University of Ljubljana Faculty of Law
Department of International Law
SPACE LAW AS LEX SPECIALIS TO INTERNATIONAL LAW Master’s thesis
Author: Iva Ramuš Cvetkovič
Supervisor: Associate Prof. Vasilka Sancin, PhD Co-supervisor: Prof. Sergio Marchisio
Ljubljana, September 2021
ii POVZETEK
Vesoljsko pravo kot lex specialis mednarodnega prava Avtorica: Iva Ramuš Cvetkovič
Mentorica: izr. prof. dr. Vasilka Sancin Somentor: prof. Sergio Marchisio
Širitev mednarodnega prava se odraža v poglobljeni regulaciji številnih novih pravnih področij, vključno z vesoljskim pravom, po drugi strani pa vodi v fragmentacijo mednarodnopravnega sistema. Narava vesoljskih aktivnosti je zelo kompleksna, zaradi česar je eden izmed pogostih izzivov kako določiti, katere pravne norme so uporabljive v določenem primeru ter katera prevlada v primeru konflikta.
Eno izmed pravil za reševanje konfliktov med pravnimi normami je pravilo lex specialis derogat legi generali, ki določa, da specialnejša norma prevlada in razveljavi splošnejšo.
To magistrsko diplomsko delo v prvem delu predstavi teoretično ozadje pravila lex specialis, njegovo uporabljivost v mednarodnem pravu ter njegovo interakcijo z drugimi tehnikami za reševanje konfliktov norm. V drugem delu najprej preučuje, ali in v kakšni meri lahko vesoljsko pravo štejemo za lex specialis v razmerju do splošnega mednarodnega prava, ocenjujoč možnosti označevanja vesoljskega prava kot samozadosten režim ali pa kot lex specialis v razmerju do sekundarnih pravil o odgovornosti držav. Nato preučuje, ali lahko vesoljsko pravo štejemo za lex specialis v razmerju do podvrst mednarodnega prava, natančneje, mednarodnega okoljskega prava v primeru povzročanja okoljske škode ali odstranjevanja vesoljskih smeti, ter mednarodnega investicijskega prava v primeru investicij v vesolje.
V luči pospešenega razvoja vesoljske industrije ter zatrjevane specialne narave vesoljskega prava sledi ocena o obstoju potrebe po novem mednarodnem tribunalu, specializiranim za spore, ki izhajajo iz vesoljskih aktivnosti.
KLJUČNE BESEDE: vesoljsko pravo, lex specialis, mednarodno pravo, konflikt norm, fragmentacija, odgovornost držav, okoljsko pravo, investicijsko pravo, vesoljske smeti, vesoljsko sodišče.
iii ABSTRACT
Space law as lex specialis to international law Author: Iva Ramuš Cvetkovič
Supervisor: Associate Prof. Vasilka Sancin, PhD Co-supervisor: Prof. Sergio Marchisio
The expansion of international law has resulted in a detailed regulation of various new legal fields - for example space law - on one hand, and a fragmentation of the international legal system on the other. The nature of space activities is extremely complex, therefore one of the challenges is how to determine which norms are applicable in a particular case and in case of a conflict of norms, which norms prevail.
One of the rules for resolution of such conflicts is the lex specialis derogat legi generali rule, which determines that a more special provision prevails over a more general one and derogates it.
This thesis in its first part presents the theoretical background of the lex specialis rule, its application to international law and its interaction with other conflict-solution techniques. In the second part, it examines firstly, whether and to what extent space law may be considered lex specialis to general international law, assessing the possibilities of space law being labelled as a self-contained regime or a lex specialis to the secondary rules on State responsibility. Secondly, it examines whether space law is lex specialis to the two sub-branches of international law - namely, international environmental law in case of environmental harm or the removal of space debris and international investment law in case of investments in outer space.
In light of the increasing development of the space sector and the alleged special nature of space law an assessment is made whether there exists a need for a new international tribunal, specialized for disputes arising from space activities.
KEY WORDS: space law, lex specialis, international law, conflict of norms, fragmentation, State responsibility, environmental law, investment law, space debris, space court.
iv Acknowledgements
Hvala.
To our Faculty of Law, for all the knowledge received and all the assistance offered, but especially to my supervisor Prof. dr. Vasilka Sancin, who enabled me to step into the universe of international law already in the first year of my studies, and then continued to offer opportunities to partake in conferences, competitions, and events, where I was able to learn so much about law and about myself.
My gratitude is not only for agreeing to this topic based on my interests and for the invaluable directions and comments during the writing process, but also for all the years of being a great mentor, who always valued dedication to study and work, pushed me to fulfil my potential, taught by example on how to be assertive, confident, and strong, but at the same time remained understanding of circumstances and reminded me to not forget to enjoy life in the meantime as well.
To international academia that broadened my horizons, but especially
to my co-supervisor Prof. Sergio Marchisio, for his recognition, motivation, and kind encouragement in the crucial moments - in Paris, Messina, and Washington DC, for an important reminder, just as I was hesitating about my future, that space law like outer space knows no limits and needs to be further researched, for his willingness to debate on this topic despite extremely busy schedule, and most of all for sharing his extensive knowledge selflessly;
to Prof. Rebecca Bresnik, whose visits are like shooting stars - always brief, but at the same time memorable and meaningful, for bringing with her excitement and appreciation, offering invaluable practical perspective on the space law and together with her husband Randy creating an international space bond with Slovenia.
To my moot court companions, with whom I went through a lot and from whom I learned so much, but especially
to Katja Grünfeld, for being the best co-traveller on our space law journey I could have wished for.
To my family, for raising me so that knowledge, intellect, and hard work were always appreciated, but especially
to my mother Jana, for being the incredible woman I always wanted to be, for supporting me in every important decision and for telling me there is nothing I cannot do (although, there probably is);
to my father Milenko, for constructive criticism, valuable lessons on right and wrong and invaluable advice and
to my grandma Veronika, for all her love and friendship along the way.
To my friends and colleagues, who balanced the hard work with fun, but especially to Alma, for her acceptance and calmness, to Katja, for bringing art and culture back to my every day, and to Žana, for being a great de-stress support in League of Legends and in life.
v
“Do not go where the path may lead, go instead where there is no path and leave a trail.”
