Is Space Law Truly Rocket Science?: A Comprehensive and Critical Analysis of the Dispute Resolution Mechanism in Space-related Disputes – Part 1

One of the most unexplored sectors in the world, like deep-sea mining, includes the space sector. Considering the fact that the space sector is just gaining traction in terms of research and development, investment, and growth, it is imperative for us to carefully and comprehensively scrutinise and comprehend the laws and rules that govern this sector.

 

In Part 1, firstly, this article shall introduce space-related disputes and distinguish fantasy from the pragmatic scenario. Secondly, this article shall comprehensively scrutinise the space law and its dispute resolution mechanism from an international standpoint. Thirdly, this article shall explore the features, status, and efficacy of the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities published by the Permanent Court of Arbitration in 2011.

 

In Part 2, firstly this article shall analyse the existence of an alternative dispute resolution mechanism in India. Secondly, this article shall study various arbitration cases in space-related disputes and conduct a brief comparative analysis to litigation cases in space-related disputes. Thirdly, this article shall suggest the requisite means and measures to improve the dispute resolution mechanism for space-related disputes.

 

Introduction: Do “Outer Space” Disputes Actually Exist?

When we converse about disputes in the space sector, at the first instance, we may perceive them to be the typical “outer space disputes” that may take place outside planet Earth. For example, it may be perceived as a typical dispute between two States making territorial claim over a portion of moon or other celestial bodies. However, as interesting as that may be, the pragmatic scenario differs substantially. This is because only two disputes have taken place that may come close to a typical “outer space” dispute. These are, namely, two: re-entry of Kosmos 954 (due to its depressurisation and sharp descent into the Earth orbit) and the spread of its debris in Canada, 1978; and the satellite collision of Kosmos 2251 and Iridium 33 in the lower Earth orbit.[1] However, it is pertinent for us to note that these two disputes did not escalate and were resolved through diplomatic channels of settlements. That being said, it is lucidly evident that the typical “outer space” disputes are uncertain, at least for now. With this characterisation, the following question arises: what kind of disputes take place in the space sector?

 

In this particular sector, it is imperative for us to comprehend that disputes do take place. However, they are not the fantasy-type disputes that one may perceive because these disputes essentially comprise of actors (parties) such as launch service providers, satellite operators and manufacturers who essentially bring and launch satellites into orbit.[2] It also involves actors such as sovereign States, insurers, and telecommunication companies.[3] This translates to the fact that disputes arise in the space sector when any of the aforementioned actor commits a fault. These disputes may be, but not limited to, late delivery of satellites, problem regarding the launch of a satellite, defective satellites in the orbit, sale and purchase of satellites in the orbit, lease of satellite capacity, right to operate at certain orbital positions, revocation of leased spectrum, and reservation of capacity for governmental use.[4] In other words, space sector disputes are primarily related to contracts that are concluded “… for the planning of satellite constellations, for the manufacturing of satellites, for their insurance, for their delivery into orbit and for the operation of satellite constellations.”[5] With this, it is quintessential for us to note that such type of contract-related space sector disputes are referred to arbitration as such contracts usually contain arbitration clauses and the law that governs the parties concerned.[6] In finality, it is noteworthy to mention that such type of disputes usually involve investment and/or commercial arbitration between two or more parties.

 

In the following, the author shall describe and scrutinise the law related to the space sector from an international and domestic (India) standpoint. In other words, the author shall delve into the general provisions of space law and the specific provisions related to arbitration (and mediation or negotiation, if any) for outer space-related disputes.

 

Brief Scrutiny of Space Law and its Dispute Resolution Mechanism from the Lens of International Standpoint

When the first satellite was launched in the orbit in 1957 i.e. Sputnik, the United Nations established a committee called as the United Nations Committee on the Peaceful Uses of Outer Space (hereinafter “COPUOUS”) which acts in the promotion and fostering of international peace, cooperation and harmony in the use of outer space. COPUOUS has been quintessential in five international treaties for space law that are as follows: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967 (hereinafter “Outer Space Treaty”); Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1968 (hereinafter “Outer Space Rescue Agreement”); Convention on International Liability for Damage Caused by Space Objects, 1972 (hereinafter “Outer Space Liability Convention”); Convention on Registration of Objects Launched into Outer Space, 1975 (hereinafter “Outer Space Registration Convention”); and Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979 (hereinafter “Moon Agreement”).

