Based on the preceding survey, multiple questions emerge regarding the legal basis to proceed against nsas for space pollution. First, there is the question of whether a prohibition of space pollution exists under international law. As shown above,1 though there is a robust basis to make this claim, it is not beyond any dispute. The prohibition must be read into Article ix of the Outer Space Treaty’s reference to ‘harmful contamination’. That reading of Article ix is all the stronger in light of international environmental law and State practice, which widely condemns and often criminalizes space pollution as a violation of the State’s obligations (typically referred to in the context of space debris).2
Proceeding on the basis that the prohibition of space pollution exists, as set out above, enforcement options are nonetheless limited. Space law itself does not provide for an enforcement mechanism capable of ensuring accountability for polluting the outer space environment. If the pollution amounts to a violation of international criminal law or international humanitarian law, then nsas can be proceeded against, albeit subject to finding an appropriate forum such as the International Criminal Court or a domestic court applying universal jurisdiction.3 If the pollution amounts to a violation of international environmental law or international human rights law, then the basis to proceed against nsas is less clear, particularly as there is no legal forum with clear jurisdiction to apply these bodies of law to nsas in an enforceable way.4 Although arbitral proceedings or the lodging of claims in domestic courts are conceivable, these approaches would face considerable hurdles and are untested in relation to space pollution. Moreover, they are not regulatory mechanisms, but instead are party-driven proceedings, which would likely be undertaken to obtain or defend financial benefits rather than to protect the environment. On this basis, a schism emerges between the discernible prohibition of space pollution, potentially applicable to nsas, and the absence of an enforcement architecture capable of ensuring respect for its observance.
1 Retrenchment
One possible response to the threat of nsa space pollution would be retrenchment back to international law’s traditional State-centric focus.5 Under this approach, nsa conduct would be exclusively regulated through the juridical gateway of the State. Any emerging alternatives, such as the direct responsibility of nsas under international law, would be eschewed.6 At the conceptual level, this would accord with a strict positivist conception, as it would see States as the exclusive subjects of international law, with nsas lacking legal personality at the international level and falling to States to control.7 In this way, it would take space law back to its exclusively State-centric genesis.
There is some support for the efficacy of the strict positivist reading of the Outer Space Treaty and associated conventions, which was favoured until recent years. For example, uncopuos contends that ‘United Nations treaties on outer space had established a comprehensive legal framework that encouraged the exploration of outer space and supported increasingly complex activities in outer space by both government and private entities, with benefits for both space-faring and non-space-faring countries.’10 Moreover, the retrenchment approach would fit with the broader tenet of space law, the roots of which tilt in favour of States being the exclusive legal subjects of international law relevant to space conduct.
However, those restrictive readings of the core legal instruments collide with the growing role of nsas in space exploration in practice. Retrenching back to an exclusively State-centric position will accentuate the current risks presented by nsas. As surveyed above, these include States struggling to keep pace with technologically sophisticated nsas engaged in space activities;11 States being unwilling to regulate nsa activities emanating from their territories;12 or unable to do so in parts of States’ territories outside the control of the central Government;13 enterprising corporations, and other individuals or groups, seeking to exploit weaker regulatory regimes, utilizing so-called ‘flag
Additionally, the retrenchment model would exacerbate a potential loophole in the Outer Space Treaty. This is the framing of Article ii prohibiting the Moon and other celestial bodies from being subject to ‘national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.’ That reference to ‘national’ appropriation could be exploited by unscrupulous nsas (potentially backed by States) to argue that they can take possession of resources from those bodies and argue that this is commercial in nature rather than national appropriation. Furthermore, questions persist regarding the legality of space resource extraction, and dangers arise from de facto appropriation of space mining sites through permitted use or complete depletion to the point where it impacts the surface of celestial bodies and/or outer space itself.16 By failing to regulate how nsa ownership would be exercised, the legal framework leaves a significant gap open for exploitation. These risks may lead to pollution and misuse of the outer space environment, as has been shown all too often on Earth.
In the modern era of international law, it has become increasingly evident that the State-centric model of international law has significant limitations in addressing collective problems involving nsas. In defence of the State-centric model, Thirlway argues that ‘[i]nternational law, like all law, responds ultimately to the interests and needs of human beings, and the structure of international society is such that it is States that best embody and represent those interests and needs’.17 However, many States are not democratic representations of the
At the normative level, international space law itself has been largely static since 1979, with the exception of certain soft-law instruments.20 Davis and Lee observe that ‘no international treaties have been concluded under the UN framework since the adoption of the Moon Agreement in 1979.’21 Commentators have observed that ‘public international law does not appear to be really fit for purpose [of controlling space debris]’.22 These shortcomings have been noted by Radi, who observes that ‘there is no tailor-made binding instrument or rule which addresses space debris specifically’ and ‘international space treaties currently in force were concluded decades ago, at a time when space debris was not at the forefront of the policy agenda’, meaning that ‘they simply do not address a number of issues raised by space debris.’23 Retrenchment risks continuing this stagnation.
At the operational level, if a prohibition against space pollution is to be enforced, it will require a forum capable of entertaining proceedings against a space polluting entity.28 With regard to the Outer Space Treaty, during the negotiation stage the Soviet bloc rejected the US proposal to confer obligatory jurisdiction to the International Court of Justice for disputes concerning interpretation and application of the treaty.29 Ultimately, the Soviet Union would not go beyond direct negotiations as a dispute remedy.30 The Outer Space
From a conceptual perspective, a more foundational limitation arises from an exclusively State-centric approach to the regulation of nsa conduct in outer space. Namely, if international law only places duties on States with respect to activities in outer space, and does not directly impose any duties on nsas, then international law cannot serve as a basis for proceedings against nsas in foreign courts, pursuant to the principle of universal jurisdiction. To date, universal jurisdiction has been used as a basis for cases involving torture, genocide, war crimes and crimes against humanity, to name the most notable examples.32 These are all prohibitions which are anchored in conventional and customary international law (see the Genocide Convention of 1947, the Geneva Conventions of 1949, the Convention Against Torture of 1984, and the Rome Statute of the International Criminal Court, for example). Importantly, these sources prohibit States and nsas (and the leaders thereof) alike from engaging in the offending conduct. Contrastingly, if space law is read as only imposing international obligations on States and not directly on nsas (albeit requiring States to in turn place obligations on nsas in accordance with Article vi of the Outer Space Treaty),33 then domestic proceedings based on universal jurisdiction would be restricted to those against States or their representatives (and such proceedings would potentially conflict with the principle of State immunity, as upheld by the International Court of Justice in Germany v. Italy).34 In this manner, there would potentially be no jurisdictional basis to proceed against nsas, depriving those States and organizations eager to protect the pristine outer space environment of a significant tool in the legal arsenal.
The retrenchment approach has the further drawback of exacerbating existing shortcomings under the international law regulatory apparatus. Lambach and Wesel note that ‘[t]oo many [space governance] institutions represent
In terms of the most applicable obligation incumbent on States, Article ix of the Outer Space Treaty does not specify which measures are to be adopted in order to avoid harmful contamination. This constitutes ‘a major shortcoming of Article ix of the Outer Space Treaty’ when it comes to limiting and redressing space pollution.37
Other facets of traditional space law present difficulties when applied to nsa activities. For example, the Registration Convention of 1976 established a system whereby all State Party space launches were entered into the Convention Register.38 This built on the separate registry of space launches established pursuant to Resolution 1721 of the UN General Assembly from 1961.39 unga Resolution 62/101 from 2007 issued further recommendations on enhancing the practice of States and international organisations in registering space
Both the unga Resolution Registry and the Registration Convention Online Index now contain essentially the same data fields – meaning that the key difference between them is the range of States covered (with the latter only applying to States Parties). However, the actual amount of data provided by States varies widely. Concerningly, the information in most cases remains ‘very basic’, sometimes consisting of only a couple of words or sentences.42 Because the specific data on space launches are critical to ensure collective management of the anthropogenic objects placed in space, and to reduce and redress collisions of space objects, it is problematic that States are limiting the information they provide to collective registries.
The Registration Convention entails several limitations even on its own terms. Its terms are in some cases ambiguous; Viikari notes that ‘launching State’ and ‘space object’ are unclear, and that this treaty does not clarify whether only unitary space objects must be registered, which does not assist once there are fragments thereof in orbit in space.43 Additional varied registration practices have emerged with large satellite constellations, with some registering individual satellites and some registering only units of satellites.44
The Rescue Agreement is complementary to the Registration Convention, at least in theory. Under the Rescue Agreement, guidance is provided for situations where space objects or astronauts are in distress.45 State Parties are required to provide assistance in such circumstances where feasible.46 These
In relation to incidents which could involve collisions or explosions, the logic of the Rescue Agreement is clear – where threats emerge, the launching authority (clarified in Article 6 as the State responsible for launching, or, where an international organisation is responsible for launching, that organisation) should be notified of the threat and given the chance to remove it. If that State is unable or unwilling to do so, then it has been argued that the obligation to assist in rescuing the space object or astronaut should result in ‘a qualified right to de-orbit inactive satellites, comparable to that concerning removal of derelict vessels on the high seas.’47 But this right is speculative and would often require considerable cooperation and communication among potentially affected and involved States to conduct the removal of the space debris.48
In relation to nsas, further problems compound. Corporate entities engaged in space activities frequently transfer ownership of space objects in orbit, particularly geostationary communication satellites, which may be leased or sold even years after their launching. Yet these transfers of ownership are ‘usually not reported to the UN, even though the initial launching state may no longer have any control over the satellite.’49 That information gap causes an imbalance between the international and domestic regulatory regimes.
