AwaitingLaunch_1397728623369

All this means that if the Code is adopted by the U.S., regulations from the
Executive branch and its agencies, which will be legally binding upon the
agencies and non-governmental entities of the U.S., will be implemented
along with practices to fulfill assurances within the Code. The question is
whether compliance with the assurances of the Code could inadvertently
create customary international law.
Customary International Law and the Code
Customary international law is defined as international obligations arising
from established state practice, as opposed to obligations arising from formal
written international treaties. It consists of two components. First, there
must be a general and consistent practice of states. This does not mean that
the practice must be universally followed; rather it should reflect wide
acceptance among states particularly involved in the relevant activity. Second,
there must be a sense of legal obligation, or opiniojurissivenecessitatis. In
other words, a practice that is generally followed but which states feel legally
free to disregard does not contribute to customary law; rather, there must be
a sense of legal obligation to the international community. States must follow
the practice because they believe it is required by international law, not merely
because that they think it is a good idea, or politically useful, or otherwise
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desirable.
The definition of customary international law is nuanced because not all
states are equal when considering whether a state's practice and
opiniojurissivenecessitatis reaches the level of customary international law.
State practice and opiniojurissivenecessitatis of states such as the U.S., which
holds a special place and position of prestige in the field of outer space
activities, will be given more weight than a state that has a fledgling space
programme and would be more likely considered to be customary
international law than those of a state with a nascent space programme.
The spectre of the Code becoming customary international law is not a
trivial matter. There are significant assurances in the Code that could be
problematic for international space law and U.S.' space policy should it be
deemed to be custom. One problem could arise in the context of the Outer
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Space Treaty (OST) and specifically with Article IX. Article IX is an elusive
precept in the OST in that it has yet to be put into practice and given
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customary usage. The Code as drafted contains many requirements
56 | Awaiting Launch: Perspectives on the Draft ICoC for Outer Space Activities