-Ralph Waldo Emerson
vi TABLE OF CONTENTS
LIST OF ACRONYMS AND ABBREVIATIONS ... 1
I. INTRODUCTION ... 3
II. LEX SPECIALIS IN INTERNATIONAL LAW ... 8
1. The application of lex specialis in IL ... 8
2. The relationship between lex specialis and other rules governing conflicts of norms ... 10
3. Lex specialis at a macro level ... 11
3.1. Lex specialis in case of jus cogens ... 11
3.2. Lex specialis in case of conflicts between customary law and treaties .... 12
3.3. Lex specialis amongst different treaties... 13
4. Lex specialis on a micro level ... 14
4.1. True conflict of norms ... 14
4.2. False conflict of norms ... 14
III. SPACE LAW AS LEX SPECIALIS TO GENERAL INTERNATIONAL LAW ... 16
1. Space law as a self-contained regime ... 16
2. Space law as lex specialis to rules on State responsibility ... 17
2.1. Macro level ... 17
2.2. Micro level ... 18
2.2.1. Responsibility... 19
2.2.2. Liability ... 20
IV. INTERNATIONAL SPACE LAW AS LEX SPECIALIS TO OTHER SUB- BRANCHES OF INTERNATIONAL LAW ... 23
1. International space law as lex specialis to international environmental law ... 23
1.1. Macro level ... 24
1.1.1 Multi-sourced equivalent norms ... 25
1.1.2 Priority clause ... 26
1.2. Micro level ... 26
1.2.1. No harm principle ... 26
1.2.2. Due diligence and due regard principles ... 28
1.2.3. Common but differentiated responsibilities ... 29
1.2.4. The issue of space debris ... 30
vii
2. International space law as lex specialis to international investment law .. 32
2.1. Macro level ... 33
2.2. Micro level ... 33
2.2.1. Lex specialis as a preliminary objection to jurisdiction ... 33
2.2.2. The concept of territory ... 34
V. SPECIALIZED TRIBUNAL ... 36
VI. CONCLUSION ... 38
VII. SOURCES ... 39
1. Books ... 39
2. Articles ... 40
3. Master’s theses ... 44
4. International treaties ... 44
5. UN Documents ... 44
6. Cases ... 45
6.1. Permanent Court of International Justice and International Court of Justice ... 45
6.2. Other international tribunals ... 46
6.3. National courts ... 47
7. Internet sources... 47
8. Miscellaneous ... 48
1
LIST OF ACRONYMS AND ABBREVIATIONS ADR - Active Debris Removal
ARRA - Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched Into Outer Space
ARSIWA - Articles on the Responsibility of States for Internationally Wrongful Acts
ASAT - anti-satellite
CBDR - common but differentiated responsibilities CIL - customary international law
COPUOS - United Nations Committee on the Peaceful Uses of Outer Space
DAPTHHA - Draft Articles on Prevention of Transboundary Harm from Hazardous Activities
ECJ - European Court of Justice
ECtHR - European Court of Human Rights ESA - European Space Agency
IADC - Inter-Agency Space Debris Coordination Committee Ibid. - ibīdem / in the same place
ICJ - International Court of Justice
ICTY - International Criminal Tribunal for former Yugoslavia IDS - international dispute settlement
i.e. – id est / that is
IEL – international environmental law IIL – international investment law IL - international law
ILC - International Law Commission ISL - international space law
IUSCT - Iran-US Claims Tribunal LEO - Low Earth Orbit
2 JAXA - Japanese Aerospace Exploration Agency
LIAB - Convention on International Liability for Damage Caused by Space Objects MOON - Agreement Governing the Activities of States on the Moon and Other Celestial Bodies
MSEN - multi-sourced equivalent norms
NASA - National Aeronautics and Space Administration OS - outer space
OST - Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies
p. - page pp. - pages
PCIJ - Permanent Court of International Justice
REG - Convention on Registration of Objects Launched into Outer Space SL - space law
U.N.T.S - United Nations Treaty Series UN - United Nations
UN Doc. - United Nations document
UNOOSA - United Nations Office for Outer Space Affairs USA - United States of America
USSR - Union of Socialist Soviet Republics
VCLT - Vienna Convention on the Law of Treaties WTO - World Trade Organization
3 I. INTRODUCTION
International law (IL) is nowadays increasingly expanding, as it is currently regulating a variety of specialist areas, not only those that have traditionally been under the exclusive domain of sovereign states, but also the fields that have emerged in recent decades.1 One of them is the international space law (ISL), which emerged in the middle of the previous century as a new field of IL, regulating certain issues related to the use of outer space (OS).2
The essence of the ISL3 consists of five treaties4, customary international law (CIL) and several soft law instruments.5 The latter are being developed mainly under the auspices and sponsorship of international organizations, primarily the United Nations (UN), in particular its Committee on the Peaceful Uses of Outer Space (COPUOS)6 and United Nations Office for Outer Space Affairs (UNOOSA)7.
Ideas of space exploration as known today emerged at the beginning of the 20th century.8 It was, however, only in 1957 when the first successful space launch of Sputnik I was performed, followed by 1965 Apollo 11 landing the first human on the Moon.9 Since then, space activities have changed significantly: private commercial activities are on the rise and they are becoming invaluable in our everyday routine.10 From remote sensing of the Earth, monitoring natural disasters, to weather forecast,
1 Shaw, INTERNATIONAL LAW (2017), pp. 48, 96.
2 Brünner (Ed.), Klemm, Rinner, Mayer, Karimi-Schmidt, SPACE LAW ESSENTIALS (2020), pp.
13, 14.
3 It must be noted that the term ISL is narrower than the term space law (SL), as SL comprises of all international and national legal rules and principles governing the exploration and use of OS, whereas ISL does not include national rules, except when they present State practice or opinio juris with regard to the establishment of customary international law. Malanczuk, Space law as a branch of international law (1994), p. 147; Gorove, International Space Law in Perspective - Some Major Issues, Trends and Alternatives (1983), p. 357. Similarly, distinction between ISL and SL is made in the Slovenian legal doctrine, where the terms “mednarodno vesoljsko pravo” and “pravo vesolja” are used. For a more detailed explanation of Slovenian legal terminology of space law, see Sancin, Grünfeld, Ramuš Cvetkovič, Sodobni izzivi mednarodnopravnega urejanja vesolja (2021), p. 45.
4 These are in particular: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [OST]; Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched Into Outer Space, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119 [ARAA];
Convention on International Liability for Damage Caused by Space Objects, 1973, 24 U.S.T. 2389, 961 U.N.T.S. 187 [LIAB]; Convention on Registration of Objects Launched into Outer Space, 1976, 28 U.S.T. 695, 1023 U.N.T.S. 15 [REG]; Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1984, 1363 U.N.T.S. 3 [MOON].
