Hastings International and Comparative Law Review


Brian Wessel


Since the 1980s, states have increasingly relied on nonbinding agreements over binding treaties to govern activities in outer space. Although this trend has produced considerable debate among both scholars and practitioners, it appears likely to continue in the near future. Recently, commentators have begun using the concept of the rule of law to criticize this reliance on nonbinding space agreements, but these commentators rarely discuss what is meant by "the rule of law." This Article examines several theories of rule of law and applies those theories in evaluating recent criticisms of current and proposed nonbinding space agreements. Through the lens of rule of law theory, it becomes clear that adherence to the rule of law does not demand so drastic a change in space law as has previously been suggested. Specifically, this Article argues that the lack of widespread ratification of the Moon Agreement does not represent a failure of the rule of law, that nonbinding space agreements achieve a necessary and desirable balance between the rule of law and other values, and that, despite critics' assertions to the contrary, nonbinding agreements enhance the rule of law in the international legal system governing outer space.