 

When we scrutinise the aforementioned treaties, conventions and agreement, we comprehend that the Outer Space Treaty forms the premise for international space law. Firstly, as of February 2021, 111 States are parties to the Outer Space Treaty whereas twenty-three other States have not ratified it despite being signatories to the same. This treaty, essentially, prevents States from carrying, installing, and stationing “weapons of mass destruction” in the outer space, moon or any other celestial body.[7] In other words, this treaty ensures the exclusive peaceful use of outer space, including moon and other celestial bodies.[8] Further, it prevents States from claiming territorial sovereignty as it makes outer space “free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law” and designates the outer space as a “province of all mankind”.[9]

 

However, the first lacuna that arises with respect to the Outer Space Treaty is that although it prevents “weapons of mass destruction,” it does not prevent conventional weapons and thus, at this point in time, it is of quintessence importance for us to note the difference between the two. “Conventional weapons encompass a wide range of equipment not limited to armoured combat vehicles, combat helicopters, combat aircraft, warships, small arms and light weapons, landmines, cluster munitions, ammunition and artillery. Conventional weapons are the most common type of armament globally and historically the most commonly used in conflict.”[10] However, weapons of mass destruction are a special weaponry class that have the potential to:

 

(1) Produce in a single moment an enormous destructive effect capable to kill millions of civilians, jeopardise the natural environment, and fundamentally alter the lives of future generations through their catastrophic effects.

(2) Cause death or serious injury of people through toxic or poisonous chemicals.

(3) Disseminate disease-causing organisms or toxins to harm or kill humans, animals or plants.

(4) Deliver nuclear explosive devices, chemical, biological or toxin agents to use them for hostile purposes or in armed conflict.[11]

 

Thus, as the line of distinction between these two types of weapons is cleared, it is quintessential to understand that the Outer Space Treaty is essentially silent on utilisation of conventional weapons which, in turn, goes against the objective of the treaty i.e. peaceful use of outer space, as it indirectly makes the use of outer space minacious to space sector actors.

 

The second lacuna that arises with respect to the Outer Space Treaty is that although it prevents States from claiming territorial sovereignty, it neither mentions nor recognises the property rights over space resources. In other words, it means that the treaty is silent on “who” owns the resources that may be mined from the moon or any other celestial body. Considering the fact that in September 2020, National Aeronautics and Space Administration (NASA) announced that it would pay companies to help mine the moon,[12] we comprehend that the probability of mining of space resources is fast approaching, thereby necessitating a need to update and upgrade the Outer Space Treaty that has already been acknowledged as obsolete in the 2021 Third Annual Schiefelbein Global Dispute Resolution Conference.[13]

 

Thus, considering the specific aforementioned lacuna, we comprehend that new and additional types of projects and endeavours may be created for mining of space resources. This creation, in turn, widens the scope and coverage of investment and commercial arbitration and mediation as the amount of “disputes” may rise in the space sector given the addition of new potential disputes (related to mining of space resources) in the space sector.

 

Secondly, as of January 2019, ninety-eight States have ratified the Outer Space Rescue Agreement whereas twenty-three other States have not ratified it despite being signatories to the same. Further, three intergovernmental organisations –– European Space Agency, Intersputnik International Organisation of Space Communications, and European Organisation for the Exploitation of Meteorological Satellites –– have accepted the rights and duties conferred by the Outer Space Rescue Agreement. This agreement essentially “… provides that States shall take all possible steps to rescue and assist astronauts in distress and promptly return them to the launching State, and that States shall, upon request, provide assistance to launching States in recovering space objects that return to Earth outside the territory of the launching State.”[14] However, considering the fact that there is already a project in play regarding commercial space tourism[15] and the recent NASA Artemis Accords being signed for the purpose of civil exploration and use of outer space,[16] the lacuna that arises in the Outer Space Rescue Agreement is that it only deals with the rescue and assist operations for astronauts, not passengers on commercial operations such as tourism and so on. Comprehending the fact that use of outer space for commercial operations is also fast approaching wherein outer space will not be solely restricted to astronauts but also expand to passengers, it is imperative for the Outer Space Rescue Agreement to be updated and upgraded.

