Sources of Space Law

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ZLW
Zeitschrift für Luft- und Weltraumrecht
German Journal of Air and Space Law
Revue Allemande de Droit Aérien et Spatial
Sonderdruck
The Sources Of International Space Law: Revisited
by Ram S. Jakhu *, Steven Freeland ** and Kuan-Wei Chen ***
Abstract
In order to have a comprehensive understanding of international space law, which
is embedded in general international law, it is indispensable to have a clear view of
the sources of this legal system. It is a well-established fact that the sources of general
international law are articulated under Article 38 of the Statute of the International
Court of Justice. These are generally relevant for the regulation of outer space, but oth-
er ‘non-traditional’ modes of guidance and/or regulation have also been developed in
this area. This article examines the provisions of Article 38 in order to discern those
traditional and other sources of international law that are applicable to outer space
and outer space activities. For the determination of rules of international space law,
particular attention is given to the development of customary international space law,
State practice, the role of judicial decisions, the teachings of the “most highly qualified
publicists” and, more broadly, to “soft law”.
The world has shrunk. All this is reflected in many international instruments;
the ties between States are growing and so is the vast network of treaties.
Some of the principles and definitions inherited from the past have become
too narrow, highly inadequate and thus require reformulation, or even more
frequently replacement by new ones adapted to new conditions; new branches
are appearing on the tree of international law.
Manfred Lachs1
* Associate Professor, Former Director, Institute of Air and Space Law, McGill University, Montreal,
Canada.
** Dean, School of Law and Professor of International Law, Western Sydney University, Australia.
*** Executive Director, Centre for Research in Air and Space Law, McGill University, Montreal, Canada.
Acknowledgement: The authors acknowledge with sincere gratitude the help provided by Mark J.
Sundahl, Isaivani Munisami, and Bayar Goswami in reviewing and providing valuable comments
and edits on the earlier draft of this article. As always and notwithstanding this invaluable help,
the authors remain exclusively responsible for any errors contained in this article. This article was
finalised in April 2018. All information contained herein are accurate up to the time of writing.
1 Manfred Lachs, “The International Law of Outer Space” (1964) 113 Recueil des Cours 1 at 10.
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Jakhu/ Freeland/ Chen - The Sources of International Space Law: Revisited
A. Introduction
In order to have a comprehensive and full understanding of international space law,
which is embedded in general international law, it is indispensable to have a clear view
of the sources of this particular legal regime governing space activities.2 By “sources”,
we mean systems or processes that allow international law to come into being. Inter-
national space law neither possesses an identity independent of general international
law, nor does it come into being outside the law-making processes established by the
latter. Therefore, the sources of international space law are principally the same as
those of general international law.3
Traditionally, it was believed that general international law governs relations only
among, and ensures the co-existence of, independent States, and the rules of this legal
system “emanate from their own free will as expressed in conventions or by usages
generally accepted as expressing principles of law”.4 As international law progressed
from the law of international co-existence to the law of international cooperation,5 its
2 It must be recognised that there is a body of national space law that is increasingly of importance
and must be considered in the wider corpus of space law as a discipline of study and research.
The adoption, implementation and application of national space law may have implications for the
further development, interpretation and solidification of international space law. National space le-
gislation, and the application by the legislative and judicial bodies of States of their own laws specific
to space activities may constitute evidence of State practice and/or opinio juris, which are constitu-
tive components of how to identify customary international law (discussed below). See Hermida,
Legal basis for a national space legislation (Dordrecht: Kluwer Academic, 2004); Jakhu, National
regulation of space activities (Dordrecht: Springer, 2010); and Chen, “Promotion for development
of national space legislation in developing states to ensure global space governance”, presentation at
the 10th United Nations Workshop on Space Law “Contribution of Space Law and Policy to Space
Governance and Space Security in the 21st Century” (5-8 September 2016, Vienna), online: UNOO-
SA,www.unoosa.org/pdf/SLW2016/Panel5/2._Chen_Ahmad_National_space_Legislation_Presen-
tation_Chen.pdf.
3 Indeed, on the website of the United Nations Office for Outer Space Affairs (UNOOSA), it is no-
ted that: “Space law can be described as the body of law governing space-related activities. Space
law, much like general international law, comprises a variety of international agreements, treaties,
conventions, and United Nations General Assembly resolutions as well as rules and regulations of
international organizations.“ “Space Law”, online: UNOOSA www.unoosa.org/oosa/en/ourwork/
spacelaw/index.html. See also Jakhu, “Capacity Building in Space Law and Space Policy” (2009) 44:9
Advances in Space Research 1051.
4 The Steamship Lotus (France v. Turkey) (1927), PCIJ, Ser A, No 10 at 18.
5 See generally, Friedmann, The Changing Structure of International Law (New York: Columbia Uni-
versity Press, 1964).
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sources have also expanded.6 The expanded sources of general international law are
clearly articulated under Article 38 of the Statute of the International Court of Justice
(ICJ),7 which has been generally considered as a codification of the sources of general
international law.8 Article 38 specifies that:
1. The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules ex-

pressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law.
Even a cursory reading of this provision indicates that Article 38(1) paragraphs (a),
(b), and (c) contain three law-creating processes or authoritative sources (i.e. interna-
tional conventions, international custom and general principles of law), which must
6 This shift of international law towards becoming law of international cooperation has been best ack-
nowledged by the President Bedjaoui of the International Court of Justice, who categorically noted:
„the face of contemporary international society is markedly altered. […] Witness the proliferation
of international organizations, the gradual substitution of an international law of co-operation or
the traditional international law of co-existence … A token of all these developments is the place
which international law now accords to concepts such as obligations erga omnes, rules of jus cogens,
or the common heritage of mankind.“ Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, [1996], ICJ Reports 226, Declaration of President Bedjaoui, para 13 [Legality of Nuclear
Weapons]. See also Simma, “From Bilateralism to Community Interest in International” (1994) 250
Recueil des cours 217.
7 Statute of the International Court of Justice, 26 June 1945, 3 Bevans 1179, 59 Stat 1031, TS 993, 39
AJIL Supp 215 (entered into force 24 October 1945) [ICJ Statute].
8 See generally, Survey of International Law in Relation to the Work of Codification of the Internatio-
nal Law Commission: Preparatory work within the purview of article 18, paragraph 1, of the Statute
of the International Law Commission - Memorandum submitted by the Secretary-General, UN Doc
A/CN.4/1/Rev.1 (1949): „The codification of this aspect of international law has been successfully
accomplished by the definition of the sources of international law as given in article 38 of the Statute
of the International Court of Justice. That definition has been repeatedly treated as authoritative by
international arbitral tribunals.“ At 22, para 33.
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be applied – relied upon – by the “principal judicial organ of the United Nations”9 to
“decide in accordance with international law” international disputes or issue an ad-
visory opinion on a legal question presented before it. Article 38(1)(d), on the other
hand, is not law-creating but merely a law-determining source that can be used by the
Court in its search for, or determination of, evidence or existence of the rules of inter-
national law as incorporated in the above-mentioned three sources. In other words,
under Article 38, there are only three sources of international law, in the search of
which the provisions (tools) of Article 38(1)(d) may be employed.10 This understand-
ing of Article 38 is used not only by the ICJ, but by a number of international judicial
and semi-judicial tribunals as well.11 It is thus indicative of the sources of international
space law.
However, we should be aware that Article 38 has been challenged as an incomplete list
of the sources of international law.12 Apart from very minor changes, Article 38 of the
ICJ Statute is a verbatim repetition of Article 38 of the Statute of the Permanent Court
of International Justice,13 the predecessor of the ICJ, adopted in 1920. Since then, and
particularly after the coming into force of the Charter of the United Nations (UN) in
9 ICJ Statute, supra note 7, Art. 1.

10 Lachs noted that the ICJ and its predecessor viewed “teachings” “as what they really were intended
to be: subsidiary means - to be resorted to only when the main sources were not adequate, or were
lacking in clarity”: “Teachings and teaching of international law”, (1976) 151(III) Recueil des cours
161 at 218. See also Wood, “Teachings of the Most Highly Qualified Publicists (Art. 38 (1) ICJ Statu-
te)” (2017) Max Planck Encyclopedia of Public International Law [MPEPIL] (online).
11 See e.g. Prosecutor v. Zejnil Delalic, Zdravko Mucic also known as ‘Pavo’, Hazim Delic, Esad Landzo
also known as ‘Zenga’, Judgment, IT-96-21-T, ICTY Trial Chamber, para 414; and Rules of Pro-
cedure and Evidence of the Special Court for Sierra Leone, initially adopted 16 January 2002 (as
amended), Rule 72bis. See also Survey of International Law in Relation to the Work of Codification
of the International Law Commission, supra note 8.
12 As Wolfrum notes, the “ICJ Statute does not provide for a complete list of sources of international
law the ICJ may use, and in effect has used, in its jurisprudence”: Rüdiger Wolfrum, “Sources of
International Law”(2010) MPEPIL (online), para 10. In the words of Jean D’Aspremont “one should
not be lured by the image conveyed by Art. 38 of the Statute of the ICJ—which has, wrongly, been
elevated into the gospel of the law of sources”: “Towards a New Theory of Sources in International
Law” in Orford/ Hoffmann, (eds.) The Oxford Handbook of the Theory of International Law (Ox-
ford: Oxford University Press, 2016) 545 at 560.
13 Statute of the Permanent of Court of International Justice, 16 December 1920, 6 LNTS 379, 390, 114
BFSP 860, 17 AJIL Supp 115 (1923) (entered into force 20 August 1921).
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1945,14 the structure, nature and composition of the international community have
changed dramatically and, as a consequence, there has been increasingly globalised
and interconnected of political, economic, social, and cultural relations. The start of
the space age, as well as the ever-expanding range of space exploration and utilisa-
tion activities,15 has also significantly influenced such trends towards an increasingly
global and interconnected community.
This development has resulted in: (a) a further transformation of the law of interna-
tional cooperation into the law of the international community (some call it the Law
of Mankind, the Universal Law, or the Law of International Solidarity); (b) the unique
evolution of the role and importance of international organisations in addressing in-
ternational concerns, including outer space activities;16 (c) a rise of new international
players (new subjects and objects of international law);17 and (d) the emergence of
other new ‘non-traditional’ modes (including “soft-law”) for guiding and/or regulat-
ing all international relations, particularly those that relate to the governance of outer
space and outer space activities.18
In this article, we examine the traditional sources, as well as some other sources of
international law that are (or may be) applicable to outer space and outer space ac-
tivities (i.e. sources of international space law) in the following order: international
14 Charter of the United Nations, on 26 June 1945; 892 UNTS 119, applicable to 193 States Members
of the UN [UN Charter]
15 For an overview of the development of space technology and applications, and stakeholders in the
space domain and how these developments have changed and challenged the regulation of space
activities, see Jakhu/ Pelton, (eds.), Global Space Governance: An International Study (Berlin: Sprin-
ger, 2017).
16 “From the Congress of Vienna to Present-Day International Organizations” (2014) Vol LI: 3 UN
Chronicle, online: UN Chronicle, unchronicle.un.org/article/congress-vienna-present-day-interna-
tional-organizations.
17 See e.g. Walter, “Subjects of International Law” (2007) MPEPIL (online).
18 In the governance of outer space activities, prime examples of non-binding international instru-
ments include the Transparency and Confidence-Building Measures in Outer Space Activities
(UNGA Res 72/65, UN Doc A/72/65 (2017)), the Space Debris Mitigation Guidelines of the Com-
mittee on the Peaceful Uses of Outer Space (online: UNOOSA, www.unoosa.org/documents/pdf/
spacelaw/sd/COPUOS-GuidelinesE.pdf), the International Code of Conduct for Outer Space Ac-
tivities, (online: European External Action Service eeas.europa.eu/sites/eeas/files/space_code_con-
duct_draft_vers_31-march-2014_en.pdf) and the Guidelines for the Long-Term Sustainability of
Outer Space Activities (UN Doc A/AC.105/L.315 (2018)).
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conventions, international custom and general principles of law. We then discuss the
role of “judicial decisions and the teachings of the most highly qualified publicists”,
as well as more broadly the so-called “soft law” (i.e. sources that are not specifically
enumerated in Article 38 of the ICJ Statute), for the determination of rules of inter-
national space law.
With the rapid increase in space activities and actors at the international level, inter-
national space law is gaining importance and popularity.19 Consequently, there is a
fast proliferation of significant international space law literature and interesting intel-
lectual interaction among writers. However, this development also poses a serious
challenge for professionals, researchers, and students in this fascinating field in their
search for valid sources of international space law, and for appropriate scholarly writ-
ings that carry different solid arguments and perspectives. We hope this article will
serve not only as a tool to search for the proper rules of international space law, but
also as an important guide for those who seek to write or comment on issues involv-
ing the international legal regulation of the exploration and use of outer space in the
future. While ignorance of the law is no excuse, knowledge of incorrect law would be
misleading and embarrassing.
B. International Conventions
Article 38 of the ICJ Statute does not create any hierarchy or priority of the three
listed sources.20 Nevertheless, international conventions, also known as treaties and
agreements,21 are increasingly recognised as the principal and most prevalent source
19 As the UNOOSA noted,“[A] general understanding of what space law is and how it works can be
very helpful in developing new legal or semi-legal (policy, guideline, recommendatory) tools to help
fully realize the benefits that space activities and their applications can bring to society.“ UNOOSA,
Education Curriculum on Space Law (March 2014) at 5, online: UNOOSA, www.unoosa.org/pdf/
publications/st_space_064E.pdf.
20 Treves, “Customary International Law” (2006) MPEPIL (online), para 15: “The fact that the mention
of treaties precedes that of international custom has no implication as to the hierarchy between the
rules belonging to these categories. It only reflects the idea that, when a concrete case is submitted
to a court, treaties, as special rules applicable between the parties, are to be considered and applied
before customary rules, that are general.” See also Greenwood, “Sources of International Law: An
Introduction”, online: UN, legal.un.org/avl/pdf/ls/greenwood_outline.pdf.
21 As the International Law Commission (ILC) notes, “there is no exclusive or systematic use of no-
menclature” for the generic term denoting “an international agreement in writing concluded bet-
ween States”: see “Commentaries to the Draft Articles on the Law of Treaties” Yearbook of the Inter-
national Law Commission, Vol II (1966) at 187-188.
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of international law, as they are considered to have either codified or replaced interna-
tional custom in importance and utility, especially after the Second World War.22 The
foundation of international space law is essentially conventional in nature, as it has
been initiated and developed by international treaties primarily negotiated through
the UN system. Within the span of a little over a decade, the UN General Assembly
successfully negotiated five outer space treaties,23 which lay down the foundational
and significant principles and rules of currently applicable international space law.
In addition to these five treaties, the most important treaties that form part of inter-
national space law are the Charter of the United Nations, the 1963 Partial Test Ban
Treaty and the Constitution and Convention of the International Telecommunication
Union (ITU) (as well as the 2015 ITU Radio Regulations).24
22 In the words of Lachs, at the occasion of presenting the Outer Space Treaty to the General Assembly:
„Treaties have been, still are and will remain the most eﬀective instruments by which States acquire
rights and enter into obligations in their mutual relations… some of them constitute milestones in
the development of international relations.“ Manfred Lachs, The International Law of Outer Space:
An Experience in Contemporary Law-Making (Leiden: Martinus Nijhoff, 2010) at 129 [Lachs, The
International Law of Outer Space]. See also ILC, “Identification of customary international law” in
Report on the Work of the sixty-eighth session, UN Doc A/71/10 (2016) at 79 [ILC, “Identification
of customary international law”].
23 They are: the Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies, 27 January 1967, 610 UNTS 205, 18
UST 2410, TIAS No 6347, 6 ILM 386 (entered into force on 10 October 1967) (as of 1 January 2018,
there are 107 ratifications and 23 signatures) [Outer Space Treaty]; the Agreement on the Rescue
of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 22
April 1968, 672 UNTS 119, 19 UST 7570, TIAS No 6599, 7 ILM 151 (entered into force 3 December
1968) [Rescue and Return Agreement] (as of 1 January 2018, there are 96 ratifications, 23 signatures,
and 2 acceptance of rights and obligations); the Convention on International Liability for Damage
Caused by Space Objects, 29 March 1972, 961 UNTS 187, 24 UST 2389, 10 ILM 965 (1971) (entered
into force 1 September 1972) [Liability Convention] (as of 1 January 2018, there are 95 ratifications,
19 signatures, and 3 acceptances of rights and obligations); the Convention on Registration of Ob-
jects Launched into Outer Space, 6 June 1975, 28 UST 695, 1023 UNTS 15 (entered into force 15
September 1976) [Registration Convention] (as of 1 January 2018, there are 67 ratifications, 3 sig-
natures, and 3 acceptances of rights and obligations); and the Agreement governing the Activities of
States on the Moon and Other Celestial Bodies, 5 December 1979, 1363 UNTS 3 (entered into force
11 July 1984) [Moon Agreement] (as of 1 January 2018, there are 18 ratifications and 4 signatures).
24 Respectively, UN Charter, supra note 14; the Treaty Banning Nuclear Tests in the Atmosphere, in
Outer Space and Under Water (Partial Test Ban Treaty), 14 UST 1313, TIAS No 5433, 480 UNTS
43, 5 August 1963 (entered into force on 10 October 1963); and the Constitution and the Conven-
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I. International Conventions Applicable To Outer Space

