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The Participation of International Organizations in the Proposed International Agreement on Liability for Damage Caused by Objects Launched into Outer Space*

Published online by Cambridge University Press:  09 March 2016

Gerald F. FitzGerald
Gerald F. FitzGerald*
Affiliation:
International Civil Aviation Organization, Institute of Air and Space Law, McGill University
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Notes and Comments
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 3 , 1965 , pp. 265 - 280
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1965

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Footnotes

*

This note was written in a private capacity; responsibility for the opinions expressed is the author’s.

References

1 See International Law Commission, 15th Sess., First Report on Relations between States and Intergovernmental Organizations by Abdullah El-Erian, Special Rapporteur, paras. 172-173 (U.N. Doc. A/CN.4/161, June 11, 1963); Jenks, C. Wilfred, The Proper Law of International Organisations 211–87 (London, 1962)Google Scholar, and Bowett, D. W., The Law of International Institutions 299––300 (London, 1963)Google Scholar.

2 This resolution was adopted by the United Nations General Assembly on December 13, 1963. See U.N. General Assembly, 18th Sess., Official Records, Agenda item 28, Annexes (New York, 1963), 28–29. The text of the resolution is also found in (1963) 49 Dep’t State Bull. 1013.

3 A 24-member committee was established by U.N. General Assembly Resolution 1472 (XIV) on December 12, 1959, the membership being increased to 28 by Resolution 1721 (XVI) on December 20, 1961.

4 This resolution was adopted by the U.N. General Assembly on December 13, 1963. See U.N. General Assembly, 18th Sess., Official Records, Agenda item 28, Annexes (New York, 1963), 27–28 and (1964) 56 Am. J. Int’l L. 477

5 The question of the liability of an international organization has also arisen in connexion with the Convention on Civil Liability for Nuclear Damage (Vienna, 1963). The conference which adopted that convention recommended that the International Atomic Energy Agency establish a Standing Committee to consider this matter. See IAEA Doc. CN-12/48. There is also a Standing Committee of the Diplomatic Conference on Maritime Law which adopted the Convention on the Liability of Nuclear Ships (Brussels, 1962). Among the tasks of this Committee is the study of the conditions which should be fulfilled by intergovernmental organizations before they could accede to the Convention for the purpose of acting as licensing authority (CN-6/106/Rev.ι.ι (c) ). See, also, Diplomatic Conference on Maritime Law, Standing Committee, International Convention on the Liability of Operators of Nuclear Ships, Standing Committee, First Meeting, Monaco, October 24–31, 1963 (CN-6/SC/7, January 3, 1964).

6 U.N. General Assembly, Committee on the Peaceful Uses of Outer Space, Report of the Legal Sub-Committee on the Work of Its Third Session, (March 9–26, 1964) (Doc. A/AC.105/19, March 26, 1964).

7 U.N. General Assembly, Committee on the Peaceful Uses of Outer Space, Report of the Legal Sub-Committee on the Work of the Second Part of Its Third Session (October 5-23, 1964) (Doc. A/AC.105/21, October 23, 1964).

8 While two of the drafts before the Legal Sub-Committee were described as draft “conventions,” the term “agreement” has been used throughout this note even in referrring to these drafts since this is the term used in U.N. General Assembly Resolution 1963 (XVIII).

9 The successive versions of the Belgian draft are found in Docs. A/AC. 105/-C.2/L.7, A/AC.i05/C.2/L.7/Rev. 1, and A/AC.105/C.2/L.7/Rev. 2.

10 A/AC.I05/C.2/L.I0.

11 The successive versions of the United States draft are found in Docs. A/AC-105/C.2/L.8, A/AC.105/C.2/L.8/Rev. I, and A/AC.105/C.2/L.8/Rev. 2.

12 For a discussion of the definition of the term “international organization,” see U.N. Doc. A/CN.4/161, supra note 1, paras. 38–63.

