Antoine Niedergang

Lex generalis and lex specialis

In international relations and more specifically in space law, issues of general law and special law, or lex generalis and lex specialis, are recurrent. Lex specialis is a Latin phrase which means “law governing a specific subject matter”. It comes from the legal maxim “lex specialis derogat legi generali”. This doctrine relates to the interpretation of laws. It can apply in both domestic and international law contexts.

Lex generalis, the general law

The expression lex generalis refers, literally, to the “general law”. All countries have their own definition of what is the “general law”, according to the subjects studied in domestic law. It represents a general rule, a general frame, which applies in each area. International law governs the relations between the subjects of this legal system, which are States and international organizations; so two things appear: the subjects of general law, but also the sources of general law.

A subject of international law is subject to this lex generalis and must be able to rely on it. Originally, states were the only subject of public international law. But this conception is long gone, although original subjects, states have felt since 1815 the necessity of grouping themselves in international organizations which have gradually reached the status of subjects. On April 11, 1949, an opinion of the International Court of Justice stated that: “The subjects of law in a legal system are not necessarily identical in their nature or in the extent of their rights and their nature depends on the needs of the community”.

It is also noted that the individual has taken an increasingly important place in the system of international law, because of the protection of human rights. There are three major players in international law: the state in international law, international organizations, and individuals in international law. There is no code of public international law as such, and no hierarchy between different sources, whether written or not. This may be one of the consequences of the non-existence of an established international legal order, despite the near omnipresence of the United Nations in world conflicts.

The various sources of international law are mentioned in Article 38 of the Statute of the International Court of Justice: “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 expressly 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, that only the parties bound by the decision in any particular case, 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”.

From this aforementioned principle, two sources can be removed: the unwritten sources of custom, general principles of law and equity, and the written sources of state treaties, international organizations, and international courts and tribunals.

Lex specialis, the specific law

The purpose of lex specialis (a Latin phrase which means “law governing a specific subject matter”) is to fill the gaps in general law. The scope of the special right or law is, by definition, narrower than that of general law. Thus, it will concern a very specific area such as the law of the sea, the law of the environment or the law of space. The importance of a special regime often lies in the way in which its norms express a unique object and purpose. Thus, their interpretation and application should, as far as possible, translate this object and purpose.

In space law, more specifically, there are five major international texts: the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”, the “Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space”, the “Convention on International Liability for Damage Caused by Space Objects”, the “Convention on Registration of Objects Launched into Outer Space”, and the “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies”. Besides these international conventions are the resolutions of the United Nations General Assembly, or multilateral international agreements.

The articulation of the general and specific law

As previously seen, concerning the articulation of lex generalis and lex specialis, international law is a legal system. Its rules and principles (its norms) operate in relation to other rules and principles, and should be interpreted in the context of the latter. As a legal system, international law is not a random accumulation of such norms. There are significant relationships between these standards. These can therefore occupy a hierarchical level more or less high, their formulation can be more or less general or specific, and their validity can be recent or long. In the application of international law, it is often necessary to determine the exact relationship between two or more rules and principles that are both valid and applicable in relation to a situation. For this purpose, the relevant relationships fall into two general categories.

Interpreting relationships: this is the case when one standard helps the interpretation of another. A standard may assist with the interpretation of another standard if it serves, for example, to apply, specify, update or modify it. In such a situation, both standards are applied together.

Conflict relations: this is the case when two standards that are both valid and applicable lead to inconsistent decisions, so a choice must be made between these standards. The basic rules concerning the resolution of normative conflicts are contained in the Vienna Convention on the Law of Treaties.

When seeking to determine mutual relations between two or more standards, these standards should be interpreted in accordance with, or by analogy with, the Vienna Convention on the Law of Treaties, in particular the provisions of Articles 31 to 33 of the Vienna Convention on the Law of Treaties (Article 33 relating to the interpretation of treaties). It is generally agreed that when several standards relate to a single issue, they should, to the extent possible, be interpreted in such a way as to reveal a single set of compatible obligations.

The Latin maxim “lex specialis derogat legi generali”, which means “Special law repeals general laws”, is a generally accepted method of interpreting and resolving conflicts in both domestic and international law. It means that whenever two or more standards deal with the same subject, priority should be given to the most specific standard. This principle can be applied in several contexts: between provisions contained in a single treaty, between provisions in two or more treaties, between a conventional standard and an unconventional standard, as well as between two unconventional standards. The source of the norm (whether conventional, customary or a general principle of law) is not decisive in determining the most specific standard. In practice, however, treaties often function as lex specialis in relation to customary law and general principles. This is what can be said concerning lex generalis and lex specialis.

Who was Eilene Galloway?