Pursuant to Article III of the Outer Space Treaty,25 numerous other international trea-
ties are applicable to outer space and can be considered as part of international space
law. As has been mentioned elsewhere, “the applicability or non-applicability of an
international treaty to outer space ought to be determined on the basis of its objective,
scope and provisions, as well as the States Parties concerned”.26 Though it is evident
that not all international conventions would apply to outer space, outer space activi-
ties are “intimately related”27 to the activities on Earth and the conventional frame-
work that regulate such activities in the terrestrial context.28 Many international trea-
ties and legal principles that came into being before the space age with the launch of
Sputnik I in 1959 are also applicable to outer space.29 For instance, in addition to the
aforementioned UN Charter of 1945 and the 1963 Partial Test Ban Treaty, the 1936
Broadcasting Convention30 is considered to be applicable to outer space activities, the
latter particularly in relation to international broadcasting by satellites.
Moreover, for an international treaty to be considered as valid and to represent a

source of international space law, it must conform to principles on the law of treaties,
tion of the International Telecommunication Union, 1994 (as amended in 2014) and ITU Radio
Regulations, Edition of 2015 (as amended).
25 Article III of Outer Space Treaty, supra note 23, specifies that: “States Parties to the Treaty shall
carry on activities in the exploration and use of outer space, including the moon and other celestial
bodies, in accordance with international law, including the Charter of the United Nations, in the
interest of maintaining international peace and security and promoting international co-operation
and understanding.”
26 Jakhu/ Vasilogeorgi, “The Fundamental Principles of Space Law and the Relevance of International
Law,” in Hobe/ Freeland, (eds.), In Heaven as on Earth? The Interaction of Public International Law
on the Legal Regulation of Outer Space (Institute of Air and Space Law, Cologne University, Colog-
ne, Germany, 2013) 21 at 24.
27 See remarks of the US Representative to the First Committee of the General Assembly in “Contem-
porary Practice of the United States Relating to International Law” (1963) 57 AJIL 403 at 429.
28 As Lachs notes, The scope of application of some international instruments, both bi- and multila-
teral, has been extended to the new dimension. Other important instruments expressly cover outer
space. On the other hand, some instruments covering various domains of international relations
and concluded before the “space era” will require a more extensive interpretation. Lachs, The Inter-
national Law of Outer Space, supra note 22 at 14. See also Jakhu/ Steer/ Chen, “Conflicts in Space and
the Rule of Law” (2017) 66:4 ZLW 657, 663 et seq.
29 Lachs, The International Law of Outer Space, supra note 22 at 14.
30 International Convention Concerning the Use of Broadcasting in the Cause of Peace, 23 September
1936, 186 LNTS 301, 197 LNTS 394, 200 LNTS 557 (entered into force on 2 April 1938).
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much of which has been codified in the 1969 Vienna Convention on the Law of Trea-
ties (VCLT).31 In general, a treaty is not binding on States that have not ratified (or
acceded to) that instrument, or where the treaty has not come into force. For example,
the 1969 VCLT is not applicable to the US, which has only signed but not yet rati-
fied this instrument.32 Similarly, the 1996 Comprehensive Nuclear Test Ban Treaty,33
adopted to fill the lacunae that arose out of the 1963 Partial Test Ban Treaty, is not
binding on the 166 States that have ratified this treaty to date,34 since the treaty itself
has not yet come in force. However, according to Article 18 of the VCLT, a State that
“has signed the treaty or has exchanged instruments constituting the treaty subject to
31 Vienna Convention on the Law of Treaties, 23 May 1969, UN Doc A/Conf.39/27, 1155 UNTS 331,
8 ILM 679 (1969), 63 AJIL 875 (1969) (entered into force 27 January 1980) [VCLT]. The ICJ has on
various occasions referred to provisions of the VCLT as codifying existing customary law: Fishe-
ries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, [1973] ICJ Rep
3, para 36; Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion
[1971] ICJ Rep 16 [Nambia], para 94; Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Reports 38, para 94 [Legality of the
Wall]; and Kasikili/Sedudu Island (Botswana/Namibia), [1999] ICJ Rep 1045, para 18. See also Jak-
hu/ Freeland, “The Relationship between the United Nations Space Treaties and the Vienna Con-
vention on the Law of Treaties” (2012) 55 Proceedings of the Colloquium on the Law of Outer Space
375. The VCLT applies only to those treaties that are among States. The treaties between States and
International Organizations will be governed by the 1986 Vienna Convention on the Law of Treaties
between States and International Organizations or between International Organizations, when and
if it comes into force.
32 However, the US Department of State considers many provisions of the VCLT “constitute customary
international law on the law of treaties” and thus apply regardless, online: Department of State www.
state.gov/s/l/treaty/faqs/70139.htm.
33 Comprehensive Nuclear Test-Ban Treaty, 10 September 1996, 35 ILM 1439 (1996) [not yet in force].
Article 1 of the Treaty specifies that each “State Party undertakes not to carry out any nuclear we-
apon test explosion or any other nuclear explosion, and to prohibit and prevent any such nuclear
explosion at any place under its jurisdiction or control”.
34 “Status of Signature and Ratification”, online: Preparatory Commission for the Comprehensive Nuc-
lear Test Ban Treaty Organization, www.ctbto.org/the-treaty/status-of-signature-and-ratification
(as of 1 April 2018). According to Article XIV of the Treaty, it will enter into force when all the 44
States listed in Annex 2 of the Treaty have ratified it. Eight out of the required 44 States have not
ratified the Treaty: China, Egypt, Iran, Israel and the United States have signed but not ratified the
Treaty; while India, North Korea and Pakistan have not signed it.
[614] ZLW 67. Jg. 4/2018

ratification, acceptance or approval” must “refrain from acts which would defeat the
object and purpose” of the said treaty.35
Despite the rapid expansion of space activities and space actors, certain activities and
States may not be governed by the five UN space treaties. In terms of activities, the
space treaties do not specifically mention space activities and applications such as
remote sensing, the use of global navigational satellite systems, the growing interest in
space tourism, or any other use of space or the future that we cannot yet imagine. Yet,
this does not mean these present and future uses of space take place in a legal vacuum.
In terms of the applicability of the space treaties, the 1967 Outer Space Treaty, for
instance, is only applicable to the 107 States that have ratified it, and the other 23
signatory States are only bound in so far as not to act in ways that would defeat the
object and purpose of the treaty. Similarly, the application of the 1972 Liability Con-
vention is limited in that along with 19 signatory States, only 95 States have ratified
it; the other States that have neither signed nor ratified the Liability Convention have
no rights or obligations in relation to the provisions of this space convention. Given
the nature of space activities may have an impact and implications for all States and
humanity at large, it is unsatisfactory that a State not party to the Liability Conven-
tion would be able to shirk its international obligations for consequences or damage
to others as a result of its space activities.36 This potential international regulatory
lacunae may be filled to a large extent by resorting to rules of customary or general in-
ternational law (addressed under Section III, below), as many provisions of the Outer
Space Treaty and Liability Convention are simply a codification or further clarifica-
tion of existing customary or general international law as applied in the outer space
context. Therefore, when addressing the issue of responsibility and liability regime for
damage caused by any present or future type of space activity, a proper analysis would
require a careful consideration of the rules of international law beyond the Outer
Space Treaty and the Liability Convention.
II. Interpretation Of International Conventions

Often, several treaties apply to a particular subject matter and to the parties to an in-
ternational dispute. It is the interaction and interpretation of the application of those
treaties that determines the accurate rules of international law that would govern that
dispute. Similarly, it is the precise terminology and phrasing of the text of a treaty,
35 VCLT, supra note 31, Art. 18.

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properly interpreted and understood pursuant to established international rules of

treaty interpretation37 and in light of specific contexts and circumstances38 which gi-
ves accurate meaning and scope to how a treaty is to be applied among the parties.
For instance, the Outer Space Treaty is occasionally pronounced by some authors to
be the constitution (i.e. supreme law) of outer space. In fact, the Outer Space Trea-
ty is not the constitution, for it does not create any institutional mechanism for the
implementation, compliance monitoring and enforcement of its provisions. Instead,
the Outer Space Treaty is the principal (framework) treaty laying down fundamental
principles39 pertaining to the governance of outer space that may be developed upon,
clarified or varied in subsequent treaties or relevant international instruments.40
37 For more on treaty interpretation, see VCLT, supra note 31, arts 31-32. See also Text of the draft
conclusions on subsequent agreements and subsequent practice in relation to the interpretation of
treaties adopted by the Commission in ILC, “Subsequent agreements and subsequent practice in
relation to the interpretation of treaties”, in Report on the Work of the sixty-eighth session, UN Doc
A/71/10 (2016), particularly Conclusion 2.
38 In the Namibia Advisory Opinion, the ICJ noted: “Mindful as it is of the primary necessity of inter-
preting an instrument in accordance with the intentions of the parties at the time of its conclusion
[… ] an international instrument has to be interpreted and applied within the framework of the
entire legal system prevailing at the time of the interpretation.” Nambia, supra note 31, para 53. In
the space context, Lachs noted: To take a broader view, the rights and obligations of States should be
considered in the context of general international law and that of the principles and rules embodied
in the law of outer space. Lachs, The International Law of Outer Space, supra note 22 at 107.
39 See Lachs, The International Law of Outer Space, supra note 22 at 107:
“The exploration and use of outer space and celestial bodies are to be: (a) “for the beneﬁt and in the
interest of all countries … and shall be the province of all mankind”, and “in the interest of maintain-
ing international peace and security and promoting international co-operation and understanding”.
Outer space and celestial bodies: are “not subject to national appropriation”, and “shall be free for
exploration and use by all States” on a basis of non-discrimination and equality.” See also Jakhu, “Le-
gal Issues Relating to the Global Public Interest in Outer Space” (2006) 32 Journal of Space Law 31
at 41 et seq; Vereshchetin, “Prevention of the Arms Race in Outer Space: International Law Aspect”
(1986) United Nations Institute for Disarmament Research at 10.
40 As Lachs noted: “It had been realized that the task was not one which could feasibly be accomplished
by the adoption of a single instrument, but one which rather lent itself to a continuous process of
adopting and gradually elaborating principles and rules of law.”
Lachs, The International Law of Outer Space, supra note 22 at 126.
[616] ZLW 67. Jg. 4/2018

Like any international agreement, the Outer Space Treaty is subject to the provisions
of Article 103 of the UN Charter,41 as well as several rules of international law, for ex-
ample jus cogens (discussed below, Section III). Moreover, by virtue of Article 31(3)(a)
and (b) of the Vienna Convention on the Law of Treaties, the provisions of the Outer
Space Treaty may be interpreted differently, or their meaning might be changed by
subsequent agreements among, and the subsequent practice of, States Parties to the
Treaty.42 In this regard, for example, one may note the practice of States Parties to the
Outer Space Treaty that consider “peaceful uses” of outer space to include military
but non-aggressive uses even though, in general terms, peaceful uses are considered
to refer only to non-military uses.43
Furthermore, the four UN space law treaties (the 1968 Rescue and Return Agree-
ment, the 1972 Liability Convention, the 1975 Registration Convention and the 1979
Moon Agreement), adopted subsequent to the Outer Space Treaty, contain special
and specific provisions largely emanating from - but not always mirroring - the gen-
eral principles of the Outer Space Treaty. Therefore, in case of any inconsistency, the
provisions of these subsequent treaties will generally prevail over those of the Outer
Space Treaty for those States that are Parties to each of those treaties, due to the ap-
plicable legal principle/doctrine of lex specialis derogat legi generali, which is a com-
monly accepted technique of interpretation of international law.44
41 This provision specifies that, “[i]n the event of a conflict between the obligations of the Members of
the United Nations under the present Charter and their obligations under any other international
agreement, their obligations under the present Charter shall prevail.” UN Charter, supra note 14,
Art. 103.
42 For a detailed discussion, see ILC, “Subsequent agreements and subsequent practice in relation to
the interpretation of treaties”, supra note 37.
43 See generally the discussion on the development of “peaceful purposes” particularly the position
of the USSR and US, in Vlasic, “Chapter 3: Legal Aspects of Peaceful and Non-Peaceful Uses of
Outer Space” in Bhupendra/ Jasani & UN Institute for Disarmament Research, (eds.), Peaceful and
Non-Peaceful Uses of Space: Problems of Definition for The Prevention of An Arms Race (New
York: Taylor & Francis, 1991) at 38-40. See also Lachs, “The International Law of Outer Space”
(1964), supra note 1 at 39; Vereschetin, “Perspectives of the Uses of Outer Space for Applied Purpo-
ses and State Sovereignty” (1977) 19 Colloquium on the Law of Outer Space 103; and Christol, “The
Common Interest in the Exploration, Use and Exploitation of Outer Space for Peaceful Purposes:
The Soviet-American Dilemma” (1984) 27 Colloquium on the Law of Outer Space 281.
44 See VCLT, supra note 31, Art. 31(3)(a). For a detailed discussion, see Simma/ Pulkowski, “Of Pla-
nets and the Universe: Self-contained Regimes in International Law” (2006) 17:3 EJIL 483. See also
Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties
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III. Specific Obligations Relating To International Conventions

A State must fulfil its obligations under the international space law treaties in good
faith45 and must not invoke the provisions of its internal law as justification for its fail-
ure to perform these obligations.46 Moreover, reciprocal wrongful conduct or mutual
non-compliance does not terminate a treaty.47 Any violation by a State Party of a valid
treaty is an internationally wrongful act that entails the international responsibility of
that State.48 The responsible State is under an obligation to, first and foremost, cease
that wrongful act (i.e. stop violating the (provision(s) of the) treaty) and offer “ap-
propriate assurances and guarantees of non-repetition”,49 and, secondly, to make full
reparation for the injury (including material or moral damage) caused by the interna-
tionally wrongful act.50
A State is moreover responsible for its conduct pursuant to both positive obligations
and prohibitions imposed by international law.51 Thus in the context of space activi-
ties, there are positive obligations on States to assure that all national space activities
are carried out in accordance with the Outer Space Treaty and to authorise and con-
tinually supervise such activities.52 Each Launching State is obliged to register every
arising from the Diversification and Expansion of International Law, UN Doc A/CN.4/L.682 (2006),
para 5.
45 VCLT, supra note 31, Art. 26. See also Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation Among States, GA Res 2625 (XXV), UN GAOR, 25th Sess,
Supp No 22, UN Doc A/2212 (1970) [Friendly Relations Declaration]. See also Gabčíkovo-Nagyma-
ros Project (Hungary-Slovakia) (Judgment) [1997] ICJ Rep 7, paras 114, 142.
46 VCLT, supra 31, Art. 27a.
47 Gabčíkovo-Nagymaros Project, supra note 45, para 114.
48 ILC, Articles on Responsibility of States for Internationally Wrongful Acts, Supplement No 10, UN
Doc A/56/10 (2001), Art. 1 [Articles on State Responsibility].
49 Ibid., Art. 30. See also associated commentary to the Articles on State Responsibility, ILC, “Respon-
sibility of States for Internationally Wrongful Acts” in Report of the International Law Commission
on the work of its fifty-third session, UN Doc A/56/10 (2001).
50 Ibid., Art. 31, and associated commentary.
51 Ibid., Art. 2.
52 Outer Space Treaty, supra note 23, Art. VI. The obligation to “assure” compliance under Article VI
encompasses the expected conduct of due diligence on the part of all States under general interna-
tional law. In the Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), the ICJ
held a State’s obligation to assure compliance with applicable international agreements: “entails not
only the adoption of appropriate rules and measures, but also a certain level of vigilance in their
enforcement and the exercise of administrative control applicable to public and private operators,
such as the monitoring of activities undertaken by such operators, to safeguard the rights of the
[618] ZLW 67. Jg. 4/2018

launched space object on a national register and also provide particulars relating to
each space object carried on its registry to the UN Secretary-General.53 There is also
an (oft-forgotten) obligation on States, which nonetheless is of utmost importance
to maintain the transparency of activities in outer space, “to inform the Secretary-
General of the United Nations as well as the public and the international scientific
community … of the nature, conduct, locations and results” of their space activities.54
Even if no damage or injury results from the non-observation of the aforementioned
obligations, strictly speaking non-observing States would still entail international re-
sponsibility.
Among other prohibitions, the Outer Space Treaty makes it unequivocally clear that,
the “exploration and use of outer space… shall be carried out for the benefit and in
the interests of all countries”.55 Further, States are prohibited to place in orbit, install
or station “objects carrying nuclear weapons or any other kinds of weapons of mass
destruction” in orbit, on celestial bodies or in outer space.56 The failure of a State to
carry out its obligations does not automatically entitle an injured State (or injured
States) to “methods of self-protection or self-help”.57 The injured State must seek re-
dress through diplomatic channels or any peaceful means of their choice, or pursue
action through the appropriate international dispute settlement mechanism.58
other party. …This requirement has the advantage of ensuring that the rules and measures adopted
by the parties both have to conform to applicable international agreements and to take account of
internationally agreed technical standards.” [2010] ICJ Rep 14, para 197 [Pulp Mills]. Similar obli-
gation is imposed by Article 139 (1) of the 1982 United Nations Convention on the Law of the Sea
(1833 UNTS 3, UKTS 81 (1999), UN Doc A/Conf.62/122 [UNCLOS], and by Article 45 (2) of the
ITU Constitution, supra note 24.
53 Registration Convention, supra note 23, Arts II, IV.
54 Outer Space Treaty, supra note 23, Art. XI.
55 Ibid., Art. I.
56 Ibid., Art. IV.
57 Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania) [1949]
ICJ Rep 4 at 35. An injured State may take countermeasures “in order to induce [the internationally
responsible State] to comply with its obligations”, but these countermeasures are subject to strict
conditions: see Articles on State Responsibility, supra note 48, Arts 49-54.
58 UN Charter, supra note 14, Art. 2(3) and Art. 33(1), the latter of which reads: States shall accor-
dingly seek early and just settlement of their international disputes by negotiation, inquiry, medi-
ation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or
other peaceful means of their choice. See also Friendly Relations Declaration, supra note 45; and
Aerial Incident of 10 August 1999 (Pakistan v. India), [2000] ICJ 12, para 53.
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No significant space-specific treaty has been adopted since the conclusion of the 1979
Moon Agreement, except for the revisions to the ITU Constitution and Convention,
as well as the Radio Regulations, and the adoption of the 2012 Space Assets Protocol.59
Currently no specific treaty for governing outer space is being considered. Instead,
there is a noticeable trend towards the adoption of “soft-law” international instru-
ments, which are discussed below.
C. International Custom60
As already mentioned, Article III of the Outer Space Treaty reminds States that activi-
ties in the exploration and use of outer space must be carried out “in accordance with
international law”.61 It has long been accepted that customary international law repre-
sents one of the sources of space law.62 Describing the early emergence of customary
international law in the context of outer space, shortly after the finalisation of the text
of the Outer Space Treaty, Judge Manfred Lachs observed that:
[t]he first instruments that men sent into outer space traversed the air space of
States and circled above them in outer space, yet the launching States sought
no permission, nor did the other States protest. This is how the freedom of
59 Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to

