NORMATIVE REFERENCES TO NON-LEGALLY BINDING INSTRUMENTS IN NATIONAL SPACE LAWS: A RISK-BENEFIT ANALYSIS IN THE CONTEXT OF DOMESTIC AND PUBLIC INTERNATIONAL LAW

摘要

The creation of non-legally binding instruments is characteristic for the development of space law in the 'post- treaty' era. While the space treaties established under the auspices of the United Nations lay down principles of quasi-constitutional character, the exploration and use of outer space continues to raise questions and expectations that not only call for permissible forms of interpretation of the treaties by the respective State parties, but equally for the contemplation and eventual creation of new norms addressing specific problems of spaceflight; the mitigation of space debris is but one prominent example. However, the heterogeneous group of instruments of non-legally binding character that have emerged in the past decades - notably, but not exclusively, through the work of the COPUOS -raises questions of theoretical and practical character, one of which will be analysed in the present paper, namely the employment of normative reference, or referral, to such instruments in national space legislation: Adherence to "internationally recognised standards and guidelines" is regularly established as a condition for the authorisation of non-governmental space activities. This legislative technique, one the one hand, vests norms of non-legally binding character with legal effect and therefore underpins their value as much as it may support coherence in the preparation and conduct of space activities. On the other hand, it leads to a key question discussed by the authors: How does a comparatively unspecific reference to such norms comply with national legislative requirements of being clear, specific and unequivocal? Shedding light on the example of liability - of both the operator and the State - the article examines an important aspect of the interplay between public international law, national law and 'soft' law. Applicable non-legally binding guidelines and standards would ultimately have to be used in determining whether actions or omissions could be qualif