5 Lyall, Larsen, SPACE LAW - A TREATISE (2016), pp. 41-52.
6 URL: <www.unoosa.org/oosa/en/ourwork/copuos/index.html> (13.7.2021).
7 URL: <www.unoosa.org/> (13.7.2021).
8 One of the most important authors from this early era is Slovenian engineer Herman Potočnik - Noordung, who in 1928 published a revolutionary work titled The Problem of Space Travel (original title being Das Problem der Befahrung des Weltraum) in which he elaborated upon the idea of an orbital space station for Earth observation. See Lyall, Larsen, supra note 5, p. 5.
9 Ibid., p. 1.
10 Ibid., pp. 467, 468.
4
telecommunications, navigation and banking systems - space activities have become more complex and more needed than ever before.11
With such fast development of the space industry (on a national12 as well as international13 level) it is reasonable to expect an increase in legal disputes related to the activities in OS. So far, such disputes have been settled through national judicial proceedings14 or through diplomatic channels15, however, it is only a question of time when an international court or tribunal will come across having to solve such a case.
As space activities are usually the result of a complex international cooperation and an inclusion of multiple stakeholders,16 the question arises, which rules of IL are to be applied and which rules take precedence when the applicable ones come in contradiction with one another.
To determine how to resolve conflict among contradicting rules in IL, the nature of IL must first be examined. Among many different theories, one argues that there exist two contradicting views on this topic, namely the universalistic approach, claiming that IL is a residual and unified legal system and a particularistic approach, claiming that IL is an aggregate of loosely interrelated sub-branches.17 Despite the International Law Commission (ILC) in its Report on Fragmentation of International Law: Difficulties Arising From The Diversification And Expansion of International Law (Fragmentation Report)18 following a much preferred19 view of a coherent legal
11 Blount, Renovating Space: The Future of International Space Law (2020), p. 521.
12 States have recently increased financial involvement in the space sector. A recent example is the establishment of the “Space Force” - a sixth branch of the USA’s military. See URL:
<www.spaceforce.mil/> (23.8.2021); URL: <www.military.com/space-force> (23.8.2021); Space:
Investing in the final frontier, URL: <www.morganstanley.com/ideas/investing-in-space>
(23.8.2021). Furthermore, the initial space industry scheme, which consisted of merely the two superpowers, namely the USA and USSR, is being drastically changed, as more and more States are becoming space active. See Lyall, Larsen, supra note 5, pp. 28, 468, 472, 474, 560; The History of Space Exploration, URL: </www.nationalgeographic.org/article/history-space-exploration/>
(23.8.2021). Slovenia has, for example, in September 2020 launched its first two satellites into outer space. See URL: <www.gov.si/novice/2020-09-03-docakali-izstrelitev-slovenskih-satelitov-nemo- hd-in-trisat/> (20.8.2021). For more on the development of Slovenian space legislation, see Sancin, Priprave prvega slovenskega Zakona o nadzoru vesoljskih dejavnosti (2021), URL: <www.tax-fin- lex.si/Dokument/Podrobnosti?rootEntityId=5902fdbb-582b-4250-a923-fe1d7c948027> (19.8.2021).
13 The European Space Agency (ESA), for example, has been one of the leading subjects in space exploration for decades. See ESA’s missions at URL: <www.esa.int/ESA/Our_Missions>
(20.8.2021); URL: <www.esa.int/Education/Past_projects> (20.8.2021).
14 Nemitz v US, 2004 WL 316704; Nemitz v N.A.S.A, 126 Fed Appx. 343; Blount, Outer Space and International Geography: Article II and the Shape of Global Order (2017), pp. 113, 114.
15 Such an example is the Settlement of Claim between Canada and the Union of Soviet Socialist Republics for Damage Caused by "Cosmos 954" (1981), URL:
<www.jaxa.jp/library/space_law/chapter_3/3-2-2-1_e.html> (1.7.2021).
16 Marchisio, Setting the Scene: Space Law and Governance (2018), pp. 57, 58.
17 Bogdandy, Dellavalle, Universalism and Particularism as Paradigms of International Law (2008), pp. 8, 27.
18 U.N. GAOR, 61st Sess., Supp. No. 10, Rep of the International Law Commission, para. 251, U.N.
Doc. A/61/10 (2006) [Fragmentation Report].
19 The main criticism of fragmentation is that it endangers legal certainty and consequently a global rule of law, but on the other hand it is noted that fragmentation has also positive effects as it prevents concentrations of power and enables balancing out different legal mechanisms. Peters, The refinement of international law: From fragmentation to regime interaction and politicization (2017), pp. 679, 680,
5
order over the fragmentation and claiming that IL is a legal system, this conclusion remains disputed.20
Nevertheless, some authors claim that even without the consensus over the deontological question of IL being a legal system, the technical questions of the conflicts of laws and conflicts of norms can still be resolved.21
One of the techniques for the resolution of the conflict of norms is the application of the lex specialis rule, which demands that a more special rule derogates a more general one (lex specialis derogat legi generali).22 However, its application to IL, due to the aforementioned disputed nature of IL, and the extent of such application remain disputed.23
This thesis will not be focused on establishing whether IL is indeed a legal system, nor it will assume so. It will, instead, follow the reverse approach established in the Fragmentation Report.24
The hypothesis of this master thesis is therefore that ISL acts as lex specialis to other applicable rules of IL when dealing with space activities.
As one of the conflict-solution techniques, lex specialis contributes to the resolution of contradictions between applicable rules of IL and ISL, and consequently to a greater legal predictability, as a clear determination of interaction of conflicting rules
681; Koskenniemi, Leino, Fragmentation of International Law? Postmodern Anxieties (2002), pp.
554, 555.
20 Michaels, Pauwelyn, Conflict of Norms or Conflict of Laws?: Different Techniques in the Fragmentation of Public International Law (2012), p. 350; Crawford, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW (2012), p. 16. The International Criminal Tribunal for the former Yugoslavia (ICTY), for example, claimed in the Tadić case that IL lacks a centralized structure and does not provide for an integrated judicial system, therefore every tribunal is a separate system.
The Prosecutor v. Duško Tadić, Appeals Chamber, 35 ILM 35 (1996), para. 11. On the other hand, authors such as Ian Brownlie and Alain Pellet argue against too much specialty of individual sub- branches of IL. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (2003), pp. 529-530.
Pellet, Droit de l’hommisme et droit international (2000).
