Garima Khanna and Priankita Das, currently fourth year students at Dr. Ram Manohar Lohia National Law University, Lucknow, pursuing the B.A.LL.B. (Hons.) course.
DATE OF PUBLICATION- 31/07/2021
Introduction
When international space law emerged as a distinct field of study, there were only a few players in the spacefaring league and hence, scope of disputes among them was minimal. However recently, the whole ball game has transitioned with big names like Jeff Bezos, Elon Musk and Richard Branson eyeing the bounds of space, which is a territory that offers bountiful opportunities that can be availed only by some. There additionally are entities like Blue Origin and SpaceX which seem like the biggest stakeholders yet. Despite this, the United Nations (“UN”) and the Space Conventions (“Conventions”) fail to recognize or even acknowledge the presence of Non-State Actors in their dispute resolution mechanisms. ‘State sovereignty’ has always been put up on a higher pedestal, thus causing hesitation in providing private players with an appropriate legal channel. Thus, an international dispute resolution mechanism which is binding and comprehensive enough to make “space” for non-state entities is the need of the hour.
Lack of Recourse To Dispute Resolution Channels
None of the Conventions on outer space provides a binding framework for dispute resolution, and this gap seems intentional. Though activities in outer space became a reality half a century ago, the risks pertaining to it were colossal, and thus, states were reluctant to accept the compulsory jurisdiction of an international tribunal. Even though State actors have a recourse by means of Article 2(3) of the UN Charter which obligates parties to settle disputes in a peaceful and amicable manner, parties are often torn apart between this duty and the absence of adequate framework.
As for Non-State Actors, there is an altogether lack of recourse available in international law. This gap has even been addressed in the UN wherein Hon’ble Judge Pocar had expressed concernsregarding the existing dispute resolution procedure in the fifty-first session of the UN Committee on the Peaceful Uses of Outer Space (“UNCOPUOS”). He observed, “international space law showed a number of lacunae due to limitations in their personal or material scope which made them unavailable to private parties or only available for restricted ranges of disputes.”
As it exists today, the Outer Space Treaty, being the magna carta of space law, goes no further than demanding co-operationand consultations between State Parties, which is a traditional resolution mechanism running parallel to the one provided by the UN Charter. This typically aids only in the avoidance of tensions between the parties instead of solving them with concrete tangible solutions. Only the Liability Convention provides for State Parties to engage in diplomatic negotiations in case of a dispute; and if the parties fail to reach a settlement, they shall have to establish a Claims Commission that is empowered to decide on the merits of the case. Thus, even the handful of provisions under the Conventions that touched upon dispute resolution solely called for consultation proceedings, which are not obligatory for third party dispute resolution.
In addition to this, while States have the flexibility to declare themselves subject to the compulsory jurisdiction of the International Court of Justice (“ICJ”) on a case-to-case basis or by unilateral declarations, a non-state entity cannot be heard before the ICJ. Thus, the only ray of hope for the Non-State Actors remains national jurisdiction, which further complicates things. Owing to reasons such as the courts in the host state being less-equipped to deal with cross-boundary disputes; situations favouring the host state, and parties being dissatisfied with the decision due to the decision not being in line with their goals, there seems to exist numerous other factors that needs consideration before resorting to this mode.
In the authors’ view, these methods are neither sustainable nor practical. Thus, an exhaustive regime in the form of an elaborate legal instrument is required to facilitate all conflicts, whether between States; between Non-State Actors, or between the two arising in the space sector.
Recommendations
Keeping all the aforesaid considerations in mind and taking into account the increasing participation of Non-State Actors in outer space activities, it is imperative to decipher their place in the dispute resolution mechanism of international space law. For this, the authors have come up with a two-pronged approach – firstly, the Non-State Actors could be represented by the States Parties to the Conventions before the ICJ; and secondly, if the parties so desire, they could utilize the Alternative Dispute Resolution (“ADR”) mechanisms available to them under national and international law.