In- or on-orbit transfers of ownership are one of the unregulated aspects of space activity.50 The practice has varied in this respect, ranging from double national registration in the event of bsb-1/Sirius-1, a change of national registrations for AsiaSat1, and no national registration for anik.51 Notification
If States themselves are not typically providing thorough and detailed information regarding space launches and space object registrations, then the addition of another layer between the entity undertaking the launch and the international community increases the risk of unclear or incorrect information being recorded in the Registry (known as the Index). This in turn raises the spectre of collisions and further space debris. nsas may act in good faith and provide ample information to their government only to have that information restricted from further sharing due to national political, security, or military interests. Conversely, nefarious nfas may not provide detailed and full information to governments because of their own competitive interests. Both paradigms increase the risk of insufficient information resulting in collisions between space objects when orbiting the Earth.
A separate problem highlighted by the example of space object registries is that nsas may in the future seek to use the territories of unregulated or failed States or else areas in the global commons not belonging to any State to conduct launches. If the nsa does not have a nationality in a legal sense, or it evades identification with a specific country, then its activities may not be authorized, registered or notified to the United Nations thus not tied to a State. Although this is a speculative possibility at present, technology is adapting rapidly and the ability to launch small objects, such as profit-seeking satellites, into space will likely augment and democratize in the coming years, particularly as launches become cheaper.
On the basis of the foregoing, there are significant limitations which arise from pursuing an approach exclusively focused on States as the regulatory vehicle to ensure the protection of the outer space environment. In this light, it is apposite to look to alternative approaches to conceptualizing, and potentially adapting, international space law to address nsa activity.
2 Re-interpretation
Alternative to the retrenchment approach, is that of re-interpreting space law as it currently exists in a purposive and teleological manner. The re-interpretation approach has precedents in related sub-branches of international law. For example, a similar ‘paradigm shift’ has occurred in the broader area of international environmental law.55 Because environmental law balances anthropocentric against ecocentric interests and contains terms broad enough to encompass both in many respects,56 it is adaptable according to the interpretations given to its provisions.57
In this light, and given the increasing prevalence of nsas in space activities, the question arises as to whether international space law could be similarly re-interpreted to encompass their conduct and place duties on nsas to avoid harming the pristine outer space environment. International law recognizes the possibility of evolving interpretations of conventions in light of contemporary circumstances that vary from those prevalent at the time of a treaty’s adoption.60 However, an evolving interpretation must remain faithful to the terms of a convention. It cannot be used as a means of adding new terms to a
Looking to potential bases for international space law to apply to nsas, Article ix of the Outer Space Treaty refers to ‘harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies’ resulting from ‘an activity or experiment planned by [a State Party] or its nationals in outer space, including the moon and other celestial bodies’. Whilst this does mention nsas (as encompassed by the word ‘nationals’), it places the responsibility to take action on States Parties. Moreover, the preceding passage of Article ix, which refers to the ‘harmful contamination’ of outer space, explicitly links the prohibition of causing such harm to States. In addition, Article vi of the same treaty takes a strongly State-centric approach to responsibility, providing that ‘States Parties to the Treaty shall bear international responsibility for national activities in outer space’. Given the obligation under the Vienna Convention on the Law of Treaties to interpret provisions ‘in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’,62 it would stretch the ordinary meaning of Article ix, in context to interpret it as directly binding nsas in order to by-pass State responsibility.
An ardent re-interpretivist may argue that the need to avoid any harmful contamination under Article ix compels a teleological reading whereby any such harm is prohibited under Article ix irrespective of whether it emanates from a State or nsa. However, that would allow the object and purpose of the treaty to extinguish its ordinary meaning in context. It would beg the question of why nsas are not mentioned in relation to harmful contamination despite being mentioned in the later part of the same provision. Allowing that latitude to the interpretation and application of international law would significantly undermine the basic precepts of international law formation, including the process of drafting and agreeing treaties and the process of customary international law crystallization. If such extreme interpretations of the words of treaties were permitted, it would result in a perceived immediate gain for the object of restraining nsas in risking harmful contamination to space but risk a more systemic loss in terms the acceptance and legitimacy of the Outer Space Treaty among States, by undermining the coherence of core precepts of international law.
unga Resolution 68/74, which is not binding international law per se, but can influence is interpretation and can demonstrate opinio juris, refers to the ‘need to maintain the sustainable use of outer space, in particular by mitigating space debris, and to ensure the safety of space activities and minimize the potential harm to the environment’ and the ‘need for a practical regulatory system for the involvement of non-governmental entities to provide further
Customary international law provides a broad and detailed set of environmental protections, which are potentially applicable to activities in outer space.65 It is arguably imported into the specific Outer Space Treaty regime under Article iii, as discussed above, and can certainly assist to interpret the meaning of the terms of the treaty.66 However, what it brings in flexibility, it sacrifices in legal specificity and applicability. There are few precise principles of international environmental law which could be said to definitively prohibit nsas from causing space pollution.67 Although enterprising judges may find a basis to read such prohibitions into customary international law, this could clash with the principle of lex certa and legality, particularly when it comes to enforcement through judicial processes.68 If different courts in different jurisdictions took varying readings of the applicable customary international law, which is a distinct possibility, then the certainty and predictability of the legal position would be compromised. In turn, nsas seeking to plan and conduct
More broadly, if space law were re-interpreted and nsas were generally considered subjects of international space law, it would be difficult to operationalize this system under the current framework of international law, particularly as no express prescriptive guidance would be provided in the governing instruments. Questions would arise as to whether nsas can have independent claims over space objects under international law. Moreover, confusion would arise as to which entity would regulate international clean-up efforts and whether that would result in nsas being subject to double layers of regulatory oversight. Already the limitations of the Inter-Agency Space Debris Coordination Committee’s (iadc)69 Space Debris Mitigation Guidelines have been noted,70 particularly their non-mandatory nature, despite the fact they were adopted by uncopuos.71
These issues demonstrate that a teleological interpretation seeking to treat nsas akin to States for the purposes of international space law raises at least as many questions as it answers. Christina Isnardi, who has reviewed the ability of the Permanent Court of Arbitration, the World Trade Organization, the International Telecommunication Union, and domestic courts to address the conduct of nsas in space in general, ultimately concludes that redressing this regulatory gap cannot be done by interpretation alone and would require a new legal entity.72 The origins of space law in the State-centric Cold War era resulted in instruments too dependent on State jurisdiction as the primary vehicle for the enforcement of its provisions, which has not been able to keep pace with the rising role of nsas in the space sector. In this light, the analysis now turns to the options for reform of international space law, particularly in relation to nsas.
3
Given the limitations of the retrenchment and re-interpretation approaches identified above, a further alternative is to reform space law and seek to bring into effect new legal instruments, applicable to nsas and able to ensure their accountability for space pollution.73 This could be done through the adoption of a protocol to the Outer Space Treaty, as set out in the example annexed to this book, or a new convention developing the Outer Space Treaty regime.
Substantively, such an instrument would set out the specific obligations of nsas in an explicit manner, similar to the way in which Common Article 3 to the Geneva Conventions and Additional Protocol 1 set out prohibitions applicable to all parties to non-international armed conflicts including nsas. Those prohibitions have been applied directly to individuals and nsas, including by international courts imposing criminal sanctions.74 They provide a precedent for international law instruments to be used to directly regulate nsa conduct and enforce sanctions against them (at least against their leaders and members) as set out above. International aviation law provides an example where international instruments set down primary obligations which are directly enforceable against nsas through claims in domestic courts, as set out above. Importantly, a new instrument regulating nsa conduct could fill the gap that is arguably left by Article ii of the Outer Space Treaty prohibiting ‘national’ appropriation of celestial bodies, without specifying that this also covers nsas taking ownership of resources on those bodies. In this way, a new instrument could address the question of space resources and the legality of their extraction and exploitation, all of which are suggested to be imminent by the uncopuos Working group on Legal Aspects of Space Resource Activities and the Artemis Accords.75 In its absence, the failure to regulate space resource activities and to explicitly prohibit private appropriation of outer space, results in a significant risk that nsas could engage in de facto appropriation and resource
Regarding space pollution, a new bespoke instrument concerning nsa responsibility would contribute to the efficacy of complying with those responsibilities, and the oversight of enforcement mechanisms, such as international courts or domestic courts applying international law. This would assist in achieving regulatory aims, such as protecting the accessibility of space and the pristine nature of the space environment.
Reform could also benefit private actors. Vernile argues that establishing a legal regime which ensures that private entities abide by the obligations of their host States but also protects the rights of the private actors is essential for ‘creating certainty for private actors and investors about the lawfulness of their activities and the products of these activities’ and that it ‘may also promote investment in outer space ventures due to the greater certainty provided by a robust legal regime’.77
To this end, a draft protocol to the Outer Space Treaty (or declaration), which has been formulated by the authors, is annexed to this book. This draft instrument is formulated flexibly, so that it could be adopted as a declaration, consistent with the approach to developing space law in recent decades. In this way, it would serve as a stepping stone towards the eventual adoption of the full protocol to the Outer Space Treaty. The draft instrument aims to address the gap concerning nsa accountability for space pollution under international law. It reiterates the foundational preambular principles of the Outer Space Treaty and other international space treaties, including the common interest of all humankind in the progress of the exploration and use of outer space for peaceful purposes, and that outer space, including the moon and other celestial bodies, shall not be subject to national appropriation, but shall instead be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.
