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Chicago Journal of International Law

Start Page

131

Abstract

From the launch of Sputnik I in 1957 to proposals for In-Space Servicing, Assembly and Manufacturing (ISAM) and new lunar activities such as resource utilization, advancing technology has always been a driving factor in the creation of space law. From a legal-historical perspective, the notion of law as creation should be contextualized in a broader legal-philosophical transition that began with the rise of positivism. Article VI of the Outer Space Treaty orbits unsteadily between international obligations and national implementation measures, rendering significant States’ understandings of those provisions. Our understanding of Article VI turns on perhaps the most creative legal endeavor: interpretation. Bing Cheng established Article VI as a lynchpin between international obligations and national measures by finding in its first sentence an attribution clause extending responsibility to non-governmental activities falling under the jurisdiction of States. Though Cheng’s interpretation has been accepted by scholars, and some domestic rules evidence its employ by States, the interpretation has been assailed on the basis that Cheng did not follow the strictures of the Vienna Convention on the Law of Treaties (VCLT). Codification, such as the VCLT, is itself an act of creation, which can have unintended consequences. Through the lens of Article VI, this Article explores interpretation as creation. It seeks to demonstrate that antipodal interpretations can be correct, that our determination of which interpretation to follow involves something other than a strict, positivist approach, and that the outcome of this debate may be more significant than perceived as states create a path forward for new space activities.

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