Settling space spats

As outer space activities grow in scope, the need for enforcement and dispute resolution will increase, but it will require unique approaches to preserve the unique space environment, writes space law expert, Michael J. Listner.

As private commercial interests become more prevalent in outer space activities, space law, both domestic and international, has begun to merge with areas of traditional law including property, contract, and intellectual property

Space law been an enigma to most; however, as the scope of outer space activities becomes more prolific and as our everyday lives become more entwined with those activities, the laws and customs surrounding the access to and use of outer space becomes a more important topic to be considered.

International space law, which is based on customary and treaty law, has been difficult to enforce through penalties for non-compliance because not only are the treaties that make up the body of space law intentionally ambiguous, but the nature of international law seldom allows for penalties. This deficiency in international space law is made up for in some respect by potential political ramifications for noncompliance, and the members themselves are left to enforce the principles and laws typically through the enactment of domestic space law.

As outer space activities have grown, so have the issues such as space debris, signal interference between commercial satellites, availability of slots within the geosynchronous belt, the advent and impact of commercial space and other matters that have implications on the freedom of access to outer space.

In particular, the future of commercial space and space tourism has raised concerns among international groups for a need for an integrated regulatory regime for aviation and space traffic management. Although these issues would traditionally be addressed by a legally binding regulatory approach or treaty, the question is whether one is feasible or needed? The answer to both questions is no. However, that does not mean that the issues surrounding outer space activities do not need to be addressed.

For instance, commercial space activities, including suborbital operations, are in the early stages of development and excessive regulation would stifle development of this new industry. Therefore, the United States government has placed a moratorium on regulation, including liability for passengers, until the industry matures and with it regulation. As the industry enters operations, regulatory bodies will continue to monitor their operations and regulation of the industry will follow as the industry matures.

Code of Conduct: A first step

Space debris is becoming a concern, especially in the low-earth orbit. The current body of international space law does not specifically address this matter nor does it seem likely that a legally binding treaty would find general acceptance.

Nonetheless, this does not mean that the issue is being ignored. In October 2012, the United States and the EU convened with other nations at the UN to negotiate a ‘Code of Conduct for Outer Space Activities’, that would address, among other things, space debris and general conduct of nations while performing their respective activities in outer space.

The Code of Conduct is not a treaty nor is it intended to be binding upon the nations that sign onto it. Rather it represents a first step in developing a set of best practices and protocols to be adhered to that will preserve the outer space environment.

Need for wider scope for dispute resolution

Ancillary to the issue of enforcement is dispute resolution. The governmental nature of space law and outer space activities in general has created a paradigm where disputes that arise from outer space activities are strictly the province of government agencies and diplomats.

Disputes that arise in this arena are often dealt through diplomatic channels and seldom use legal dispute resolution mechanisms to achieve a solution. However, as private commercial interests become more prevalent in outer space activities, space law, both domestic and international, has begun to merge with areas of traditional law including property, contract, and intellectual property.

Extending arbitration rules to private entitites

As that merger continues, international disputes between governmental entities and private entities will grow as well. The downfall is that outside of dispute resolution mechanisms incorporated into contracts and diplomatic overtures made on their behalf, private entities involved in outer space activities have few choices in alternative forums to resolve their disputes.

The legal community took notice of this deficiency and addressed it with the adoption of new rules (See box) for arbitration keyed specifically for issues arising from outer space activities, both in the context of resolving disputes pertaining to treaties in the diplomatic world and contracts in the private sector. These rules provide a unique forum for dispute resolution for private entities and governments seeking an alternative forum of dispute resolution to resolve disagreements over potential violations of treaties involving outer space. Moreover, the rules can be used as a forum to resolve disputes over the interpretation of the current body of international space law and may even provide a means to arbitrate disputes around a future code of conduct.

As outer space activities grow in scope, the need for enforcement and dispute resolution will increase. However, the unique nature of the outer space environment will require unique approaches to preserve the outer space environment and to settle.

Michael J. Listner is the founder and principal of Space Law and Policy Solutions, a firm that consults on matters relating to space law and policy for government and private organisations. Michael also serves as the Vice President of Legal Affairs for the International Space Safety Foundation (ISSF). Email: Michael@spacelawsolutions.com or follow him on Twitter @ponder68.

The Rules

The Optional Rules for Arbitration of Disputes Relating to Outer Space Activities was developed by the Permanent Court of Arbitration (PCA), based in The Hague. A special PCA advisory group comprised of space law experts from across the globe reportedly developed the new rules. They are designed “to reflect the particular characteristics of disputes having an outer space component involving the use of outer space by states, international organisations and private entities.” The Rules reportedly consist of 43 articles and a model arbitration clause that parties may insert into contracts, treaties or other agreements for arbitration of future disputes.