Space Assets, 9 March 2012 (not yet in force), online: UNIDROIT www.unidroit.org/instruments/
security-interests/space-protocol. However, it appears that the widespread acceptance of this Proto-
col is unlikely to eventuate, at least in the near future.
60 As the ILC noted, there are many terms that are found in legal texts and scholarly writings to refer
to what is commonly referred to as customary international law, including “international customary
law”, the “law of nations” and “general international law”: ILC, “Identification of customary interna-
tional law”, supra note 22 at 81.
61 Outer Space Treaty, supra note 23, Art. III.
62 In 1959, Oscar Schachter wrote that legal principles and precedents which form customary inter-
national law are applicable to space activities: “Who owns the Universe”, 8-17 in Space Law: a Sym-
posium prepared at the request of Lyndon B. Johnson, Chairman, Special Committee on Space and
Astronautics, United States Senate, Eighty-fifth Congress, Second Session (Washington: US Gover-
nment Printing Office, 1959) at 14. See also Vereshchetin/ Danilenko, “Custom as a Source of Inter-
national Law of Outer Space” (1985) 13:1 Journal of Space Law 22. The ILC noted that “customary
international law remained highly relevant despite the proliferation of treaties and the codification
of several areas of international law”: ILC, Report of the International Law Commission on the work
of its sixty-fifth session, UN Doc A/68/10 (2013), para 73.
[620] ZLW 67. Jg. 4/2018

movement into outer space, and in it, came to be established and recognised as
law within a remarkably short period of time.63
In fact, Bin Cheng has argued that the Declaration of Legal Principles General Assem-
bly resolution,64 which preceded the Outer Space Treaty, could have formed custom-
ary international law instantaneously.65 Moreover, many of the principles contained
in (particularly) the Outer Space Treaty also reflect customary international law and
thus bind State parties and non-Parties to the treaty alike. Indeed, Lachs reflected that
custom is “binding not only those parties to the instruments in which the principle is
contained, but on all States. Its validity extends erga omnes”.66
That said, in more recent academic debates, there has emerged a growing body of
contemporary literature that questions the traditional understanding of what consti-
tutes a rule of customary international law.67 The continued relevance of custom as
63 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark and Federal Republic
of Germany v. The Netherlands), Dissenting Opinion of Judge Lachs [1969] ICJ Rep 3 at 230. In the
space context, Lachs argued “the rhythm of changes is immeasurably more rapid” and that “[the]
stage of consensus omnium may thus be reached far sooner than in the past”. Thus, “long before
any written instrument had been agreed”, the source of such fundamental principles governing, for
instance the right of overflight, could be readily found in “general practice accepted as law”. See also
Lachs, The International Law of Outer Space, supra note 22 at 125-126.
64 Declaration of Legal Principles Concerning the Activities of States in the Exploration and Use of
Outer Space, GA Res 1962 (XVIII), UNGAOR, 18th Sess, UN Doc A/RES/18/1962 (1963) [Decla-
ration of Legal Principles].
65 See Cheng, “United Nations Resolutions on Outer Space: “Instant” International Customary Law?”
(1965) 5 Indian J Int’l L 23. More recently, Cheng noted: “There is no reason why a new opinio
juris may not grow overnight between States so that a new rule of international customary law (or
unwritten international law) comes into existence instantly. This shows that international law is a
living law, and explains how changes take place.” Cheng, Studies in International Space Law (Oxford:
Oxford University Press, 1997) at 147. See also Lachs, The International Law of Outer Space, supra
note 22 at 125-126. More recently, Michael Scharf recognised the rather quick formation custom-
ary international law due to rapidly changing realities with the advent of the space age: Scharf,
Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments
(Cambridge: Cambridge University Press, 2013).
67 See, for example, Scobbie, “The approach to customary international law in the Study”, in Wilms-
hurst/ Breau, (eds.), Perspectives on the ICRC Study on Customary International Humanitarian
Law (2007), 15; Ochoa, “The Individual and Customary International Law Formation’ (2007) 48
Virginia Journal of International Law 119; Roberts, “Traditional and Modern Approaches to Custo-
ZLW 67. Jg. 4/2018 [621]

Abhandlung
a primary source of international law prompted the International Law Commission

(ILC) to undertake a study to identify various criteria for the formation and evidence
of customary international law, which at the time of writing is still ongoing.68 Whilst
it is beyond the scope of this article to discuss this in greater detail, conjecture as to
the scope and contextual elements of (contemporary) customary law mean that broad
and generalised assumptions about the role of custom in the regulation of outer space
should be more carefully considered than has traditionally been the case. This stands
somewhat in contrast to the increasing relevance of “soft law” to issues relating to the
exploration and use of outer space (discussed below).
Generally, a valid rule of customary international law must consist of two elements:
(a) consistent State practice, typically of a not insignificant period (the so-called ob-
jective test); and (b) practice that must be accepted as law by States, often known as
opinio juris sive necessitatis (the so-called subjective test).69 Though many authors of
international law make wide-ranging assertions about the existence of some rules of
customary international law, it is in fact extremely difficult and highly complex to
provide sufficient and valid evidence to meet both the objective and subjective tests.70
mary International Law: A Reconciliation” (2001) 95 AJIL 757. The Special Rapporteur for the ILC
study on the formation and evidence of customary international law identified a comprehensive list
of literature on customary international law and various bodies of international law, including law
governing outer space: see ILC, Fourth report on identification of customary International law, UN
Doc A/CN.4/695/Add.1 (2016) at 27.
68 In the latest report of the ILC on this subject matter, the ILC noted: “This matter is not only of con-
cern to specialists in public international law; others, including those involved with national courts,
are increasingly called upon to apply or advise on customary international law. Whenever doing so,
a structured and careful process of legal analysis and evaluation is required to ensure that a rule of
customary international law is properly identified, thus promoting the credibility of the particular
determination. Customary international law remains an important source of public international
law. … such unwritten law, deriving from practice accepted as law, can be an effective means for
subjects of international law to regulate their behaviour and it is indeed often invoked by States
and others.” ILC, “Identification of customary international law”, supra note 22 at 79-80 (original
paragraphing omitted).
69 See generally, Lotus, supra note 4 at 18; North Sea Continental Shelf, supra note 63, paras 74 – 77;
and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), [1986] ICJ Rep 14, para 207 [Nicaragua]. See also ILC, “Identification of customary in-
ternational law”, supra note 22, Conclusions 2 and 3.
70 In the words of the ILC, “regard must be had to the overall context, the nature of the rule, and the
particular circumstances in which the evidence in question is to be found”: ILC, “Identification of
customary international law”, supra note 22, Conclusion 3(1).
[622] ZLW 67. Jg. 4/2018

I. State Practice
In the interim, the ILC has concluded that State practice71 “consists of conduct of the
State, whether in the exercise of its executive, legislative, judicial or other functions”.72
Such acts may be “physical and verbal acts”, and may, “under certain circumstances,
include inaction”.73 Such forms of State practice “include but are not limited to”:
Diplomatic acts and correspondence; conduct in connection with resolutions

adopted by an international organization or at an intergovernmental confer-
ence; conduct in connection with treaties; executive conduct, including opera-
tional conduct “on the ground”; legislative and administrative acts; and deci-
sions of national courts.74
Of relevance to the outer space context, where technology and applications are
rapidly evolving and cannot be predicted, the ILC noted that the above list is
non-exhaustive, for “given the inevitability and pace of change, both political
and technological, it would be impractical to draw up a list of all the numerous
forms that practice might take”.75
In assessing State practice, account must be “taken of all available practice of a par-
ticular State, which is to be assessed as a whole”;76 if the practice of a State is not con-
sistence, “the weight given to that practice may be reduced”.77 The relevant practice
71 Note that the ILC concluded also that under certain circumstances, “the practice of international
organizations also contributes to the formation, or expression, of rules of customary international
law”: ILC, “Identification of customary international law”, supra note 22, Conclusion 4(2).
72 Ibid., Conclusion 5.
73 Ibid., Conclusion 6(1).
74 Ibid., Conclusion 6(2). This list compares with that compiled by Brownlie: “diplomatic correspon-
dence, policy statements, press releases, the opinions of official legal advisers, official manuals on
legal questions, e.g. manuals of military law, executive decisions and practices, orders to naval forces
etc., comments by governments on drafts produced by the International Law Commission, state
legislation, international and national judicial decisions, recitals in treaties in the same form, the
practice of international organs, and resolutions relating to legal questions in the United Nations
General Assembly.” Brownlie, Principles of Public International Law, 7th ed (Oxford: Oxford Uni-
versity Press, 2008) at 6.
75 ILC, “Identification of customary international law”, supra note 22 at 91-92.
77 Ibid., Conclusion 7(2). However, the ICJ noted in Fisheries: too much importance need not be at-
tached to the few uncertainties or contradictions, real or apparent … in Norwegian practice. They
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Abhandlung
in question “must be general, meaning that it must be sufficiently widespread and

representative, as well as consistent”.78 This implies that the practice of a single State
(or a very small group of States), irrespective of how influential or advanced it may
be, will not be of any significant value in creating customary international law (except
regional custom) unless and until this practice is shared by numerous States from
various geographical regions and legal systems of the world.
However, it is not necessary that the practice of States be uniformly consistent; in

fact, the ICJ held in Nicaragua that the corresponding practice need not be “in abso-
lutely rigorous conformity with the rule”, for “it is sufficient that the conduct of States
should, in general, be consistent with such rules”.79 And is it necessary to consider the
conduct of all States to determine what constitutes practice? The answer is in the neg-
ative, for under particular contexts and regimes of law, the practice of “States that are
particularly involved in the relevant activity or most likely to be concerned with the
alleged rule have participated in the practice” are more relevant than other States.80
However, in the space context, the practice of major spacefaring States alone would
not matter more than those of States that do not (yet) possess spacefaring capabili-
ties. This is so because the 1967 Outer Space Treaty, under Articles I and II, (1) lays
down some predominant and binding principles that create erga omnes obligations,
(2) specify that the exploration and use of outer space “shall be carried out for the
benefit and in the interests of all countries, irrespective of their degree of economic or
scientific development”, and (3) prohibits national appropriation of outer space and
celestial bodies. Moreover such exploration and use by one State may impinge upon
the corresponding rights and interests of other State(s), be they spacefaring or non-
may be easily understood in the light of the variety of facts and conditions prevailing in the long
period. Fisheries (United Kingdom v. Norway), [1951] ICJ Rep 116 at 138.
78 ILC, “Identification of customary international law”, supra note 22, Conclusion 8(1).
79 Nicaragua, supra note 69, para 186. Any subsequent conduct that is inconsistent with the general
practice should not be considered the recognition or creation of a new rule. In fact, if a State acts
in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to
exceptions or justifications contained within the rule itself, then whether or not the State’s conduct
is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken
the rule. Ibid., para 186. Cf the opinion in its earlier North Sea Continental Shelf judgment, supra
note 63, when the ICJ held that the practice must be “extensive and virtually uniform” (para 74) and
amount to “settled practice” (para 77).
80 ILC, “Identification of customary international law”, supra note 22 at 95.
[624] ZLW 67. Jg. 4/2018

spacefaring nations. In echoing the formation of instant custom alluded to earlier,81

so long as the practice of States “whose interests are specially affected, […] have been
both extensive and virtually uniform”, it is of little relevance however short that period
of practice might be.82
II. Opinio Juris

The subjective or “psychological” test83 in the identification of customary internation-
al law requires “that the practice in question must be undertaken with a sense of legal
right or obligation”.84 This must be distinguished from practice as a result of “mere
usage or habit”.85 As the ICJ opined:
Not only must the acts concerned amount to a settled practice, but they must
also be such, or be carried out in such a way, as to be evidence of a belief that
this practice is rendered obligatory by the existence of a rule of law requiring it.
The need for such a belief, i.e., the existence of a subjective element, is implicit
in the very notion of the opinio juris sive necessitatis. The States concerned
must … feel that they are conforming to what amounts to a legal obligation …
There are many international acts, e.g., in the field of ceremonial and proto-
col, which are performed almost invariably, but which are motivated only by
considerations of courtesy, convenience or tradition, and not by any sense of
legal duty. 86
As the ILC clarified, “broad acceptance together with no or little objection” is suf-
ficient to establish that there is indeed acceptance of a practice as law.87 A matter
that the ICJ could not determinatively decide on was whether the non-recourse to
nuclear weapons over the past five decades was in fact due to the belief held by States
that there is a legal obligation compelling them not to use nuclear weapons.88 In the
81 See Cheng, supra note 65.

82 North Sea Continental Shelf, supra note 63, para 74.
85 Ibid., Conclusion 9(2). “The frequency, or even habitual character of the acts is not in itself enough”:
North Sea Continental Shelf, supra note 63, para 77.
88 Legality of Nuclear Weapons, supra note 6, para 67. As the ILC noted: “where prohibitive rules are
concerned (such as the prohibition of torture) it may sometimes be difficult to find positive State
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Abhandlung
context of outer space, one can easily fathom that the international community would
be similarly “profoundly divided” on whether the non-recourse to space weapons (ki-
netic, electromagnetic or otherwise) over the past five decades actually constitutes the
expression of opinio juris on a subject matter that has fundamental implications on
the peace and security in the space domain.89
What constitutes evidence of acceptance as law is varied and “may take a wide range
of forms”.90 What may be evidence of acceptance as law include:
Public statements made on behalf of States; official publications; government

legal opinions; diplomatic correspondence; decisions of national courts; treaty
provisions; and conduct in connection with resolutions adopted by an interna-
tional organization or at an intergovernmental conference.91
Indeed, some acts and statements in the non-exhaustive list immediately above over-
laps with the non-exhaustive list of forms of accepted State practice cited earlier, re-
flecting the fact that the two constitutive elements of custom can be found in the same
source.92 However, each of the two constituent elements of custom must be “separately
ascertained”, and there is a need to assess the evidence for both State practice and
practice (as opposed to inaction); cases involving such rules will most likely turn on evaluating
whether the practice (being deliberate inaction) is accepted as law.” ILC, “Identification of custom-
ary international law”, supra note 22 at 86.
89 It is such ambiguity in the law that prompted a group of recognised experts in law and stakeholders
in the space domain to begin the project to draft the McGill Manual on International Law Applica-
ble to Military Uses of Outer Space (MILAMOS). Begun in May 2016, an international consortium
of academics, government officials, representatives of armed forces, and experts across disciplines
and national boundaries are drafting a widely known and accepted resource that neutrally and au-
thoritatively clarifies existing international law applicable to military activities of outer space. With
their combined expertise in the disciplines of international space law, the law on the use of force,
international humanitarian law, as well as with input from seasoned scientists and technical experts,
the MILAMOS Group of Experts will be identifying and clarifying the fundamental rules applicable
to military uses of outer space by both States and non-State actors in times of peace, including peri-
ods of rising tensions. For more information, see www.mcgill.ca/milamos.
90 ILC, “Identification of customary international law”, supra note 22, Conclusion 10(1).
92 Ibid. at 99.
[626] ZLW 67. Jg. 4/2018

whether that practice is accepted as law (opinio juris).93 Staying with the issue of space
security, in April 2018, in an address before the United Nations Disarmament Com-
mission, the Philippine Ambassador stated:
Philippine policy is that taking the arms race into outer space undoes all efforts
to stop their spread and the threat of their use on the ground. The Philippines
voted in favor of resolutions on “Prevention of an arms race in outer space”
and “No first placement of weapons in outer space”.94
Such a clear statement in a multilateral setting could constitute what the ILC calls
“an express public statement on behalf of a State that a given practice is permitted,
prohibited or mandated under customary international law provides the clearest in-
dication that it has avoided or undertaken such practice … out of a sense of legal right
or obligation”.95
In relation to opinio juris, the failure of other States to respond “within a reasonable
time” to the belief that a practice is legal may be construed as acceptance of the law.
As the ILC preliminarily concluded:
Failure to react over time to a practice may serve as evidence of acceptance

as law (opinio juris), provided that States were in a position to react and the
circumstances called for some reaction.96
Thus, in Fisheries, given the lack of protest by States to an established system of de-
limitation over time, the Court held that the other concerned States did not consider
this to be contrary to international law.97
The opposite principle is that of the “persistent objector” rule, which holds that a
customary rule that was objected to while it was in the process of formation is “not
93 Ibid., Conclusion 3. See the discussion by the ICJ in Jurisdictional Immunities of the State (Germany
v. Italy: Greece intervening), [2012] ICJ Rep 99, para 55.
94 Locsin Jr., “Never at the expense of freedom and sovereignty”, Business Mirror (17 April 2018),
online: Business Mirror businessmirror.com.ph/never-at-the-expense-of-freedom-and-sovereign-
ty/#_ftnref1.
97 Fisheries, supra note 77, at 139.
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Abhandlung
opposable to the [objecting] State for so long as it maintains its objection”.98 The
persistent objector rule applies only in relation to “an emerging rule of customary
international law”,99 and must be distinguished from the context of objection by “a
substantial number of States”, which would prevent the formation of a new rule alto-
gether.100 The “timeliness of the objection is critical”, notes the ILC, for it must have
been consistently lodged prior to the crystallisation of the rule into custom; only then
would the rule be “not opposable” to the objecting State, meaning the rule would ap-
ply to all States to the exclusion of the objecting State.101 The objection must be clearly
“communicated internationally”.102 Further, for the emerging customary rule to be
inapplicable, the objection must be:
Reiterated when the circumstances are such that a restatement is called for
(that is, in circumstances where silence or inaction may reasonably lead to the
conclusion that the State has given up its objection).103
Of further probative value to the formation of customary rules is the objection or

acceptance of States whose interests that are affected by the legality of the issue at
hand.104 The State concerned:
Must have had knowledge of the practice (which includes circumstances

where, because of the publicity given to the practice, it must be assumed that
the State had such knowledge), and that it must have had sufficient time and
ability to act.105
The matter of knowledge of a practice and having the ability to react to the practice
that may have implications on the interests of the State concerned may be a con-
tentious matter in the space domain, particularly if space activities continue to be
shrouded in secrecy and States do not fulfil their obligations to be transparent vis-à-
98 ILC, “Identification of customary international law”, supra note 22, Conclusion 15(1). See also
North Sea Continental Shelf, supra note 63, para 63.
99 ILC, “Identification of customary international law”, supra note 22 at 112 [emphasis in original].
100 Ibid.
101 Ibid., 113.
102 Ibid., 114.
103 Ibid.
104 Ibid. at 100.
105 Ibid., 101.
[628] ZLW 67. Jg. 4/2018

vis the international community about the “nature, conduct, locations and results” of
their space activities”.106 Thus the specificities of the space regime require that silence
must not be considered acceptance.
A general principle of law called actori incumbit probatio (a party making an assertion
must prove that assertion) seems to generally also apply in international law.107 Who-
soever claims the existence of a State practice and/or a rule of customary international
law is under an obligation to prove its existence. Indeed, a persistent objector is also
required to shoulder the onus of proving the objection has been clearly made known
to other States.108 This burden of proof is substantial as, in practice, it is very diffi-
cult and complex and often beyond the capabilities of a large majority of individual
publicists. Hence the role of judicial decisions in deducing the existence of custom
becomes important (discussed below, Section V-A).
D. General Principles Of Law