21 Michaels, Pauwelyn, supra note 20, pp. 351, 352; Simma, Pulkowski, Of Planets and the Universe:
Self-contained Regimes in International Law (2006), pp. 139, 148; Hobe, Pellander, Space Law: A
“Self-Contained Regime”? (2012), p. 5.
22 Pauwelyn, CONFLICT OF NORMS IN PUBLIC INTERNATIONAL LAW (2003), p. 163.
23 The dispute exists between two conflicting views: one highlights the conflict of norms inside one legal system of IL and offers the use and application of intra-systemic rules such as lex specialis, in order to determine the applicable norm, and the other highlights the conflict of different laws and in this regard offers a private-law solution - the use of collision norms in order to determine the applicable law. For a more detailed explanation on this issue see Michaels, Pauwelyn, supra note 20, pp. 350, 351; Shaw, supra note 1, p. 48; Matz, WEGE ZUR KOORDINIERUNG VÖLKERRECHTLICHER VERTRÄGE (2010), pp. 335, 336; Linderfalk, ON THE INTERPRETATION OF TREATIES (2010), pp. 311, 312.
24 In particular, the Fragmentation Report states that conflict-solution techniques such as lex specialis enable seeing a systematic relationship between conflicting norms of IL, confirming the systematic nature of IL. Fragmentation Report, p. 25, para. 36.
6
of IL would prevent further fragmentation of IL and consequently present a step in the direction of perceiving IL as a coherent legal system.25
This thesis is divided into six chapters. The introductory chapter, setting out the hypothesis, is followed by the second chapter presenting the theoretical background of the use of lex specialis in IL, the extent of its application in IL and its interaction with other rules governing the resolution of conflicting norms. The main chapters are the third and the fourth chapter, dealing with concrete examples of conflicts of norms applicable to OS activities. Here the thesis again follows the Fragmentation Report, which differentiates between three types of conflicts: (a) conflicts between general law and a particular, unorthodox interpretation of general law; (b) conflicts between general law and a particular rule that claims to be an exception; and (c) conflicts between two types of special law.26 As the first group of conflict falls out of scope of the Fragmentation Report,27 this thesis will leave it out of consideration as well.
Therefore, the third chapter will focus on conflicts between general IL and ISL, which is often claimed to be an exception to IL (group b), addressing firstly the argument of ISL being a self-contained regime and secondly the argument that ISL is lex specialis to secondary rules on State responsibility. The fourth chapter will address conflicts between two types of special law (group c), namely ISL in relation to other sub-branches28 of IL - firstly to international environmental law (IEL) and secondly to international investment law (IIL). The respective conflicts will be addressed on two levels, namely the macro level, dealing with the conflicts of various sets of rules, and micro level dealing with conflicts of individual norms.29 Based on the result of the third and fourth chapter, the fifth chapter will elaborate on the question of whether there exists a need for a new specialized international tribunal established to resolve space-related disputes.30 A specialized body for disputes related to the activities in OS could be created through a treaty31 or by virtue of Article 26(1) of the Statute of the International Court of Justice (ICJ), which says that
25 Ibid., pp. 32, 35, 248.
26 Ibid., pp. 30, 31, para. 47.
27 Ibid., p. 31, para. 48.
28 By sub-branches are meant the specialized fields of IL. They usually operate under a special treaty or a set of treaties or under the jurisdiction of a specialized Tribunal. Peters, supra note 19, p. 673. On the dangers of proliferation of the specified sub-branches under specialized international tribunals see Jennings, The Proliferation of Adjudicatory Bodies: Dangers and Possible Answers (2003), p. 444.
29 Such an approach is consistent with the Fragmentation Report, which also distinguishes between two levels of conflicts, namely conflicts between “boxes” of law (treaty regimes, sub-branches of IL...) and between individual norms. See, for example Fragmentation Report, pp. 13, 14, 20, 44.
30 The United Arab Emirates already announced the creation of its “space court” aimed to settle commercial disputes related to activities in OS. See Space Law: There's now a 'Space Court' for disputes that take place beyond Earth's atmosphere, URL: <sea.mashable.com/culture/14330/theres- now-a-space-court-for-disputes-that-take-place-beyond-earths-atmosphere> (1.8.2021); Dubai launches 'space court' to support thriving global sector, URL:
<www.thenationalnews.com/uae/courts/dubai-launches-space-court-to-support-thriving-global- sector-1.1157474> (1.8.2021); Dubai Creates ‘Space Court’ for Out-of-This-World Disputes, URL:
<www.courthousenews.com/dubai-creates-space-court-for-out-of-this-world-disputes/> (1.8.2021).
31 The International Criminal Court, for example, was established by the 1998 Rome Statute.
International Criminal Court - How the Court works?, URL: <www.icc-cpi.int/about/how-the-court- works> (1.8.2021).
7
“The Court may from time to time form one or more chambers, composed of three or more judges as the Court may determine, for dealing with particular categories of cases”. Finally, in the sixth chapter I will assess the correctness of the hypothesis and provide conclusions.
8
II. LEX SPECIALIS IN INTERNATIONAL LAW
In this Chapter I will firstly deal with the application of lex specialis in IL (1.) and then secondly examine the relation between lex specialis and other rules governing the conflicts of norms (2.). Thirdly, I will analyse its application on a macro level, dealing with relations between jus cogens, CIL and treaty law (3.). Lastly, I will look into lex specialis on a micro level, where I will draw the distinction between true and false conflicts of norms (4.).
1. The application of lex specialis in IL
Lex specialis derogat legi generali rule claims priority of a more special norm over a more general norm, and it has often been marked as a well-recognized rule32 in IL.33 It was mentioned in the context of IL already in 1653 by Hugo Grotius, a century later in 1758 by Emmerich de Vattel,34 and it has been used by several IL scholars and by international courts and tribunals.35
ILC stated that lex specialis rule is to be understood as a principle of interpretation, an interpretative maxime, a conflict-solution technique.36 As such, it may function in two ways - either in a broader37 sense in cases where the specific rule should be interpreted in the light of the general rule, as they both point out in the same direction, or in a narrow38 sense in cases where two legal provisions provide solutions pointing in incompatible directions when dealing with the same set of facts.39 In both cases, however, the more special rule applies, but as the first approach is followed by simultaneous application of both rules, the second approach triggers modification, overruling or setting aside of the general rule by a more special rule.40
32 It must be noted, that lex specialis rule is not a primary rule nor a secondary rule of IL, but rather a rule of interpretation - an interpretative maxime, a conflict-solution technique. See Fragmentation Report, pp. 24, 25, para. 36. For more on the distinction between primary and secondary rules, introduced by Special Rapporteur Roberto Ago in 1973, see Report of the International Law Commission on the work of its twenty-fifth session, UN Doc. A/9010/Rev.1, 1973, para. 40.
