4. Marco Teórico
4.3 Capítulo: Vida Cotidiana y Ocupación
Bilateral agreements for cooperation in outer space also demonstrate the ten- dency to integrate dispute settlement provisions in agreements. Since it started work on bilateral programs, the United States’ NASA has included provisions for dispute settlement in all of its cooperation agreements.180
NASA’s bilateral agreements generally either stipulated consideration of the partner States’ laws, or dispute settlement on the grounds of American law. One of NASA’s earliest bilateral agreements was the 1963 United States- New Zealand Agreement on Aerospace Disturbances Research Program. NASA agreed in Article 5(b) to give due regard to the New Zealand Solicitor-General’s recommendations for the settlement of claims determining liability and com- pensation. The 1964 United State-Nigeria Agreement on a Station for Space Vehicle Tracking and Communication provided in Article 13 that the US gov- ernment would use its best efforts to adequately and effectively compensate Nigeria for any personal injuries or property damage arising, taking into con- sideration relevant Nigerian law. The 1967 United States-United Kingdom Agreement for a Tracking Station on Antigua provided that any claim for dam- age to property or injury to persons arising from acts or omissions of American personnel employed by or directly connected with NASA will be considered and
176Farand, A., “The European Space Agency’s Experience with Mechanisms for the Set-
tlement of Disputes”, in International Bureau of the Permanent Court of Arbitration (ed.),
Arbitration in Air, Space and Telecommunications Law: Enforcing Regulatory Measures, The Permanent Court of Arbitration / Peace Palace Papers, PCA International Law Semi- nar, February 23, 2001, (2001) 145
177seesupra note 165
178Article XXV(1), Annex I, ESA Convention, seesupranote 165
179see generally Lafferranderie, G., “L’immunit´e de jurisdiction des organisations interna-
tionals - l’exemple de l’Agence spatiale europ´eenne, (1983) RFDA 13
180All U.S. Agreements can be found in Gorove, S. (ed.),United States Space Law - Na-
tional and International Regulations (1982) and from Jasentuliyana, N. and Lee, R.S.K. (eds.), Manual of Space Law (1979) Volume 2 , more recent documents can be found online at the webpage of the United Nations Office of Outer Space Affairs, online at http://www.oosa.unvienna.org/SpaceLaw/multi bi/index.html, Last accessed 04 January 2006.
settled in accordance with Section 203(b) of the US NASA Act181, and as it
may be amended. The 1976 United States-Seychelles Agreement on the Track- ing Station on Mahe Island provided in Article 12, that any claim presented to the US government should be processed and settled in accordance with the applicable provisions of US law.
Other early NASA agreements that provide for dispute settlement by arbi- tration are the 1969 United States-Italy Memoranda of Understanding between the Universit´a degli Studi di Roma (Aerospace Research Centre) and NASA for Launching Satellites from the San Marco Range. This called for prompt settlement of claims following the Model Rules on arbitral procedure of the In- ternational Law Commission. The 1970 Federal Republic of Germany-United States Agreement provided for the final settlement of disputes by arbitration following the 1958 Model Rules of the International Law Commission.
As regards European agreements,182the favored mechanism of dispute set- tlement appears to be arbitration. The Australia-United Kingdom-ELDO In- terim Agreement provided that Member States would submit their disputes to arbitration. The decision of the arbitration tribunal would be final and binding on the parties. The ELDO-Belgium Agreement dealing with property and fa- cilities states in Article 8 that any dispute should be settled in accordance with the arbitration procedure prescribed in Article 22 of the ELDO Convention. The 1972 France-Federal Republic of Germany Agreement for the Construc- tion, Launch and Utilization of an Experimental Telecommunications Satellite included a provision for a final and binding settlement of disputes by arbitra- tion. According to the Agreement, the President of the European Community Court of Justice would name the members of such a tribunal. The arbitration decision should have considered the law as mentioned in Article 38(1) of the ICJ Statute and Chapter III of the 1907 Hague Convention.183
Bilateral agreements involving Asian and Eastern European States seem to favor consultation as a means of dispute settlement instead. The 1972 Fed- eral Republic of Germany-India Agreement on Cooperation Regarding Peace- ful Uses of Atomic Energy and Space Research stipulated that disputes on interpretation or application of the Agreement shall be settled in consultation between the contracting parties. Article 6 of the 1988 United States-China Memorandum of Agreement on Liability for Satellite Launches also specifies
18142 USC Sect. 2473
182All Agreements can be found in B¨ockstiegel, K.-H. (ed.), Settlement of Space
Law Disputes: The Present State of the Law and Perspective of Further Devel- opment, (1980); and from B¨ockstiegel, K.-H. and Benk¨o, M. (eds.), Space Law - Basic Legal Documents, (1990); more recent documents can be found online at the webpage of the United Nations Office of Outer Space Affairs, online at http://www.oosa.unvienna.org/SpaceLaw/multi bi/index.html, Last accessed 04 January 2006.