Substantively, the draft protocol makes explicit two key phenomena which have become increasingly prominent in recent decades, by recognizing, first, the deleterious impact that human actions can have on the outer space environment and, second, that non-State actors are playing an increasingly prevalent role in outer space. In this light, the draft protocol reflects Article ix of the Outer Space Treaty’s prohibition against the harmful contamination of outer
To operationalize this prohibition, it sets out a number of steps that space-active entities must take, including reporting obligations regarding harmful contamination of the space environment, registration obligations, and cooperation obligations regarding space pollution remediation and removal efforts. Finally, it requires States Parties to adopt such measures as may be necessary under domestic law to enforce the prohibition in the protocol, and requires that State Parties maintain, designate or establish independent national space protection mechanisms to monitor and prevent harmful space pollution being caused by entities under their jurisdiction.
[delegations considered that] a new, comprehensive convention on space law to further strengthen the international legal regime governing outer space activities was needed to take account of developments in space activities, such as the commercialization of space and the involvement of the private sector, and in order to prevent the militarization of outer space. Those delegations were of the view that a single, comprehensive convention could regulate all aspects of outer space activities.79
Various models for nsa responsibility can be gleaned from existing initiatives. By way of precedent closer to Earth, international aviation law provides guidance for the imposition of obligations on nsas via international treaties. While international aviation law is definitionally not applicable to the outer space
International aviation law also provides guidance on the issue of environmental protection. The International Standards and Recommended Practices (sarps) set out in Annex 16 to the Chicago Convention on Civil Aviation, lay down a number of obligations incumbent on aeroplane operators and States to protect the environment. Among others, aeroplane operators are required
In the outer space domain, guidance can also be taken from the ila’s Model Law, discussed in Chapter 5, which contains specific provisions on environmental protection. It defines an ‘operator’ as ‘a natural or legal person carrying out space activities.’92 The Model Law on National Space Legislation includes environmental protection and space debris provisions in the authorization procedures for licenses to engage in space activities. During the authorization procedure, the Model Law suggests ascertaining whether the operator has the required technical knowledge, and requiring that ‘[t]he space activity does not cause environmental damage to the Earth and outer space in accordance with article 7;’ as well as that ‘[t]he space activity is undertaken in such a manner as to mitigate to the greatest possible extent any potential space debris in accordance with article 8;’.93 Additionally, it requires that the ‘space activity does not run counter to international obligations and foreign policy interests of [relevant State(s)]’.94 Appropriate documentation and evidence must be submitted to substantiate these requirements.95
Commentators have argued that space debris could be partly redressed if countries were to form an international agreement waiving their sovereign rights to unidentified space debris.97 This is because the ‘uncertainty of property rights to debris causes third party states to hesitate to remove unregistered and unclaimed space debris.’98 They posit that by relinquishing possible claims to unidentified space debris, which can be valuable and which Article viii of the Outer Space Treaty may protect,99 States would be reassured that their efforts to remove space debris would not violate any such claims. In either event, involving nsas in space debris mitigation efforts has mutual benefits – for States in terms of observing their obligations to maintain space as an accessible and environmentally sustainable public good, and for nsas as a promising business opportunity.100
A proposed complementary remedy to mitigate space debris is to introduce amendments to the reporting obligations placed on State Parties to the Registration Convention. For example, if the required information were to include power sources, particularly in case of nuclear power sources being utilized, this would assist in reducing the threats to the space environment.101 Similarly, reporting on the location of the object relative to the surface of the Earth, as well as the space object’s mass, and providing information on the
Separate from the normative limitations of space law in its current form, the critical issue for effective implementation is the existence of an enforcement mechanism. Simply put, there must be a legal body able to address potential violations of international space law, including by nsas, or else the deficiencies in the State-centric model, as detailed above, will continue to persist.103 The ila Draft Convention on the Settlement of Disputes Related to Space Activities104 foresees a number of options to be selected by the parties to a dispute. These include the International Court of Justice, an arbitral tribunal or panel, and the idea of establishing a special international tribunal for space law, which has been raised previously.105
In terms of existing institutions, the International Court of Justice does not have jurisdiction in contentious cases over nsas. Moreover, it is heavily dependent on voluntary participation by States. According to Article 34, paragraph 1 of the International Court of Justice Statute, only States can be parties before the Court. Moreover, pursuant to Article 36 the International Court of Justice’s jurisdiction is possible only when the parties to a dispute refer the case to it, or its jurisdiction is specifically provided for the disputed matter in the UN Charter or relevant treaties, or the Court’s jurisdiction is accepted by States parties to a dispute. Prominent authors, for example Lauterpacht, have advocated for compulsory jurisdiction, but such a concept has to date not been accepted in a universal manner.106 In relation to space law, the International Court of Justice’s jurisdiction was touted during negotiations of the Outer Space Treaty. However, as mentioned above, the Soviet Union-led bloc rejected the proposal of the United States to provide the International Court of Justice with compulsory jurisdiction.107 Consequently, the Outer Space Treaty only refers to consultations between States rather than any specific dispute resolution body.108
Some scholars believe that space law evinces a preference for arbitration. As discussed in Chapter 4, esa also envisioned arbitration as a method of resolving disputes between its members.111 A potential forum could therefore have been created by the pca. This attempt is confirmed by the fact that in 2011 the pca formulated Optional Rules for Arbitration of Disputes Relating to Outer Space Activities.112 The pca generally adjudicates cases between States, State entities, international organizations and private parties,113 and so could potentially encompass nsas. As noted, its 2011 Optional Rules for Arbitration of Disputes Relating to Outer Space Activities were adopted ‘in order to fill the gap left by UN treaties in the field of dispute settlement, where private
Reforming the parameters and content of international space law to provide for direct nsa accountability for space pollution would match the adjustments that have occurred in international criminal law, international humanitarian law, and are beginning to be seen in international environment.116 It would reflect the reality of nsas as active, and in many respects dominant, space actors. nsas play an active role in the negotiation and formation of international environmental law instruments, particularly in relation to climate change.117 Sands notes that the categories of nsas involved in environmental law formation include
the scientific community because, to a great extent, international environmental law is driven by scientific considerations; the corporate sector is involved because of the significant implications which decisions taken at the global level have even for individual companies; and environmental non-governmental organizations (ngos) are involved because they advocate for concerns often not pursued by states and see the need for active participation at the international level as the lines dividing local, national and global issues disintegrate.118
Each of these groups, and the rationales for their environmental law, are critical for the formation of space law, particularly in relation to space pollution. Space ventures have always been scientifically-founded but are increasingly reliant on corporations working alongside Governmental bodies or even on
Governments may even have an interest in involving these actors in political processes, for they often possess special expertise which governments find advantageous to be channeled into decision-making. Furthermore, their inclusion may serve as a tool to reveal relevant societal views, yet in a manageable way, which can enhance the decision-makers’ sensitivity to domestic opposition and support.120
In terms of the range of actors which may be relevant to the reform of international law, a significant expansion in the type and character of entities involved in space exploration and utilization has occurred. Traditionally, there were nsas involved in discussions of the formation of international regulations, for instance via uncopuos, but these have typically been scientific and legally oriented quasi-public bodies such as the International Council for Science (icsu), International Astronomical Union (iau), International Astronautical Federation (iaf), the International Institute of Space Law (iisl), and the International Astronautical Academy (iaa).121
By involving businesses and other relevant nsas in the formation of international space law, the key State actors will help to form a cadre of organizations with experience contributing to negotiations and facilitate their ongoing constructive contributions.122 To determine which entities have the appropriate balance of expertise and constructive commitment, a system of trusted contributors could be established. This would list nsas with proven track
Moving from the formation of international law to nsa’s role in its implementation, nsas could be further included in the regulatory aspects of space activities through consultation and coordination of operations. Under Article ix of the Outer Space Treaty, States are under an obligation to undertake ‘appropriate international consultations’ before proceeding with planned space activities or experiment which might cause ‘potentially harmful interference’ with other states parties’ space activities. Relatedly, the Moon Agreement sets out, in Article 7(2), that parties have the obligation to inform the UN Secretary-General of the measures being adopted for the prevention of harm to the Moon’s environment or back-contamination of the Earth. It continues that, ‘to the maximum extent feasible’, they should provide prior notification of any placement of radioactive materials on the Moon and the reasons therefor. Given the rising number of nsas involved in space activities, including with their own satellites in orbit, it would considerably reduce the risks of collisions if those nsas were directly involved in sharing the information regarding space objects and coordinating responses.