33 Simma, Pulkowski, supra note 21, p. 487.
34 Ibid.
35 Ibid.; Southern Bluefin Tuna (Australia v. Japan and New Zealand v. Japan) (Jurisdiction and Admissibility) RIAA XXIII (2000), para. 52; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) ICJ Reports 1986, para. 274; Gabčíkovo- Nagymaros Project (Hungary v. Slovakia) ICJ Reports 1997, para. 132; Ambatielos (Greece v. United Kingdom) ICJ Reports 1952, Dissenting Opinion of Judge Hsu, pp. 87, 88.
36 Fragmentation Report, pp. 51 61, 116, paras. 92, 113, 225.
37 Lex specialis in a broader sense does not necessarily entail a normative conflict, as it usually concerns simultaneous application of both standards - the general and the special one (so called
“harmonious interpretation”). See Fragmentation Report, p. 49, para. 88. Such examples are the multi- sourced equivalent norms (MSEN), which are the norms that point into the same direction and therefore represent a false conflict of norms, and will be in the context of lex specialis in broader sense further dealt with in Chapter IV(1.1.1.).
38 Lex specialis in a narrow sense is conditioned with the existence of a conflict of norms, which will be further elaborated upon in Chapter II(4).
39 Fragmentation Report, p. 35, paras. 56, 57.
40 Ibid., pp. 35, 49, paras. 57, 88.
9
This thesis will primarily deal with the second approach, namely lex specialis in a narrow sense, as such a view has been so far often taken by the ICJ41 and the Dispute Settlement Body of the World Trade Organization (WTO)42, however, in cases when such an approach will not be possible, I will elaborate whether at least lex specialis in a broader sense could apply, as endorsed by the European Court of Human Rights (ECtHR)43.
The rationale behind the application of lex specialis in IL consists of two parts.
Firstly, lex specialis rule strengthens the concept of State sovereignty, allowing States to express their sovereign will and modify general rules by creating a more special rule.44 Secondly, it is more reasonable and efficient to give precedence to the norm which was tailored expressly for a specific purpose, and it can therefore better address the specific situation.45
However, to determine whether a certain norm was created with an intent to regulate a specific situation, the existence of a single legislator with a coherent legislative will and the capability to form intent - the unitary lawmaker46 - must be presumed.47 Such presumption is crucial for determining which rules were intended to be more special.48 In the absence of a central world legislative body for IL,49 such a presumption must be based on other grounds, as examined below50.
41 North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) ICJ Reports 1969, para. 72; Nicaragua case, supra note 35, para. 274;
Fragmentation Report, p. 45, paras. 79, 80, 81.
42 Turkey - Restrictions on Imports of Textile and Clothing Products (India v. Turkey) (Panel Report) WT/DS34/R (1999), paras. 9.92-9.96. It must be noted, however, that WTO tends to avoid conflicts of norms, as it follows the presumption against conflicts. See Pauwelyn, supra note 22, p. 240.
43 Neumeister v. Austria, ECtHR, Chamber Judgement, App. No. 1936/63 (1974), p. 13, para. 29.
44 Simma, Pulkowski, supra note 21, pp. 486, 487.
45 Ibid.; Michaels, Pauwelyn, supra note 20, pp. 355, 356; Peters, supra note 19, p. 682; Casanovas, UNITY AND PLURALISM IN PUBLIC INTERNATIONAL LAW (2001), p. 246.
46 This expression matches the term “einheitlicher Gesetzgeber”, established in German legal doctrine. Matz, supra note 23, p. 335.
47 Michaels, Pauwelyn, supra note 20, pp. 345, 355.
48 Ibid.
49 Due to the non-existence of a central legislator, Dworkin described IL as an “unmitigated Westphalian system”. Dworkin, A new philosophy for international law (2013), pp. 18, 27.
50 Chapter II(3.).
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2. The relationship between lex specialis and other rules governing conflicts of norms
It is often possible to apply more than one conflict-solution technique,51 which might lead to different results.Lex posterior rule, for example, gives priority to the norm that was adopted later.52 The problem arises when one norm is more special but the other was adopted later, as the question which norm prevails in this case cannot be answered without first assessing the relation between lex specialis and lex posterior rules.53
Both are a direct consequence of the contractual freedom of States and may therefore serve as techniques of determining the true will of States.54 However, according to one view, lex posterior is to be given precedence over lex specialis, as the decisive element time is more objective and more easily applied than speciality.55
Another view advocates for the priority of lex specialis, even though such a view sets aside Article 30(3) of the Vienna Convention on the Law of Treaties (VCLT).56 It can be observed from the preparatory works of the Article 30 that it was intended to leave room for the application of lex specialis.57 It is further argued that lex specialis is absolute in its meaning - special rule must always prevail over a general rule, even when a general rule is lex posterior.58
Currently, the prevailing opinion in the doctrine calls for the relativity of lex specialis, meaning that it must be strictly balanced with lex posterior or other interpretative techniques.59 To ensure this, the argument emerged that the omission of mentioning lex specialis in Article 30 of the VCLT means that lex posterior is a rule of a first resort, as it is enshrined in the Article directly, and even though lex specialis might be absolute in its nature, the burden to prove the special nature
51 In the Mavrommatis Palestine Concessions case the PCIJ simultaneously endorsed both, lex specialis and lex posterior technique, as it decided that a latter and more special Protocol XII of the Treaty of Lausanne from 1923 shall prevail over the prior and more general Mandate for Palestine from 1922. See Mavrommatis Palestine Concessions (Greece v. United Kingdom of Great Britain and Northern Ireland) PCIJ (Ser. A) No. 2 (1924), p. 31.
52 Lex posterior derogat legi priori, a subsequent law derogates a prior law.
53 Prof. Pavčnik suggests that a subsequent and more general law may derogate prior but more special law (lex generalis posterior derogat legi speciali priori) only when the historical and teleological interpretative methods indicate that the new general law abolishes different regulations for different kinds of subjects and instead unifies them. Pavčnik, TEORIJA PRAVA (2013), p. 201.
54 Pauwelyn, supra note 22, p. 388.
55 Ibid.
56 Türk, TEMELJI MEDNARODNEGA PRAVA (2018), p. 50.
57 At the Vienna Conference it was expressly stated that in certain cases, which would generally be governed by Article 30 VCLT, lex specialis has to be used instead of lex posterior. For more detailed explanation see Pauwelyn, supra note 22, p. 406; Fragmentation Report, p. 39, para. 65.
