espi perspectives 67

26 August 2013. Issue 67 of ESPI Perspective series examines the possibility of extracting general principles of law from the UN COPUOS Legal Subcommittee Work with National Legislation. Article 38 of the Statute of the International Court of Justice lists three sources of law to apply in disputes: conventions, custom, and general principles of law. General principles of international law can be derived from the body of municipal or domestic law pertinent to the issue. The paper begins by defining general principles of law. Next, it examines methodologies and tests for ascertaining what they are. Lastly, it parses the recent work of the UN COPUOS Legal Subcommittee on national legislation and begins the process of examining the compilation of national laws to identify common principles, using the previously described tests to analyse the various national laws to reveal their crux or ultimate essence.

Despite the fact that there have been no new space treaties since 1979, the international space community has available another source of law that can provide a framework for activities that fall outside the realm governed by either treaty or custom. This source is the third of those described in Article 38(1)(c), general principles of international law. As more States come online with regulatory frameworks of their own, common principles are beginning to emerge. In fact, activities in space flow from a tradition that has acknowledged the intrinsic role of principles from inception of the first treaty, titled “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.” General principles are always undergoing the process of orderly change as the municipal laws upon which they are based are amended. This may be one of the best arguments for the use of general principles in a technologically driven field such as international space law. Based upon the recognition and acceptance of States, general principles are distinct from customary law in that the practice element is deemed to be unnecessary. But what, precisely are general principles? Must they be universal? Are they binding? What is their function? How can we ascertain their existence, and more importantly, their essence? This perspective assesses the current situation by means of a comparative analysis, regarding the test for principles and applies this test to a schematic overview of National Regulatory Frameworks.

 

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- ESPI Perspective 67

 

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