Article 38(1)(c) of the ICJ Statute refers to “general principles of law recognized by
civilized nations”. As a preliminary point, the reference to “civilized nations” reflects
a by-gone era, when underdeveloped or “primitive” countries were somehow not re-
garded on the same plane as the more developed (Western European) ones.109 Things
have certainly moved forward from that viewpoint, as reflected by the jurisprudence
of the ICJ itself,110 and the scope of the provision is now regarded as covering such

107 Thus, according to the ILC, “Acceptance as law (opinio juris) is to be sought with respect to both the
States engaging in the relevant practice and those in a position to react to it”: ILC, “Identification of
customary international law”, supra note 22 at 98. See also Wolfrum/ Möldner, “International Courts
and Tribunals, Evidence”, (2013) MPEPIL (online); Brown, A Common Law of International Adju-
dication (Oxford: Oxford University Press, 2007) at 93.
109 See generally, Gong, The Standards of “Civilization” in International Society, (Clarendon Press: Ox-
ford, 1984) at 69; James Thuo Gathii, “International Law and Eurocentricity”, (1998) 9 European
Journal of International Law 184; Yasuaki, “When Was the Law of International Society Born - An
Inquiry of the History of International Law from an Intercivilizational Perspective”, (2000) 2 Journal
of the History of International Law 1; Koskenniemi, The Gentle Civilizer of Nations: the Rise and
Fall of International Law 1870-1960 (Cambridge University Press: Cambridge, 2002); Obregon, “The
Civilized and the Uncivilized” in Fassbender/ Peters (eds.), The Oxford Handbook of the History of
International Law (2012).
110 See, for example, the reinterpretation of the concept of terra nullius in the Western Sahara Case
(Advisory Opinion) [1975] ICJ Rep 75.
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Abhandlung
general principles of law derived from any State, although not necessarily from all of
them.
That said, there still remains some disagreement as to the precise focus of the provi-
sion, particularly in the sense that it is regarded as a source of international law.111
There has been some conjecture as to whether the provision refers to general provi-
sions of international law, or of national law, or both. The most accepted view is that
the provision contemplates that principles that are common to national legal systems
may be incorporated into the framework for resolving disputes in accordance with in-
ternational law.112 Thus, in stating that “rules” and “principles” are synonymous terms,
the ICJ held that “principles of law … includes rules of international law in whose case
the use of the term “principles” may be justified because of their more general and
111 In East Timor, Judge Weeramantry underlined: the corpus of law on which conduct according to law
is based consists not only of commands and prohibitions, but of norms, principles and standards of
conduct. East Timor (Portugal v. Australia), [1995] ICJ Rep 90, Dissenting Opinion of Judge Weera-
mantry at 210. In Pulp Mills, Judge Trindade underlined: “There are, in fact, general principles of
law proper to international law in general, and there are principles of law proper to some domains
of international law, such as, inter alia, International Environmental Law. In our days, international
tribunals are called upon to pronounce on cases, for the settlement of which they do need to have
recourse to general principles of law ... principles of law, including those which are proper to certain
domains of international law.” Pulp Mills, supra note 52, Separate Opinion of Judge Trindade, para
48. For a discussion on the various viewpoints as to the scope of Article 38(1)(c), see, for example,
Waldock, “General Course on Public International Law” (1962-11) 106 Recueil des Cours 54 et seq;
Dixon, Textbook on International Law (5th ed, 2005), 38 et seq. See also generally, Cheng, General
Principles of Law as Applied by International Courts and Tribunals (Cambridge: Cambridge Uni-
versity Press, 2006).
112 Thus, in Factory at Chorzów (Germany v Poland), the PCIJ held: “It is … a principle generally ac-
cepted in the jurisprudence of international arbitration, as well as by municipal courts, that one
Party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had
recourse to some means of redress, if the former Party has, by some illegal act, prevented the latter
from fulfilling the obligation in question, or from having recourse to the tribunal which would have
been open, to him.” [1927] Series A, No 9 at 31. However, in Namibia, the ICJ held unequivocally
in relation the plea of action popularis, that: “although a right of this kind may be known to certain
municipal systems of law, it is not known to international law as it stands at present: nor is the Court
able to regard it as imported by the ‘general principles of law’ referred to in Art. 38, paragraph 1 (c),
of its Statute.” Namibia, supra note 31, para 88. See also Application for Review of Judgment No 158
of the United Nations Administrative Tribunal [Advisory Opinion] [1972] ICJ Rep 166, para 36.
[630] ZLW 67. Jg. 4/2018

more fundamental character”.113 As such, principles may themselves ultimately come

to be recognised as autonomous customary (or conventional) sources of law,114 but
resort to Article 38(1)(c) involves their application to the dispute in a different way.
Two of the most significant of such principles115 are those of good faith (bona fides)116
113 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of Ame-
rica) [1984] ICJ Rep 246, para 79.
114 After Factory at Chorzów, the general principle that an injured party is entitled to compensation
(reparation) for a violation of a legal obligation became universally accepted as a customary inter-
national law principle. In Corfu Channel letter to everyone thanking them for participating letter
to BIT hosts need to settle the date and location of Feb 2019, the ICJ took the opportunity to affirm
that: “By reason of the exclusive territorial control of a State within its frontiers the other State, the
victim of a breach of international law, is often unable to furnish direct proof of facts giving rise
to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact and
circumstantial evidence.” This indirect evidence is admitted in all systems of law and its use is recog-
nized by international decisions. Corfu Channel, letter to everyone thanking them for participating
letter to BIT hosts need to settle the date and location of Feb 2019 supra note 57 at 18.
115 There are other general principles of law. The principle of ex iniuria ius non oritur or “clean hands”
was described by the PCIJ as being: “a principle generally accepted in the jurisprudence of interna-
tional arbitration, as well as by municipal courts, that one party cannot avail itself of the fact that
the other has not fulfilled some obligation, or has not had recourse to some means of redress, if the
former party has, by some illegal act, prevented the latter from fulfilling the obligation in question,
or from having recourse to the tribunal which would have been open to him.” Factory at Chorzów,
supra note 112 at 31; see also Gabčíkovo-Nagymaros Project, supra note 45, para 133. The principle
of res judicata (a matter has already been adjudicated and that a judgement only has binding force
between the parties and that must not be pursued further by the same parties.), which the ICJ is
“a well-established and generally recognized principle of law”: Effect of Awards of Compensation
Made by the United Nations Administrative Tribunal, (Advisory Opinion) [1954] ICJ Rep 47 at
53. In Case concerning the Land, Island and Maritime Frontier Dispute [El Salvador/Honduras]
Application of Nicaragua for Permission to Intervene, the Court held that it is part of the “general
principles of procedural law” that “the intervening State does not become party to the proceedings,
and does not acquire the rights, or become subject to the obligations, which attach to the status of a
party”: [1990] ICJ Rep 92, para 102.
116 Good faith has already been codified in the Article 2(2) of the UN Charter and the Friendly Rela-
tions Declaration. In Nuclear Tests, the ICJ held: “One of the basic principles governing the creation
and performance of legal obligations, whatever their source, is the principle of good faith. Trust and
confidence are inherent in international cooperation, in particular in an age when this co-operation
in many fields is becoming increasingly essential.” Nuclear Tests (Australia v. France), [1974] ICJ
Rep 253, para 46.
ZLW 67. Jg. 4/2018 [631]

Abhandlung
and of equity.117 Both of these principles are of great relevance to the regulation of the
exploration and use of outer space.
I. Good Faith
The underlying obligation of cooperation and shared trusteeship of outer space, and
its natural resources, by all States necessitates good faith on all members of the inter-
national community. Indeed, this is reflected in the opening words of the Outer Space
Treaty, which stipulates that the exploration and use of outer space shall “be carried
out for the benefit and in the interests of all countries …”.118 There are also a number
of references to the need for international cooperation throughout the UN treaties
and ‘soft law’ space law instruments (see below), as well as the obligation to share
information on their space activities with other States, typically through the auspices
of the UN Secretary-General.119 Implicit in these obligations is the requirement that
the right to explore and use outer space be undertaken in good faith, and not be exer-
cised in ways that impedes or is injurious to the rights of other States to explore and
use space.120 Thus, in conducting space activities, the principle of good faith must be
pertinent in cases of (particularly) the intentional creation of significant amounts of
space debris that endangers the exploration and use of outer space by all States.
117 The principle of equity is a well-acknowledged principle in international law. In North Sea Conti-
nental Shelf, the Court held in relation to the legal regime governing the continental shelf: “it is not a
question of applying equity simply as a matter of abstract justice, but of applying a rule of law which
itself requires the application of equitable principles.” Supra note 63, para 87. See also Diversion of
Water from the Meuse (Netherlands v Belgium) [1937] PCIJ Series A/B No 70, Individual Opinion
of Mr. Hudson at 76-77. See also Cheng, General Principles of Law as Applied by International
Courts and Tribunals, supra note 111.
118 Outer Space Treaty, supra note 23, Art. I.
119 See supra note 54, above.
120 Outer Space Treaty, supra note 23, Arts I, IX and XI. Corollary to the general principle of law of good
faith is the principle of abuse of rights. The clearest example of fulfilling obligations under a treaty
in good faith and not in a way that would be an abuse of rights is the United Nations Convention on
the Law of the Sea, which stipulates: “States Parties shall fulfil in good faith the obligations assumed
under this Convention and shall exercise the rights, jurisdictions and freedoms recognized in this
Convention in a manner which would not constitute an abuse of right.” UNCLOS, supra note 52,
Art. 300. See also Brownlie, Principles of Public International Law, supra note 74, 444.
[632] ZLW 67. Jg. 4/2018

II. Equity
Equity, a “legal concept” the ICJ adjudged as being “a general principle directly ap-
plicable as law”,121 is often cited as a general principle of law that attempts to take
into account and bridge the diverging (or, perhaps, conflicting) interests of States in
different stages of economic development, and the needs of present and future gen-
erations.122 The conduct of space activities and space applications rest on the equitable
participation and international cooperation of all States in the international commu-
nity.123 Under the governance of activities in space, there is repeated mention of the
“common interest” of all peoples and humankind,124 and the fact that the exploration
and use of space is the “province” of humankind.125 In both hard and soft space law
instruments, the peculiar and specific circumstances and interests of each (relevant)
State must be considered so as to ensure that activities do not unduly prejudice any
one State’s interests.126
With respects to the Moon and other celestial bodies, not only is the exploration and
use of the Moon a “province” of all humankind and must “be carried out for the
benefit and in the interests of all countries”, such activities must be carried out with
due regard “paid to the interests of present and future generations” and having the
promotion of “higher standards of living and conditions of economic and social prog-
121 Continental Shelf (Tunisia v Libyan Arab Jamahiriya), [1982] ICJ Rep 18 at para 71.
122 See Francioni, “Equity in International Law” (2013) MPEPIL (online). The principle of equity is
identifiable “particularly in the area of the law of the sea, international economic law, and internati-
onal environmental law” (para 22). See also Edith Weiss, “Intergenerational Equity” (2013) MPEPIL
(online); and Agius/Busuttil, Future generations and international law (London: Earthscan, 1998).
123 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Tele-
vision Broadcasting, GA Res 37/92, UNGAOR, 37th Sess, UN Doc A/RES/37/92 (1982), Principle
C; Principles relating to Remote Sensing of the Earth from Space, GA Res 41/65, UNGAOR, 41st
Sess, UN Doc A/RES/41/65 (1986), Principle V; and 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, GA Res 51/122, UNGAOR, 51st Sess, UN
Doc A/RES/51/122 (1996) [Space Benefits Declaration], para 2, 3.
124 The Preambles of the Outer Space Treaty, Liability Convention and the Registration Convection all
repeat the recognition that it is the “common interest of all mankind in furthering the exploration
and use of outer space for peaceful purposes”. See also Declaration of Legal Principles, supra note 64,
and the Space Benefits Declaration, supra note 123. The Rescue and Return Agreement is adopted
based on “the sentiments of humanity”: Rescue and Return Agreement, supra note 23, Preamble.
125 Outer Space Treaty, supra note 23, Art. I.
126 Ibid., Arts IX and X. Soft law instruments will be discussed below, Section VII.
ZLW 67. Jg. 4/2018 [633]

Abhandlung
ress and development” in mind.127 Whilst, as is well known, this requirement is not
without its controversies and is perceived to be a factor in the reluctance of the major
space-faring and industrialised States to ratify the Moon Agreement,128 at least thus
far, it is an important requirement that is to be taken into account when the interna-
tional regime is to be established in accordance with the Moon Agreement, “as such
exploitation is about to become feasible”.129
In similar wording, and underpinned by similar general principles of law, the Consti-
tution of the ITU provides that:
In using frequency bands for radio services, Member States shall bear in mind
that radio frequencies and any associated orbits, including the geostationary
satellite orbit, are limited natural resources and that they must be used ratio-
nally, efficiently and economically, in conformity with the provisions of the
Radio Regulations, so that countries or groups of countries may have equi-
table access to those orbits and frequencies, taking into account the special
needs of the developing countries and the geographical situation of particular
countries.130
Not only does this provision reflect the application of equitable principles in the bene-
fits derived from the natural resources of outer space (orbits) as well as other space as-
sets (frequencies); it is demonstrative of equitable principle and obligation to consider
the “special needs” of certain countries in the use of outer space.131 This is a significant
departure from the traditional “first-come, first served” practice that is enshrined in
127 Moon Agreement, supra note 23, Art. 4. Under Article 11 of the Moon Agreement, there is specific
mention that the “Moon and its natural resources are the common heritage” of humankind.
128 See generally, Christol, “The 1976 Moon Agreement: Where Is It today” (1999) 27 Journal of Space
Law 1; and Jakhu “Twenty Years of the Moon Agreement: Space Law Challenges for Returning to the
Moon” (2005) 54 ZLW 243.
129 Moon Agreement, supra note 23, Art. 11(5).
130 ITU Constitution, supra note 24, Art. 44(2) [emphasis added].
131 This is in line with a recent trend in international law that the traditional principle of full sovereign
equality of States is being augmented (replaced) with special benefit (differential treatment) accor-
ded to some subjects of international law because of the historically disadvantaged positions or ine-
qualities, especially in relation to economic relations. For details see: Cullet, “Differential Treatment
in International Law: Towards a New Paradigm of Inter-State Relations” (1999)10:3 EIJL 549.
[634] ZLW 67. Jg. 4/2018

the ITU Radio Regulations.132 This equitable principle has been implemented through
three ITU Conferences that adopted treaties distributing radio frequencies and geo-
stationary orbital positions to ITU Member States on the basis of their needs.133
E. Subsidary Means Of Determining International Law

The above discussion focused on the determination and contents of the enumerated
sources of international law under Article 38(1) of the ICJ Statute, and highlighted
their relevance in the legal regime governing space activities. Attention will be turned
now to “subsidiary means for the determination of rules of law”.134 Since there is no
central law-making institution in the world and the sources of international law are
diverse, it is a complex and very challenging process to precisely determine what legal
rules would apply to a given specific situation or international dispute. Article 38(1)
(d) of the ICJ Statute specifies only two methods; i.e. judicial decisions and the teach-
ings of the most highly qualified publicists of the various nations.
They are, it must be noted at the outset, not sources but only means for the determi-
nation of rules of law that are subsidiary (secondary or subordinate) to the primary
sources listed in Article 38(1)(a) to (c). Secondly, the provisions of Article 38(1)(d) are
themselves controversial with respect to their meaning, scope, and importance. Thus,
in the words of the ILC and particularly in relation to customary international law,
judicial decisions and teachings of publicists:
may assist in collecting, synthesizing or interpreting practice relevant to the

identification of customary international law and may offer precise formula-
tions to frame and guide an inquiry into its two constituent elements.135
I. Judicial Decisions
Judicial decisions refer to judgements and advisory opinions of duly constituted in-
ternational judicial bodies mandated to address and/or decide upon issues involving
132 ITU Radio Regulations, supra note 24, arts 11.1-11.8. See also Jakhu, “Regulatory Process for Com-
munications Satellite Frequency Allocations” in Pelton/ Madry/ Camacho-Lara, (eds.), Handbook of
Satellite Applications: Springer Reference (Berlin: Springer-Verlag, 2013), 359 at 373-374.
133 ITU Radio Regulations, supra note 24, app 30, 30A and 30B.
134 ICJ Statute, supra note 7, Art. 38(1)(d). ILC, “Identification of customary international law”, supra
note 22 at 109.
ZLW 67. Jg. 4/2018 [635]