58 Pauwelyn, supra note 22, p. 407; Wouters, Ryngaert, Ruys, De Baere, INTERNATIONAL LAW:
A EUROPEAN PERSPECTIVE (2019), p.168.
59 Fragmentation Report, pp. 37, 38, para. 62.
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character of a certain norm and therefore the application of lex specialis is on the asserting party.60
It has been claimed that such relativity is in line with the approach taken by the ICJ when determining the relations between prior but more special rule of use of force in self-defence and subsequent but more general environmental principles, when it concluded that the latter could not have »intended to deprive a State of the exercise of its right of self-defence under IL because of its obligations to protect the environment«.61
3. Lex specialis at a macro level
I will examine the applicability of lex specialis in case of conflicts involving jus cogens (3.1.), conflicts between CIL and treaty law (3.2.) and conflicts between different treaties (3.3.).
3.1. Lex specialis in case of jus cogens
Jus cogens norms or peremptory norms are hierarchically the highest norms of IL, a lex superior of IL.62 They have been marked as quasi-constitutional norms of IL.63 Jus cogens takes precedence over any other rule of IL not of the same character.64 That means that even if there exist more special norms in either CIL or treaty law, they cannot be considered lex specialis to jus cogens norms and they cannot derogate such norms.65 Article 53 of the VCLT states that treaty conflicting peremptory norms (jus cogens) is void and that jus cogens norms may only be derogated by the norm which has the same peremptory character, meaning that lex specialis is only applicable in a conflict of two peremptory norms.
The existence of jus cogens implies that IL has a systematic character, as these norms are a standard guidance for all other norms of IL.66
60 Pauwelyn supra note 22, p. 408.
61 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ICJ Reports 1996, para. 30;
Pauwelyn, supra note 22, p. 408.
62 Linderfalk, The legal consequences of jus cogens and the individuation of norms (2020), p. 893.
63 Michaels, Pauwelyn, supra note 20, p. 363.
64 Wouters, Ryngaert, Ruys, De Baere, supra note 58, p. 167.
65 Besides jus cogens, there exist certain other rules of IL that do not permit derogation and therefore the application of lex specialis, for example rules governing human rights. It is claimed that such rules cannot be derogated by lex specialis rules that would be harmful to the beneficiaries. Fragmentation Report, pp. 58, 59, paras. 108, 109.
66 Michaels, Pauwelyn, supra note 20, p. 363.
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3.2. Lex specialis in case of conflicts between customary law and treaties
The most common and the least complicated example of lex specialis on macro level is the situation when treaties come in conflict with CIL, as they usually prevail as more special.67 In this situation, the beforehand mentioned presumption of the unitary legislator is most plausible. This presumption is possible in the interaction of CIL with treaty regimes, as CIL is created by the community of States68, and at least a part of that community is then also bound by the concluded treaties – i.e. States69 parties to these treaties.70
The ICJ has already recognized the applicability of lex specialis in a relation between a treaty and CIL.71 Even though there is no official hierarchy between sources72 of IL, CIL is often considered to be jus dispositivum and therefore special treaties containing legal norms pointing in a different direction may derogate it.73
This does not mean, however, that CIL becomes extinguished, as it remains fully applicable in the background, when for example a treaty ceases to be in force or when it falls out of the jurisdiction of the decision-making body.74 Furthermore, when the terms established by the lex specialis treaty rule are vague and in need of further interpretation, however, the guidance for it can be found back in CIL.75
It can be therefore concluded that certain treaties may be marked as more special in relation to CIL,76 but the existence of conflict of norms and the determination of the
67 Marchisio, INTERNATIONAL LAW (2021), p. 62; Fragmentation Report, p. 39, para. 66.
68 For the formation of CIL, there must exist virtually uniform State practice (objective element) as well as opinio juris sive necessitatis - the belief in the obligatory nature of such practice (subjective, psychological element). See Strydom (Ed.), INTERNATIONAL LAW (2016), pp. 90, 91, 92;
Nicaragua case, supra note 35, paras. 108, 109, Asylum case (Columbia v. Peru) ICJ Reports 1969, para. 277.
69 It must be noted, however, that parties to the international treaties are not exclusively States.
Recently, NGO’s, IO’s and sui generis subjects such as EU are also parties to certain international treaties. However, this thesis concerns mostly the rights and obligations of States and therefore the focus is put on their role and position in IL.
70 Article 53 of the VCLT, for example, refers to the ‘community of States’ as the creator of jus cogens.
Vienna Convention on the Law of Treaties, 1980, 1155 U.N.T.S 331 [VCLT]. It could then be presumed that the two parties to the dispute, which are parties to the respective treaty, are also members of the international community of States creating general IL. Michaels, Pauwelyn, supra note 20, p. 364, 365.
71 Gabčíkovo-Nagymaros Project case, supra note 35, para. 132; Pauwelyn, supra note 22, p. 386;
Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) ICJ Reports 1982, para. 24.
72 Sources of IL are listed in Article 38 of the Statute of the International Court of Justice, 1946, 33 U.N.T.S. 993 (ICJ Statute).
73 North Sea Continental Shelf cases supra note 41, para. 72; Nicaragua case, supra note 35, para.
274; Fragmentation Report, p. 45, paras. 79, 80, 81.
74 Nicaragua case, supra note 35, para. 179; Fragmentation Report, p. 46, para. 82.
75 Such an approach was adopted by ICJ in the Nuclear Weapons advisory opinion, supra note 61, and by Iran-US Claims Tribunal (IUSCT) in the Amoco Int. Finance Corp. v. Iran, 15 IRAN-US CTR 189 (1987), para. 112. See also Pauwelyn, supra note 22, p. 233 and Simma, Pulkowski, supra note 21, p. 485; von der Dunk, Liability versus Responsibility in Space Law: Misconception or Misconstruction? (1992), p. 363.
76 Villiger, CUSTOMARY INTERNATIONAL LAW AND TREATIES: A STUDY OF THEIR INTERACTIONS AND INTERRELATIONS WITH SPECIAL CONSIDERATION OF THE 1969
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special nature cannot be established on the abstract macro level but must instead be assessed in each particular case.
3.3. Lex specialis amongst different treaties
It is more difficult to use lex specialis for the interactions among different treaties, because same States are not necessarily parties to the same treaties, and therefore the presumption of a unitary lawmaker cannot always be established as in the case of CIL.
