‘Houston, we have a problem’: legal lacunae created by the lack of creativity

Abstract

Creativity’s importance in addressing legal problems is clearly apparent from the resolution of the Cold War’s significant geopolitical tensions through space exploration. This paper will consider the importance of creativity as a means of addressing legal lacunae within space law, since the relative youth of space exploration and its accelerating technological progress means that traditional legal and regulatory solutions are not always appropriate. Spaceflight participants may encounter various situations that general human experience and law provides little guidance for. The initial creativity within the legal and regulatory aspects of space activity that saw the signing of major international treaties has since been stifled in favour of relying upon the established legal order. Increasingly awkward legal contortionism is occurring because of strict adherence to historical agreements. 

Furthermore, precedents of wider international law are also ill-fitting options because they were never intended to apply to such instances. This lack of viable solutions has generated legal lacunae. Increased diversity of actors and activity within the space industry means that employing such measures does not reflect modern space exploration’s reality and as explorative efforts move further away from Earth, attempts to apply law and policy written in different geopolitical climates becomes increasingly strained. This article will highlight these key issues, advocating that creativity be considered more directly by the law to help advance society in a way that enables these lacunae to be traversed. This discussion will advocate creative fusion of both binding and non-binding agreements to try and break the deadlock.