The governance of matter brought from Earth’s surface into space is increasingly a concern, particularly as nsas become more involved in space. Radioactive materials may well be used to power activities on the Moon, as they can potentially provide a reliable energy source at the lunar South Pole, which is an area of considerable interest for human exploration due to the presence of frozen water ice, but has less consistent access to solar energy due to its low sun angle.124 In the effort to develop nuclear energy sources for use on the moon, private companies have been leading the charge, particularly pursuant to US Department of Defense contracts.125 Whilst innovative solutions are
Under Article v of the Outer Space Treaty and Article 5(3) of the Moon Agreement, States must inform the UN Secretary-General of any phenomena in space that could endanger human life or health.127 This duty is sufficiently broad to entail considerable environmental protection. For example, if a State conducts anti-satellite testing, which was done by China in 2007 as discussed above, it would have the duty to inform the UN Secretary-General of any dangerous debris or other outputs generated thereby. Similarly, Article 7(3) of the Moon Agreement requires States to provide information ‘concerning areas of the Moon having special scientific interest’ to the UN Secretary-General. Again, this has direct relevance for the protection of the lunar environment. Upon receiving such information, the United Nations may seek to encourage all States (or at least space-faring States) to designate some of those areas as reserved areas (‘planetary parks’) for scientific studies.128 However, the Moon Agreement is not widely subscribed to, and so the obligation to take these measures which may protect the environment is of limited real effect.
As the space environment, including the lunar surface, becomes more crowded with anthropocentric objects, it will become increasingly important for information to be shared among space-faring entities regarding the location and nature of their space objects in accordance with Article xi of the Outer Space Treaty and Article 5 of the Moon Agreement. Eventually, it may be necessary for all such activities to be reported in order to avoid any collisions or other destructive interactions between space objects.129 Whereas there is currently a basis in space law for such an obligation inuring on States, there
It is notable in this respect that States are developing an international space traffic management system termed the rules of the road for space. The United States has included mention of space traffic management in its national space legislation,130 the European Union is developing an EU approach to space traffic management,131 and the Institute of Air Law, Space Law and Cyber Law at the University of Cologne in Germany is developing the Cologne Manual on the International Law of Space Traffic Management.132 As the proposals and the system are still developing, there is an opportunity for nsas to be included in the substance and formation of the evolving norms.
Although Article ix’s etymology and text suggest that it is aimed at avoiding interference with the space activities of other States, it provides a robust basis to reduce space pollution. Space debris, in particular, is often a product of collisions between objects launched into space by different States or nsas. The risk of such collisions can be reduced through a formalized system ensuring regular exchanges of information. Indeed, a level of consultation and cooperation is a first step towards creating a comprehensive system designed to prevent collisions in space.
Nonetheless, a consultation obligation is not a silver bullet to prevent any future space pollution being accidentally generated. Viikari points out that the duty under Article ix of the Outer Space Treaty has significant limitations, including that
the obligation of the Outer Space Treaty to enter into consultations does not entitle the potentially affected state to bar the planned activity, nor
does it specify any procedure or time limits for the consultations (or disputes arising therefrom) or requirements for providing the other state(s) involved with information of any kind. Furthermore, the consultations need not lead to a certain (or any) result, and even if they do, there is no obligation to take into account the result in any way when eventually conducting the space activities concerned.133
Experience bears out that the lack of specific binding obligations results in little likelihood that meaningful consultation on the activities that are the most likely to cause space debris will occur.134 China’s 2007 anti-satellite test, which is discussed above,135 was not preceded by meaningful consultation despite its obligations under Article ix of the Outer Space Treaty.
From these experiences, it can be seen that an obligation to consult and cooperate is a helpful normative goal, but needs to be paired with specific parameters for the consultations. These parameters should include minimum time before the launch or other potentially harmful activity on which the consultations must occur, the range of States and nsas which should be involved and how the information should be further circulated to interested space actors, and the potential sanctions for failing to adhere to these parameters.
Article xii of the Outer Space Treaty gives States Parties the right to inspect each other’s ‘stations, installations, equipment and space vehicles on the moon and other celestial bodies’. Viikari suggests that these inspections could be undertaken subject to ‘reasonable advance notice of a projected visit [being given], in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited’.136 Again, this could be transposed to nsas which are actively involved in space, in order to form a comprehensive regulatory web.
A model for the conduct of inspections could be based on the Organization for the Prohibition of Chemical Weapons (opcw). In the Verification Annex of the Chemical Weapons Convention, provisions are set out governing the
On this basis, it can be seen that reforming space law to provide for nsa accountability for space pollution would align with the trend in international environmental law towards recognizing nsas as key actors, as well as the developments that have occurred in other areas where nsas have been attributed rights and responsibilities. Reform, expanding to encompass nsas in addition to States, is long over-due given the significant shift in the governance structures of the entities underlying international geo-politics.
In relation to the filing of requests for geo slots (as well as the planning of activities in the leo and meo), there have been problems with obtaining filing fees from private entities.137 Because the itu, which administers the filings and payments in order to conduct its work of designating slots, does not consider itself to have any legal relationship with companies under international law (as it does not consider them actors under international law), its ability to enforce those obligations rest only with its ability to compel States to pay for debts essentially incurred by satellite operators which over-file in an effort to ensure that they get at least a slot for their payloads to enter.138 In this lacuna, satellite operators have begun to form their own solutions. Viikari notes that
given the inability of the international community to provide common rules, satellite operators have begun to act on their own to coordinate their procedures. They have established a Satellite Users Interference Reduction Group (suirg), which is comprised of representatives from both private industry and the public sector.139
Reportedly, the suirg has worked for over a decade seeking to identify and mitigate the growing problem of satellite interference and the economic harm it inflicts on the space exploration and utilization industry.140 Significantly, the
The organic creation of bodies able to communicate and coordinate to address problems at the operational level is an important means to ensure the efficient and effective redress of challenges which arise on the ground. More profoundly, it could provide a model for the adaptation of international law to recognize such groups and attribute them status as actors under international law. This would have the benefit of allowing the itu and similar regulatory bodies to directly apply international norms to nsas which constitute an increasingly large share of the entities active in space. It would remove the layer of Statehood which currently stands between the international community and the operators, potentially shielding the latter when conducting space launches and managing space objects providing services to Earth.
Ultimately, the reform avenue would require significant changes to draw nsas into the direct formation and application of international law. Nonetheless, the approach of reforming the law provides an opportunity to craft well-balanced regulations, directly applicable to nsas when they conduct acts that are not readily addressed by States. In this way, international law could move towards a more comprehensive web of accountability for space pollution and thereby better the best prospects to protect the space environment.
4 Conclusions regarding Options to Redress the Gap in Space Law Regarding nsas
From the preceding, it can be seen that several factors augur in favour of the reform approach, rather than the retrenchment or re-interpretation means of proceeding. For example, as discussed above, interpretive issues surround Article ix of the Outer Space Treaty. Most notably, the part of the Article ix referring to ‘harmful contamination’ only refers explicitly to ‘the exploration’ of outer space, but not its ‘use’.142 Given that space pollution will likely occur
Contrastingly, the reform approach provides the means to establish a clear and unambiguous normative framework for nsas to conduct their business relating to space will both enhance the regulation of nsas while also allowing them to engage in their space activities on the basis of explicit prescriptions. For these reasons, the preceding survey indicates that the ‘reform’ approach, with new provisions added to the framework of international space law, would best serve the aims of redressing and deterring space pollution and ensuring that avenues for accountability under international law are created for the harmful contamination of outer space. The proposed draft protocol to the Outer Space Treaty (or declaration) annexed to this book stands as a model for developing the architecture of international law to better redress space pollution whether by nsas or States or a combination of the two.
5 Insights from the Avenues for Redress regarding the Nature of International Law
Confronting a novel threat such as nsa space pollution shines a light on the underlying nature of established international law. The analysis shows that, at the level of legal prescriptions, international law is currently ill-suited to address nsa space pollution. It provides no specific rules directly applicable to nsas in this respect. Instead, it is heavily reliant on the construct of traditional State responsibility, which suffers from serious limitations in the field of space activities.143 Other fields of international law, such as international humanitarian law, international criminal law, and international human rights law have some oblique applicability to activities in space, but only in highly truncated circumstances, such as armed conflict, the commission of atrocious crimes, or if the nsa is in control of territory. This leaves a lacuna, which is of increasing
At the theoretical level, the retrenchment approach rests on an extremely strict positivist and State-centric understanding of international law. That restrictive conception has the benefit of clarity, systematicity and adherence to established norms and practices. In its purest form, this approach holds that, whereas international law is formed by and strictly applies to States (and international organizations in some respects),144 sub-State level actors (referred to as nsas in this paper) are exclusively regulated under domestic law. Such an approach avoids entities being subjected to multiple levels of legal regulation. It also allows for a measure of subsidiarity, whereby States can interpret and apply their international obligations in accordance with their national regulatory frameworks.
