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Space Law: Settlement of International Disputes

The developments in the space sector have been phenomenal in the past few decade but sadly, the legal development is not at par with the technological development as in the case of many contemporary issues like cryptocurrency, privacy policies and cyber security. The lex specialis of space is no exception to the need for dispute resolution.

Although, similar to many other fields of international law, space law currently functions under a fragmented system for dispute resolution, which seems to be the preference of the states that are party to the legal system.

This paper highlights the current legal provisions that are utilized to address space disputes. The pros and cons of all the binding and non- binding procedures are discussed. The most effective means to sort out a space problem, however, seems to be arbitration as more and more countries are resorting towards this technique to resolve all international disputes. The main advantage of arbitration is that the actors can also include private entities and not only governments.

For a settlement to arise, the dispute must be justiciable. According to Merills, J.G., a dispute is defined as a specific disagreement concerning a matter of fact, law or policy in which a claim or assertion of one party is met with refusal, counter claim or denial by other. A dispute is said to be justiciable when it has a specific disagreement and that disagreement can be solved by the application of rules of law. Heterogeneity is a major problem with international dispute redressal.

The factors which need to be reconsidered in order to enforce the legal principles and equity for appropriate and just settlement of disputes include huge investment, national security aspects such as dual use technology, reconnaissance and espionage, global navigation and positioning for defense purposes and the level of scientific uncertainty.

Need For Dispute Settlement In Space Law

International Space Law forms is now one of the most sought-after branch of international law. In order to guarantee its development, effective and efficient methods to settle disputes at an international level are necessary. A globally accepted peaceful and binding dispute redressal mechanism on space law would benefit the world community by reducing friction between nations.

It is also indispensable in order to increase reliability and credibility in this field which would strengthen the willingness of nations to extent and elaborate this specific field. Space ventures in the 20th century were a distant reality but now with the advancement in science and technology and the increase in the number of private as well as government players has made it imperative to regulate and redress the issues faced under this category by the parties involved.

The space activities are not only limited to exploration motives but are increasingly obtaining a central position in the defence strategies of many countries making a legal dispute settlement mechanism more important.

SpaceX, Roscosmos, NASA, ISRO changed the space sector. As the decade began, the U.S. military turned most of its attention from Iraq and Afghanistan as new potential adversaries. In 2011, President Obama announced America's pivot along Asia Pacific, a vast theater that demanded increased reliance on space-based communications and surveillance. At the same time, military and intelligence leaders were becoming concerned about emerging threats.

China was then trying to prove that it could infiltrate terrestrial networks and attack satellites in orbit. Todd Harrison, the director of the Centre for Strategic and International Studies Aerospace Security Project and a principal author of Space Threat Assessment 2019 stated that in 2010, discussion of the Chinese threat in space was limited to low Earth orbit and their direct ascent weapons.

China has been continuously developing anti-satellite capabilities over the past decades to reach all orbits and affect satellite function through kinetic and non- kinetic forms of attack. Now, US, Russia , China and India are among the countries to have their own Anti-Satellite Missile as of March 27, 2019.

Dispute Redressal Authorities

The following dispute settlement mechanisms are already in place that may be extended to settle space law disputes but the presence of a universally accepted singular binding mechanism is crucial to avoid discrepancies in the matter.

International Court of Justice, Hague
The ICJ is the principal authority under international law which has been created to resolve the disputes between the states. The central idea behind the establishment of International Court of Justice was to deal with international dispute which first arose during the Hague convention. After the subsequent occurrence of first world war and the creation of League of Nation, the idea was converted into reality and the Permanent Court of International justice was established in 1922.

It ceased to function during the second world war from 1940and ICJ replaced PCIJ eventually. The ICJ came into operation in 1945. Its purpose was to settle the disputes between states and to establish peace globally.

