The 1967 Treaty on Principles Governing the Activities of States in the Ex- ploration and Use of Outer Space, including the Moon and Other Celestial Bodies37was the first major binding international space law instrument. How-
ever, in part due to the political climate of the day, it does not contain any
34B¨ockstiegel, K.-H., “Ein ¨Uberblick ¨uber die Quellen zur Entscheidung weltraum-
rechtlicher Streitigkeiten”, (1978) 27 ZLW 18
35B¨ockstiegel, K.-H., “Arbitration and Adjudication Regarding Activities in Outer Space”,
(1978) 3 JSL 1
36Nakamura, M., “Consultation Regime in Space Law”, (1992) 35 Proc. Coll. Law of
Outer Space 411
37seesupra note 2 In this section, all Articles, unless specified otherwise, refer to those
in the Outer Space Treaty. see also Lachs, M., “The Treaty on Principles of Law of Outer Space, 1967 - 92”, (1992) 39 Netherlands International Law Review 291
specific provisions for or references to the settlement of disputes.38 Article
III incorporates principles of general international law, including those in the Charter of the United Nations.39 Accordingly, all the dispute settlement mech-
anisms admitted by general international law and the Charter, including the provisions of Chapters VI and VII of the Charter, are applicable to activities related to outer space. The Outer Space Treaty includes two other provisions concerning consultations in Article XI, and resolution of practical questions in Article XIII. 40 However, these provisions are more as a means of conflict avoidance rather than as a means for dispute settlement.
The Outer Space Treaty does not provide any particular machinery for the settlement of disputes in cases governed by its provisions. Article III of the Outer Space Treaty reads
“States Parties to the Treaty, shall carry on activities in the ex- ploration of Outer Space, including the Moon and other celestial bodies in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.”41
This signifies that the regulations and procedures for the settlement of dis- putes in general international law are applicable to disputes arising from space activities.
The UN Charter contains, in its Preamble and in several Articles, provisions relating to the settlement of disputes. Article 1(1) of the Charter states that one of the purposes of the organization is
“to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”42
Consequently, Article 2(3) of the UN Charter provides that
“all Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”43
38Lachs, M., The Law of Outer Space - An Experience in Contemporary Law-Making,
(1972) at 121
39Seesupra note 24
40see Cocca, A.A., Conference Statement made atSoluci´on de Controversias en Derecho
Espacial(Settlement of Space Law Disputes), C´ordoba, Argentina, The Council of Advanced International Studies, (1981) at 73
41Article III, Outer Space Treaty, seesupra note 24 42Article 1(1), UN Charter, seesupranote 24 43Article 2(3), UN Charter, seesupranote 24
These UN Charter provisions have been reaffirmed in several General As- sembly resolutions calling for dispute settlement through peaceful means. These include inquiry, mediation, good offices, conciliation, arbitration, resort to re- gional agencies or arrangements, and adjudication by permanent international courts.
Flowing from Article 2(3) of the UN Charter, the Charter’s Chapter VI is devoted to the pacific settlement of disputes. Article 33 provides that a party to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall first of all seek a solution by various means, listed as:
“negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”44
Although not specifically mentioned in Article 33, the practices of consultation and good offices are also valuable means to settle disputes and resolve a conflict situation in international relations. However, by subjecting the available means above to the special condition that the dispute be one that is “likely to endanger the maintenance of international peace and security”, and also due to the non- committal nature of the obligation,45 Article 33 does not appear to provide for an adequate means for the effective settlement of disputes in general.
The power and competence of the Security Council under Chapter VII of the UN Charter provides another avenue for dispute settlement. However, such involvement and any subsequent Security Council action is preconditioned by the likelihood of endangering the maintenance of international peace and security,46 reducing it once again to a remedy to be used only in exceptional
circumstances.47
Another route for the peaceful settlement of disputes is through adjudica- tion by the International Court of Justice (ICJ), the principal judicial organ of the UN. The potential of the ICJ for the settlement of disputes relating to outer space cannot be understated.48 This in particular because all members of the
UN areipso factoparties to the Statute of the ICJ49. Moreover, a State which
44Article 33(1), UN Charter, seesupranote 24 45Parties are required only to “seek” a solution.
46Article 39, UN Charter, seesupranote 24. It is beyond the scope of this book to consider
the use of force in outer space, or the militarization of outer space. It is also outside of the scope of this book to consider armed enforcement of international law, as it focuses on the peaceful settlement of disputes.
