Proceedings of the Workshop - United Nations Office for Outer ...

MAINTAINING THE SPACE ENVIRONMENT 215with disputes arising between private entities andsubjects o f public law, i.e. sovereign states andinternational intergovernmental organisations.Prof. Böckstiegel referred to the option,contemplated in the ILA Instrument on Space Debris,which provides a choice between binding andnon-binding methods for dispute settlement. Thisspeaker observed that the idea of the ILA Space LawCommittee was to start at a low level o f compulsion-so as to gain the widest possible support from allcircles- and then move slowly up the scale. Anotherimportant feature of the ILA Instrument was a reviewclause designed to keep pace with technologicaladvancement.To conclude, and following the tenor o f statementsmade at the COPUOS in the past years, Prof.Böckstiegel made a renewed plea for the topic of spacedebris to be included on the agenda of the COPUOSLegal Subcommittee.The present writer was the third appointedcommentator for Session 8 where she highlighted whatwere considered to be the most important provisions ofthe ILA International Instrument on Space Debris,underlining the interdisciplinary approach of the workof the ILA Space Law Committee on this subject.Following the initial terms of reference stemming fromthe 62nd Conference (Seul 1986) the present writerwas asked to lay down the "Pillars o f the Future ILAInstrument on Space Debris" for consideration of theCommittee members and o f the forthcomingConferences (Queensland, Cairo and Buenos Aires). Indescribing her experience, Professor Williams referredto the confronted views o f lawyers and scientists(particularly the technical consultants of the ILASpace Law Committee) on the question ofresponsibility and liability. Whereas the former firmlyadvocated the inclusion o f rules on the matter, thelatter suggested their deletion on the grounds thatliability rules were hardly relevant because the typicalexample o f collision originates when a large spaceobject (active or otherwise) is hit by a small object(usually second generation debris) which is frequentlynon-trackable and may render the large object defunct(Prof. Rex).16 Another reason advanced by technicalexperts was that the accent should be on the preventiono f space debris and only then would we be ready tomove on to liability questions (Prof. Ricciardi).17In the end, as the present writer observed, the ILASpace Law Committee decided to keep the rules onliability within the International Instrument. Thiscourse o f action was based on an ILA Resolution(Cairo Conference 1992), but it was also adopted forpractical reasons. In fact, at a later stage it wouldprove far easier to delete these provisions -ifnecessary- than to try including them.Concerning definitions Prof. Williams pointed out,inter alia, that for the purposes of the Instrument it hadbeen decided to consider the terms "pollution" and"contamination" as synonyms. She then commented onthe different terms included under such heading whichfollowed the anglo-saxon treaty-drafting style. Thepresent writer then went on to explain the nature of theobligations laid down in the Instrument, including a"general obligation to cooperate" (following thedrafting of the 1989 Ottawa Declaration of Principleson the Protection o f the Environment) and the morespecific obligations to prevent, inform, consult andnegotiate in good faith. The latter was to be interpretedas not only an obligation to hold talks but to pursuethose talks with the main objective o f reaching asolution and where any unjustified breach of the talksis seen as bad faith. In Prof. Cocca's (Argentina) view,in some cases this could amount to a breach ofinternational law, and so would a refusal to holdconsultations.18Following the present writer's presentation thefloor was open for comments. Professor Machisio(Italy) expressed his support for the ILA Buenos AiresInstrument and then referred to various aspects of theconcept of "sustainable development" stemming fromthe 1992 Earth Summit in Rio. On this question,16 See REPORT OF THE 66th CONFERENCE OF THE ILA,Buenos Aires, 1994, P.311.17 Ibid.,p. 12.18 See Cocca, A.A., in his comments to the Rapporteur’s Draft,in REPORT OF THE 66th CONFERENCE (Buenos Aires1994), pp.305-321.