Abhandlung
international law.136 Included in this category will be the ICJ, the Permanent Court of
Arbitration (PCA), and other international judicial bodies and arbitral tribunals.137
Sometimes, though rarely, the rulings of the highest national courts (for example,
the US Supreme Court, the Judicial Committee of Privy Council of the United King-
dom, etc.) are relevant in determining a rule of international law, 138 particularly with
respect to State practice and/or acceptance as law on a particular issue of a State in
question.139 We must be cognisant of the fact that the mandate of the ICJ is not to
make international law, but to apply it to the disputes or issues brought before it. Its
decisions are binding and final, but have “no binding force except between the parties
and in respect of that particular case”,140 and consequently do not create formal prec-
edent for other subsequent cases.141
However, in practice, the decisions and advisory opinions of the ICJ are widely con-
sidered to be highly authoritative statements regarding (interpretations of) interna-
tional law by international and national courts and tribunals, various States, and in-
ternational organisations. The ICJ itself often relies upon its own previous rulings and
136 As the ILC noted, dissenting or separate opinions may “shed light on the decision and may discuss
points not covered in the decision of the court or tribunal; but they need to be approached with
caution”: Ibid. at 101.
137 Ibid., Conclusion 13(1): “Decisions of international courts and tribunals, in particular of the Inter-
national Court of Justice, concerning the existence and content of rules of customary international
law are a subsidiary means for the determination of such rules.” See also associated commentary
Ibid. at 110.
138 Ibid., Conclusion 13(2) : “Regard may be had, “as appropriate”, to decisions of national courts con-
cerning the existence and content of rules of customary international law, as a subsidiary means for
the determination of such rules.” As the ILC noted, “caution is called for when seeking to rely on
decisions of national courts as a subsidiary means for the determination” of rules of international
law, as “national courts may lack international law expertise and may have reached their decisions
without the benefit of hearing argument by States: Ibid. at 110-111.
139 See ILC, “Identification of customary international law”, supra note 22, Conclusion 6 (forms of State
practice); and Conclusion 10(2) (forms of evidence of acceptance as law)
140 ICJ Statute, supra note 7, Art. 59. See also Effect of Awards of Compensation Made by the United
Nations Administrative Tribunal, supra note 115.
141 Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence:
Volume I (Oxford: Oxford University Press, 2013) at 250-252.
[636] ZLW 67. Jg. 4/2018

determinations for making decisions in cases at hand,142 and “it would be a mistake to
assume that ‘subsidiary’ indicated a lack of importance”.143
Multilateral treaties are the results of multifaceted and tough negotiations among
many delegates, and often take several years to conclude. It is not uncommon to see
that final wording of treaty provisions emerge after compromises, and consequently
their meaning may remain ambiguous (i.e. the practice of intentional ambiguities by
States). Indeed, given the rapid development of outer space activities, and the recogni-
tion of the need to lay down basic foundational principles in the new domain of outer
space, the Outer Space Treaty (as well as the other space law treaties that followed in
rapid succession) was drafted in a relatively quick period and is arguably replete with
ambiguities.144 It comes as no surprise that a large majority of the cases before the
ICJ involve interpretation of numerous ambiguous treaties and their interaction with
other applicable treaties. In the performance of this highly important task, the ICJ is
considered to be making law, or at least contributing to the progressive development
of international law. Brownlie correctly upholds that:
It is obvious that a unanimous, or almost unanimous, decision [of the ICJ]

has a role in the progressive development of the law. Since 1947 the decisions
and advisory opinions in the Reparation, Genocide, Fisheries, and Nottebohm
cases have had decisive influence on general international law.145
142 Schwarzenbeger, International Law: Volume I (London: Stevens & Sons Publication, 1957) at 30. In
Asylum, Judge Azevedo noted that ICJ decisions have “deep repercussions, particularly in internati-
onal law, because views which have been confirmed by that decision acquire quasi-legislative value,
in spite of the legal principle to the effect that the decision has no binding force except between the
parties and in respect of that particular case”: Colombian-Peruvian Asylum Case [1950] ICJ Rep
266, Dissenting Opinion by Judge Azevedo at 332. See also Exchange of Greek and Turkish Popula-
tions, [1925] PCIJ, Ser B, No 10 at 21.
143 Greenwood, “Sources of International Law: An Introduction”, supra note 20 at 4.
144 For example, the issues of what constitutes “peaceful purposes” (see supra note 43) or what is a “spa-
ce object” has been the topic of much debate by States and scholars alike since the beginning of the
space age. See generally, Lachs, The International Law of Outer Space, supra note 22. Lachs astutely
noted that “[d]evelopments were occurring too swiftly, and a proliferation of activities was giving
rise to many new issues” that the task of regulating outer space “was not one which could feasibly be
accomplished by the adoption of a single instrument, but one which rather lent itself to a continuous
process of adopting and gradually elaborating principles and rules of law” (at ibid 26).
145 Brownlie, Principles of Public International Law, supra note 74, 20.
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Abhandlung
However, Brownlie also cautions that the decisions of the ICJ, and of its predecessor
the PCIJ, must be very carefully assessed for their value as an appropriate means for
determining a rule of international law.146 This is particularly relevant in light of rap-
idly changing (geo)political, social, economic and technological contexts and circum-
stances. For instance, the seminal Lotus case held in 1927 that what is not prohibited
is permitted under international law, and that “[r]estrictions upon the independence
of States cannot therefore be presumed”.147 While it is not uncommon to see that some
space law writers use the ruling of the Lotus case as a source of international space
law, it can “definitively” be concluded that such a principle is inapplicable to outer
space - a domain where, as repeatedly alluded to, the activities of one spacefaring State
or actor may have major implications on the right and interests of other States to use
and explore outer space.148
Although throughout the history several judges of the ICJ were also highly knowl-
edgeable international space law scholars (for example, Manfred Lachs, Vladlen
Vereschetin, Abdul Koroma, and others), there has never been a case before the ICJ
that directly involved a ruling or pronouncement on principles of international space
law. Therefore, it is difficult to predict the approach the Court may take in the deter-
mination of rules of international space law. As noted earlier, since international space
law is embedded in international law, the ICJ can be expected to continue following its
decision-making tradition in international law in a determination of issues involving
international space law. Moreover, it will be fascinating to see the emergence of the
role of the PCA, which has recently adopted its Optional Rules149 for space law dis-
putes that could arise between States, between States and private parties, and between
private parties.
146 Ibid.
147 Lotus, supra note 4 at 18.
148 For details, see Jakhu, “Legal Issues Relating to the Global Public Interest in Outer Space”, supra note
39 at 41 et seq; and Vereshchetin, “Prevention of the Arms Race in Outer Space: International Law
Aspect”, supra note 39 at 10: “it can be very definitively said that the unconditional assertion that
everything not directly prohibited in…outer space…is lawful contradicts the general principles of
international law, trends in the legal regulation of activities of this type, the world’s sense of legality
and international moral norms.”
149 Permanent Court of Arbitration, Optional Rules for Arbitration of Disputes Relating to Ou-
ter Space Activities, effective 6 December 2011, online: PCA pca-cpa.org/wp-content/uploads/
sites/175/2016/01/Permanent-Court-of-Arbitration-Optional-Rules-for-Arbitration-of-Dispu-
tes-Relating-to-Outer-Space-Activities.pdf.
[638] ZLW 67. Jg. 4/2018

II. Teachings Of Publicists

Article 38(1)(d) further refers to “teachings of the most highly qualified publicists”
as a subsidiary means for the determination of legal rules. This is perhaps the most
dubious, and therefore should be the least resorted to, means for determining rules of
international law, for “there is a danger in taking an isolated passage from a book or
article and assuming without more that it accurately reflects the content of interna-
tional law”.150 Indeed, though in Lotus the Permanent Court of International Court of
Justice referred to the “teachings of publicists”, it actually questioned what “their value
may be from the point of view of establishing the existence of a rule of customary
international law”.151 In the ILC’s provisional report on the formation of customary
international law, the ILC is much more cautious in attributing value to teachings of
publicists than the Statute of the ICJ. The ILC preliminarily concluded that:
Teachings of the most highly qualified publicists of the various nations may
serve as a subsidiary means for the determination of rules of customary inter-
national law.152
Teachings should be interpreted broadly, encompassing written and non-written

forms of teachings.153 When placing emphasis on the works of those publicists who
are “the most highly qualified”, it is evident that attention should be paid only to the
works “of those who are eminent in the field”.154 The ILC’s most recent interpretation
of this subsidiary means identifying international law recognises that publicists may
be from “various nations” - thus shying away from the original and literal reading of
the ICJ that implies only those publicists from “civilized nations” carry weight in the
discourse of what constitutes a rule of international law.155
In the past, the writings of classical legal scholars used to be well-respected by inter-
national judicial institutions as a means to determine lex lata (what the law is), but
they also had significant influence on the formation and formulation of lex ferenda
150 Greenwood, “Sources of International Law: An Introduction”, supra note 20 at 4.

151 Lotus, supra note 4 at 26.
152 ILC, “Identification of customary international law”, supra note 22, Conclusion 14 [emphasis ad-
ded].
153 Ibid., at 111. Lectures and presentations at various fora may constitute “teachings”.
154 Ibid.
155 Ibid., at 111-112.
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Abhandlung
(what the law should be).156 Some academicians have held that so far as writings are
recognised by the ICJ, they become a source of international law.157 Manfred Lachs, in
commenting on Article 38(1)(d) of the ICJ Statute, observed:
It is obviously not a question of ‘doctors’ dictating the law...but of their influ-

ence on… better understanding of the law, their impact on [the law as applied
by individual] States, groups of States, international organizations or even the
international community as a whole.
How then did ‘the teachings of the most highly qualified publicists of the vari-
ous nations’ contribute to the activities of governments, to decisions of courts
- national or international? The field of enquiry is even wider: for one may
extend it to the area of the development of the law and its codification.158
However, the contemporary practice of the international judicial bodies shows a note-
worthy reluctance to use scholarly writings as a means for searching for the lex lata of
international law. In an extensive survey regarding the use of scholarly writings by the
ICJ conducted in 2012, it was noted that the Court only cited publicists in 22 out of its
139 judgements and advisory opinions.159 Lachs himself underlined that “teachers are
not legislators, nor lawmakers in international relations”.160 Schwarzenberger famously
rebuked scholars, and noted that:
Nothing has brought the doctrine of international law into greater disrepute
than proneness of individual representatives to present desiderata de lege fe-
renda in the guise of propositions de lege lata.161
156 Ibid., at 111.

157 See generally, O’Brien, International Law (London: Cavendish, 2001).
158 Lachs, The Teacher in International Law: Teachings and Teaching (Leiden: Martinus Nijhoff Publis-
hers, 1987) at 190.
159 Peil, “Scholarly Writings as a Source of Law: A Survey of the Use of Doctrine by the International
Court of Justice,” (2012) 36:1 Cambridge Journal of International and Comparative Law 136 at 143.
160 Lachs, “Teachings and teaching of international law”, supra note 10 at 169.
161 Schwarzenberger, “The Province of the Doctrine of International Law” (1956) 9 Current Legal Pro-
blems 235 at 244. See also Peil, supra note 159 at 143.
[640] ZLW 67. Jg. 4/2018

From a historical perspective, Jayakumar makes an interesting observation with re-

spect to the diminishing value of scholarly writings as a means for determining a rule
of international law:
When the Statute [of the ICJ] was drafted, there were about 40 nation-states that made
up the international anarchical system and relying on scholarly opinion was a feasible
practice. Today, that feasibility is lost in the burgeoning number and varied practices
of states. Many of these teachings are actually intellectual writings and often have
political overtones. 162
In the context of international space law, there are two most crucial questions: i) who
are “the most highly qualified publicists”, and ii) how does one identify who these
people are?
A cursory examination indicates that a person classified in this category must not
only be qualified but also be most highly publicised as well; i.e. a person with the req-
uisite and recognised level of formal education, research skills, original scholarship,
credible publications, and who is a holder of high professional position(s) not only
in the basic legal system of his/her country, but also with regard to international law
and international space law.163 No writings of a single publicist (or a very small group
of publicists), irrespective of how brilliantly qualified he/she may be, can have any
significant value in serving as a subsidiary means of determining rules of (customary)
international law, unless and until his/her teachings are shared and supported by nu-
merous publicists from various geographical regions and legal systems of the world.
The second question is highly sensitive and very difficult, if at all possible, to answer.
However, there appears to be a general consensus that Judge Manfred Lachs, Prof. Bin
Cheng, and Prof. Carl Christol are recognised as the most highly qualified publicists
of international space law. Their scholarly writings certainly deserve to be used for
determining the lex lata of international space law.
162 Jayakumar, “Where Does Article 38 Stand Today?”, E-International Relations (12 October 2011),
online: E-International Relations www.e-ir.info/2011/10/12/where-does-article-38-stand-today.
163 The ILC in its preliminary conclusions noted: In the final analysis, however, it is the quality of the
particular writing that matters rather than the reputation of the author; among the factors to be
considered in this regard are the approach adopted by the author to the identification of customary
international law and the extent to which his or her text remains loyal to it. ILC, “Identification of
customary international law”, supra note 22 at 111-112.
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Abhandlung
In contrast to individual publicists, the writings and teachings produced by specialised

institutions with the mandate of identifying and clarifying international law “carry
special weight”.164 Examples of such institutions include the International Law Asso-
ciation (ILA),165 the Institut de droit International (Institute of International Law),166
and of course the International Law Commission,167 the works of which have been
cited extensively in this analysis on sources of international space law. The depth of
expertise of their collective members, as well as the mandate, composition, and nature
of the writings and reports on specialised topics of international law make such in-
stitutions credible as a means of identifying principles and rules of international law.
According to the aforementioned 2012 survey on the use of scholarly writings:
The ILC is cited in 134 different opinions [by the ICJ]. Furthermore, of the 59
citations to publicists contained in the Judgments and Advisory Opinions of
the Court, 45 are to the ILC.168
One should not be surprised by the reliance of the ICJ on the works of the ILC (par-
ticularly, its articles on State Responsibility and several other subjects), because the
Commission is composed of 34 members who possess well recognised qualifications
164 Wood, “Teachings of the Most Highly Qualified Publicists (Art. 38 (1) ICJ Statute)”, MPEPIL (on-
line), para 11. Though, the ILC has humbly declined to identify itself as such an institutional in its
own conclusions on the subject matter: see ILC, “Identification of customary international law”,
supra note 22 at 112.
165 The ILA’s objective is “the study, clarification and development of international law, both public
and private, and the furtherance of international understanding and respect for international law”:
“About Us”, online: ILA www.ila-hq.org/index.php/about-us/aboutus2.
166 The Institute of International Law (IIL) “is a learned society and its purpose is to promote the pro-
gress of international law”: “About the Institute”, online: IIL www.idi-iil.org/en/a-propos/.
167 The ILC was originally established in 1946 as the “Committee of Seventeen Members of the United
Nations” to “promote the progressive development and formulation of public and private interna-
tional law”: Progressive Development of International Law and its Codification, UNGA Res 94(I)
(1986). According to the Statute of the ILC, its object is the “promotion of the progressive develop-
ment of international law and its codification”: Art. 1(1).
168 Peil, supra note 159 at 152. Examples include: Nicaragua, supra note 69, para 190; Gabčíkovo-Nagy-
maros Project, supra note 45, para 50; Legality of the Wall, supra note 31, para 140; and Application
of the Convention on the Prevention and Punishment of the Crime of Genocide Case (Bosnia and
Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43.
[642] ZLW 67. Jg. 4/2018

and experience in international law.169 Therefore, the ILC commands significantly

more respect than individual publicists. Though the ILC has yet to begin any study
on any topic directly related to space law, to some degree the ILA,170 the International
Institute of Humanitarian Law,171 and the International Institute for the Unification
of Private Law (UNIDROIT)172 have all recently contributed to the development of
international space law. The time is ripe to request the Commission to study, for in-
stance, the regulation of space debris and space natural resources, which could then
serve as an authoritative source for codification and/or progressive development of an
urgent matter under international space law.
In line with the authoritativeness of a collective of publicists as a means of determin-

ing law, focus should also be turned to the increasing role and influence of interna-
tional military manuals on the identification and clarification of international law,
particularly in the domain of laws governing military activities.
The first such manual was the Oxford Manual on the Laws of War on Land,173 drafted
by Gustave Moynier, the founding father of the International Committee on the Red
Cross (ICRC),174 and adopted by the Institute of International Law in 1880. The object
169 The ILC Statute notes the Commission consists of “thirty-four members who shall be persons of
recognized competence in international law” (Art. (2(1)).
170 The ILA has drafted the draft Instruments on the Protection of the Environment from Damage
Caused by Space Debris and the Sofia Guidelines for a Model Law on National Space Legislation
(Information on the activities of international intergovernmental and non-governmental organiza-
tions relating to space law, UN Doc A/AC.105/C.2/2013/CRP.6) (2013).
171 San Remo Handbook on Rules of Engagement, Appendix 2 to Annex A of which deals with outer
space operations: online: International Institute of Humanitarian Law www.iihl.org/wp-content/
uploads/2017/11/ROE-HANDBOOK-ENGLISH.pdf.
172 UNIDROIT drafted the Space Assets Protocol to the Cape Town Convention, supra note 59.
173 Oxford Manual on the Laws of War on Land, 9 September 1880, online: ICRC, ihl-databases.icrc.
org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=B06FB334DC14CBD1C-
12563CD00515767.
174 Indeed, the ICRC itself is the recognised authority in the domain of international humanitarian law.
Its writings on the topic, particularly the Geneva Conventions and Additional Protocols drafted
at the behest of the ICRC, as well as the associated ICRC commentaries to the aforementioned
instruments, and study on the identification of customary humanitarian law, are almost universally
accepted by States and international courts and tribunals. See e.g. Henckaerts, “Study on customary
international humanitarian law: A contribution to the understanding and respect for the rule of
law in armed conflict” (2005) 87:857 International Review of the Red Cross 175; and International
ZLW 67. Jg. 4/2018 [643]

Abhandlung
of a manual on laws of war is “stating clearly and codifying the accepted ideas of our
age so far as this has appeared allowable and practicable” to govern conduct and en-
sure the preservation of humanity in times of armed conflict.175 The rules contained
in such a manual are not “rash or extreme”; they are grounded in “certain principles
of justice which guide the public conscience, which are manifested even by general
customs, [which] would be well to fix and make obligatory”.176 These manuals are not
devoid of value, for the black-letter rules in international manuals are based on mili-
tary manuals of States that (as discussed earlier) reflect the practice and acceptance
of practice as law of States. These manuals have been relied on by courts and tribu-
nals as authoritative declarations of customary international law.177 To date, manuals
have been drafted by independent groups of experts specialised in various domains
of international law dealing with naval warfare,178 air and missile warfare,179 and cy-
ber warfare.180 However, it must be kept in mind that such manuals are not without
criticism. Their credibility and value depend upon the independence, neutrality, ob-
jectivity, scholarship, affiliations, sources of funding, professional and geographical
backgrounds of the experts involved in the drafting and editing of these manuals.
In outer space, adopting an international treaty addressing contentious issues relat-

ing to the space security and military use of outer space is, to borrow the words of
the Institute of International Law, “perhaps […] premature or at least very difficult to
Committee of the Red Cross (ICRC), Customary International Humanitarian Law, Volume I: Rules
(2005) [ICRC Rules], online: ICRC, www.icrc.org/customary-ihl/eng/docs/v1.
175 Oxford Manual on the Laws of War on Land, supra note 173, Preamble.
176 Ibid.
177 See e.g. Prosecutor v Tadić (Duško) aka ‚Dule‘, Decision on the Defence motion for interlocutory
appeal on jurisdiction, Case No IT-94-1-AR72, (ICTY 1995).
178 Institute of International Law Resolution on the Laws of Naval War Governing the Relations bet-
ween Belligerents, IDI Resolution II/1913 (1913); and San Remo Manual of International Law Ap-
plicable to Armed Conflict at Sea (1995) 309 International Review of the Red Cross 583 [San Remo
Manual].
179 Harvard Manual of International Law Applicable to Air and Missile Warfare, Program on Humani-
tarian Policy and Conflict Research at Harvard University, online: International Humanitarian Law
Research Initiative, ihlresearch.org/amw/HPCR%20Manual.pdf[Harvard Manual].
180 Schmitt & NATO Cooperative Cyber Defence Centre of Excellence, Tallinn Manual on the Inter-
national Law Applicable to Cyber Warfare: Prepared by the International Group of Experts at The
Invitation of the NATO Cooperative Cyber Defence Centre of Excellence (Cambridge: Cambridge
University Press, 2013) [Tallinn Manual]; and Tallinn Manual 2.0 on the International Law Applica-
ble to Cyber Operations (Cambridge: Cambridge University Press, 2017).
[644] ZLW 67. Jg. 4/2018

obtain”.181 Resort may be had to the collective and recognised intellectual weight of a
group of legal experts from various nations to identify and clarify, in an objective and
neutral manner, the law in this regard. With the international community deadlocked
on how best to address the potential weaponisation of outer space,182 coupled with in-
creasingly hawkish voices alarmingly crying out about the inevitably of war in space,183
the time is ripe for an international law manual that comprehensively addresses the
legality of military activities in peacetime, including times of rising tensions.184 Such
a manual would go a long way to promote transparency and build confidence, as well
as ensure the long-term sustainability and security of outer space.
F. Sources Of International Law Not Mentioned In Article 38