UN Space Treaties
The UN space law combines five treaties at its core which have been negotiated between 1960s and 1970s and they contain a handful provisions for dispute settlement. It usually involves consultation procedures not binding on the third party. The Treaty on Principles governing the activities of states in the exploration and use of the outer space, including the moon and other celestial bodies commonly referred to as the Outer Space Treaty, 1967 and the 1972 convention on International Liability for Damage caused by space objects are a part of these consultation forums. The other important organization's include the Rescue Agreement, the moon agreement, 1979 and the registration convention.

Outer Space Treaty
Outer Space Treaty, 1967 is the constitution of space law. It follows the traditional methods which are available in the UN charter. But no procedure is expressly binding under the UN charter nor the Outer Space Treaty. The states have the right to declare themselves to Court's compulsory jurisdiction over future disputes under the statute of ICJ. The state may subject itself on a case-to-case basis under Article 36.1 as well as by making a unilateral decision accepting the court's compulsory jurisdiction over all future disputes under Article 36.2. Only the true spacefaring states have opted for the second option.

However, the major issue with this is that the ICJ, Hague only hears disputes between states.

The Liability Convention
The liability convention, 1972 is another treaty addressing dispute settlement. Under this, all the states launching a space object together are jointly and majorly liable for any damage caused by it. It is better than the ICJ's mechanism as it allows the states to assert liability claims on their behalf and on behalf of their corporations or individuals.

There are two events where space objects may cause damage. The first scenario applies a strict liability standard whereby a state is considered strictly liable for any damage caused by a space object launched even in the face of circumstances that are outside a its control. Under this standard, if more than one state is responsible for the launch of the space object in question then that state will be held joint and severally liable for any damage caused.

The first scenario of the Liability Convention was invoked by Canada through diplomatic channels after the re-entry and subsequent crash of the RORSAT Cosmos 954 on January 24, 1978 in the northwest territory of Canada and led to a settlement for the costs of the clean-up and damages.

The standard of liability applied under the second scenario is a more arduous one in that it applies a fault liability standard whereby a state will be considered liable only if it can be shown that the damage caused was due to the fault of the state or states responsible for the launch of the space object as the case may be. To date, there have been no instances where the second scenario of the Liability Convention have been applied.

Pursuant under the Liability Convention, the decisions of the Claims Commission are made public (Art. XIX.4) but only recommendatory in nature, unless the parties have agreed beforehand to the contrary (Art. XIX.2). The non-binding nature of this mechanism has often been criticized. Its dispute settlement method is demonstrated as conciliation only, when the parties have not agreed that the Claims Commission's decision will be binding on them (or if they have done so only after the commission's decision). Where the parties have made such an agreement to the contrary has been drafted prior to the commencement of the procedure.

The Claims Commission maybe considered as an ad hoc tribunal. It is also commonly known as the semi-arbitration court. Consequently, Liability Convention involves significant uncertainties which include that not all of the disputes which arise will ever be introduced into the process; it can last very long, and the decisions rendered may be far from satisfactory and, most likely, not even enforceable.

International Telecommunication Union
ITU is a UN- sponsored regulator which strives to guarantee undisturbed telecommunication activities. Member States may settle their disputes on questions relating to the interpretation or application of this Constitution, of the Convention or of the Administrative Regulations [of the ITU] by negotiation, through diplomatic channels, or according to procedures established by bilateral or multilateral treaties concluded between them for the settlement of international disputes, or by any other method mutually agreed upon.

Hence the ITU dispute resolution system allows the parties to resort very freely to any method mutually agreed upon. If none of the above methods is adopted, an arbitration procedure is available as a last resource: any Member State party to a dispute may have recourse to arbitration in accordance with the procedure defined in the Convention . The arbitral decision is final and binding upon the parties to the dispute under Article 41.10, but there is no effective enforcement mechanism.

Outside the UN framework, there are numerous more specific international legal instruments for important fields of space cooperation. They include those governing the activities of operational space organizations such as the European Space Agency (ESA). A different type of cooperative arrangement is the International Space Station (ISS).