 

Thirdly, as of January 2019, ninety-six States have ratified the Outer Space Liability Convention whereas nineteen have not ratified it despite being signatories to the same. Further, four intergovernmental organisations –– European Space Agency, European Organisation for the Exploitation of Meteorological Satellites, Intersputnik International Organisation of Space Communications, and European Telecommunications Satellite Organisation –– have accepted the rights and duties conferred by the Outer Space Liability Convention. This convention essentially “… provides that a launching State shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft, and liable for damage due to its faults in space. The convention also provides for procedures for the settlement of claims for damages.”[17] In this convention, it is imperative to note that it does not provide arbitration as a means of dispute resolution but “through diplomatic channels”.[18] In other words, it provides for the resolution of disputes, that arise under it, through negotiation between the two States concerned. This mention of “negotiation” already exists in Article XIV as “diplomatic negotiations”.[19] Thus, it can be inferred that resolution of disputes through diplomatic channels essentially means diplomatic negotiations. Rather than being a lacuna, it is a positive factor because it allows peaceful and harmonious settlement of disputes through the development of a sustainable relationship between the two parties, in a manner similar to that of mediation.

 

Fourthly, as of December 2018, seventy States have ratified the Outer Space Registration Convention whereas three States have not ratified it despite being signatories to the same. Further, four intergovernmental organisations –– European Organisation for the Exploitation of Meteorological Satellites, European Telecommunications Satellite Organisation and Intersputnik International Organisation of Space Communications –– have accepted the rights and duties conferred by the Outer Space Registration Convention. This convention essentially acts as an add-on to the Outer Space Liability Convention because it mandates the States to provide the requisite information about the orbit of each object placed in the outer space alongside detailing the general function of the outer space object. Fifthly and in finality, the Moon Agreement has only been ratified by eighteen States whereas four other States have not ratified it despite being signatories to the same. This agreement essentially reaffirms and elaborates on the provisions of the Outer Space Treaty.

 

Thus, after having discussed the relevant conventions and treaties, in the following, the author shall study and scrutinise the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (hereinafter “PCA Outer Space Arbitration Rules”) published by the Permanent Court of Arbitration (hereinafter “PCA”) in 2011.

 

PCA Outer Space Arbitration Rules: Need of the Hour, though A Difficult Medicine to Provide

The PCA Outer Space Arbitration Rules are based on the 2010 UNCITRAL Arbitration Rules. These 2010 Rules are an inherently excellent base for the PCA Outer Space Arbitration Rules as the 2010 Rules are not only well recognised in international arbitration but are also widely utilised by parties in international arbitration.[20] These PCA Outer Space Arbitration Rules essentially provide a dispute resolution mechanism (through arbitration) that is completely optional and highly flexible in nature.[21] This dispute resolution mechanism is available to all States, international organisations and private entities that are essentially involved in the usage of the outer space.[22] These Rules and its dispute resolution mechanism apply to all disputes that have an outer space component involved, including the usage of outer space.[23]

 

Further, there are four noteworthy aspects of these Rules that are as follows. Firstly, according to Article 10(4), there shall be a specialised panel of arbitrators as the PCA Secretary General shall maintain a list of arbitrators who have the requisite expertise in the subject-matter of the dispute at hand.[24] Secondly, according to Article 29, the Arbitral Tribunal may appoint one or more independent “experts” who shall report to the Arbitral Tribunal and assist it on specific issues that are being determined by the Tribunal.[25] Thirdly, according to Article 27, the Arbitral Tribunal “… may request the parties jointly or separately to provide a non-technical document summarising and explaining the background to any scientific, technical or other specialised information which the Arbitral Tribunal considers to be necessary to understand fully the matters in dispute.”[26] In other words, this “non-technical document” shall enable the Arbitral Tribunal to comprehend the complex and technical issues that are involved in the dispute alongside enabling the Tribunal to ascertain whether it should appoint an expert for the complex dispute. Fourthly, according to Article 17(6), any party may invoke confidentiality. In other words, any party may apply to classify certain information, submitted and discovered during the arbitration proceedings, as confidential.[27]