Lex specialis rule can only be used in cases when the presumption of the unitary lawmaker is still plausible. That could be the case of the treaties from the same treaty regime, for example ISL. All five core ISL treaties were drafted under the auspices of the COPUOS.77 The OST was the first treaty governing the issues related to OS and the subsequent treaties in major part represent a specific concretization of the principles enshrined in the OST and the treaties have similar States parties.78
However, the subsequent treaties79 in their Preambles recall the OST, which could be interpreted as a clause that disables the use of the lex specialis rule. The rule enshrined in Article 30(2) of the VCLT says that when a treaty specifies that it is not to be considered as incompatible with an earlier treaty, the provisions of that other treaty prevail.80 If, therefore, recalling the OST would be interpreted as ‘specifying not to be incompatible with the OST’, the Preambles of the respective subsequent treaties fall under the Article 30(2), and this would mean that in the conflict of norms between the OST and those subsequent specific treaties, the provisions of the OST would still prevail. However, this thesis advocates against such an interpretation of the Preambles, and instead finds it more appropriate to apply lex specialis in case of conflicting norms.81 This is, moreover, consistent with the view of the ILC and
VIENNA CONVENTION ON THE LAW OF TREATIES (1985), p. 161; INA Corporation v. Iran, 8 IRAN-US CTR 373 (1985), p. 378.
77 Vlasic, The Space Treaty: A Preliminary Evaluation (1967), pp. 509, 510.
78 Particularly the ARRA and the LIAB are direct concretizations of principles enshrined in the OST, as they regulate in detail the principles set out in Articles V (ARRA) and VII (LIAB). Furthermore, they have been widely accepted. 111 states have ratified the OST and 98 states have ratified the ARRA and the LIAB. The REG has slightly fewer States parties, as it has been ratified by 70 states. It must, however, be noted that the MOON cannot be put together with the other four treaties due to the extremely small number of States parties - it has been ratified by 18 states. See Status of International Agreements relating to activities in outer space as at 1 January 2021, UN Doc.
A/AC.105/C.2/2021/CRP.10, Vienna, 2021.
79 ARRA, REG, LIAB, MOON.
80 Article 30(2) VCLT. It must be noted here that this Article speaks of treaties, not of individual norms in conflict.
81 It must be noted that such situations are rare, as the subsequent treaties - with the exception of the MOON - are in most parts in line with the OST. The MOON, on the other hand, contains conflicting norms, but due to the small number of States parties and due to the claim, that some principles of the OST (for example non-appropriation principle from the Article II) are jus cogens, and therefore cannot be derogated by a treaty, the MOON could prevail as lex specialis only in extremely rare cases.
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majority of the legal doctrine, that particular, special treaties usually take priority over more general treaties.82
An exception is the LIAB, which in its Article XXIII claims that it “shall not affect other international agreements in force”, therefore explicitly giving priority to the OST. This means that in case of a conflict, a subsequent and more special treaty would have to give way to a prior and a more general treaty, contradicting both, lex specialis and lex posterior rule.
4. Lex specialis on a micro level
Lex specialis on micro level applies in cases of conflicts of individual norms.83 The conflict84 of norms is a horizontal85 conflict between the two or more rules of IL.86 A prerequisite for the conflict is that the norms overlap in ratione materiae, personae and temporis, meaning that they must have the same subject matter, they must be binding upon the same subjects and they must be valid at the same time in order for the conflict to arise.87 Such conflicts do not necessarily have to have the effect inter partes or to be of a contractual nature, but can also have collective communitarian character, meaning that the breach of the obligation can be invoked by several (respective) States.88
4.1. True conflict of norms
True conflict of norms arises when norms point in two different directions and if one follows both of them comes to two different results regarding the same factual situation.89 In this sense they are “true”, as the two norms cannot be simultaneously applied, but one must necessarily give way to the other. This is the only situation in which lex specialis rule in a narrow sense may be applied, meaning that the special rule modifies, overrules or sets aside a more general rule.90
4.2. False conflict of norms
False conflict of norms, on the other hand, does not demand the requirement of norms pointing in two different directions. For the existence of such conflict, it suffices that the norms do not have identical content, for example, do not contain identical
82 Fragmentation Report, p. 47, para. 85; Verdross, Simma, UNIVERSELLES VÖLKERRECHT (1984), pp. 413, 414.
83 Türk, supra note 56, p. 50.
84 Conflict must be understood here in opposition to the accumulation of norms, as only conflict of norms allows the application of lex specialis in a narrow sense, whereas the accumulation of norms represents a false conflict of norms and therefore lex specialis is applicable only if understood in a broader sense, as explained above in Chapter II(1.).
85 Horizontal as in contrast to the vertical conflict between norms of international law and national legislation.
86 Pauwelyn, supra note 22, pp. 10, 161, 165.
87 Ibid.
88 Ibid., p. 10.
89 Fragmentation Report, p. 49, para. 88.
90 Ibid.
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standards. Such an example are the MSEN norms, which will be explained in detail below91. False conflicts of norms can only be resolved by lex specialis understood in a broader sense, meaning that lex specialis does not set aside the more general rule, but that the specific rule should be interpreted in the light of the general rule (simultaneous application).92
91 Chapter IV(1.1.1.).
92 Fragmentation Report, p. 49, para. 88.
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III. SPACE LAW AS LEX SPECIALIS TO GENERAL INTERNATIONAL LAW
In this chapter I will first elaborate upon the question whether ISL can be labelled as a self-contained regime (1.) and then examine its relation to rules on State responsibility, focusing on both - responsibility and liability (2.).
1. Space law as a self-contained regime
The notion of self-contained regimes most often describes a set of primary rules relating to a particular subject matter and connected with a special set of secondary rules, that claims priority to the secondary rules provided by general law.93 A self- contained regime has the same rationale as lex specialis,94 and functions as lex specialis on a macro level, as it claims priority of the particular regime as a whole.