On one hand, such activities necessitate international cooperation; on the other, states have a strong desire to be involved. In order to facilitate smooth cooperation, the legal instruments of international space organizations contain relatively exhaustive dispute resolution systems. Typically, they call for binding third party settlement of conflicts, usually by arbitration.6 However, recourse to arbitration tends to be a last resort only.

Rescue Agreement, 1968
It specifies the Article V of the Outer Space Treaty and works to facilitate the return of astronauts and space object, the assistance to astronauts and the obligation to inform other states and the UN Secretary-General of any phenomena liable to constitute a danger to the life or health of astronauts. In space, astronauts have the obligation to help other astronauts, but for the countries it is not compulsory to render them assistance.

Thus, the provisions of the Agreement explicitly integrate the issue of assistance to astronauts in the territories under and beyond the jurisdiction of space parties, but they do not address the issue of assistance in space nor the expenditure concerning the rescue and return of astronauts. In totality, this Agreement enshrines the immunity of astronauts and establishes rescue procedures in the event of an accident.

Registration Convention, 1975
This convention has close ties with the Outer Space Treaty and specifically in Article VIII with regard to the obligation of the launching state to register the space object, when it is launched into Earth orbit or beyond and inform the Secretary-General of the UN of such a registration.

Thus, the Convention establishes two different ways that a space object must be registered with specific information either in a national registry or in a central Register to be maintained by the UN Secretary-General. The registration serves a two-fold purpose to contribute to the minimization of weapons being placed into orbit and the peaceful handle of outer space given the difficulty to identify a spacecraft otherwise.

Moon Agreement, 1979
It is a relatively new international space treaty which was apparently adopted under the perception that the use of the Moon was imminent after the US Moon landing in 1969. Unlike the other treaties, this agreement is not ratified by the decisive countries, since they do not want to renounce their rights or to compel themselves to share technologies for exploitation activities, as the Moon Agreements provides.

The Agreement arose out of a compromise between the developing countries and the space faring countries by accepting the principle of common heritage of mankind along with the confirmation of the freedom of scientific investigation, exploration and use of the Moon as a right of all states.

The larger part of the Agreement is non-controversial, as most of it reiterates the general rules and principles of the OST, such as the use of celestial bodies for exclusively peaceful purposes, the obligation to assist astronauts and international liability. The controversial provision in the agreement is specific to the establishment of an international regime to govern the exploitation of the natural resources.

Methods Of Dispute Settlement

The mechanisms used are as follows:
  • Consultation
    It is one of the most useful dispute settlement and conflict avoidance technique. This procedure encompasses a party that is considering adopting a policy or taking an action that might adversely affect another party, to inform the other party of its intentions and to discuss the matter beforehand to avoid any potential disputes arising. The use of this prior consultation procedure is provided for under Article XI of the Outer Space Treaty, which provides for appropriate international consultations in cases involving potential harmful interference with activities of other States Parties.
  • Negotiation
    Negotiation is the most commonly used method. The ICJ affirmed the fundamental character of this method of settlement in the North Sea Continental Shelf cases, endorsing the opinion of its predecessor, the Permanent Court. Negotiation is the principal, standard and preferred method evidently. In cases where the dispute is directly submitted to adjudication, arbitration or conciliation by prior agreement, negotiation is generally an indispensable component of any dispute settlement process. It is also included in many contracts and international agreements as an obligation of prior consultation, a means of settlement, or as a preliminary to other methods of dispute settlement.
  • Inquiry and Fact Finding
    The task of a commission of inquiry in the Hague Convention was described as the method to facilitate a solution by means of an impartial and conscientious investigation. Instruments that are more recent however, give inquiry and fact-finding bodies' powers to evaluate the facts legally and to make recommendations. Examples of this include the 1977 Additional Protocol I to the 1949 Geneva Red Cross Conventions, and the 1982 UNCLOS.
  • Arbitration
    Binding settlement can be attained through arbitration and judicial settlement. Arbitration is the older mechanism and is less formal and highly flexible and preferred over judicial settlement. There has recently been a decline in inter-State arbitration compared with the immense escalation in international commercial arbitration in inter-State and mixed disputes. The success of international commercial arbitration is owing mostly to the fact that the problem of the enforcement of arbitral awards was resolved through the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

