Chapter 19: Dispute resolution regarding space activities
In the early stage of activities in outer space disputes were more likely to occur among subjects of public international law. Therefore, the International Court of Justice (ICJ) appeared as the natural place for a decision on any such dispute. Arbitration was the second possibility, either in the context of the Permanent Court of Arbitration (PCA) or ad hoc. Yet, neither the ICJ nor the PCA ever became involved in the settlement of space law disputes on their merits. In more recent times, however, satellite data has frequently been used as evidence in both forums by the parties to a dispute. More specific space law instruments have sometimes established their own methods, notably the Claims Commission under the 1972 Liability Convention, the dispute settlement mechanisms of the International Telecommunication Union (ITU) within the ITU Constitution and the ITU Convention, the European Space Agency (ESA) as per the ESA Convention, or the political solutions adopted by the Intergovernmental Agreement on the International Space Station (ISS). As for satellite communications in particular, in the context of GATT, the World Trade Organization (WTO) dispute settlement procedures are applicable. However, the continuous growth of political, economic and commercial interests of a widening variety of stakeholders, including an increasing number of private operators, created a challenge to the viability and effectiveness of the classic systems, largely based on state-to-state – and sometimes politicized – mechanisms for settling international disputes. In the ICJ example, the timid acceptance of the Court’s jurisdiction became a stumbling block for a coherent, transparent, fair and legally oriented regime for dispute settlement. In the present stage of development of space activities, discussions and proposals on dispute settlement mechanisms are focusing on more effective and agile possibilities, such as arbitration. In this sense the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, drafted by an Advisory Group of Experts in the framework of the Permanent Court of Arbitration (PCA), and effective from 6 December 2011, are not only an illustrative example, but a watershed as well.
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