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specifically under §§ 5-6 that are synonymous with the requirements of
Article IX. If the assurances in §§ 5-6 of the Code are regarded as customary
international law through practice by the Subscribing States to the Code, then
those practices could inadvertently reach across the threshold and establish
an international customary practice of the application of Article IX by not
only Subscribing States of the Code but also non-Subscribing States and
those who are parties to the OST. This means that the potential exists for
what was supposed to be a non-legally binding measure to affect a legally
binding international treaty that is the foundation of international space law.
Another concern is the effect a transformed Code could have on the national
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space policy of the U.S. specifically with the use of TCBMs. Pursuant to the
National Space Policy of 2010, the U.S. is engaged in multilateral discussions
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with the GGE to use TCBMs to address outer space security issues. If the
U.S. adopted the Code and it were to become customary international law,
any TCBMs that the U.S. entered into per the National Space Policy could
become customary international law as well. This means that in its attempt to
engage outer space security issues in a non-binding manner, the U.S. could
inadvertently become binding customary international law, which would give
Congress leverage to insist that it be involved in further negotiation and
approval of TCBMs. This would take political leverage away from the
Obama Administration, invalidate this avenue of U.S.' space policy and
require reconsideration of its National Space Policy towards outer space
security.
Whether the assurances and principles advocated in the Code implemented
by the U.S. through practices and domestic regulations could reach the level
of customary international law is answered by applying the test enunciated by
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the 11th Circuit of the United States Circuit Court of Appeals. The first
prong of the test argues in favor of customary international law in that the
practice of the principles in the Code by the U.S. would reflect the wide
acceptance of the practice by the other Subscribing States to the Code. The
practice of the principles within the Code by the U.S. would be given special
emphasis taking into consideration the place of position and prestige that it
has in outer space activities.
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.
The second prong of the test for customary international law, which is
whether the U.S. would have a sense of opiniojurissivenecessitatis towards
the Code, is less favourable for customary international law. The question of
the U.S.' opiniojurissivenecessitatis is two-tiered: Whether the U.S. would
Customary International Law: A Troublesome Question for ICoC? | www.orfonline.org 57