183Hague Convention for the Pacific Settlement of Disputes (1907) UNTS 6 (1971) Cmd.
consultations as a means of dispute settlement. This is also the case as pro- vided for in Article IX(3) of the 1999 Kazakhstan-Russian Federation-United States Agreement on Technology Safeguards Associated with the Launch of Russia of U.S. Licensed Spacecraft from the Baikonur Cosmodrome. Agree- ments concluded by the China National Space Administration with partner States also only stipulate negotiations and consultations as the means of dis- pute settlement.184
ESA and its predecessor, ESRO, entered into a myriad of bilateral agree- ments with its member States and other States concerning facilities for regional programs, including the European Space Technology Centre (ESTEC) in the Netherlands, the European Sounding Rocket Launching Range (ESRANGE) in Sweden, the Kongsjø Telemetry Station and the Andøya sounding rocket facilities in Norway, rocket launching facilities on French territory, the develop- ment and production of the Ariane-5 launcher with France, and the Woomera launching facilities in Australia.185 These agreements generally provided that
if a dispute arose that could not be settled amicably, the President of the ICJ would appoint a single arbitrator to decide the dispute and give an award. This award would be final and binding.
Other ESA-related international instruments designate ad hoc arbitration as the preferred mode of dispute settlement. For example, a single arbitra- tor is provided for in the European Agreement Concerning an Aeronautical Satellite Programme.186 The conventional structure is a three-member panel,
with one arbitrator picked by each side and one neutral member chosen by the two. Examples of this format include the Protocol on Privileges and Immuni- ties of the European Space Research Organization.187 However, the emphasis
in this context has been placed mainly on conflict avoidance rather than on dispute settlement. These included the cross-waiver of liability clauses first developed by NASA and seem to have set the standard in international space activities. The motive for their insertion into international agreements dealing with space activities comes from the fact that space activities are still regarded as a highly hazardous industry. As such, insurance is either generally unavail- able or prohibitively expensive. In this context, the inclusion of cross-waiver of liability clauses might have a positive impact by encouraging participation in space activities.188 Nevertheless, a clause stipulating an appropriate and
184Some provisions online at http://www.cnsa.gov.cn/index.asp, in Chinese, (Last accessed:
04 January 2006)
185An excellent discussion of these agreements can be found at Lafferranderie, G.,Interna-
tional Encyclopedia of Laws: European Space Agency, (1996)
186Article 3, European Agreement Concerning an Aeronautical Satellite Programme, De-
cember 9, 1971, 906 UNTS 3
187Article 27, Protocol on Privileges and Immunities of the European Space Research Or-
ganization, October 31, 1963, 805 UNTS 279
188Gorove, S., “Report on the Session of the Aviation and Space Law Section of the Asso-
binding method for dispute settlement potentially arising in international co- operation is prudent. The agreements concluded between ESA and Romania, and Poland and the Czech Republic, respectively, contain both a cross-waiver clause and an arbitration procedure in the event that mutual consultations are not sufficient to settle a dispute.189
A 1998 Memorandum of Understanding between ESA and NASA provided that in the event of damage, the parties will be liable in accordance with the 1972 Liability Convention. In the event of any dispute relating to liability, NASA and ESA agreed to consult promptly on equitable sharing of any pay- ments. If these consultations fail, an early arbitration following the 1958 Model Rules on arbitral procedure of the International Law Commission will be ap- plied. It is notable that the Liability Convention was also mentioned in a 1974 Canada-United States agreement. The 1974 Agreement concerning Liability for Loss or Damage from Certain Rocket Launches stipulated:
“In the event that a claim arising from out of these launches is not settled expeditiously in a mutually acceptable manner, the two gov- ernments shall give consideration to the establishment of a Claims Commission such as that provided for in Article 15 of the Liabil- ity Convention with a view to arriving at a prompt and equitable settlement.”