This notion was for the first time used by the PCIJ and later on developed in a different context by the ICJ.95 It was supported by the by the ILC Special Rapporteurs Willem Riphagen and Gaetano Arangio Ruiz, but was later abolished by Special Rapporteur James Crawford, who avoided express recognition of self-contained regimes, using the term “strong forms of lex specialis” instead.96
With this position ILC refused Riphagen’s conception of several sub-regimes of IL of equal rank, and moved towards a perception of one legal regime of general IL, which is applicable unless expressly excluded by a more special regime.97 Certain regimes can indeed provide for a more specific legal framework, however the prevailing opinion in theory is that no regime can be fully self-contained, while the general IL provides at least a normative background and serves as a fall back option in case when a special regime fails.98
In the case of the issues related to OS, ISL cannot be considered a self-contained regime. While certain rules from the space treaties have priority over general IL, they cannot be interpreted in isolation from it, as Article III of the OST demands the activities in OS be carried out in accordance with IL, and in this regard ensures the
93 Ibid., para. 128.
94 Ibid., p. 99, para. 191.
95 PCIJ mentioned the term self-contained regime in relation to the clash of primary obligations within a treaty. Case of the S.S. "Wimbledon" (United Kingdom, France, Italy & Japan v. Germany) PCIJ (Ser. A) No. 1 (1923), pp. 15, 23, 24. ICJ developed the term further in a different context, establishing that the rules of diplomatic law constitute a self-contained regime. United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) ICJ Reports 1980, pp. 3, 40. Hobe, Pellander, supra note 21, p. 2.
96 Third report of the Special Rapporteur Riphagen on the content, forms and degrees of international responsibility, UN Doc. A/CN.4/354 and Add.1 and 2, New York, 1982, paras. 47, 54; Third report of the Special Rapporteur Arangio-Ruiz on State responsibility, UN Doc. A/CN.4/440 and Add.1, New York, 1991, paras. 84, 88; Report of the International Law Commission on the work of its fifty- third session, A/CN.4/SER.A/2001/Add.1 (Part 2), 2001, p. 140, para 5.
97 Hobe, Pellander, supra note 21, p. 3.
98 Koskenniemi, Leino, supra note 19, p. 561; Breccia, Article III of the Outer Space Treaty and Its Relevance in the International Space Legal Framework (2016), p. 3. Hobe, Pellander, supra note 21, p. 4.
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applicability of IL to OS.99 Moreover, it has been claimed that different sub-branches of IL should be applicable to the maximum extent possible, if they serve a beneficial purpose.100
It can, therefore, be concluded that certain sub-branches (such as SL) introduce special provisions that generally prevail over the general IL. However, since no regime is completely self-contained and due to the lack of precise definition of when a certain sub-branch can be considered lex specialis, it is not plausible to claim priority of the whole ISL sub-branch.101
2. Space law as lex specialis to rules on State responsibility 2.1. Macro level
Rules on State responsibility are not a sub-branch of IL, but rather a set of secondary102 rules which apply in cases of breach of primary international obligations.103 Enshrined in ILC's Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA)104, they are considered a part of CIL and as such also a part of general IL.105
In cases where State responsibility would be triggered for actions in OS, the relation between general rules on State responsibility and provisions of ISL, may be to some extent defined by the guidance of Article 55 of the ARSIWA.
Article 55 of the ARSIWA titled lex specialis provides for a general rule resolving the issue of conflicting norms, as it excludes the application of its rules in case of special IL rules governing internationally wrongful acts or the content or implementation of the international State responsibility. This means that ARSIWA foresees that the inconsistency of individual secondary norms concerning the same subject matter is to be resolved by lex specialis rule.106
However, it is difficult to establish lex specialis on a macro level. There exists a corpus on rules on State responsibility enshrined in ARSIWA on one hand, and on the other, there are two space treaties that deal with this topic - the OST, which in its
99 Marchisio, The ITU Regulatory System: a Self-Contained Regime or a Part of International Law?
(2014), pp. 75, 78; Hobe, Pellander, supra note 21, p. 7.
100 Breccia, supra note 98, p. 4.
101 Hobe, Pellander, supra note 21, p. 7.
102 Cassese, INTERNATIONAL LAW (2005), p. 244.
103 Linderfalk, State Responsibility and the Primary-Secondary Rules Terminology – The Role of Language for an Understanding of the International Legal System (2009), pp. 55, 60.
104 Articles on the Responsibility of States for Internationally Wrongful Acts, annex to UNGA Res.
56/83, New York (12. December 2001).
105 Crawford, The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect (2002), pp. 888, 889.
106 Report of the International Law Commission on the work of its fifty-third session, A/CN.4/SER.A/2001/Add.1 (Part 2), 2001, p. 140, para. 4.
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Article VI deals with responsibility and in Article VII with liability, and the LIAB, which elaborates upon the concept of liability from Article VII of the OST.
OST in its Article III explicitly allows for the application of general IL (part of which are the CIL rules on State Responsibility), and the LIAB in its preamble recalls the OST. It can be observed that these sets of rules interact with each other and overlap in certain parts, therefore, to define which norms exactly are lex specialis, such an assessment must be done on a micro level.
2.2. Micro level
In jurisprudence of international tribunals two different approaches have emerged towards solving the conflict of norms on the level of secondary rules by means of lex specialis. The first one has been used by the ICJ and the IUSCT, and it consists of two steps: 1.) examination of the content of the norm of general IL and 2.) consideration whether the States in the particular case had derogated from this standard by creating a more special set of rules.107
The second approach reverses the order of the steps taken, as it starts directly from the more special rule.108 Such an approach has been developed and supported by tribunals, which were established under a special sub-branch of IL, such as the WTO Dispute Settlement Body, European Court Of Justice (ECJ) or ECtHR, who primarily rely on secondary norms provided by their special law and only when these norms prove insufficient for international dispute settlement (IDS), they resort to the general IL.109
Suh an example is the ECtHR judgement in the Ališić case, where the Court applied its own standard of attributability, instead of using the standard suggested by the ARSIWA and its Commentary, which resulted in a reversed burden of proof.110 The State was expected to prove that the entity in question enjoys ‘sufficient institutional and operational independence from the State’ and therefore the actions of the entity cannot be attributable to the State, and not the other way around as suggested by the ARSIWA, where the party asserting the attribution also carries the burden of proof.111 The second approach therefore gives more attention to the special rules and special context of the particular tribunals and sub-branches of IL. It overlooks the general framework as it focuses directly on the special rules and standards of the special law.
In this way it contributes to fragmentation of IL, which can result in lower level of consistency and legal safety.112 This is why this thesis will follow the first approach,
107 Simma, Pulkowski, supra note 21, p. 488.
108 Ibid.
109 Ibid.
110 Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia, ECtHR, Grand Chamber, App. No. 60642/08 (2014), paras. 114, 115, 116.
111 Ibid. For more see Kulick, Narrating narratives of international investment law: History and epistemic forces (2018), p. 47.
112 Koskenniemi, Leino, supra note 19, pp. 11, 12.