Doctor Eilene Galloway (May 4, 1906 – May 2, 2009), nicknamed “the Great lady of space”, is a founding member of NASA and has worked for the creation of space law. She has made international space cooperation her spearhead. She has been recognized by her peers as one of the greatest experts in this field.

Dr. Eilene Galloway was born on May 4, 1906 in Kansas City, Missouri. Her father joined the Marines in 1915, and her mother raised her alone. In 1923, Eilene graduated from Westport High School in Kansas City, Missouri, where she was twice captain of the “discussion team”. She later attended Washington University in St. Louis, and Swarthmore College in Pennsylvania, and moved to the District of Columbia with her husband, George Barnes Galloway, in 1931.

During the Great Depression, Eilene worked for the Federal Emergency Relief Administration. She wrote an adult education guide first distributed in almost two thousand copies. After pressuring the publisher (The Washington Post), the guide was printed in greater numbers, allowing a better distribution which allowed the sale of nearly two hundred thousand copies.

Eilene Galloway began her career with the Congressional Research Service at the Library of Congress in 1941. From there, she thought, researched, and wrote on many topics for the United States Senate and the United States House of Representatives, such as an essay on “Guided Missiles in Foreign Countries” in 1957. Her career then took a different turn when the United States Senate asked her to write a report on the launch of Sputnik 1 (Sputnik 1, the first artificial satellite, was launched by the Soviet Union in 1957), and its impact on the United States of America.

Eilene Galloway was sole responsible for the section on international cooperation of the National Aeronautics and Space Act; signed by U.S.A. President Dwight Eisenhower on July 29, 1958. The section was written as follows: “The Administration, under the foreign policy guidance of the President, may engage in a program of international cooperation in work done pursuant to this Act, and in the peaceful application of the results thereof, pursuant to agreements made by the President with the advice and consent of the Senate”. This text gave birth to the American space agency; she was also responsible for the change of meaning of NASA, which became “National Aeronautics and Space Administration”.

In the 1960s, Eilene Galloway represented the United States of America in the drafting of treaties governing the exploration and use of outer space, thus contributing to the launch of the field of International Space Law. “The Great lady of space” has worked for several decades in the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) and has also been invested in the establishment of the International Institute of Space Law (IISL), an independent non-governmental organisation dedicated to fostering the development of space law. She was vice-president of the Institute between 1967 and 1979, later becoming the honorary director of the Institute. She received the Andrew Haley Gold Medal in 1968, and the Lifetime Achievement Award from IISL in 1990.

Eilene Galloway received a NASA Public Service Award in 1984 “for outstanding achievements as a Congressional Adviser on the Legal and Technical Aspects of Outer Space and for Services Provided to the United Nations and to other international organizations with a view to contributing to the creation of a rational basis for the international space”. In 1987, she was the first recipient of the Women in Aerospace Award of Excellence for all of her accomplishments.

In 1999, Eilene Galloway received the flag and crew emblems of the International Space Station, “in appreciation for serving the National Aeronautics and Space Administration and the nation as a member of the Advisory Committee on the International Space Station, and for the invaluable contribution in making the dream a reality”. On its behalf, the International Institute of Space Law (IISL) has created the Eilene Galloway Award for Best Written Submission to the Manfred Lachs Space Law Advocacy Competition from 2000 and, since 2006, to the Eilene Galloway Symposium on Critical Issues of space law.

In March 2009, Eilene Galloway wrote an article entitled Space Law for a Moon-Mars Program, published in Space News. Her vision of the law of space is strong and interesting, because it shows that space ambitions do not diminish over time and far from it, increase. It shows that international cooperation on the law of space is one of the most important things to get back to the Moon or go to Mars. Eilene Galloway worked at IISL until her death; the President Emeritus of the Society, Isabella Diederiks-Verschoor paid her last tribute: “She has lived a life of distinguished service in the United States of America and the world of space, and has been a source of inspiration for all of us and above all, a reliable friend”.

I first met Eilene Galloway when I was just beginning my work on space law. She graciously welcomed me into her home and we talked for a very long time. I was impressed by how genuine she was and that she, who had accomplished so much, was willing to spend time with a novice in the field. My condolences to Jonathan and to the rest of your family” – Colleen M. Driscoll, The Kurtz Institute of Peacemaking.

Dr. Galloway’s contribution to international law, and international space law in particular, has been a remarkable achievement. Her fruitful and dedicated work in this area, as well as training and encouraging of young professionals, earned her world-wide recognition and respect from specialists all over the world. Her presence will be sorely missed” – Mazlan Othman, The United Nations Office for Outer Space Affairs (UNOOSA).

I offer my warmest condolences to all of Eilene Galloway’s family. She has been and will always remain a doctrinal beacon for me as for many jurists. Reading her thoughts and her efforts to develop space law was for me a remarkable example. Because her ideas will continue to live and grow, Eilene Galloway does not really leave us” – Mireille Couston.