As noted above, new - and potentially significant - sources of international law, and
consequently those that may also be directly applicable to international space law, are
emerging, irrespective of the fact that they are not specifically enumerated under Ar-
ticle 38 of the ICJ Statute. While it will not be possible to discuss all of them, attention
will focus on the principles of jus cogens, erga omnes, and unilateral declarations. This
will be followed by a discussion in greater detail on “soft-law” and resolutions of the
UN Security Council and the General Assembly.
181 Oxford Manual on the Laws of War on Land, supra note 173, Preamble.
182 There have been several concerted efforts at the UN level, including the annual adoption of the
Prevention of an arms race in outer space General Assembly resolution; the No first placement of
weapons in outer space resolution first adopted in 2014 (UNGA Res 69/32, UN Doc A/RES/69/32
(2014); the proposal for the Treaty on Prevention of the Placement of Weapons in Outer Space
and of the Threat or Use of Force against Outer Space Objects (online: Reaching Critical Will rea-
chingcriticalwill.org/images/documents/Disarmament-fora/cd/2014/documents/PPWT2014.pdf).
None of these proposals have the binding authority to prevent the outbreak of an armed conflict in
outer space, which will no doubt result in devastating consequences in outer space, and have severe
implications for international peace and security. See generally, Jakhu/ Steer/ Chen, “Conflicts in
Space and the Rule of Law”, supra note 28.
183 See e.g. Clark, “‘It’s going to happen’: is the world ready for war in space?”, The Observer (15 April
2018), online: The Guardian, www.theguardian.com/science/2018/apr/15/its-going-to-happen-is-
world-ready-for-war-in-space.
184 See supra note 89, on the MILAMOS Project currently undertaken by McGill University together
with a host of international experts, institutions and stakeholders with recognised expertise in vari-
ous disciplines of international law, particularly international space law, aided by technical experts
knowledgeable in the practical use of and applications in outer space.
ZLW 67. Jg. 4/2018 [645]

Abhandlung
I. Jus Cogens
Jus cogens is a principle of international law of a peremptory and constitutional nature
from which no derogation is allowed and, consequently, any rule of treaty or custom-
ary law will be void if it conflicts with jus cogens. This principle of customary inter-
national law has been codified in Article 53 of the VCLT.185 The philosophy behind
jus cogens is that rules of international law having this character are of vital impor-
tance to the international social and legal order.186 Although in practice it is difficult
to identify rules that could be characterised as jus cogens,187 there appears to be some
consensus that certain principles can be considered peremptory.188 These principles
include the principle of pacta sunt servanda (a treaty in force is to be performed in
185 Article 53 of the VCLT, supra note 31, specifies: “A treaty is void if, at the time of its conclusion,
it conflicts with a peremptory norm of general international law. For the purposes of the present
Convention, a peremptory norm of general international law is a norm accepted and recognized by
the international community of States as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international law having the same
character.”
186 Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence:
Volume I, supra note 141 at 142 et seq.
187 The ILC is undertaking a study on the identification of jus cogens: see ILC, “Jus Cogens” in Report
on the Work of the sixty-eight session, UN Doc A/71/10 (2016).
188 Though, it was noted in the ILC’s latest report on the matter that: “it was not advisable to seek to
develop such a list, nor even to provide illustrative examples in the commentary, as that would
necessarily require the Commission to take a position on the status of the rules in question.” Ibid.,
para 118. However, in 2017, most ILC members “favoured the preparation of such a list in the con-
text of the current study. Such list could provide an annex, listing “candidates” for jus cogens”: ILC,
“Peremptory norms of general international law” in Report on the Work of the sixty-ninth session,
UN Doc A/72/10 (2017), para 180.
[646] ZLW 67. Jg. 4/2018

good faith);189 the prohibition of aggression;190 the prohibition of slavery;191 and the
freedom of navigation on the high seas.192 In the context of outer space, peremptory
norms from which there can be no derogation may include freedom of exploration
and use of outer space,193 and the prohibition of national appropriation of outer space
and celestial bodies.194
II. Erga Omnes

Erga omnes obligations of a State are those owed to the international community as a
whole. According to the ICJ:
189 See the discussion above General Principles of Law, Good Faith D-I.
190 For the prohibition of aggression as jus cogens, see “Draft articles on the Law of Treaties with com-
mentaries, 1966”, Yearbook of the International Law Commission (1966), Volume II at 246; Kahgan,
“Jus Cogens and the Inherent Right to Self-Defense”, 3 ILSA Journal of International and Comparati-
ve Law 767 (1996-1997); ILC “Draft articles on Responsibility of States for Internationally Wrongful
Acts, with commentaries”, Yearbook of the International Law Commission, Volume II, Part Two
(2001) at 85; and Armed Activities on the Territory of the Congo (Democratic Republic of the Con-
go v. Uganda), [2006] ICJ Rep 6, Separate Opinion of Judge ad hoc Dugard, para 10.
The ILC, in 1966, noted that the prohibition on the use of force “constitutes a conspicuous example
of a rule in international law having the character of jus cogens”: “Draft articles on the Law of Trea-
ties with commentaries, 1966”, Yearbook of the International Law Commission (1966), Volume II at
247-248; as did Judge Elaraby and Judge Simma in Oil Platforms (Islamic Republic of Iran v. United
States of America), [2003] ICJ Rep 161, respectively at 290 and at 327. Whether the use of force is
jus cogens is still very contentious. In Nicaragua (para 190), the ICJ referred to but did not endorse
the ILC’s opinion that the prohibition on the use of force is jus cogens. See generally de Hoogh, “Jus
Cogens and the Use of Armed Force” in Marc Weller, ((ed.)), The Oxford Handbook of the Use of
Force in International Law (Oxford: Oxford University Press, 2015) 1161.
191 “Draft articles on the Law of Treaties with commentaries, 1966”, Yearbook of the International Law
Commission (1966), Volume II at 248; and ILC “Draft articles on Responsibility of States for Inter-
nationally Wrongful Acts, with commentaries”, Yearbook of the International Law Commission,
Volume II, Part Two (2001) at 85.
192 Schwarzenberger, “International Jus Cogens?” (1964) 43 Texas Law Review 455 at 464; Christol.
“Judge Manfred Lachs and The Principle of Jus Cogens” (1994) 22 Journal of Space Law 33 at 41.
193 See generally, Christol, “Jus Cogens Principle and Space Activities” (1984) 26 Proceedings of the
Colloquium on the Law of Outer Space 1; Christol., “Judge Manfred Lachs and The Principle of Jus
Cogens”, supra note 192 at 43.
194 Outer Space Treaty, supra note 23, Art. II. See Christol, “Jus Cogens Principle and Space Activities”,
supra note 193; and Christol. “Judge Manfred Lachs and The Principle of Jus Cogens”, supra note 192.
ZLW 67. Jg. 4/2018 [647]

Abhandlung
the obligations of a State towards the international community as a whole …

are the concern of all States. In view of the importance of the rights involved,
all States can be held to have a legal interest in their protection; they are obliga-
tions erga omnes. 195
Erga omnes obligations that have been identified by the Court include the “outlaw-
ing of acts of aggression, and of genocide, [and] principles and rules concerning
the basic rights of the human person, including protection from slavery and racial
discrimination”,196 as well as the right to self-determination.197
Obligations imposed on the States under Articles I, II and IX of the Outer Space Trea-
ty (due regard to the interests of other States) are declaratory in nature, and arguably
represent erga omnes norms, the violation of which will entail State responsibility.
Any State, whether or not it has suffered any injury due to such violation, can invoke
such responsibility as the “obligation breached is owed to the international commu-
nity as a whole”.198
III. Unilateral Declarations

Unilateral declarations or statements made by appropriate representatives of a State,
with the intention of being bound, can be considered to be binding on that State, thus
providing an interesting - and perhaps underestimated - source of international law,
including international space law. According to the ICJ:
[J]ust as the very rule of pacta sunt servanda in the law of treaties is based
on good faith, so also is the binding character of an international obligation
assumed by unilateral declaration. Thus interested States may take cognizance
of unilateral declarations and place confidence in them, and are entitled to
require that the obligation thus created be respected.199
195 Barcelona Traction, Light and Power Company, Limited (Judgment) [1970] ICJ Rep 3, para 33.
196 Ibid., para 34.
197 See generally Namibia, supra note 31; East Timor, supra note 111, para 29; and Legality of the Wall,
supra note 31, para 155-156.
198 See Articles on State Responsibility, supra note 48, Art. 48.
199 Nuclear Tests, supra note 116, para 46.
[648] ZLW 67. Jg. 4/2018

Additionally, the ILC in its guide to unilateral declaration of States, adopted the first
principle as:
Declarations publicly made and manifesting the will to be bound may have the
effect of creating legal obligations. When the conditions for this are met, the
binding character of such declarations is based on good faith; States concerned
may then take them into consideration and rely on them; such States are en-
titled to require that such obligations be respected.200
In its commentary to the principle above, the ILC states that the principle is “directly
inspired by the dicta” in the ICJ’s judgement in the Nuclear Tests case and further
notes that “most of the cases studied illustrate this principle”.201 A unilateral declara-
tion can only entail obligations for the State making the declaration “only if it is stated
in clear and specific terms”.202 If the declaration was not clear and in specific terms,
then consideration will be given to “text of the declaration, together with the context
and the circumstances in which it was formulated”.203 In determining whether a dec-
laration has legal effect, “it is necessary to take account of their content, of all the fac-
tual circumstances in which they were made, and of the reactions to which they gave
rise”.204 Other relevant considerations that may be instructive in determining whether
a unilateral declaration has legal effect include the capacity of the person making the
declaration, the target audience, and their invalidity if the declaration were contrary
to jus cogens.205
In the space context, Jasani has noted that:
200 ILC, Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal
Obligations, UN Doc A/CN.4/L.703 (2006), Principle 1 [Guiding Principles Applicable to Unilateral
Declarations], online: UN legal.un.org/docs/?symbol=A/CN.4/L.703.
201 ILC, Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal
Obligations with Commentaries Thereto, UN Doc A/61/10 (2006), at 370, online: UN legal.un.org/
ilc/texts/instruments/english/commentaries/9_9_2006.pdf.
202 Guiding Principles Applicable to Unilateral Declarations, supra note 200, Principle 7.
203 Ibid.
204 Guiding Principles Applicable to Unilateral Declarations, supra note 200, Principle 3. Cf. Nicaragua,
supra note 69, para 261.
205 Guiding Principles Applicable to Unilateral Declarations, supra note 200, Principle 2 (capacity);
Principle 1 (public manifestation); Principle 3 and 7 (contents); Principle 5 (oral or written); Princi-
ple 7 (restrictive interpretation); and Principle 8 (peremptory norm),
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Abhandlung
On 18 August 1983, the Soviet leader Yuri Andropov, declared during a meet-
ing with nine US Democratic Senators that the “USSR commits itself not to
be the first to put into outer space any type of antisatellite weapons, that is,
imposes a unilateral moratorium”.206
Though this declaration would have been (legally) binding on the USSR (now Russian
Federation), the commitment was however limited to not being the first State to put
into outer space any type of anti-satellite (ASAT) weapon; it does not cover the de-
velopment, testing and actual use of any such weapons.207 It is of interest to note that,
three decades later, the Russian Federation has become the prime promoter of unilat-
eral, bilateral and international declarations or statements on the no first deployment
of weapons in outer space. In 2014, a resolution to such an effect was adopted at the
UN General Assembly,208 whereas prior to the adoption of the resolution, Russia had
signed such declarations with Argentina, Brazil, Cuba, Indonesia, and Sri Lanka.209
The signing of such declarations with other States may be illustrative of the circum-
stances and context to support the validity of a unilateral declaration regarding the no
first placement of weapons in space. Whether a General Assembly resolution consti-
tutes a source of law, or is merely evidence of State practice and/or the acceptance as
law of a State, will be discussed below.
G. Soft Law, And Resolutions Of The UN General Assembly And Security

Council
Having discussed the principles of jus cogens, erga omnes and unilateral declarations,
attention will now be turned to “soft law” instruments. Resolutions emanating from
206 Bhupendra Jasani & Stockholm International Peace Research Institute, (ed.), Space Weapons and
International Security (Oxford: Oxford University Press, 1987), 1 at 19.
207 Sciutto, et al, “Russia Tests Anti-Satellite Weapon”, online: CNN, edition.cnn.com/2016/12/21/poli-
tics/russia-satellite-weapon-test/index.html.
208 UN, No first placement of weapons in outer space, UNGA Res 72/27, UN Doc A/RES/72/27 (2017).
This resolution was adopted by a recorded vote of 131 in favour to 4 against (Georgia, Israel, Ukrai-
ne, United States), with 48 abstentions, see online: UN, https://www.un.org/press/en/2017/ga11984.
doc.htm.
209 Sri Lanka, Ministry of Defence, “Russia, Sri Lanka agree on no first deployment of weapons in ou-
ter space” (2 October 2013), online: Sri Lanka, Ministry of Defence, www.defence.lk/new.asp?fna-
me=Russia_SriLanka_agree_on_first_deployment_of_weapons_in_outer_space_20131002_0; See
also “‘Weapons free space’: Russia champions internationally regulated space security”, Russia Today
(5 August 2014), online: Russia Today www.rt.com/op-edge/178088-russia-weapons-free-space/.
[650] ZLW 67. Jg. 4/2018

the UN General Assembly and Security Council are prime examples of such instru-
ments. As regards the domain of space law, the past few recent decades have seen a
proliferation of other soft law instruments in the form of guidelines, and codes of
conduct.
I. Soft Law In General

Soft law has been described by one publicist as representing “a complex of norms
lacking binding force, but producing significant legal effects nevertheless”;210 another
describes it existing “somewhere in the middle of a spectrum between an instru-
ment that is not legally binding at one end and an instrument that contains expressed
agreed law at the other end”.211 Cheng warns that such “pseudo law” “can be the worst
enemy of the Rule of Law”.212
Though hard to identify and define,213 and though they are often phrased in language
that is ambiguous with regard to the “exact obligations undertaken or the rights
granted”,214 soft law cannot and should not be readily disregarded as legally insignifi-
cant. Often couched under or referring to existing hard (treaty) law instruments, the
not purely legal (and, therefore, binding) nature of soft law provides States greater
freedom of action in fields where the “future development of technical knowledge,
including economic, ecological, and scientific factors” may be difficult to predict.215
Soft law has been deemed as providing “an interpretative guide”216 to more formal and
legalistic treaties, and are commonly seen as helping to shape and develop existing
international law.217 Indeed, soft law provisions can declare the existence of customary
210 Thürer, “Soft Law” (2009), MPEPIL (online), para 37.