The 1996 ESA-NASA Memorandum of Understanding on the Space Telescope Project, however, referred to settlement by the US authorities or to another form of resolution arbitration as the parties may agree.
This thesis then further considered the agreements concluded in the period 1995 - 2004 between ESA and other international organizations and institu- tions, governments, organizations and institutions of non-member States for the purpose of cooperating in the conduct of space activities.190 ESA’s prac- tice has been consistent over the years. As such, an examination of agreements concluded over a longer period would have led to the same findings. A critical analysis of these agreements led to their categorization into two groups. A first category of agreements are those concluded with States of Central and Eastern Europe to establish a general framework for cooperation.191 These agreements
189Agreement Between The European Space Agency and the Government of Romania Con-
cerning Space Cooperation for Peaceful Purposes, (December 11, 1992) ESA/LEG/157; Agreement Between the European Space Agency and the Government of the Republic of Poland Concerning Space Cooperation for Peaceful Purposes, (January 28, 1994), ESA/LEG 164; Agreement between the European Space Agency and the Czech Republic Concerning Space Cooperation for Peaceful Purposes, (November 7, 1996), ESA/LEG 201
190These documents, including the 1996 and 1998 Memoranda mentioned above and those
in the period not covered by the analysis, can be found via ESA’s Official Documents Man- agement Service, online at http://edms.esa.int/index.html, (Last accessed: 10 January 2006)
contain provisions for consultation between the parties whenever a question of interpretation or a dispute arises. Consequently, an arbitral tribunal is estab- lished for a final decision on the dispute. The usual approach is for each of the parties to name an arbitrator, with the third arbitration, who will chair the arbitral tribunal, to be named by the first two. The relevant provisions specify that in case of disagreement regarding the nomination of the third arbi- trator, the President of the ICJ may be asked to nominate the third arbitrator instead. A second category of agreements concluded during this period con- cerned the interaction between ESA and technical organizations of Member States. These agreements contain similar clauses to those in the first category. However, generally the Chairman of the ICC, the President of the ICJ or the Secretary-General of the PCA are asked to nominate the third arbitrator in case of disagreement on this matter between the parties.
The most significant international partnership ever concluded for a techno- logical and scientific project is that arising out of the 1998 Intergovernmental Agreement (IGA) concerning cooperation on the International Space Station (ISS), concluded between the United States, Russia, Japan, Canada and the European Partner encompassing eleven ESA Member States.192 This replaces
the corresponding 1988 Agreement (ISS Agreement) to which Russia was not a party.193 ESA is the Cooperating Agency designated by the eleven partici-
pating ESA Member States to discharge the responsibilities of the European Partner.194 This is achieved through various dedicated ESA optional programs
carried out in accordance with the ESA Convention. The detailed obligations of ESA are set out in the 1998 ESA/NASA Memorandum of Understanding concerning cooperation on the International Space Station.195 This is one of
four similarly worded Memoranda signed in 1998 between NASA and each of the other Cooperating Agencies of the partner States.
It may be important to recall that ESA and NASA cooperated extensively on the Spacelab project in the 1970s, on the basis of an agreement dating from
point”, inLegal Aspects of Cooperation between the ESA and Central and Eastern European Countries, Proceedings of the International Colloquium, Charles University, Prague, Sep- tember 11 and 12, 1997, (1998) 31
192Agreement among the Government of Canada, Governments of the Member States of
the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America Concerning Cooperation on the Civil International Space Station, (1998) [hereinafter “IGA”]
193Agreement Among the Government of the United States of America, Governments of
the Member States of the European Space Agency, The Government of Japan, and the Government of Canada on Cooperation in the Detailed Design, Development, Operation, and Utilization of the Permanently Manned Civil Space Station (September 29, 1988) [hereinafter “ISS Agreement”]
194At present there are sixteen full ESA Member States. However, the ISS is an ESA
Optional Program, in which only eleven ESA Member States are participating.
