For better or for worse? : the use of 'soft law' within the international legal regulation of outer space

The use of non-binding norms has become increasingly prevalent in many areas of international law. The difficulty of formulating and enacting binding multilateral treaties, the diversity of States' interests and the increasing importance of private actors on the international level have contributed to this phenomenon. The term 'soft law' is often used to describe such instruments, even though this is sometimes criticized as confusing and inappropriate. As regards the international regulation of outer space, non-binding norms have played an important role from the very beginning of space activities, augmenting a series of United Nations Treaties that codify the fundamental principles that apply to the exploration and use of outer space. This article analyses the function of soft law in the international legal system in general and for the development of international space law in particular. The legal status and effect of soft law instruments varies in accordance with the circumstances, and this adds to the complexity in assessing the precise value of such instruments. In this regard, this article offers some cautionary comments as to how they should be assessed in the realm of space activities, concluding that, even though soft law instruments play a useful role, they should not be regarded as something they are not i.e., legally binding norms. Instead, the finalization of additional hard law multilateral treaties, negotiated in the spirit of cooperation, will be the most effective legal means by which to maintain the peaceful exploration and use outer space in the future.