State Representation on behalf of Non-State Actors
Traditionally, only States are permitted to be parties to a dispute before the ICJ. However, there have been instances where the States have represented individuals or corporate entities before the ICJ while dealing with issues involving their rights and obligations. This indicates that representation of Non-State Actors before the ICJ by way of State involvement is not a new phenomenon, and thus, can be employed by private players in the present day and age. To further support this, reliance shall be placed on certain Conventions to exhibit a link between the State Parties and Non-State Actors.
The Outer Space Treaty permits States Parties to use and exploreouter space in accordance with international law. Further, it states that State Parties shall bear international responsibility for activities conducted by non-governmental entities, and shall be required to authorize and continually supervise such activities. In addition to this, the Registration Convention requires State Parties to maintain a national registry of all objects (whether private or government) launched into outer space from their territory, over which they shall retain jurisdiction and control. Thus, it is implied that all outer space activities, whether by State or Non-State Actors, are under the jurisdiction and supervision of the State Parties to the Conventions.
However, issues persist with the aforementioned mechanism firstly, States may not deem it politically favourable to represent Non-State Actors before the ICJ; secondly, the decision of the Claims Commission is non-binding unless the parties agree otherwise; thirdly, it is limited to disputes arising out of the Liability Convention; and finally, it lacks precedence. The only claim that ever arose under the Liability Convention was that of the Cosmos 954 case, but that too was later settled between the USSR and Canada by the signing of a protocol that had no mention of the Liability Convention. Thus, it can be stated that State representation is not the best solution for Non-State Actors looking to settle their disputes. In lieu of this, the authors suggest a second mechanism for conflict settlement, which is – utilisation of ADR mechanisms by Non-State Actors.
Utilisation of ADR Mechanisms
The use of ADR in contemporary times has been widely encouraged due to its flexible, confidential and speedy process. Many commercial and investment disputes have been settled with the help of these measures. Thus, it is natural to discuss their applicability to space disputes as well.
In 2011, the Permanent Court of Arbitration, which is predominantly reserved for settlement of disputes between States, came up with its “Optional Rules for Arbitration of Disputes Relating to Outer Space Activities,” (“Rules”) based on the 2010 UNCITRAL Arbitration Rules, and envisages dispute settlement through arbitration between State, as well as Non-State, actors. The Rules also provide for a broad scope of application, which would address all space-related disputes, and with the issue of technicalities of space activities. This can be done by creating a provision that would enable parties to submit a document to the arbitrators, summarizing the technical aspects of the case. Apart from this, the International Law Association (“ILA”) has adopted an “ILA Draft Convention on the Settlement of Space Law Disputes,” which puts States at parwith Non-State Actors for the employment of their dispute settlement mechanisms, thus providing them with more options for the utilization of ADR methods.
In addition to this, the usage of Investor-State Arbitration has also been tested and approved in the space sector, with threecases already having arisen in the existing framework of Investor-State Dispute Settlement. Thus, the use of ADR Mechanisms seems to be a favourable solution for Non-State Actors looking to settle their space disputes without the involvement of their States. Furthermore, an arbitral award or any other decision coming from a tribunal would rather have an effect of a binding decree, unlike the recommendatory decisions under the Liability Conventionthat seems to be hanging by a thread.
Conclusion
With the rise of activities and competing parties in the space arena, it is important to take note of the reliefs available to both State and Non-State Actors in international space law for dispute settlement. The present Conventions were formulated in an era where these activities could not be conceived, thus the drafters of these Conventions did not deem it necessary to address the issues of dispute settlement between Non-State Actors. However, we have come light-years ahead in terms of scientific and technological advancements, and thus, these Conventions have become outdated, and there arises a necessity to address the lacunae present therein and deal with the ever-changing times and circumstances. Certain scholars have suggested the establishment of a separate international tribunal catering only to space law disputes, but the authors are of the view that the feasibility of the existing mechanisms, i.e., State representation and ADR mechanisms, should be tested first.
If a system of ADR were to be developed wherein the principles of the Conventions were imbibed and the settlements were made binding upon the parties, it would be the ideal forum for all space related disputes. Moreover, the use of ADR would encourage more investors to step into the arena of space activities, and thus, lead to further technological and scientific advancements. Therefore, the authors advocate for the use of ADR for settlement of disputes between both State and Non-State Actors in international space law.