211 Gabrynowicz, “The UN Principles Relating to Remote Sensing of the Earth from Outer Space and
Soft Law” in Marboe, (ed.), Soft Law in Outer Space: The Function of Non-binding Norms in Inter-
national Space Law (Vienna: Böhlau, 2012) [Marboe, “Soft Law in Outer Space”], 183 at 186.
212 Cheng, “United Nations Resolutions on Outer Space: “Instant” International Customary Law?”, sup-
ra note 65 at 48.
213 Thürer, “Soft Law”, supra note 210, para 8.
214 Chinkin, “The Challenge of Soft Law: Development and Change in International Law” (1989) 38
ICLQ 850, 851 [Chinkin, “The Challenge of Soft Law”].
215 Thürer, “Soft Law”, supra note 210, para 6.
216 Klabbers, “The Redundancy of Soft Law” (1996) 65 Nordic Journal of International Law 167 at 178.
Similarly, Thürer notes soft law plays “a complementing and strengthening function within the in-
ternational legal order” as well as “stabilize expectations and to contribute to holding the anarchic
elements in international relations together”: Thürer, “Soft Law”, supra note 210, para 34.
217 Thürer, supra note 210, para 28.
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law,218 or can provide a basis for identifying the gradual formation of customary law.219
Found in fields as diverse as international environmental law220 and international eco-
nomic law,221 and for our purposes international space law, soft law presents a number
of challenges and opportunities as a potential source of international law governing
nascent fields of human activity in domains where future trends and developments
remain unknown.
For the purposes of this discussion, soft law instruments refer to written instruments
that might purport to specify rules of conduct, but do not emanate from the tradition-
al sources of public international law.222 This qualification is not unanimously sup-
ported, but it is beyond the scope of this article to discuss what might be encapsulated
in the various alternate theories of soft law (sometimes, though wrongly, referred to
as lex ferenda). Incidentally, it should be noted in passing that certain provisions con-
tained in the United Nations space law treaties might have characteristics of what has
been described as “legal soft law”,223 in the sense that it would be difficult, if not impos-
sible, to comply with and verify the compliance of certain “soft” obligations.224 It has
218 See Freeland, “The Role of ‘Soft Law’ in Public International Law and its Relevance to the Internati-
onal Legal Regulation of Outer Space”, in Marboe, “Soft Law in Outer Space”, supra note 211 at 26;
see also Nicaragua, supra note 69, para 188, in which the ICJ held that consenting to the adoption
of the Friendly Relations Declaration “cannot be understood as merely that of a “reiteration or elu-
cidation”” of an ideal, but should be interpreted as furnishing the necessary opinio juris to identify
“hard” law in the form of custom.
219 See e.g., Freeland, “The Role of Soft Law”, supra note 218 at 26-27; Ferrazzani, “Soft Law in Space
Activities - an Updated View” in Marboe, “Soft Law in Outer Space”, supra note 211 at 111-115;
Traunmueller, “The ‘Declaration of Legal Principles Governing the Activities of States in the Explo-
ration of Outer Space’: The Starting Point for the United Nations‘ Law of Outer Space“ in Marboe,
“Soft Law in Outer Space”, supra note 211 at 158-160.
220 See e.g., Fitzmaurice, “International Protection of the Environment” (2001) 293 Rec des Cours 9,
especially Chapter II.
221 See e.g., Seidl-Hohenveldern, “International Economic ‚Soft Law‘” (1979) 163 Rec des Cours 165.
222 For a more detailed discussion of the applicability of soft law instruments under general internatio-
nal law and international space law, see, Freeland, “The Role of ‘Soft Law’”, supra note 218.
223 See, for example, Chinkin, “The Challenge of Soft Law”, supra note 214 at 851 and the corresponding
footnote.
224 See e.g. ILC, Fragmentation of International Law, which identifies that in treaties, provisions could
range from ““programmatic” provisions with provisions that set up subjective rights and “hard law”
provisions associated with formal responsibility with “soft law” provisions under special “soft res-
ponsibility” regimes”: supra note 44 at 251. See also Pronto, “Understanding the Hard/Soft Distinc-
tion in International Law” (2015) 48 Vanderbilt Journal of International Law 940.
[652] ZLW 67. Jg. 4/2018

already been noted above that States are required to “inform the Secretary-General of
the United Nations as well as the public and the international scientific community
… of the nature, conduct, locations and results” of their space activities.225 However,
this obligation is “softened” or qualified with the phrasing that the obligation only be
fulfilled “to the greatest extent feasible and practicable”.226 Similarly, under the Reg-
istration Convention, the State of registry is obliged to provide the UN Secretary-
General information about each space object on its registry “as soon as practicable”.227
Moreover, the obligation to transmit information about objects on its registry that are
no longer in Earth orbit is qualified as an obligation that should be complied with only
“to the greatest extent feasible and as soon as practicable”.228
It would do well to keep these more conceptually difficult questions in mind should
States Parties to the UN space law treaties seek to enforce some of these obligations
before an international court. This might need to be the subject of further discussion
and debate in the future.
II. General Assembly Resolutions

Of relevance here is what has been alluded to above as “non-legal soft law” - pro-
visions contained in instruments, and the instruments themselves, that are not in-
tended to be legally binding, but which purport to set out what might appear to be
international principles. One of the significant features of this form of soft law, which
in particular includes (but is not limited to) UN General Assembly resolutions and
resolutions of the Security Council. Of course, the terms of both Articles 38 (of the
PCIJ Statute and the ICJ Statute) were carefully crafted,229 and this omission therefore
cannot be considered as an oversight, but rather as deliberate.
In essence, therefore, if one thinks about public international law in (admittedly over-
ly) simple terms as the law created by States for States underpinned by the sacred
principle of State consent, then it is clear that States did not in the main want to be

226 Ibid.
227 Registration Convention, supra note 23, Art. IV(1).
228 Ibid., Art. IV(3). For detailed analysis, see: Jakhu/ Jasani/ C. McDowell, “Critical issues related to re-
gistration of space objects and transparency of space activities” (2018) 143 Acta Astronautica 1.406.
229 See Fitzmaurice, “History of Article 38 of the Statute of the International Court of Justice”, Queen
Mary School of Law Legal Studies Research Paper No. 232/2016 (2016).
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bound by such soft law instruments per se. Given the traditional view about the role
and meaning of the two Articles 38, it is simply not possible to easily dismiss such a
conclusion. Indeed, these soft law instruments have often been used precisely because
it is accepted that they are not intended to be legally binding. This represents the tra-
ditional viewpoint of such instruments: that they may specify certain aspirations or
recommendations, sometimes in respect of important issues, but that these are not,
and not intended to be binding, but rather may give guidance and/or maintain some
momentum in relation to that issue.230
With these considerations in mind, it is perhaps somewhat perplexing that such in-
struments are referred to as soft law, given the clear intention that they are not of a
legally binding nature and thus are not “law” in the sense that the concept is generally
and traditionally understood as being legally certain and binding. Surely, one might
argue, something either is or is not law (one cannot be “half-pregnant”). Yet, in the
case of, for example, a soft law instrument of the stature of the Universal Declaration
of Human Rights,231 there is no doubt that it had a very significant impact on the
form and substance of subsequent human rights treaties.232 In other contexts, and of
particular relevance to their emergence in relation to the regulation of the exploration
and use of outer space, soft law instruments may serve to “overcome a deadlock in
relations between states pursuing ideological and/or economic aims”.233
230 In contrast, see the opinions of Tomuschat, who noted that: “it would be erroneous to believe that
norm setting by framing “principles” or “guidelines” should be valued as only second-rate. Some-
times, codification in the form of a soft-law instrument may prove as effective or even more effective
than a treaty which after its launching receives only a hesitant response from the international com-
munity”. Tomuschat, “The International Law Commission – An Outdated Institution?” (2006) 49
German Yearbook of International Law 77.
231 Universal Declaration of Human Rights, GA res 217A (III), UN Doc A/810 at 71 (1948).
232 See e.g. International Covenant on Economic, Social and Cultural Rights, 16 December 1966, GA
res 2200A (XXI), 21 UN GAOR Supp (No 16) at 52, UN Doc A/6316 (1966), 999 UNTS 171, 6 ILM
368 (1967) (entered into force 3 January 1976); and the International Covenant on Civil and Poli-
tical Rights, GA res 2200A (XXI), 21 UN GAOR Supp (No 16) at 49, UN Doc A/6316 (1966); 993
UNTS 3; 6 ILM 368 (1967) (entered into force 23 March 1976).
233 Seidl-Hoenveldern, “International Economic Soft Law”, (1980) 163 Recueil des Cours 164, as quoted
in Harris, Cases and Materials on International Law, 7th ed (London: Sweet & Maxwell 2010) at 57.
[654] ZLW 67. Jg. 4/2018

III. Security Council Resolutions

The resolutions of the UN Security Council as a source of international law are partic-
ularly important due to the more forthright and mandatory provisions under the UN
Charter in this regard.234 Article 25 of the Charter provides that UN Member States
have undertaken “to accept and carry out the decisions of the Security Council”,235
whereas Article 103 provides:
[i]n the event of a conflict between the obligations of the Members of the Unit-
ed Nations under the present Charter and their obligations under any other
international agreement, their obligations under the present Charter shall pre-
vail.236
In the Namibia Advisory Opinion, the ICJ extensively discussed, inter alia, the impli-
cations of UN Security Council Resolutions and expressed the view that even non-
Member States are required to act in accordance with (some of) the decisions of the
UN Security Council.237
In this context, it is of interest to see the interaction (and perhaps conflict) between
obligations under a UN Security Council resolution and the provisions of the Outer
Space Treaty, particularly the freedom of all States to conduct space activities that is
arguably a non-derogable principle. In 2006, under Resolution 1718,238 the Security
Council demanded that the Democratic People’s Republic of Korea (DPRK) not to
launch any further ballistic missiles; to suspend all activities related to its ballistic
missile program; and to abandon all other existing ballistic missile programs in a
complete, verifiable and irreversible manner. Over a span of a decade, more Security
Council resolutions condemning the alleged missile tests of North Korea have been
234 See generally, Michael Wood, “United Nations, Security Council” (2007), MPEPIL (online).
235 UN Charter, supra note 14, Art. 25.
236 Ibid., Art. 103. See also Questions of Interpretation and Application of the 1971 Montreal Con-
vention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of
America), [1998] ICJ Rep 115, para 49.
237 Namibia, supra note 31, para 126. See Lissitzyn, ‘International Law and the Advisory Opinion on
Namibia’, 11 Columbia Journal of Transnational Law 50 (1972); Dugard, “Namibia (South West
Africa): The Court‘s Opinion, South Africa‘s Response, and Prospects for the Future”, 11 Columbia
Journal of Transnational Law 14 (1972); and generally, Heyns/ Killander, “South West Africa/Nami-
bia (Advisory Opinions and Judgments)” (2007) MPEPIL (online).
238 Security Council Resolution 1718, UN Doc No S/RES/1718 (2006).
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adopted, with the latest one reaffirming the abovementioned obligations of North Ko-
rea in much stronger language.239
The DPRK is undoubtedly obliged to comply with this resolution pursuant to Ar-
ticles 25 and 103 of the UN Charter discussed above. However, in 2012 North Korea
successfully launched a rocket to place a satellite into orbit, an action that was con-
demned by the US and Northeast Asian allies as a guise for a ballistic missile test in
violation of UN Security Council resolutions.240
If one considers missiles to be essentially launch vehicles, then there might be a con-
flict between the contents of this Security Council resolution and the freedom of use
of outer space as guaranteed under Article I(2) of the Outer Space Treaty. This non-
derogable principle entitles all States to use outer space both for civilian and military
purposes. The verdict is still out on whether the UN Security Council is empowered
to adopt resolutions that trump the rules of international treaty law, or even a prin-
ciple of jus cogens.241 However, in the opinion of the ILC:
both doctrine and practice unequivocally confirm that conflicts between the
United Nations Charter and norms of jus cogens result not in the Charter ob-
ligations’ pre-eminence, but their invalidity. In this sense, the United Nations
Charter is an international agreement as any other treaty. This is particularly
239 Security Council Resolution 2371, UN Doc S/RES/2371 (2017), para 2.

240 Teo, “North Korea’s Rocket Launch: Opportunity for Regional Cooperation?” RSIS Com-
mentaries, No. 226/2012 (19 December 2012), online: Eurasia Review www.eurasiareview.
com/19122012-north-koreas-rocket-launch-opportunity-for-regional-cooperation-analysis. See
also Weeden, “Almost Everything You’ve Heard About the North Korean Space Launch Is Wrong’,”
Wired (18 December 2012), online: Wired www.wired.com/dangerroom/2012/12/launch/all.
241 In Kadi, the European Court of Justice, held that respect for obligations originating from the UN
Charter and/or Security Council resolutions cannot be interpreted as authorising “any derogation
from principles of liberty, democracy and respect for human rights and fundamental freedoms”:
Kadi/ Al Barakaat International Foundation v Council of the European Union and Commission of
the European Communities, C-402/05 P and C-415/05 P [2008] ECR I-06351, paras 303-304. See
also Kadi v Council and Commission [2005] ECR II3649, para 225 et seq; Cassese, International
Law, 2nd ed (Oxford: Oxford University Press 2005) at 205; and generally Wouters/ Odermatt, Quis
Custodiet Consilium Securitatis? Reflections on the Law-making Powers of the Security Council,
Working Paper No. 109 (June 2013).
[656] ZLW 67. Jg. 4/2018

relevant in relation to resolutions of the Security Council, which has more

than once been accused of going against peremptory norm.242
It appears safe to say that, although UN Security Council resolutions may not be a
traditional source of public international law, they do appear to create binding inter-
national obligations for States provided they do not impose obligations contrary to
norms of jus cogens.
IV. Soft Law In The Context Of Outer Space

When the UN Committee on Peaceful Uses of Outer Space (UNCOPUOS) began de-
liberations on the legal principles applicable to space activities shortly after the ‘space
race’ begun in earnest with the launch of Sputnik I by the Soviet Union in October
1957, it was evident that a comprehensive legal code governing space activities would
not be appropriate, or possible, at that early stage.243 Instead, the UNCOPUOS Legal
Sub-Committee opted to undertake a progressive approach to law-making in order
to allow for the further development of space technology and applications.244 It was
considered that, in relation to specific satellite applications, for example, it was more
appropriate to adopt an instrument containing legal principles in the form of a UN
General Assembly Resolution before completing the negotiations on multilateral trea-
ties.245
This gave rise to a number of such resolutions prior to the finalisation of the Outer
Space Treaty, the most significant being the 1963 Declaration of Legal Principles Gov-
erning the Activities of States in the Exploration and Use of Outer Space.246 Following
the conclusion of the five UN space law treaties, the UN General Assembly adopted
a number of resolutions dealing with various space applications,247 namely principles
242 ILC, Fragmentation of International Law, supra note 44, para 346.
243 Kopal, “The Role of United Nations Declarations of Principles in the Progressive Development of
Space Law” (1988) 16 Journal of Space Law 5, 6.
244 Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space to the United Nations Gene-
ral Assembly, UN Doc A/4141, Part III (1959).
245 See generally Lachs, The International Law of Outer Space, supra note 22, 125 et seq.
246 Declaration of Legal Principles, supra note 64.
247 Referring primarily to soft law instruments in the area of international economic law, Chinkin sug-
gested that the increasing trend towards soft law instruments might possibly be linked to the fina-
lisation of the VCLT, which entered into force on 27 January 1980 and which ‘hardened’ the rules
relating to treaties: Chinkin, “The Challenge of Soft Law”, supra note 214, 860. There is no evidence,
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on direct television broadcasting,248 principles relating to remote sensing,249 principles

relevant to the use of nuclear power sources,250 and a declaration affirming that the
exploration and use of outer space must be based on international cooperation and
conducted in the interest of all States.251
These five resolutions have always been considered as constituting soft law per se.
However, a number of the principles set out in these instruments have been incor-
porated into hard law instruments. The terms of the Declaration of Legal Principles,
the first codification of the fundamental principles that would ultimately govern the
exploration and use of outer space, are a case in point. This resolution sets out a series
of nine general principles that were, with only relatively minor amendment, included
in the Outer Space Treaty some four years later.
Yet, even though it was undoubtedly a very important instrument in the evolution of
the formal rules governing the exploration and use of outer space, it was clear that the
1963 Declaration of Legal Principles was, at the time it was concluded, regarded only
as a non-binding set of principles that should “guide” States in their space activities.252
The non-binding nature of the Declaration of Legal Principles is further emphasised
by the very next resolution passed on the same day by the UN General Assembly. That
resolution recommended to Member States that:
consideration should be given to incorporating in international agreement

form, in the future as appropriate, legal principles governing the activities of
States in the exploration and use of outer space.253
As well as their incorporation into hard law treaties, commentators have argued that
a number of specific provisions contained in these soft law instruments may have
however, that this was a factor in relation to the development of the various space-related soft law
instruments that emerged from the early 1980s.
248 Principles on Direct Television Broadcasting, supra note 123.
249 Principles on Remote Sensing, supra note 123.
250 Principles Relevant to the Use of Nuclear Power Sources in Outer Space, UNGA Res 47/68, UN-
GAOR, 47th Sess, UN Doc A/RES/47/68 (1992).
251 Space Benefits Declaration, supra note 123.
252 See Declaration of Legal Principles, supra note 64, Preamble, para 8.
253 International Co-operation in the Peaceful Uses of Outer Space, UNGA Res 1963(XVIII) (1963),
para I(1).
[658] ZLW 67. Jg. 4/2018

also subsequently crystallised into rules that represent customary international law.254
There is no doubt that soft law can eventually become customary international law.255
Indeed, a soft law provision (in a soft law instrument) may even be declaratory of cus-
tomary international law in certain circumstances. To give just one possible example,
once again from the Declaration of Legal Principles, one of the provisions of that
instrument specifies that:
[o]uter space and celestial bodies shall not be subject to national appropria-
tion by claim of sovereignty, by means of use or occupation, or by any other
means.256
This provision was subsequently incorporated (with only minor amendments) to

form Article II of the Outer Space Treaty, codifying once and for all the so-called
“non-appropriation” principle.257 Yet, as indicated earlier, this principle may have al-
ready constituted customary international law even before the date of the Declaration
of Legal Principles, and certainly well before the date of the Outer Space Treaty.258
Indeed, by the time that the Outer Space Treaty was finalised, both major space su-
perpowers the United States and the Soviet Union had already been engaged in an
extensive range of space activities; yet neither had made a claim to sovereignty over
254 See, for example, Lee/ Freeland, “The Crystallisation of General Assembly Space Declarations into
Customary International Law” (2004) 46 Proceedings of the Colloquium on the Law of Outer Space
122.
255 Chinkin, “The Challenge of Soft Law”, supra note 214 at 857; and Thürer, “Soft Law”, supra note 210,
para 32: “soft law norms may also form essential stages in the process of evolution - or deconstruc-
tion - of customary international law. Their law-shaping potential is relevant for the opinio iuris as
well as the State practice as constitutive elements of customary international law.”
256 Declaration of Legal Principles, supra note 64, para 3. This principle had earlier been referred to in
UN General Assembly Resolution 1721(A)(XVI), which provided that: “[o]uter space and celestial
bodies are free for exploration and use by all States in conformity with international law and are
not subject to national appropriation”: see International Co-operation in the Peaceful Uses of Outer
Space, UN Doc RES 1721 (XVI) (1961), para 1(b).
257 For a detailed analysis of article II of the Outer Space Treaty, see Freeland/ Jakhu, “Article II” in
Hobe/ Schmidt-Tedd/ Schrogl, (eds.), Cologne Commentary on Space Law, Volume I – Outer Space
Treaty (2009), 44.
258 Lachs, The International Law of Outer Space, supra note 22, 125 et seq.
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any part of outer space, including celestial bodies.259 This was not subsequently al-
tered when the Apollo 11 astronauts planted the American flag on the surface of the
Moon in 1969, which is commonly agreed to be merely a symbolic gesture. As a result,
although it was of great importance to formalise into a hard law instrument the prin-
ciple of non-appropriation of outer space, the drafting process leading to the finalisa-
tion of Article II of the Outer Space Treaty was relatively uncontroversial, particularly
given its early acceptance as a fundamental concept by these two space-faring States.
In terms of the subsequent transformation of a soft space law principle into a hard
law rule of customary international law, this is also not an automatic process. Any
such assertions must be based on the assumption that subsequent State practice and
the development of opinio juris, which was not present at the time when the soft law
principle was established, have effectively altered the nature of that specific principle.
This is, of course, complicated by the fact that space activities have increasingly been
undertaken by non-governmental (private) entities, and that the behaviour of these
entities does not (in theory) constitute State practice,260 even though their conduct
may be regulated by States under national space legislation.261
The intention of those involved in the finalisation of the soft law provisions, and the
support for those provisions, is also of relevance. The Principles on Direct Television
Broadcasting is an example of a soft law instrument which aimed to incorporate a
“prior consent” requirement into any relevant activities.262 The legally binding nature
of such a requirement was not and has not been accepted—at least not by the major
space-faring States.263
259 By contrast, one could refer to the situation in Antarctica, which had seen a series of sovereign
claims by several States in the period leading up to the finalisation in 1959 of the Antarctic Treaty,
402 UNTS 71. Article IV of the Antarctic Treaty has the effect of suspending all claims to territorial
sovereignty in Antarctica for the duration of that instrument, as well as prohibiting any ‘new claim,
or enlargement of an existing claim’. The Protocol on Environmental Protection to the Antarctic
Treaty, 30 I.L.M. 1455, which came into force in 1998, augments the Antarctic Treaty by protecting
Antarctica from commercial mining for a period of 50 years.
260 Chinkin, “The Challenge of Soft Law”, supra note 214, 858.
261 See Freeland, “Matching Detail with Practice: The Essential Elements of National Space Legislation”
(2010) 53 Proceedings of the Colloquium on the Law of Outer Space 540.
262 See Principles on Direct Television Broadcasting, supra note 123, Principles 13 and 14.
263 The Principles on Direct Television Broadcasting was exceptional in the evolution of both hard law
and soft law instruments through the UNCOPUOS process, since it was not agreed by consensus.
[660] ZLW 67. Jg. 4/2018