However, the State-centric approach has been undermined by developments in multiple areas of international law, including humanitarian,145 criminal law entailing violations of human rights obligations,146 and even environmental law. Each of these branches of international law has seen, to a greater or lesser extent, nsas recognised as being directly subjected to, and subjects of, international law.147 The distillation of rules applicable to nsas
These legal developments have caused views to shift regarding the applicability of international law to nsas. What has made these instances legally meaningful and legitimizing is that trappings of personhood have been ascribed to nsas on the basis of recognised sources of international law, such as treaties and customary law, as interpreted by Courts established by the UN Security Council or by treaty. The icty, for example, went to great lengths to base its decisions on recognised precepts of international law, particularly customary international law.150 The fact that provisions of those areas of law have been applied to nsas (at least in the areas of humanitarian and criminal law) and upheld by international courts demonstrates that an exclusively State-bound conception of international law does not reflect the reality of its application in the 21st century. In this respect, Higgins notes (pointing to the increasing frequency of State-to-corporation arbitral agreements) that ‘there is no inherent reason why the individual should not be able directly to invoke international law and to be the beneficiary of international law.’151
In the field of space law, an overt rejection of the applicability of international space law to nsas would introduce a schism between branches of international law. An nsa which caused serious space pollution by detonating an explosive device in space, for example, would not have violated international space law. Yet the same nsa could potentially be directly held responsible under international humanitarian and criminal law if the explosion were linked to an armed conflict. That fragmentation portends incoherence in the development of sub-fields of international law.152 It presumes a level of State-exclusivity as
Moreover, at the operational level, the risks of a solely State-centric approach to the regulation of space activities have been elaborated in Chapter 2. These include accountability gaps, especially where States are unable and unwilling to take measures against nsas, and where nsas engage in forum shopping to either maximize profits or opportunities for nefarious conduct.153 These limitations jeopardize the core aim of regulatory law, which is to prevent negative outcomes for protected values, such as the environment, while allowing people and organizations to engage in productive activity. The retrenchment approach risks exacerbating these shortcomings in the development and operationalization of international space law. By insisting on an exclusively State-centric model, it will accentuate the gaps that are already present in the coverage of international space law.154
At the conceptual level, the State-centric approach clashes with several new conceptions of the formation and functioning of international law. For example Higgins conceives international law as ‘an authoritative system of decision-making available in a decentralized system to all authorized decision-makers’.155 According to her approach,156 the subject-object dichotomy of legal positivists would be replaced by a ‘decision-making process’ (terming it a ‘process’ based approach).157 Andrew Clapham presents a complementary line of reasoning to Higgins, arguing that whereas
international law is mostly generated by accepted processes between nation states … public international law can apply in the networks and sectors that focus on duties for non-state actors.158
Those new ‘process-based’ conceptions conflict with the ‘rules-based’ approach, such as the traditional orientation of international space law. The converse approach (retrenching back to State exclusivity as decision-makers) will deny the role of nsas as subjects of international law. This would be incongruous with nsa’s increasingly central role in contemporary space activity. The incongruity further highlights the gap emerging between the strict traditionalist conception of State exclusivity under international law and the operational practice of applying branches of international law to pressing global problems.
Whereas some commentators do not accept that nsas (apart from international organizations) can possess international legal personality,159 even among those who would attribute nsas with a measure of international legal personality there is variation. Some give nsas a more central role in the formation of international law, as discussed above.160 Others, such as Ronen, acknowledge that nsas are capable of carrying out actions that would be, if conducted by States, considered violations of human rights, but maintain that, despite this, human rights law does not extend beyond traditional State-centric ambit.161 Another view is the ‘functional approach’, which avoids conceptualizing the basis on which nsas can be described as subjects,162 and instead focuses on the utility of international law addressing nsas in a specific circumstance. Thus, Ruth Wedgewood has argued that
[t]he test for the ‘privatization’ of the international legal order must be a functional one. In the case of non-governmental organizations, their role has been seen as beneficial and creative, subject to suitable cautions. In the case of non-state political entities, the international community has treated them from necessity where the nation state did not have full control of its own domain, but it remains to be seen whether these political
imperatives may require a more formal status outside the state orientation of the Westphalian system.163
However, such a pragmatic approach is inherently context-bound and unable to generate insights that can assist in determining the legal personality and competencies of nsas in circumstances other than the immediate case being observed. Nor can the ‘functional’ approach provide insight as to the axiomatic principles of international law, and to what extent those undergirding principles have shifted in recent decades with the increased nsa activity at the global level.
Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered.166
inside the system “legal personality” is the attire which enables an entity to function in a legal order; more importantly, this attire is awarded by
that same legal order, which determines which entities participate in its sphere and which do not.168
To maintain both the effectiveness and conceptual coherence of international law, particularly in the field of space law, it is proposed that the progressive positivist approach should prioritize the effet utile interpretation technique.169 This follows fundamental international law parameters such as Article 31(1) of the Vienna Convention on the Law of Treaties, which seeks to interpret provisions, and the treaty as a whole, to give them meaningful effect in light of the object and purpose of the treaty and to avoid either rendering the provisions superfluous or depriving them of significance in governing the parties’ relationship.49 In order to determine the object and purpose of a treaty in space law, soft law instruments by space-active States can provide considerable insight, particularly in relation to the interpretation of a treaty’s aims when applied to new phenomenon, such as space debris (or pollution), which was not directly referred to in the treaty itself. Here, it is relevant that several soft law declarations provide that nsas must abide by the environmental protections contained therein, as detailed extensively above.170
The context of nsa involvement in space pollution raises the need for clarity regarding the status, rights and obligations of nsas under international space law.171 Commentators have argued that space pollution such as debris could be redressed if countries were to form an international agreement waiving their sovereign rights to unidentified space debris.172 Underlying this argument is the recognition that States’ rights count under international law and cannot be simply overborne by efforts to achieve policy goals no matter how laudable, if those efforts are not reflected in legal developments of the applicable doctrine.
Conversely, if an alternative approach were taken, along the lines of Higgins’ open and fluid process-based formulation,175 and nsas were considered subjects of international space law without anchoring that recognition on existing principles of international law, it would engage in a self-contradictory project of ascribing them status in a system whilst at the same time undermining the coherence of that system. At present, the framework of space law does not explicitly ascribe nsas legal status to be directly proceeded against, and does not set out other means to enforce the protections of the space environment. Simply declaring space law to do so will not overcome the overwhelming tenor of the terms of the key space instruments, which are State-centric.
The survey above indicates that bluntly considering nsas to be participants under international space law, without founding that view in the established framework of international law, has little explanatory or practical utility. It would potentially create as many questions and limitations as the
Nonetheless, directly applying space law to nsas while adhering to the foundational precepts of international law is not a straight forward matter and cannot simply be achieved by re-interpreting existing space law instruments. When prohibitions of international law are applied directly to nsas, a host of other provisions of international law must necessarily also accompany the application of those provisions. These provisions should be enforceable in a realistic sense or else they risk undoing even the normative force that they may bear. Such ancillary (but important) rules and principles include human rights, to the extent specific individuals are involved. Thus, when international criminal law provisions were applied directly to individuals at the icty, ictr, and icc, for example, those individuals also became the direct bearers of human rights under international law such as the presumption of innocence and the right to silence.177 In this light, the question is not just whether nsas can be held accountable, but also whether the imputation of other status and rights under international law will necessarily follow, and whether that shift coheres with the structures and functioning of international law.
As present, although nsas are significantly impacted by international space law, as detailed at length in Chapter 5’s survey of domestic frameworks,178 their involvement in the formation and interpretation of international law is truncated, uni-directional, and contingent.179 It is truncated, as nsas are only invited to provide views for consideration rather than practice for incorporation into the formation of international law. It is uni-directional, as nsas are subjected to rules created by States rather than involved in the creation of rules controlling State conduct. It is also contingent, because the involvement of nsas in the processes of distilling applicable guidelines for space conduct
Legal personality is not a strictly binary phenomenon, and competencies will vary even among entities recognised as subjects of international law.180 However, basing the recognition of nsa’s status under international law on its existing foundations will strengthen the legitimacy and effectiveness of activities conducted with that status.
If, however, the state were to lose its monopoly in a neomedieval system, the most basic general principle about the nature of international law – the notion that states create international law through their consent – would now have to be expanded. If this were to be the case, the international law-creating process would be fundamentally changed … [T]he process of creating customary international law could become much more complex. There could, in fact, be multiple levels of customary international law.181
Higgins opposes the subject-object dichotomous view of international law, for being based on ‘conservative belief that what presently is, necessarily always has to remain so’.182 She posits that ‘the further one moves away from positivism and rules, the less important becomes the distinction between lex lata and lex ferenda – the law as it is and the law as it might be.’183 However, the statement inherently acknowledges the cost of loosening the underlying approach to international law. Instead of the firm clarity and reliability of lex lata, actors under international law would be exposed to a much broader field of concepts which may or may not constitute lex ferenda, without any established criteria to delineate that category from simply the desires or preferred policy position of any actor in any specific situation.
Robert Jennings, Arthur Watts, Oppenheim’s International Law, vol 1, 9th ed. (Oxford University Press, 2008), p. 16; Colin Warbrick, ‘States and Recognition in International Law’ (2006) in Malcolm Evans (ed.) International Law, 2nd ed. (Oxford University Press, 2006), pp. 205–267; Murray (2016), p. 25.
Kramer (2017), p. 135. Whilst the current monograph focuses on international law in its current Westphalian form, in the pre-Westphalian eras, nsa conduct was highly relevant to the development of early aspects of international regulation. Notable examples include the Poor Fellow-Soldiers of Christ and of the Temple of Solomon (Knights Templar), which was active from the 12th Century, and the Dutch East India Company, formed in 1602, both of which engaged in consequential operations across a wide range of territories. Several non-State entities have continued to be recognised as subjects of international law in its modern era, including the Holy See and armed groups recognised as belligerents; Ian Brownlie, Principles of Public international Law, 7th ed. (Oxford University Press, 2008), p. 64; James Crawford, Brownlie’s Principles of Public International Law, 8th ed (Oxford University Press, 201), p. 118; Murray (2016), p. 26. For a detailed development of the increasing scope of subjects of international law see Philip C. Jessup, ‘The Subjects of a Modern Law of Nations’ (1947) 45 Michigan Law Review, p. 4; Gerd Droesse, Membership in International Organizations (Springer, 2020) (Chapter on Subjects of International Law and International Legal Personality).
