Law, College of

 

Title

International Organisations as Creators of Space Law: A Few General Remarks

Document Type

Article

Date of this Version

1999

Comments

Published in Proceedings of 3rd ECSL Colloquium on International Organisations and Space Law, Perugia, 6-7 May 1999. ESA SP-442, June 1999. Copyright (c) 1999 European Space Agency.

Abstract

'Space law' is a term as such leaving much space for varying interpretations. In a narrow sense, it might be interpreted as involving the set of legal rules which foremost deal with outer space as an area and the comprehensive set of activities which humans can undertake in or with respect to that area. From that perspective, it deals essentially with the 'classical' five space treaties (Outer Space Treaty, Rescue Agreement, Liability Convention, Registration Convention and Moon Agreement) and the few important United Nations Resolutions which have been enunciated throughout the last four decades or so. Furthermore, it deals with both international customary law and national space-related legislation which developed directly on the basis of these treaties and Resolutions.

In a broader sense, however, 'space law' might be interpreted as encompassing 'all legal rules directly relevant for any one or more kinds of human activities involving outer space'. From this, somewhat functionalist but at any rate more comprehensive, perspective - which might be the better one especially if we are to deal with such down-to-earth space-related activities as satellite communications, satellite navigation and satellite earth observation - other legal regimes should be taken into consideration as well. Examples would be general (international) telecommunications as developed in the framework of the ITU, or existing international rules relating to aircraft navigation as provided in the context of ICAO and the Chicago Convention.

Whether narrowly or broadly defined, space law is a special sub-area within the wider area of (public) international in general. Under fundamental principles of international law, inter alia reflected in Article 38(1) of the Statute of the International Court of Justice, public international law is predominantly created by states. The complex set of rules, of largely mutual rights and obligations making up public international law, primarily derive from either treaties, established, signed and ratified by various numbers of states, or from customary law, that is the behaviour of states and state authorities according to certain identifiable patterns in certain types of situations or cases. In a secondary sense, more diffuse sources of international law such as jus cogens, general principles of law, jurisprudential precedent and authoritative doctrine have been quoted, of which at least the first two ultimately also depend upon states for their relevance.

When, therefore, on the theoretical level the question is posed as to the role (potential as well as actual) of international intergovernmental organisations in the creation of space law in particular, this question will have to be tackled with the aforementioned summary evaluation of general international law as point of departure. At the same time, however, it remains to be seen to what extent space law, as a particular and perhaps special branch of general international law, deviates from this general evaluation.