[Non-member submission]
At 10:22 AM -0400 on 6/23/00, Michael S. Lorrey wrote:
>
>The big problem with the Outer Space Treaty and the Moon Treaty is that
they
>violate a principle of international law called 'dereliction of
sovereignty',
>whereas a claimant to sovereign power over some piece of property
>must maintain
>some sort of presence or record of regular visitation and maintenance.
[snip] and
>This clearly opens up the possibility that these
>treaties have no force under international law due to their violation of
the
>principle of dereliction of sovereignty.
Except, of course, that the treaties _are_ international law, and
trump any previous customary principle of "dereliction of
sovereignty." The ancient customary principle of "dereliction of
sovereignty" has no more application in the context of outer space
than the ancient concepts of dowry and couverture do in the context
of modern U.S. marriage law.
This is because the treaties are widely acquiesed to by the
subjects/actors of international law, the society of sovereign
states. Just like a Parliament can change the previous customary
rules of common law, so can the community of states change the
previous customary rules of international law. A treaty is like
legislation -- it trumps the customary law, if that is the intent of
the parties.
(I'm assuming here that the treaties in question _have_ been ratified
by a significant number of nations (and particularly the "important"
ones) so that the international community views them as having the
"force of law" (in the particular sense of that term in the
international legal sphere). I don't know the ratification numbers
for these treaties, but you all appear to be talking about them as if
all the major powers and a substantial number of the rest of world's
nations have signed them. I will omit from this discussion the
debate about whether each nation must sign a treaty before it is
governed by its rules: the prevailing modern trend is that a
sufficent level of supermajority support results in the law governing
all sovereigns (particularly all U.N. members), but this issue is not
completely settled.)
Like all law, international law is simply a set of customs and norms
that a society has somehow agreed govern the actions of its players.
How that agreement might have been reached in the past (e.g., use of
force, fait accompli by powerful actors, an appeal to "God's natural
laws", an appeal to utilitarian reasoning, the rhetoric of justice,
etc.) does not really impact the fact that "law" (writ large) is
based on social consensus, and that a society can change the old
rules should it decide (for any of the above reasons, or others) that
newly proposed rules are better. Old hoary principles of
international law dating from the Renaissance (or maybe the Romans)
can be changed.
Laws evolve, based on changing social consensus. (I use evolve in
the technical Darwinian sense: the law best suited to the particular
environment is the most likely to succeed. Environments can be
radically different, based on time, technology, economic conditions,
culture of the society, etc.)
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