47On the topic of the power and competence of the UN Security Council and its use and
delegations of its Chapter VII powers, see generally Sarooshi, D.,The United Nations and The Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers, (1999)
48On the subject of the ICJ and its applicability to the settlement of disputes relating to
outer space, seeinfra Chapter 2.
is not a Member of the United Nations may become a party to the Statute “on conditions to be determined in each case by the General Assembly upon recommendation of the Security Council”.50
Article 92 - 96 in Chapter XIV of the UN Charter are devoted to the ICJ and its procedures for dispute settlement. The effect of Article 94 of the Charter, which provides for compliance with decisions of the ICJ by each UN Member, is however, largely invalidated by the voluntary nature of the jurisdiction of the Court, expressed in terms that its jurisdiction “comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force”.51
Compulsory jurisdiction is possible when parties so declare.52 However, State practice reveals that only a small number of States have committed themselves in this respect. This severely restricts the number of cases eligible for compulsory jurisdiction by the Court, thus diminishing to a large extent the value of the Court for the effective settlement of disputes. This applies even more so to the area of space activities, as none of the space-faring States has recognized the jurisdiction of the ICJ according to the optional clause.53
Another disadvantage in connection with the jurisdiction of the International Court of Justice is that only States may be parties in cases before the Court.54
This restriction on the locus standi of potential disputants severely limits the usefulness of the Court in the field of international space law, especially in the light of the proliferation of non-governmental, intergovernmental and regional organizations, as well as the commercialization of activities in outer space.
Reverting to the Outer Space Treaty, it is instructive to note that two Articles provide for the responsibility of States Parties in the case damage caused by their activities in outer space. Article VI of the Outer Space Treaty provides that
“States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by govern- mental agencies or non-governmental entitiesThe activities of non- governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervi-
50Article 94, UN Charter, seesupranote 24
51Article 36(1), Statute of the International Court of Justice (1945) 9 ILM 510, [hereinafter
“ICJ Statute”]
52Article 36(2), Statute of the International Court of Justice,ibidem
53von Margoldt, H., “Methods of Dispute Settlement in Public International Law”, in
B¨ockstiegel, K.-H. (ed.),Settlement of Space Law Disputes: The Present State of the Law and Perspectives of Further Development, Proceedings of an International Colloquium organized by the Institute of Air and Space Law, University of Cologne, September 13 and 14, 1979, (1980) 15 at 17
sion by the appropriate State Party to the Treaty.”55
Article VI also provides for responsibility of international organizations, stating that responsibility for compliance shall be borne both by the organiza- tion and by the States Parties participating in such an organization. As the Outer Space Treaty provides the legal framework for all space activities and lays down all the fundamental principles of space law, violation of the Treaty would amount to violation of the outer space legal r´egime in general.
Similarly, the general doctrine on State responsibility provides that States are responsible for “internationally wrongful acts”: acts violating obligations under international law.56 International law in general is held to apply also to outer space.57 Therefore, under Article VI, the concept of state responsibility
for activities undertaken in outer space generally becomes operative whenever these activities violate obligations under international space law.
Article VI however diverges from the general doctrine of State responsibility. Article VI stipulates that States are equally responsible for private activities as they are for public ones. A State cannot claim to be exempt from international responsibility for private activities by arguing that it acted with “due care”.58
For the purposes of international responsibility, private space activities are without any proviso equated to the activities of States. This gives rise to a major impetus for States to take legislative action to authorize and continually supervise the private space activities of its nationals. In the event of any violation, the State itself will incur international responsibility for the act.
Apart from the general issue of international responsibility, States will also want to deal with the potential international liability, which arises from private space activities.59 Liability in international space law, operates on the State level as well,60 with no private liability involved - but distinctly from general
international responsibility. Therefore, space law liability apart from its sub- stantive contents presents a particular form of accountability in addition to responsibility.
55Article VI, Outer Space Treaty, seesupranote 2
56See Articles 1, 3 and 4 of the International Law Commission’s Draft Articles on State
Responsibility, ILC Yearbook 1980 Vol II 30 - 34; Brownlie, I.,The System of the Law of Nations (1983), 22 - 31
57Article III, Outer Space Treaty, seesupranote 2 and accompanying text; see also Lachs,
M.,The Law of Outer Space(1972), 14; Wassenbergh, H.A.,Principles of Outer Space Law in Hindsight (1991), 15 and Hobe, S.,Die rechtlichen Rahmenbedingungen der wirtschaflichen Nutzung des Weltraum(1992) 75
58For the doctrine of Due Care, see Garcia Amador, F.V., “State Responsibility - Some
New Problems”, (1958), 94(2) Recueil des Cours 403
59For a discussion of the concepts of international responsibility and international liability
in space law, see generally von der Dunk, F.G., “Liability versus Responsibility in Space Law: Misconception or Misconstruction?”, (1992) 34 Proc. Coll. Law of Outer Space 363
Article VII deals directly with liability for damage. Article VII of the Outer Space Treaty provides that launching States of space objects are
“internationally liable for damage to another State...or its natural and juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies.”61
This clause is elaborated by the Liability Convention, affirming that States are the only entities62which can possibly incur international liability as “launching
States” in international space law.63
Both Articles VI and VII stipulate on the scope of responsibility of States Parties, which is then expanded by the 1972 Liability Convention. However, neither provision gives an indication of how such responsibility would be en- forced, or how disputes arising in regard to any potential damage caused by space activities would be settled. There is no provision for any dispute settle- ment mechanism in either of these cases. While dealing with the substantive part of the law involving liability, these two provisions do not give a clue as to the procedural law that might be invoked to enforce liability.