13 A/AC.105/21, Annex IV, at 21. See, in this regard, the view of Dr. E. Pépin that “Activities in space might be carried [on] not only by governmental agencies, but also by non-governmental entities and international organisations, in accordance with the principles of the Declaration of December 13, 1963,” set forth in Report of Space Law Committee, International Law Association, Tokyo Conference (1964), 89.

14 There are 14 intergovernmental agencies in the United Nations family in addition to the United Nations itself. Thirteen of these are specialized agencies, thus: ILO, F AO, UNESCO, WHO, IBRD, IDA,, IFC, IMF, ICAO, UPU, ITU, WMO and IMCO. The IAEA is not a specialized agency.

15 A/AC. 105/21, Annex IV, at 10.

16 A/AC.I05/I9, Annex II, at 19. For an example of a convention applying both to states and international organizations, see the Convention on the Privileges and Immunities of the Specialized Agencies, 33 U.N.T.S. 261-302, which provides for the participation of states through the deposit of an instrument of accession with the Secretary General of the United Nations (Preamble and Section 41) and for the participation of specialized agencies through a procedure of acceptance (Preamble and Section 37). See also the remarks of Sir Kenneth Bailey (Australia) in A/AC.105/C.2/SR 29–37, at 71.

17 A/AC.105/19, Annex II, at 28.

18 Ibid.

19 A/AC. 105/21, Annex IV, at 9.

20 A/AC.105/19, Annex II, at 28.

21 Cf., however, Section 32 of the Convention on the Privileges and Immunities of the Specialized Agencies, 33 U.N.T.S. 261–302 which provides for an advisory opinion of the International Court of Justice in the case of a difference arising out of the interpretation or application of the Convention between one of the specialized agencies on the one hand and a member on the other. Possibly such a provision could be included in the outer space liability agreement. For a suggestion to extend the Statute of the Court to contentious cases involving the United Nations and specialized agencies, see Read, John E., “The World Court and the Years to Come,” (1964) 2 Canadian Yearbook of International Law 168–69.Google Scholar

22 A/AC.105/19, Annex II, at 28.

23 Ibid.

24 United Nations Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee Doc. WG.II/11, at 4, hereinafter cited as “Legal Sub-Committee Doc. WG.II/11 ”

25 Ibid.

26 Legal Sub-Committee Doc. WG.II/11, Add. 1.

27 Legal Sub-Committee Doc. WG.II/11 ι, at 4.

28 Ibid.

29 For an example of the technique of an international organization designating, for the purposes of a convention, one of its states to play a particular role on behalf of the organization, see Article 18 of the Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo, 1963). There it is provided that states belonging to joint air transport operating organizations or international operating agencies can designate the state among them which, for the purposes of the convention, shall be considered as the state of registration. In that convention, the state of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board.

30 Legal Sub-Committee Doc. WG.II/11, at 4.

31 Ibid.

32 Legal Sub-Committee Doc. WG.II/11, Add. 1.

33 It may be explained here that the United States draft uses the expression “Presenting State” to refer to a state or international organization which presents claims. (See A/AC.105/C.2/L.8/Rev. 2, Art. I (d)).

34 A/AC. 105/21, Annex IV, at 10.

35 A/AC.1O5/19 Annex II, at 19.

36 Ibid., 28.

37 Ibid.

38 E.g., the members could agree to accept liability in the same proportions as those which they accept under the formula used for determining contributions to the annual budget of the organization. That would satisfy the requirements of the declaration of compliance to be filed with the depositary. In the case of a launch performed on behalf of only some of the members of the organization, internal arrangements could be made for the apportionment of liability among those members only.

39 A/AC.105/19 Annex II, at 19.

40 A/AC. 105/21, Annex IV, at 9.

41 This is in line with the view of the International Court of Justice in the Advisory Opinion on Reparations for Injuries Suffered in the Service of the United Nations, [1949] I.C.J. Rep. 174. But see, for views against inclusion in agreement of powers enabling international organizations to bring claims, A/AC.105/C.2/SR 29-37, at 86 and 91.