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
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.
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
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
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
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
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
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
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
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
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
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:
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 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.
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 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
- 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.
- 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
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.
- 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.
- 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
- 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
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
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.
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