 

However, despite the aforementioned characteristics of the PCA Outer Space Arbitration Rules, they have gained little to no traction or attention in the space sector[28] as there are no publicly reported arbitration disputes available wherein the parties have used these Rules. Further, although PCA has resolved disputes, the parties have utilised the 1976 UNCITRAL Arbitration Rules rather than the PCA Outer Space Arbitration Rules.[29] Thus, this leads us to the query as to why do PCA Outer Space Arbitration Rules have no traction. The same query can be broken down as follows.

 

The first point of conundrum which arises is that of the types of parties involved in international arbitration for space-related disputes. It has been found that majority of the parties involved are private entities from the satellite and telecommunication sector.[30] This brings us to a subsidiary query as to whether they are aware of the PCA Outer Space Arbitration Rules and refer to the same in their commercial contracts and agreements. Although these Rules have the support and confidence of a plethora of States and international organisations, it has been found that there is a lack of awareness regarding the existence of PCA Outer Space Arbitration Rules amongst the private entities; this also explains the lack of referring to these Rules in these entities’ commercial contracts and agreements.[31]

 

The second point of conundrum which arises is the efficacy of the PCA Outer Space Arbitration Rules. It has been found that majority of the space-related disputes are regarding the leasing of satellite capacity, regulatory measures, and the launch and delivery of satellites. Considering the nature and complexity of these primary space-related disputes, it is imperative for us to analyse the efficacy of the PCA Outer Space Arbitration Rules in terms of their adequacy and advancement to resolve space-related disputes. In that matter, to comprehend the efficacy of these Rules on the touchstones of adequacy and advancement, it is pertinent to compare and analyse them with the previously mentioned five conventions and agreements of space-related disputes.

 

The Outer Space Liability Convention provides for resolution of disputes through diplomatic negotiation.[32] The Outer Space Moon Agreement provides for the dispute resolution mechanism of “consultations” which, in other words, is again negotiations wherein failure of all mutual negotiations and settlements can involve the Secretary General acting as an intermediary i.e. like a mediator.[33] This means that if worse comes to worst, mediation may be resorted by the parties provided one of them do not have already existing diplomatic relations with the other party.[34] Apart from these two conventions, the other three conventions, including the Artemis Accords, are silent on the dispute resolution mechanism for space-related disputes. Thus, we comprehend two things: firstly, the fact that the other three conventions are silent on the requisite dispute resolution mechanism, is highly problematic because this silence detriments the ability to effectively and efficiently resolve space-related disputes. Secondly, although the other two conventions speak about resolution of space-related disputes through diplomatic negotiations, such mention of this dispute resolution mechanism remains inadequate because this mention is only in bits and pieces i.e. only in few articles for the Outer Space Liability Convention and only in one article for the Outer Space Moon Agreement. On the other hand, when we compare the PCA Outer Space Arbitration Rules, we comprehend that these Rules have exclusively established a completely separate and comprehensive mechanism for resolution of space-related disputes. This essentially means that the current five conventions on space-related disputes are inadequate and obsolete.

 