1951998 Memorandum of Understanding between ESA and NASA, seesupranote 190, signed
1973.196 The Spacelab Agreement was the trendsetter for the ISS Agreement
and its successor, the IGA. The ISS project is one of unprecedented magnitude in terms of international scientific and technical cooperation. It is also to date the most expensive project ever undertaken on an international scale. The de- velopment of the International Space Station was valued at USD$60 billion in 2001, of which approximately USD$3.5 billion represents the European contri- bution. It is also expected that an equal amount will be spent by the partners on the operation and utilization of the Station during the 10 - 15 years of its exploitation.197 Costs to operate the ISS is expected to overrun USD$5 billion annually after 2006.198
The International Space Station legal framework acknowledges the basic liability rules concerning space activities set forth in international space law treaties, such as the 1972 Liability Convention. However, it is a prime example of the phenomenon of “cross-waivers of liability” that have mushroomed in recent bilateral and multilateral space agreements. The IGA-established “cross- waiver of liability” prohibits any of the five Partners or their related entities (contractor, sub-contractor, user, customer) to initiate a claim against another Partner or its related entities for damage sustained as a result of International Space Station activities. Article 16 of the IGA provides
“ 1. The objective of this Article is to establish a cross-waiver of liability by the Partner States and related entities in the interest of encouraging participation in the exploration, exploitation, and use of outer space through the Space Station. This cross-waiver of liability shall be broadly construed to achieve this objective. . . .
3. (a) Each Partner State agrees to a cross-waiver of liability pur- suant to which each Partner State waives all claims against any of the entities or persons listed in subparagraphs 3(a)(1) through 3(a)(3) below based on damage arising out of Protected Space Op- erations. This cross-waiver shall apply only if the person, entity, or property causing the damage is involved in Protected Space Op- erations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations. The cross-waiver shall apply to any claims for damage, whatever the legal basis for such claims against:
1. another Partner State;
196seesupra note 190
197Farand, A., “Legal Environment for Exploitation of the International Space Station
(ISS)”, inInternational Space Station: The Next Space Marketplace(2000) at 141
198David, L., “New ISS Study Warns of Increased Operating Costs”, (19 February 2002), on-
line at http://www.space.com/news/spacestation/rand study 020219.html, (Last accessed: 10 January 2006)
2. a related entity of another Partner State;
3. the employees of any of the entities identified in subparagraphs 3(a)(1) and 3(a)(2) above.
(b) In addition, each Partner State shall, by contract or otherwise, extend the cross-waiver of liability as set forth in subparagraph 3(a) above to its related entities by requiring them to:
1. waive all claims against the entities or persons identified in subparagraphs 3(a)(1) through 3(a)(3) above; and
2. require that their related entities waive all claims against the entities or persons identified in subparagraphs 3(a)(1) through 3(a)(3) above.
(c) For avoidance of doubt, this cross-waiver of liability includes a cross-waiver of liability arising from the Liability Convention where the person, entity, or property causing the damage is involved in Protected Space Operations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations.
(d) Notwithstanding the other provisions of this Article, this cross- waiver of liability shall not be applicable to:
1. claims between a Partner State and its related entity or be- tween its own related entities;
2. claims made by a natural person, his/her estate, survivors or subrogees (except when a subrogee is a Partner State) for bod- ily injury to, or other impairment of health of, or death of such natural person;
3. claims for damage caused by willful misconduct; 4. intellectual property claims;
5. claims for damage resulting from a failure of a Partner State to extend the cross-waiver of liability to its related entities, pursuant to subparagraph 3(b) above.”199
Each Partner is obliged to implement this cross-waiver in the contracts with its own contractors and sub-contractors. There are however, some exceptions to the cross-waivers of liability. Claims arising between a Partner and its own related entities, for example between the European Space Agency and one of its users, will be dealt with in contracts or sub-contracts that will not implicate the other Partners. Other exceptions to the cross-waiver of liability are included
in Article 16(d) of the IGA. In practice, ISS users will be required to agree to an inter-party waiver of liability as part of their contract with ESA. This will provide that each party will not bring claims in arbitration or adjudication due to damage arising out of ISS activities.
In relation to dispute settlement mechanisms, a characteristic instance of equivocal resort to ad hoc dispute settlement mechanisms is provided for in the ISS Agreement. Article 23 of the ISS Agreement states that partner States should “consult with each other” on “any matter arising out of space station