Jennings and Watts (2008), p. 16; Clapham (2004), pp. 35–36; Murray (2016), pp. 23–24. See also Fergus Green, ‘Fragmentation in Two Dimensions: The International Court of Justice’s Flawed Approach to Non-State Actors and International Legal Personality’ (2008) 9 Melbourne Journal of International Law, p. 50; Anthony Clark Arend, Legal Rules and International Society (Oxford University Press, 1999), p. 176.
Stubbe (2018), p. 82.
United Nations Report of the Committee on the Peaceful Uses of Outer Space, 2007, para. 186 (italics added).
Chapter 3, Section 2 citing Larsen (2018), pp. 491–492, 515; Von der Dunk (2012), pp. 76–90.
An overall depletion of space resources in one area may impact the integrity of outer space/celestial bodies itself, for more on the issue see, Melissa De Zwart et al., ‘Space resource activities and the evolution of international space law’ (2023) Acta Astronautica, 211, p. 156 and Fenga Xu ‘The approach to sustainable space mining: issues, challenges, and solutions’ (2020) iop Conf. Series: Materials Science and Engineering, p. 5.
Thirlway (2017), p. 144. See also Hugh W.A. Thirlway, International Customary Law and Codification (Martinus Nijhoff Publishers, 1972) (adopting the view that international law should be understood as what an impartial court would say if seized of the issue in question).
Thirlway (2017), p. 145 (arguing that his approach ‘does not necessarily require that the State be democratically organized: even a dictator is, in relation to other governments, and on the international level generally, acting for (what he sees as) the good of his country/State’). Similarly, Rawls demonstrates how the law of the peoples, the law governing relations between what he calls liberal societies on one hand and hierarchical societies on the other, consists merely of certain basic rules on which both types of societies can agree. See John Rawls, ‘The Law of Peoples’ (1993) 20(1) Critical Inquiry, pp. 36–68.
In the absence of any space law treaties since 1979, the unga has taken a ‘proactive and pragmatic attitude towards the adoption of unga resolutions’ issuing the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting in 1982; Principles Relating to Remote Sensing of the Earth from Outer Space in 1986; Principles Relevant to the Use of Nuclear Power Sources in Outer Space in 1992; Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries in 1996; Application of the Concept of the ‘Launching State’ in 2004; and Recommendations on Enhancing the Practice of States and International Intergovernmental Organizations in Registering Space Objects in 2007 (UN Res. 62/101, 2007).’ Zhao (2018), p. 3 citing Michael Bourély, ‘The institutional framework of space activities in outer space’ (1998) 26 Journal of Space Law, p. 1 (these instruments can ‘serve as a testing bed for possible future international legislation.’).
Michael E. Davis, Ricky J. Lee, ‘Twenty years later: The Moon agreement and its legal controversies’ (1999) Australian International Law Journal.
Radi (2023), p. 4.
Radi (2023), p. 4.
Thirlway (2017), pp. 145–147. He demonstrates that his views are highly contingent on a terrestrial setting: ‘[t]he reason why international law is built round States is not because they have selfishly created such a system, or fought off any strivings for equality on the part of other entities: it is because they represent the interests of their human citizens in general terms, in the area where it matters, literally “on the ground”’.
See ilc, Articles on Prevention of Transboundary Harm from Hazardous Substances, Article 1 Commentary, paragraph 10 (‘[s]ometimes, because of the location of the activity, there is no territorial link between a State and the activity such as, for example, activities taking place in outer space or on the high seas.’).
For a further discussion see Howard J. Taubenfeld (Ed.), Space and Society Studies for the Seminar on Problems of Outer Space (Oceana Publications, 1964).
Baker (1987), p. 169 (‘[d]ifferent characteristics of outer space and terrestrial environments demand different approaches; although the principles may be identical, the details vary considerably.’).
The lack of forum conveniens for establishing and ensuring State accountability for any space pollution caused by nsas raises the question of what forum could be used to address nsa conduct directly. In this respect, there are also limitations, but experience from other domains, such as international criminal law, suggest that expanding the legal framework and interpretation to encompass direct application of international norms to non-State actors can be followed by the establishment of institutions capable of applying those norms in specific cases, as detailed herein.
Cheng (1997), p. 270.
Cheng (1997), p. 270.
Space law in general was largely formulated on the basis of conflict avoidance, rather than dispute resolution or enforcement; Goh (2007), p. 20.
See, e.g., Máximo Langer, Mackenzie Eason, ‘The Quiet Expansion of Universal Jurisdiction’ (2019) 30 European Journal of International Law, p. 3.
icj, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 February 2012 (icj Reports 2012, p. 99).
Daniel Lambach, Luca Wesel, ‘Tackling The Space Debris Problem: A Global Commons Perspective’ in Proc. 8th European Conference on Space Debris, 20 – 23 April 2021, Darmstadt, Germany, published by the esa Space Debris Office.
See Chapters 2 and 5.
Stubbe (2018), p. 160 (also arguing that ‘the obligation of conduct under Article ix sentence 2 of the Outer Space Treaty indicates the measures to be taken; they must be appropriate for achieving a particular result: the avoidance of harmful contamination.’).
The Convention Register is operated by unoosa, pursuant to Article 3 of the Registration Convention. See also Viikari (2008), pp. 72–74.
unga Res. 1721(xvi). This Resolution Registry is broader than the Convention Registry, as it applies in theory to all States.
United Nations General Assembly, Recommendations on enhancing the practice of States and international intergovernmental organizations in registering space objects, UN Doc. a/res/62/101 10 January 2008.
Registration Convention, Article iv (i). The orbital information that is required under Article iv(1)(d) comprises: a) the nodal period; b) the inclination; c) the apogee; and d) the perigee. See also Viikari (2008), p. 73.
‘Practice of States and international organizations in registering space objects’ 2005, paras. 54–77; Viikari (2008), p. 73.
Viikari (2008), p. 76.
Kazlouskaya (2021), pp. 571–585.
Viikari (2008), p. 81.
Rescue Agreement, Articles 2 and 3.
Viikari (2008), pp. 82–83 (The proposal would be to add the following clause ‘[i]f the state of registration, after notification and consultation, is not going to remove debris which endangers outer space or the Earth within a reasonable time, a nonstate of registration or a non-launching state will have the right to salvage, take away or destroy that object.’).
Viikari (2008), p. 82.
Viikari (2008), p. 77.
Armel Kerrest, Legal Aspects of Transfer of Ownership and Transfer of Activities (2017), in Ownership of Satellites: 4th Luxembourg Workshop on Space and Satellite Communication Law (Mahulena Hofmann and Andreas Loukakis (eds.)) (Nomos Verlagsgesellschaft, 2017), pp. 75–84; Sancin, Grünfeld, Ramuš Cvetkovič (2021), pp. 25–28.
See e.g. Dasgupta (2016), pp. 641–666; Upasana Dasgupta, ‘Reconciling State Practice of In-Orbit Satellite Transfer with the Law of Liability and Registration in Outer Space’, in Monograph Series vi: Global Space Governance and the UN 2030 Agenda (Aram Daniel Kerkonian (ed.)) (Centre for Research in Air and Space Law, 2018), pp. 55–72.
Note verbale dated 29 July 2003 from the Permanent Mission of the Netherlands to the United Nations (Vienna) addressed to the Secretary-General, UN Doc. a/ac.105/806; Note verbale dated 18 February 2004 from the Permanent Mission of the Netherlands to the United Nations (Vienna) addressed to the Secretary-General, UN Doc. a/ac.105/824; Note verbale dated 29 July 2003 from the Permanent Mission of the Netherlands to the United Nations (Vienna) addressed to the Secretary-General, UN Doc. a/ac.105/806; Note verbale dated 18 February 2004 from the Permanent Mission of the Netherlands to the United Nations (Vienna) addressed to the Secretary-General, UN Doc. a/ac.105/824.
Viikari (2008), p. 75.
Stubbe (2018), p. 181 (observing that ‘[a] corresponding paradigm shift in international environmental law, induced by the Rio Conference, shifted the understanding of environmental protection from a sovereignty-centered thinking to the recognition of a common interest in the preservation of an intact environment.’).
As can be seen for example in Convention on International Trade in Endangered Species of Wild Fauna and Flora, which allows the open trade of animals that are not listed as in its annexes. See also Marina Lostal, ‘One-Dimensional Law: A Critique of the Human Right to a Clean, Healthy and Sustainable Environment’, The International Journal of Human Rights (online edition, 2024).
Stubbe (2018), p. 181.
See Thomas Graditzky, ‘Individual criminal responsibility for violations of international humanitarian law committed in non-international armed conflicts’ (1998) 322 International Review of the Red Cross, pp. 29–56 referring to icty, Prosecutor v. Tadić, Case No. it-94-1-ar72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995), para. 137.
icty, Prosecutor v. Tadić, Case No. it-94-1-ar72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995), para. 97 (‘[a] State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach. Gradually the maxim of Roman law hominum causa omne jus constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well’).