However, the question remains: are the PCA Outer Space Arbitration Rules adequate and advanced enough to resolve highly technical and complex space-related disputes? To answer this query, it is quintessential for us to note that these Rules are designed exclusively for space-related disputes only. However, the private entities do not opt for these specific PCA Outer Space Arbitration Rules but for more general and standard rules –– such as 1976 UNCITRAL Arbitration Rules –– and procedures of institutions like that of the International Chamber of Commerce, London Court of International Arbitration, and International Centre for Dispute Resolution.[35] When we analyse these general rules and procedures, we comprehend that they are developed to cater to the needs of all types of arbitration-related disputes, rather than niche and specific arbitration-related disputes (such as space sector). Further, the major drawback of these general rules and procedures is the lack of specialisation and exclusivity that is quintessential in highly niche and specific disputes like that of space sector for just, effective, and efficient delivery of arbitral award. That being said, we need to comprehend that the current general and standard arbitral rules may not be the best option for resolution of space-related disputes as these disputes are highly technical and complex in nature with the probability of this technicality and complexity to only exponentially rise in the coming years considering the advancement of science and technology. This essentially means that the current PCA Outer Space Arbitration Rules are adequate and advanced enough to render the well-recognised, general, and standard arbitral rules and procedures inadequate alongside the five principal conventions of space-related disputes also being rendered as obsolete.

 

However, if we independently scrutinise the PCA Outer Space Arbitration Rules, in isolation from the aforementioned conventions, rules, and procedures, the result will not be completely accurate as these Rules have never been tested on the touchstone of practicality. In other words, as these Rules have never been applied in real-time space-related disputes, a mere theoretical analysis of these Rules will not do justice to their scrutiny as a practical application of the same would be mandated. Therefore, that being said, for a full-fledged analysis and accurate report of these Rules’ independent adequacy and advancement, their practical application and the Arbitral Tribunal’s interpretation of these Rules is necessary.

 

† Iram Majid, Director of Indian Institute of Arbitration and Mediation (ILAM) and Executive Director of Asia Pacific Centre for Arbitration and Mediation.

 

[1] Jan Frohloff, Arbitration in Space Disputes, 35 Arbitration Int’l 309, 309 (2019).

[2] Ibid.

[3] Ibid.

[4] Id. at 309-329.

[5] Id. at 310.

[6] Ibid.

[7] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Art. 4, 10-10-1967, 610 UNTS 205.

[8] Ibid.

[9] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Art. 1,10-10-1967, 610 UNTS 205.

[10] Conventional Weapons, United Nations Regional Centre for Peace and Disarmament in Asia and the Pacific, <HERE >.

[11] Weapons of Mass Destruction, United Nations Regional Centre for Peace and Disarmament in Asia and the Pacific, <HERE>.

[12] Christian Davenport, NASA Announces its Looking for Companies to Help Mine the Moon, The Washington Post (10-9-2020), <HERE>.

[13] Lester Schiefelbein, Traversing Cyber, Indigenous, New Space, Mediation, and COVID-19 Disputes: The Schiefelbein Global Dispute Resolution Conference, Kluwer Arbitration Blog (4-4-2021), <HERE>.

[14] Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, United Nations Office for Outer Space Affairs, <HERE>.

[15] Japanese Billionaire Seeks Eight People to Fly to Moon, BBC News (3-3-2021), <HERE >.

[16] The Artemis Accords Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes, NASA, <HERE >.

[17] Convention on International Liability for Damage Caused by Space Objects, United Nations Office for Outer Space Affairs, <HERE >.

[18] Convention on the International Liability for Damage Caused by Space Objects, Art. IX, 1-9-1972, 961 UNTS 187.

[19] Id. at Art. XIV.

[20] Charles B. Rosenberg and Vivasvat Dadwal, The 10 Year Anniversary of the PCA Outer Space Rules: A Failed Mission or the Next Generation?, Kluwer Arbitration Blog (16-2-2021), <HERE >.

[21] Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, Introduction, 6-12-2011.

[22] Ibid.

[23] Ibid.

[24] Id. at Art. 10(4).

[25] Id. at Art. 29.

[26] Id. at Art. 27.

[27] Id. at Art. 17(6).

[28] Supra note 20.

[29] For e.g., CC/Devas (Mauritius) Ltd.v. Republic of India, PCA Case No. 2013-09; Deutsche Telekom AG v. Republic of India, PCA Case No. 2014-10

[30] Supra note 20.

[31] Ibid.

[32] Convention on the International Liability for Damage Caused by Space Objects, Art. IX(1), 1-9-1972, 961 UNTS 187.

[33] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Arts. 15(1), (2 and (3), 18-12-1979, 1363 UNTS 3.

[34] Ibid.

[35] Supra note 20.

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