One article that does appears to provide for a procedure for dispute settle- ment is Article IX, which provides
“In the exploration and use of outer space, including the Moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance, and shall conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding inter- ests of all other States Parties to the Treaty.
. . .
If a State Party to the Treaty has reason to believe that an ac- tivity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause poten- tially harmful interference with activities of other States Parties . . . it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experi- ment planned by another State Party . . . would cause potentially harmful interference with activities in the peaceful exploration and
61Article VII, Outer Space Treaty, seesupranote 2. See also Christol, C.Q.,The Modern
International Law of Outer Space(1982) at 90
62With the exception of course, of international intergovernmental organizations: See Ar-
ticle XXII, Liability Convention, seesupranote 22, also seeinfrasection 1.1.2
use of outer space . . . may request consultation concerning the activity or experiment.”64
This means of preventing rather than solving a dispute is however, restricted to cases of potential harmful interference of space activities with the activities of other States Parties. The actual procedure to be followed is highly speculative. There is no follow-up as to the time frame stipulated, nor are States required to follow a particular procedure for these “consultations”.
Another provision that provides some measure of procedure to be followed in the case any “practical questions” arise is Article XIII, which stipulates:
“Any practical questions arising in connection with activities car- ried out by international intergovernmental organizations in the ex- ploration and use of outer space, including the Moon and other ce- lestial bodies, shall be resolved by the States Parties to the Treaty either with the appropriate international organization or with one or more States members of that international organization, which are Parties to this Treaty.”65
This Article merely provides that in the case of practical questions arising, these should be resolved. This repeats in a manner specific to international intergovernmental organizations the obligation of States to resolve disputes.
An assessment of the provisions of the Outer Space Treaty communicates an adequate insight into the lack of provision for dispute settlement mechanisms in international space law. Only three clauses of the Outer Space Treaty concern conflict avoidance in outer space, one of which does so obliquely. Article IX provides a preventive measure. It imposes consultations when a dispute arises due to the space activities of different States. According to this Article, a State shall proceed to consultations when it has reason to believe that one of its planned activities or experiments would cause potentially harmful interference with the space activities of other States. It will not pursue these activities or experiments before these consultations have been held. Conversely, any State can request consultations, when it has reason to believe that the planned activities or experiments of another State may cause harmful interference with its own space activities. Article XIII supplements this by dealing with possible disputes regarding intergovernmental organizations. When these organizations are engaged in space activities and States encounter difficulties over practical matters, the latter may try to resolve them with the appropriate organization or with one or more of its States Members. Neither Article IX nor Article XIII provides any specificities on how these “consultations” are to be conducted, or how these “questions” are to be resolved.
64Article IX, Outer Space Treaty, seesupranote 2 65Article XIII, Outer Space Treaty, seesupranote 2
These two clauses of the Treaty do not introduce any innovation into the procedures for peaceful settlement of disputes.66 Further, they do not provide
for any other of third party dispute settlement. They both endorse the tra- ditional practice of diplomatic intercourse, without recourse to the law. That a State proceeds by diplomatic channels to negotiations with another State when there is reason to fear that the latter is going to start a harmful activity prejudicial to itself is in the normal course of State action.
Article III obliquely introduces dispute settlement mechanisms to interna- tional space law through the invocation of general principles of international law and the UN Charter. While this presents a plethora of dispute settlement mechanisms for use in disputes concerning space activities, several insufficien- cies must be stated. First, the reference to any dispute settlement mechanism is extremely indirect, and Article III implies rather than imposes any form for dispute settlement through the Outer Space Treaty. Second, the provisions in the UN Charter and in customary international law for the peaceful settle- ment of disputes are general motherhood principles of international law, and more than this is required in a novel, rapidly evolving field of law and activity. Third, even references to the UN Charter (and through that the Statute of the International Court of Justice) do not by any stretch of imagination institute any form of satisfactory dispute settlement mechanism. There is no binding obligation to submit disputes to any of these processes mentioned, nor is there any inkling of any inclination on the part of space-faring States to submit to the jurisdiction of the International Court. Fourth, it is questionable whether the