    Arbitration involves the settlement of a dispute between parties through a legal decision of one or more arbitrators and an umpire. The arbitration may involve one specific issue, or it may be concerned with claims and counterclaims. Arbitration may take the form of an ad hoc procedure or an institutionalised procedure for the settlement of a particular dispute.
  • Mediation
    Mediation is a especially expedient process considering the scenario where the animosity between the parties is so great that direct negotiations are unlikely to be successful. In mediation a third, party intervenes to reconcile the disputants' claims and advance a compromise solution.

    A mediator has to enjoy the confidence of both parties and it is often difficult to accomplish this task. The dispute between Argentina and Chile over the implementation of the Beagle Channel award, was one such case. Mediation and good offices have been provided for in several treaties, including the 1948 Pact of Bogot�a, the Pact of the League of Arab States, the 1964 Charter of the Organization of African Unity and the 1959 Antarctic Treaty.

    Mediation is thus akin to flexible negotiations with the participation of a third party. A mediator can also provide financial support and other valuable assistance in the implementation of the agreed solution. In the 1951 - 1961 dispute between India and Pakistan on the waters of the Indus basin, the World Bank mediated a successful resolution.
  • Judicial Settlement
    Some of the treaties provide for judicial settlement. This results in a third-party decision legally binding upon the parties. Adjudication is performed by a standing court. Among the few permanent international courts and tribunals, the International Court of Justice (ICJ) is without doubt the most important.

Upcoming Challenges
  1. Commercial Human Spaceflight- New Space
    The involvement of private sector in space rose steeply in the 1990s due to technological maturity, significant benefits and decreasing costs along with the governmental need to reduce space expenditures. The benefits from the commercial use of technologies related to outer space were significant and they range from the field of telecommunications and remote sensing to space tourism and space navigation.

    The commercial private human access to outer space is one of the most imminent and hard to handle topics, which it is defined as any commercial activity offering customers direct or indirect experience with space travel. This commercial use of space has evolved and has subsequently given rise to a variety of major legal questions.

    This new reality requires regulation by both private and public sectors of legislation, in order to address central issues, such as launch permits and restrictions which a state may impose for reasons of national security. Countries are begging to adopt national legislation for outer space activities with the pioneers being the US and Australia.
  2. Environmental Aspects of Space Law- Space Debris
    The developments in the space sector have posed a significant threat to the environment and legal provisions restricting harmful activities is need of the hour. The increase of space activity has created a veritable junkyard of orbital space debris consisting of defunct satellites, as well as components and tools lost during extravehicular activities. Space debris can create a navigation hazard to operational space craft satellites, especially in the Geostationary Satellite Orbit, where they can wander increasing the possibility to collide with functioning satellites or interfere with their transmissions.

    The increased number of objects that are in orbit has made the case of space debris a real problem. Thus, Earth orbit is crowded with around 20,000 artificial objects as of 2019 in orbit increasing the risk for radioactive contamination and other harmful substances. The issue of space debris is an imminent one as it was evidenced by the collision of two satellites in orbit for the first time in 2009.

    Neither the UN space treaties nor the most recent Space Law provisions adequately address the space debris problem with the efficacy it is required. This inadequacy is related to the uncertainty in case of liability for damage caused by space debris and the lack a legally binding treaty.
  3. Anti- Satellite Missile Technology
    The ASAT activities are a recently found threat in this area among few of the leading spacefaring States. It annotates the history of developmental testing of those armaments, including the most recent provocations by China in January 2007 and by the United States in February 2008. It presents the abortive efforts to negotiate arms control treaties which have now been in existence since three futile decades, and the current U.S. imposed blockage in the leading disarmament negotiating forum. In the absence of a new outer space disarmament treaty, the world can productively turn to customary international law as a viable alternative pathway toward enhancing space security and impeding the development and use of ASATs. This must be highly regulated and is imperative for world peace.
  4. Colonization on Mars
    The efforts of various private organizations like SpaceX and NASA towards establishing a human colony on Mars are in incubation stage but as soon as their ideas come into force, a lot of legal discrepancies and the need for an organized legal framework would be essential. The territorial dispute over the land on Mars would be one of the central issues bringing legal turmoil in the world.