See icj, Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) Railway (Belgium v. Netherlands) icj Reports 2005, para. 80; icj, In the Case concerning the Gabčikovo-Nagymaros Project (Hungary v. Slovakia) icj Reports 1997, para. 112.
Gerhard Hafner and Christina Binder, ‘The Interpretation of Article 21(3) icc Statute Opinion Reviewed’, Austrian Review of International and European Law, 9 (2006), p. 172.
Article 31 of the vclt.
See Zhao (2018), p. 1 (‘space activities during the cold-war period were mainly state-oriented … Consequently, the space rules formulated under the framework of the United Nations mainly regulate the activities conducted by states and aim to realize peaceful uses of outer space.’); Joanne I. Gabrynowicz, ‘Space law: Its Cold War origins and challenges in the era of globalization’ (2004) 37 Suffolk University Law Review, pp. 245–273.
UN General Assembly Resolution a/res/68/74, adopted on 11 December 2013.
Larsen (2018), p. 490; Breccia (2016), p. 8.
Larsen (2018), p. 491.
Chapter 2, Section 1.
Although these principles are usually cited in the criminal context, they can also be alleged in the civil regulatory context, insofar as an entity is held responsible for acts which were not established as clear prohibitions at the time the acts occurred.
Whereas uncopuos is an inter-State body, the iadc is not an inter-State organization. The iadc is agile and focuses on technical issues, while copuos can get mired in discussions of State security and other core State interests.
See Larsen (2018), p. 475.
Larsen (2018), p. 476 (‘The iadc has no legal authority to monitor, change, or strengthen the international guidelines as debris accumulation increases. Moreover, the iadc lacks legal enforcement authority’), 500 (‘The iadc has no prospect of being able to produce mandatory space debris standards because it is not an organization of member countries’).
Isnardi (2020), p. 532.
Vernile suggests that reform of international space law is required through ‘space districts’, but does not explain what these would consist of from a legal perspective; Vernile (2018), p. 74.
The proposed Protocol to the Outer Space Treaty Annexed to this book is focused on nsa space pollution rather than nsa ownership of celestial bodies per se, but could be adjusted to add a provision replicating the prohibition in the Outer Space Treaty of States appropriating outer space including celestial bodies. Alternatively, a separate agreement could clarify this issue.
See Vernile (2018), p. 74 (‘[t]he legal uncertainty around private activities deprives private actors of the assurance that they will gain from the capital invested.’).
Isnardi (2020), p. 523.
United Nations Report of the Committee on the Peaceful Uses of Outer Space, para. 187.
See Dempsey and Manoli, p. 9 (‘[t]he legal regimes that govern air space and outer space are distinct, and create a distinct conflict: while air space is an area to which State sovereignty can be attributed, outer space falls beyond sovereignty claims’).
Convention for the Unification of Certain Rules for International Carriage by Air, 28 May1999, unts 2004 (entered into force on 4 November 2003), p. 309.
Articles 17–19.
Article 20 ((in whole or in part) if “the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation.”).
Article 33(1) (“An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination”).
Havel and Gabriel Sanchez, pp. 259–260 (because of ‘Warsaw (and subsequently Montreal), therefore, each national law of contract is integrated automatically into the international liability system by each airline’s contract of carriage with its customers.’).
However, these conventions do not establish dispute resolution mechanisms and so may become untenable if multiple States start deviating from their responsibilities thereunder.
icao Annex 16, Volume iv, para. 2.2.1.1.
icao Annex 16, Volume iv, para. 2.2.2.1, 2.3.1.1.
icao, ‘Article 16’ (2017) (available at
The annexes are based on Article 37 of the Chicago Convention, which requires that State Parties secure ‘the highest practicable degree of uniformity in regulations, standards, procedures, and organization’. See Tanveer Ahmad, ‘Global Civil Aviation Emissions Standards – from Noise to Greener Fuels’, Centre for Research in Air and Space Law (McGill, 2016), p. 6.
See Article 38 of the Chicago Convention.
ila Model Law for National Space Legislation, Article 4.
ila Model Law, Article 4(1).
ila Model Law, Article 4(1).
ila Model Law, Article 4(2).
United Nations Committee on the Peaceful Uses of Outer Space, Questions on the definition and delimitation of outer space: reply to Pakistan, UN Doc. a/ac.105/c.2/2013/crp.6 (5 April 2013).
Larsen (2018) citing Humaid Alshamsi, Roy Balleste, Michelle L.D. Hanlon, ‘As the Grapefruit Turns Sixty, It’s Time to Get Serious About Clean Up in Outer Space’ (2018) 83 Journal of Air Law and Commerce. See also Caitlin Kim, ‘The Space Debris Race’ The Regulatory Review (24 November 2021) (available at
Larsen (2018), p. 483.
Larsen (2018), pp. 485–486.
See Vladimir Atanasov and Gianluigi Baldesi, ‘An Analysis of Two Space Business Opportunities’ in Stella Tkatchova, Space-Based Technologies and Commercialized Development: Economic Implications and Benefits (2011) igi Global, pp. 206–210.
Viikari (2008), p. 77.
Viikari (2008), pp. 77–78.
See Isnardi (2020), p. 591–593.
The revised version was adopted in 1998, in Taiwan, see ila, Report of the 68th Conference, 1998, pp. 249–267.
Goh (2007), p. 66 (noting that the ‘ila Space Law Committee duly prepared to formulate a Draft Convention on the Settlement of Space Law Disputes’ in 1984).
See Hersch Lauterpacht, ‘The Function of Law in the International Community’ (2011), 22 European Journal of International Law, p. 4.
Outer Space Treaty, Article ix. See Goh (2007), pp. 75–76.
Agence France-Presse, ‘Dubai Creates ‘Space Court’ for Out-of-This-World Disputes’ Courthouse News Service (1 February 2021) (available at
For more reasons on why a specialized space tribunal is not likely to be established anytime soon, see Ramuš Cvetkovič (2021), pp. 36, 37.
Art xvii, Convention for the Establishment of a European Space Agency, 1297 unts 161, 187.
Permanent Court of Arbitration (pca), Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (Effective 6 December 2011). Many prominent space law scholars participated in the formulation, including Tare Brisibe, Frans von der Dunk, Zhao Haifeng, Stephan Hobe, Joanne Gabrynovicz, Ram Jakhu, Armel Kerrest, Justine Limpitlaw, Francis Lyall, vs. Mani, Rose Montserrat-Filho, Maureen Williams, and until stepping down in 2010 former judge of the International Court of Justice Vladlen Vereshchetin. See Hobe (2019), p. 204.
pca, pca Arbitration (17 December 2012); see also pca, Optional Rules for Arbitration Between International Organizations and Private Parties (1996), Article 1; pca, Optional Rules for Arbitrating Disputes between Two Parties of Which only One is a State (1993), Article 1. For more information, see pca, ‘Dispute Resolution Services’ pca-cpa.org (available at
pca, Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (Effective 6 December 2011). See also Shaw (2008), p. 669.
pca, Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (Effective 6 December 2011), Introduction, p. 4.
Sands and Peel (2018), p. 13.
Sands and Peel (2018), p. 52.
Sands and Peel (2018), p. 52.
See Goran Petrović, ‘Non-Governmental Organization (ngo) Participation in Civil Aviation Policy and Decision Making’, (2023) 88 Journal of Air Law and Commerce, p. 474 (noting that enabling ngo participation in treaty negotiation and treaty making has led to ‘further democratization in the field of international law’).
Viikari (2008), pp. 25–26.
Viikari (2008), p. 28.
See Viikari (2008), p. 26 (‘the fact that states promote (or at least permit) the participation of such groups [nsas] in the domestic preparation of international accords enhances the possibilities of those groups to be involved in subsequent international deliberations as observers, for instance.’).
For example, the United Nations Economic and Social Council (ecosoc) grants ngo consultative status via its ngo Committee; See United Nations Department of Economic and Social Affairs, ‘How to apply for consultative status with ecosoc?’, United Nations (available at
Jon Kelvey, ‘Solar Panel Robots and Mini Nuclear Reactors Could Power nasa’s Future Moon Base’, Space Ref, 22 June 2023 (
Kelvey (2023) (‘[s]pace robotics company Astrobotic Technology and electric power behemoth Westinghouse are joining forces to develop nuclear power for nasa and the Department of Defense’.).
Viikari (2008), p. 63.
John D. Rummel, Margaret S. Race, and Gerda Horneck, ‘Ethical Considerations for Planetary Protection in Space Exploration: A Workshop’, Astrobiology, 2012 (Nov); 12(11), pp. 1017–1023; Leonard David, ‘‘Planetary Parks’ Could Protect Space Wilderness’, Space.com (17 January 2013). David notes that the proposed rules in these planetary parks would require: ‘No spacecraft or vehicle parts to be left within the park; No landing of unmanned spacecraft within the park; No waste to be left within the park Access only on foot or via surface vehicle along predefined routes, or by landing in a rocket-powered vehicle in predefined landing areas; All suits, vehicles and other machines used in the park to be sterilized on their external surfaces to prevent microbial shedding.’
Viikari (2008), p. 61 (‘since space objects tend to turn into (or at least produce some) space debris that may gravely interfere in the space activities of all states, such consultations might be necessary before any future launch of a space object.’); Fasan, Ernst, Space Debris – A Functional Approach. Proceedings of the 35th Colloquium on the Law of Outer Space, iisl, 28 August – 5 September, 1992 (aiaa, 1993). p. 285.