Whilst some have argued that the very existence of soft law instruments allows
States to reach agreement in circumstances where a treaty is simply not (politically)
possible,264 this is not always so. The prior consent requirement, though not accepted
after the adoption of the Principles on Direct Television Broadcasting, has, however,
been discreetly incorporated into a less known but binding international treaty ne-
gotiated through the more highly technical forum of the ITU. The World Radiocom-
munication Conferences of the ITU inserted in the revision of ITU Radio Regulations
the requirement that international satellite broadcasting must be undertaken after
securing consent of the receiving State.265
It has often been observed that the task of negotiating and finalising the terms of a
soft law space-related instrument is a complex and time-consuming endeavour. For
example, it took almost 10 years to negotiate the Nuclear Power Principles,266 which
contains some complex but specific technical recommendations written in manda-
tory (norm-creating) language relating to the use of nuclear power sources in outer
space. In such circumstances, it may be more difficult to categorically argue that the
final result – even in the form of a soft law instrument – is not intended to have any le-
gal consequence whatsoever. On the other hand, the 1996 Benefits Declaration, which
contains very broad principles without specifying any specific rights and obligations,
might have only little legal value.
In this regard, the role and perspectives of the ICJ are interesting since the Court has,
at times, given more weight to UN General Assembly resolutions, particularly when
Instead, it was adopted by a vote at the United Nations General Assembly – 103 in favour, 13 against
and 13 abstentions. It was not supported by the major space-faring States, which included virtually
all of those that, at the time were, or were likely to become involved in direct television broadcasting
via satellite.
264 For a criticism of this argument, see Klabbers, “The Undesirability of Soft Law” (1998) 67 Nordic
Journal of International Law 381.
265 ITU Radio Regulations, supra note 24, Art. 23.13(4), which specifies that: In devising the charac-
teristics of a space station in the broadcasting-satellite service, all technical means available shall
be used to reduce, to the maximum, the radiation over the territory of other countries unless an
agreement has been previously reached with such countries.
266 For a description of the various stages of the negotiation process that eventually lead to the finali-
sation of the Nuclear Power Principles, see IH Ph Diederiks-Verschoor/ Kopal, An Introduction to
Space Law, 3rd ed (Alphen aan den Rijn: Kluwer Law International, 2008) at 101-106.
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determining the existence of a rule of customary international law. Thus, in the Legal-
ity of Nuclear Weapons, the Court held:
General Assembly resolutions, even if they are not binding, may sometimes
have normative value. They can, in certain circumstances, provide evidence
important for establishing the existence of a rule or the emergence of an opinio
juris. To establish whether this is true of a given General Assembly resolution,
it is necessary to look at its content and the conditions of its adoption; it is also
necessary to see whether an opinio juris exists as to its normative character.
Or a series of resolutions may show the gradual evolution of the opinio juris
required for the establishment of a new rule.267
Nevertheless, that “normative value” might not be recognised in the UN General As-
sembly resolutions on the prevention of an arms race in outer space (PAROS), which
have been repeatedly adopted every year for over thirty-five years with almost una-
nimity of the UN Members.268 The US has, since the PAROS resolution was first tabled
in 1981, almost persistently voted against its adoption. Arguably, as a consistent per-
sistent objector,269 the US is at the very least making clear that it is not bound by any
customary rule that may have developed in the interim in this regard.270 As a major
space-faring State, the interests of which are arguably “specially affected” by the con-
tent of any customary law in question,271 the objection of the US may even be imped-
ing the formation of a customary rule that States must refrain from actions contrary
to the objective of preventing an arms race in outer space, and indirectly imposing
267 Legality of Nuclear Weapons, supra note 6, para 70.

268 The first such resolution was adopted in 1981: Prevention of arms race in outer space, UN
Doc. A/ RES/36/97C (1981). The most recent resolution was adopted in 2017, which noted the
“importance and urgency of preventing an arms race in outer space and the readiness of all States to
contribute to that common objective” (para 1) and called on all States “in particular those with ma-
jor space capabilities, to contribute actively to the objective of the peaceful use of outer space and of
the prevention of an arms race in outer space and to refrain from actions contrary to that objective
and to the relevant existing treaties in the interest of maintaining international peace and security
and promoting international cooperation.” UN Doc A/RES/72/26 (2017), para 4.
269 Of interest to note, several times (e.g. in 2014, 2015, 2016, and 2017), the US has abstained from vo-
ting, thus not objecting to the adoption of the PAROS resolutions, thereby adding to the complexity
of whether it is indeed a “persistent objector”.
270 Brownlie, Principles of Public International Law, supra note 74, 11. See also C - II, above.
[662] ZLW 67. Jg. 4/2018

limitations on the development and deployment of space weapons. Indeed, the lat-
est PAROS resolution continues to reiterate the “necessity of further measures with
appropriate and effective provisions for verification to prevent an arms race in outer
space”,272 hinting that the PAROS resolution itself is soft in its legal value and not hard
enough to achieve the objectives described.
In light of the absence of hard treaty laws governing space activities since the adop-
tion of the Moon Agreement, it is apparent that soft law is taking hold in the gover-
nance of space. Thus in 2007, voluntary “guidelines” have been agreed that intended
to address the problematic issue of space debris,273 as well as in a number of other
space-related areas. To reduce misunderstandings and mistrust of intentions of States
in outer space, a special Group of Governmental Experts drafted a set of transpar-
ency and confidence-building guidelines, which include exchange of different types
of information relating to States‘ space policy and activities, risk reduction notifica-
tions and expert visits to national space facilities.274 These suggested measures in-
clude basic principles, criteria, transparency and operational measures and consulta-
tive mechanisms, as well as measures of a legally binding nature.275 It was suggested
that Transparency and Confidence-Building Measures (TCBMs) be implemented on
a voluntary basis and without prejudice to the implementation of obligations deriv-
ing from existing legal commitments.276 In 2014, the European Union (EU) proposed
an International Code of Conduct for Outer Space Activities (ICoC), which is sup-
posed to act as a roadmap and guide for behaviour in outer space.277 Among many
issues relating to, for instance, increasing transparency, situational awareness in outer
272 Prevention of arms race in outer space (2017), supra note 268, para 3.
273 See UNCOPUOS, Report of the Scientific and Technical Subcommittee on its forty-fourth session,
UN Doc A/AC.105/890 (2007), Annex 4, 42.
274 Report of the Group of Governmental Experts on Transparency and Confidence-Building Measures
in Outer Space Activities, UN Doc A/68/189 (2013) [Report on Transparency and Confidence-Buil-
ding Measures]. It should be noted that there has been muted success and criticisms in the adoption
of such guidelines: see Jakhu/ Steer/ Chen, “Conflicts in Space and the Rule of Law”, supra note 28,
674-676.
275 Report on Transparency and Confidence-Building Measures in Outer Space Activities, Parts III, IV
and VI.
276 Ibid., para 68.
277 International Code of Conduct for Outer Space Activities, supra note 18, sect 2. Again, the success of
the European Code of Conduct for outer space remains to be seen: see Jakhu/ Steer/ Chen, “Conflicts
in Space and the Rule of Law”, supra note 28, 678-679.
ZLW 67. Jg. 4/2018 [663]

Abhandlung
space, and mitigating the growth of space debris, the Draft Code of Conduct further
calls upon States to develop guidelines for the security and long-term sustainability of
outer space activities.278 The latest effort at the multilateral forum is the drafting of the
Guidelines for the Long-Term Sustainability of Outer Space Activities, a protracted
process that first began in 2010.279 In its latest report on the subject matter, the UN-
COPUOS noted the:
Development of voluntary guidelines is premised on the understanding that

outer space should remain an operationally stable and safe environment that
is maintained for peaceful purposes and open for exploration, use and inter-
national cooperation by current and future generations, in the interest of all
countries, irrespective of their degree of economic or scientific development,
without discrimination of any kind and with due regard for the principle of
equity.280
Many of the legal principles of law, such as equity and the rights of current and future
generations, have been discussed above. The piecemeal adoption of the Guidelines for
the Long-Term Sustainability of Outer Space Activities is grounded in existing hard
space law instruments to ensure the continued viability and security of future activi-
ties and applications in outer space.
From the above, there is a clear trend towards the use of such instruments, continuing
the long-established understanding that soft law is a well-accepted methodology for
furthering an understanding of how humankind should continue its endeavours in
outer space. To conclude the discussion of soft law instruments, the last word should
be reserved for Sir Robert Jennings who, in 1980, when discussing UN General As-
sembly resolutions, wrote:
recommendations may not make law, but you would hesitate to advise a gov-
ernment that it may, therefore, ignore them, even in a legal argument. 281
278 International Code of Conduct for Outer Space Activities, supra note 18, sect 3.2.
279 See “Working Group on the Long-Term Sustainability of Outer Space Activities”, online: UNOOSA
www.unoosa.org/oosa/en/ourwork/copuos/working-groups.html.
280 Guidelines for the long-term sustainability of outer space activities, supra note 18 at 2, para 4.
281 Jennings, “What is international law and how do we tell it when we see it?”, as quoted in Harris, Cases
and Materials on International Law, supra note 233 at 57.
[664] ZLW 67. Jg. 4/2018

H. Concluding Remarks
The issues of law concerned are surely fascinating in the horizons we are forced
to contemplate, standing on the brink of a new world, or worlds, far beyond
anything man has ever reached for. What mere abstract speculation has taken
on real and concrete shape.282
Manfred Lachs
Though we come to the end of this discussion on the sources of international law,
humanity is only beginning to realise the potentials of the final frontier. Outer space
offers humanity boundless opportunities. However, in reaping the benefits of these
opportunities, States, private space actors, and those concerned with the interests of
present and future generations, must be cognisant that all space activities ought to be
carried out in an orderly and sustainable fashion. International law, particularly space
law, offers the certainty and clarity for such orderly governance of all such activities
and endeavours present and future.
It is important for anyone associated with the research and study of international
space law to recognise that the international regulation of outer space is embedded
in international law. It is not an esoteric and separate paradigm. In a sense, this is an
obvious point, but one that is often forgotten and worth emphasising. It is a logical
consequence of the wording of Article III of the Outer Space Treaty, which requires
that activities in the exploration and use of outer space are to be carried out “in ac-
cordance with international law, including the Charter of the United Nations”.
International law is dynamic and evolving, as has been made clear by the ICJ on a
number of occasions. It has tremendous breadth and tremendous depth and extends
to include non-traditional areas that are not “territorial” in nature. Likewise, the ap-
plication of principles of international law to the regulation of outer space is equally
dynamic and evolving. It is obvious that the future will see an even greater range
of space activities evolve. This will give rise to considerable opportunities, but also
considerable challenges. There is clearly a need for regulation of such activities in an
appropriate way, and there is no doubt that international law – supplemented by na-
tional space law – has an important role to play in this continuing evolution.
282 Lachs, The International Law of Outer Space, supra note 22, xvii.
ZLW 67. Jg. 4/2018 [665]

Abhandlung
As explored, the sources of international law - both traditional (in the Article 38 sense)
and non-traditional (peremptory norms, erga omnes obligations, and soft law) - are
applicable to the regulation of the exploration and use of outer space. Of course the
UN space law treaties are highly significant and pertinent to space activities; but there
is much more. The fact is, in the governance of outer space, perhaps due to the very
strategic and utilitarian nature of space applications and assets, the momentum in
adopting hard law to regulate space activities has waned, or perhaps ground to a halt
altogether. In its place are non-binding, yet no less significant, soft law instruments
that will, in the foreseeable future, continue to shape, guide, and influence the behav-
iour of space actors, be they private or public. A determination of the true legal posi-
tion relating to a specific activity involving outer space technology would typically in-
volve a consideration of a significantly broader and more complex (and perhaps also
comprehensive) range of international rules than those contained in the UN space law
treaties, as important as those treaties are. These considerations cover areas as diverse
as the use of outer space for the purposes of armed conflict,283 and the environmental
rules relating to the exploration and use of outer space.284
The situation is even more complicated by the fact that space technology, and the
range of space activities that this gives rise to, has moved forward very quickly from
the days of Sputnik I. As is the case in many areas of scientific development, technol-
ogy has progressed far more rapidly than the law, which to any objective outsider is
lagging behind. Many of these new activities in space were not even contemplated by
the drafters of the UN space law treaties. That does not mean that the fundamental
principles of space law do not apply to those activities as well; we cannot simply say
that there is no law that applies to such situations. What we must do instead is to
understand how these various sources of international (space) law operate, how they
are developed, and how they shape the dynamic legal paradigm associated with our
ever-increasing dependency upon outer space technology in a globalised and inter-
connected world.
283 See, for example, Freeland, “In Heaven as on Earth? The International Legal Regulation of the Mili-
tary Use of Outer Space”, (2011) 8:3 US-China Law Review 272.
284 See, for example, Bohlmann/ Freeland, “The Regulation of Space Activities and the Space Environ-
ment” in Alam/ Md Bhuiyan/ Chowdhury/ Techera (eds.), Routledge Handbook of International
Environmental Law (2013) 375. See also Instruments on the Protection of the Environment from
Damage Caused by Space Debris, supra note 170.
[666] ZLW 67. Jg. 4/2018

Whilst this article certainly does not purport to be comprehensive in its scope and
analysis, it endeavours to raise some of the major considerations associated with ar-
riving at an analytical and logical legal solution to the myriad of activities that hu-
mankind is now undertaking, and will continue to undertake, in outer space. Without
a careful consideration of the nuances and intricacies of general international law,
and how its creation determines the rules that dictate how such activities are to be
undertaken, our understanding of what is and should be possible in this increasingly
mainstream area for human activity will be significantly compromised.
ZLW 67. Jg. 4/2018 [667]

Sources of Space Law

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Sources of Space Law

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Sonderdruck neu ZLW_Layout 1 03.03.

by Ram S. Jakhu *, Steven Freeland ** and Kuan-Wei Chen ***

[606] ZLW 67. Jg. 4/2018

ZLW 67. Jg. 4/2018 [607]

a. international conventions, whether general or particular, establishing rules ex-

[608] ZLW 67. Jg. 4/2018

9 ICJ Statute, supra note 7, Art. 1.

ZLW 67. Jg. 4/2018 [609]

[610] ZLW 67. Jg. 4/2018

ZLW 67. Jg. 4/2018 [611]

[612] ZLW 67. Jg. 4/2018

I. International Conventions Applicable To Outer Space

Moreover, for an international treaty to be considered as valid and to represent a

ZLW 67. Jg. 4/2018 [613]

[614] ZLW 67. Jg. 4/2018

II. Interpretation Of International Conventions

35 VCLT, supra note 31, Art. 18.

ZLW 67. Jg. 4/2018 [615]

properly interpreted and understood pursuant to established international rules of

[616] ZLW 67. Jg. 4/2018

ZLW 67. Jg. 4/2018 [617]

III. Specific Obligations Relating To International Conventions

[618] ZLW 67. Jg. 4/2018

ZLW 67. Jg. 4/2018 [619]

59 Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to

[620] ZLW 67. Jg. 4/2018

ZLW 67. Jg. 4/2018 [621]

a primary source of international law prompted the International Law Commission

[622] ZLW 67. Jg. 4/2018

Diplomatic acts and correspondence; conduct in connection with resolutions

ZLW 67. Jg. 4/2018 [623]

in question “must be general, meaning that it must be sufficiently widespread and

However, it is not necessary that the practice of States be uniformly consistent; in

[624] ZLW 67. Jg. 4/2018

spacefaring nations. In echoing the formation of instant custom alluded to earlier,81

II. Opinio Juris

81 See Cheng, supra note 65.

ZLW 67. Jg. 4/2018 [625]

Public statements made on behalf of States; official publications; government

[626] ZLW 67. Jg. 4/2018

Failure to react over time to a practice may serve as evidence of acceptance

ZLW 67. Jg. 4/2018 [627]

Of further probative value to the formation of customary rules is the objection or

Must have had knowledge of the practice (which includes circumstances

[628] ZLW 67. Jg. 4/2018

D. General Principles Of Law

106 Outer Space Treaty, supra note 23, Art. XI.

ZLW 67. Jg. 4/2018 [629]

[630] ZLW 67. Jg. 4/2018

more fundamental character”.113 As such, principles may themselves ultimately come

ZLW 67. Jg. 4/2018 [631]

[632] ZLW 67. Jg. 4/2018

ZLW 67. Jg. 4/2018 [633]

[634] ZLW 67. Jg. 4/2018

E. Subsidary Means Of Determining International Law

may assist in collecting, synthesizing or interpreting practice relevant to the

ZLW 67. Jg. 4/2018 [635]

[636] ZLW 67. Jg. 4/2018

It is obvious that a unanimous, or almost unanimous, decision [of the ICJ]

ZLW 67. Jg. 4/2018 [637]

[638] ZLW 67. Jg. 4/2018

II. Teachings Of Publicists

Teachings should be interpreted broadly, encompassing written and non-written

150 Greenwood, “Sources of International Law: An Introduction”, supra note 20 at 4.

by Ram S. Jakhu , Steven Freeland and Kuan-Wei Chen