after this,
more and more “soft law” in the form of UNGA resolutions has been
passed.
By introducing the draft ICoC, the EU supports the notion that voluntary
“rules of the road,” grounded in best practices among space actors, offer a
pragmatic approach to achieving, and strengthening, adherence to norms of
behaviour in space.
In order to advance the ICoC, two more steps need to be taken, the first step
should be making the draft as a UNGA resolution after consultation, and the
second step should be transforming the “resolution” into a treaty, “hard law.”
Of course, it may take years of effort before reaches fruition.
42 | Awaiting Launch: Perspectives on the Draft ICoC for Outer Space Activities