For more information on development of this initiative, see Defense Industry and Space, Space Traffic Management European Commission (available at:
See Institute for Air Law, Space Law and Cyber Law, Cologne Manual on the International Law of Space Traffic Management University of Cologne (available at:
Viikari (2008), p. 61.
Viikari (2008), p. 61 (‘anti-satellite tests, which clearly have the potential to create orbital debris that can be harmful for all other spacefaring nations: apparently, international consultations never preceded such experiments’); Bhupendra Jasani, ‘Remote Sensing From Space: national and international security. Disarmament Forum’ (1999) 1 The New Security Debate, pp. 31–40 (available at
Viikari (2008), p. 62.
See Thompson (1996), pp. 280–283.
Viikari (2008), p. 93.
Viikari (2008), p. 93.
Jason Bates, ‘Satellite Operators Target Interference Problem’ Via Satellite (1 August 2005) (available at:
See Chapter 2, Section 1.
The status of international organizations under international law has been recognised by the International Court of Justice, see icj, Reparations for injuries suffered in the services of the United Nations, Advisory Opinion of. 11 April 1949 (icj Reports 1949, p. 174), p. 179.
In the Tadić Jurisdictional Decision, the Appeals Chamber of the icty observed that internal armed conflicts, or civil wars, have become increasingly prevalent, cruel, and protracted and that niacs increasingly impact on third states; and recognised that nsas have responsibilities under ihl; icty, Prosecutor v. Tadić, Case No. it-94-1-ar72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995).
nsas have increasingly been ascribed duties, such as human rights obligations, based on instruments directed towards States; see, e.g. icty and ictr cases in which members of nsas were ascribed with responsibility for violating rights to security, which are usually rights incumbent on States to protect and uphold, through their speech acts: irmct, Prosecutor v. Šešelj, Case No. irmct-16-99-a, Appeal Judgement (11 April 2018) (hereafter ‘Šešelj Appeal Judgment’), para. 163; ictr, Prosecutor v. Nahimana et al., Appeal Judgement, ictr-99-52-a, 28 November 2007 (hereafter ‘Nahimana et al. Appeal Judgment’), para. 988.
See icty, Prosecutor v. Tadić, Case No. it-94-1-ar72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) (assessing classical sources of international law to discern the status of joint criminal enterprise, for example, and finding that crimes can be charged under the Tribunal’s Statute for acts committed in non-international armed conflicts). Whilst the accuracy of the Tribunal’s reading of specific classical sources is sometimes questioned, the court’s legal orientation clearly adhered to the core precepts of international law as a conceptual approach.
Higgins (1994), pp. 54–55.
See Anne Peters, ‘The refinement of international law: From fragmentation to regime interaction and politicization’ (2017) 15(3) International Journal of Constitutional Law, pp. 690, 692, 702.
Rosalyn Higgins, ‘Policy Considerations and the International Judicial Process’ (1968) 17(1) International and Comparative Law Quarterly, p. 58–59 (‘When … decisions are made by authorized persons or organs, in appropriate forums, within the framework of certain established practices and norms, then what occurs is legal decision-making. In other words, international law is a continuing process of authoritative decisions. This view rejects the notion of law merely as the impartial application of rules. International law is the entire decision-making process, and not just the reference to the trend of past decisions which are termed ‘rules’. There inevitably flows from this definition a concern, especially where the trend of past decisions is not overwhelmingly clear, with policy alternatives for the future.’).
Somewhat paradoxically, Rosalyn Higgins (1994) also writes that ‘[c]onsent and sovereignty are constraining factors against which the prescribing, invoking, and applying of international law norms must operate.’ (p.1).
Higgins (1994), p. 50.
Clapham (2016), pp. 28–29.
See, e.g. Robert Jennings and Arthur Watts (Eds.), Oppenheim’s International Law (9th Edition): Volume 1 Peace (Oxford University Press, 2008), p. 120.
Yaël Ronen, ‘Human Rights Obligations of Territorial Non-State Actors’ (2013) 46 Cornell International Law Journal, p. 47.
Clapham (2006), pp. 60–61.
Ruth Wedgewood, ‘Legal Personality and the Role of Non-Governmental Organizations and Non-State Political Entities in the United Nations System’ (1999) in R. Hofmann (ed.) Non-State Actors as New Subjects of International Law: International Law – From the Traditional State Order Towards the Law of the Global Community (Duncker and Humblot, 1999), p. 36.
This approach incorporates the view of Hart and Sacks view that ‘[u]nderlying every rule and standard … is at the least a policy and in most cases a principle. This principle or policy is always available to guide judgment in resolving uncertainties about the arrangement’s meaning.’ Henry Hart and Albert Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Tentative edition, 1958), pp. 166–167. However, whereas the approach of Hart and Sacks concerned adjudication, the current discussion concerns law reform to address the novel challenge of nsa space activities. Moreover, the present discussion adheres tangibly to the parameters of law formation, requiring interpretive tools and influences to be based on authoritative and recognised sources of international law. The approach of Hart and Sacks emphasizes the discernible substratum of values underlying legal provisions, against which existing and developing law may be assessed (see Vincent Wellman, ‘Dworkin and the Legal Process Tradition: The Legacy of Hart & Sacks’ (1987) 29 Arizona Law Review, pp. 418–423). That approach is particularly apposite for international law formation given the relatively broadbrush formulation of many treaties, the largely uncodified nature of customary international law, and the paucity of jurisprudence at the international level. Principles and policies underlying international law, which are relevant to discerning the capacity of space law to adapt to this challenge include the recognition of the protection of the environment (and avoidance of its contamination) as a critical goal of international law (as can be seen from the proliferation of treaties, customary international law and other legal developments designed to protect the environment in the post-Cold War World). They also include the need to ensure effective accountability, which was foreshadowed at Nuremberg (with the Judges’ observation that crimes are committed by humans and not abstract entities) but emerged more fully with international criminal law institutions from 1990s onwards.
icj, South West Africa Case, para. 49.
See, e.g. Ayelet Berman, ‘Between Participation and Capture in International Rule-Making: the who Framework of Engagement with Non-State Actors’, (2021) 31(1), European Journal of International Law.
Catherine Brolman, The Institutional Veil in Public International Law: International Organizations and the Law of Treaties (Hart, 2007), p. 68.
In support of the effet utile (or ‘effectiveness’) principle, see Inter-American Court of Human Rights: Case of the “Mapiripán Massacre” v. Colombia, Judgment of September 15, 2000 (Merits, Reparations, and Costs), para. 105; icc: The Prosecutor v. Omar Hassan Ahmad Al Bashir, Appeals Chamber, icc-02/05-01/09-397-Anx2, 06 May 2019, para. 69, Joint Dissenting Opinion of Judge Luz Del Carmen Ibáñez Carranzaa and Judge Solomy Balungi Bossa; icc: Situation in Uganda, Decision on the Prosecutor’s Application that the Pre-Trial Chamber disregard as irrelevant the Submission filed by the Registry on 5 December 2005, Pre-Trial Chamber ii, icc-02/04-01/05-147, 09 March 2006, para. 25.
Fogo (2017), p. 214.
Larsen (2018) citing Alshamsi, Balleste, Hanlon (2018).
Larsen (2018), pp. 485–486. Larsen’s state-centric outlook is reinforced by the subsequent analysis of ‘Removal of Debris by Its Launching State’ and ‘Removal of Debris by Third Party States’, which are not matched by a review of removal of debris by nsas. Larsen does review the possibility of regulation of space activities by a non-governmental entity; Larsen (2018), pp. 508–511. However, he does not address the legal foundation and status of such a body under international law. Moreover, he concludes that a non-governmental body ‘would not be able to establish mandatory regulations or enforce regulations without the enforcement of government agencies, because they cannot enforce regulations on other private operators’.
This premise is contestable, as Article ii of the Outer Space Treaty leaves the position ambiguous in relation to nsas appropriating space resources.
Albeit, Higgins does make reference to the importance of State consent and sovereignty.
‘Enforceable’ in this respect does not exclusively refer to sanctions, though of course that is a particularly robust way of demonstrating the existence and effectiveness of international law. Instead, enforceability is used to refer to the enshrining of principles into legal rules which could potentially be relied on before Courts competent to apply international law. But see Clapham (2006), pp. 28–29 (stating that he would ‘reject the prevalent assumptions that: first, the bearers of international obligations are limited to presumed, so-called, ‘subjects’ of international law; and second, that public international law is inoperative outside established enforcement regimes such as international tribunals.’)
See, e.g. Rome Statute of the International Criminal Court, Article 67.
icj, Reparations for injuries suffered in the services of the United Nations, Advisory Opinion of. 11 April 1949, p. 178 (‘‘the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights.’); Murray (2016), p. 29 (‘the consequences of international legal personality are not uniform and an entity’s ability to act on the international plane is determined on the basis of factors specific to that entity; i.e. on the basis of an entity’s subject-specific competence.’).
Arend (1999), pp. 176–177.
Rosalyn Higgins (1994), p. 49.
Rosalyn Higgins (1994), p. 10.
Viikari (2008), p. 183. See further, by analogy, Stubbe (2018), p. 11.