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.