The increasing presence of humans in space sector is making the availability of binding laws an important need for both states as well as commercial sector. The Outer Space Treaty has a very critical role in this particular area. It sets out the major fundamental principles and policies adopted by the international community to govern human activities in outer space. The technological development gives an impetus for the need for some international regulatory and policy changes with a view to maintain a peaceful world in terms of space exploration and exploitation.

Outer space resources under property rights will grow important as the application of this technology matures. Space law is bifurcating, a development risen from the commercial use of space. The enactment and harmonization of domestic space legislation is essential for a secure environment in the space sector.

Space disputes need not only involve the direct stakeholders but also interests of all humanity, including future generations, may even be at stake. Arbitration is evidently the most efficient method but despite its capability to accommodate different kinds of stakeholders, arbitration remains in essence a bilateral procedure. In a way it is a bilateral mechanism even more distinctively than court proceedings, because arbitration agreements typically do not allow even third states whose interests may be directly involved to intervene.

Considering the inherent unity of the space environment and the interrelatedness of the international space faring community, a similar opportunity to intervene for the purpose of protecting the legal interests of a third state could be appropriate at least in some disputes in the space sector.

  • Kopal, V., 2008. An Introduction to Space Law. 3rd revised edition ed. Netherlands: Kluwer Law International, p. 103.
  • UN, 2012. Active Debris Removal � An Essential Mechanism for Ensuring the Safety and Sustainability of Outer Space. A Report of the International Interdisciplinary Congress on Space Debris Remediation and On-Orbit Satellite Servicing , Vienna: Doc. A/AC.105/C.1/2012/CRP.16.
  • Lyall, F. & Larsen, P. B., 2016. Space Law: A Treatise. 1st edition ed. New York: Routledge, pp. 89
  • Bourely, Michel G. (1994) Creating an International Space and Aviation Arbitration Court.
  • In Proceedings of the 36th Colloquium on the Law of Outer Space, IISL, 16-22 October 1993 (Graz), AIAA, 144-149. Bruce, Robert R., R. Macmillan, T. St. J. Ellam, H. Intven and T. Miedema (2004)
  • Dispute Resolution in the Telecommunications Sector: current practices and future directions, Discussion Paper, ITU, The World Bank, Geneva
  • B�ckstiegel, Karl-Heinz (1978) Arbitration and Adjudication Regarding Activities in Outer Space. Journal of Space Law, Vol. 6, No. 2, 3-18.
  • B�ckstiegel, Karl-Heinz (1980) Which method of dispute settlement in space law can be considered as being the most effective and which has the greatest chances of realization In B�ckstiegel, K.-H. (ed.)
  • Settlement of Space Law Disputes: the present state of the law and perspectives of further development, Proceedings of an International Colloquium, Munich, 13-14 September 1979, SLW, Band 1. K�ln, Berlin, Bonn, M�nchen: Heymann, 151-158.
  • B�ckstiegel, Karl-Heinz (1993a) Developing a System of Dispute Settlement Regarding Space Activities.
  • In Proceedings of the 35th Colloquium on the Law of Outer Space, IISL, 28 August � 5 September 1992 (Washington, DC), AIAA, 27-35.
  • B�ckstiegel, Karl-Heinz (1993b) Settlement of Disputes Regarding Space Activities. Journal of Space Law, Vol. 21, No. 1, 1-10.
  • B�ckstiegel, Karl-Heinz (1994) Arbitration of Disputes Regarding Space Activities. In Proceedings of the 36th Colloquium on the Law of Outer Space, IISL, 16-22 October 1993 (Graz), AIAA,136-143.

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