Electronic Proceedings - United Nations Office for Outer Space Affairs

of the potential for widespread damage to the outer space and Earth environment. 12 Damagecaused by space debris to the outer space environment is clearly a problem that involves thenecessity of prevention as well as a comprehensive, substantial body of rules, includingmechanisms for dispute settlement, over the details of liability and responsibility. TheLiability Convention does not expressly cover such damage; 13 nonetheless somecommentators have argued that the wording of the Convention is sufficient to impute suchcoverage.Procedural mechanisms for the solution of disputes arising from outer space relatedactivity in the form in which they are likely to arise should not be exclusively governed bypublic international law, but should also contain elements of private international law. Legalproblems arising out of space activities may concern substantive areas such as tort, contracts,environmental regulations, antitrust, taxation and so on, 14 and in addition to the publicinternational law mechanisms of diplomatic negotiation, consultation and recourse to theInternational Court of Justice, the mechanisms should integrate to a greater extent moreprivate means of dispute settlement, such as arbitration.Most disputes arising from outer space related activity 15 seem well suited for resolutionby alternative methods such as arbitration, as opposed to adjudication, 16 and indeed provisionsof several multilateral agreements relating to specific areas of space activity have provided forthe use of arbitration in the settlement of disputes, the INTELSAT 17 and INMARSAT 18agreements being prime examples. The use of adjudication on the other hand is limited,although there is one example contained in the agreement relating to the Arab SatelliteCommunications Organization (ARABSAT). 19With the increasing number of private enterprises engaged in space activity, it would bein the best interests of all participants if a multilateral agreement could be reachedestablishing dispute resolution procedures for all space activity, including within its ambit12 Ram Jakhu, Emerging Legal Issues Of Satellite Telecommunications And Broadcasting, Proceedingsof the 43rd Colloquium on the Law of Outer Space 428 (2000). IRIDIUM, a multi-national consortiumthat is in the process of liquidation is a case in point. It has been suggested that IRIDIUM’s fleet be deorbitedand allowed to burn upon re -entry into the Earth’s atmosphere. This may have graveconsequences for the outer space as well as the Earth’s environment. See Sylvia Ospina supra note 3.13 Convention On International Liability For Damage Caused By Space Objects (Liability Convention)March 29, 1972, entered into force September 1, 1972:(http://www.oosa.unvienna.org/Reports/AC105_722E.pdf).14 I.H.Ph. Dierdericks-Verschoor, The Settlement of Disputes: New Developments, 26 J. Space L. 41,(1998).15 One of the reasons given for the non-inclusion of a clause referring to arbitration in the UNIDROITConvention on International Interests in Mobile Equipment is the perceived “softness” of arbitration.The flexibility of the arbitral process is seen as a disadvantage, for the reason that arbitrators, unlikeState courts , are not bound by the Convention and would be more amenable to interpretation of termsand compromise, thus making it less easy to evaluate risk .16 See Maureen Williams, Ethics, Space Activities and the Law, in Proceedings of the Forty-thirdColloquium on the Law of Outer Space, (Amer. Inst. Of Aeronautics and Astronautics, 2000). In Dr.Williams’ opinion, for private enterprises engaged in space activity, existing law provides a number ofsolutions, mainly within the field of international arbitration. See also Phillip D. Bostwick, GoingPrivate With The Judicial System: Making Creative Use Of ADR Procedures To Resolve CommercialSpace Disputes, 23 J. Space L. 19, 1995.17 Agreement relating to the International Telecommunications Satellite Organization “INTELSAT”,August 20, 1971, Washington, 6 ATS 1973.18 CONVENTION ON THE INTERNATIONAL MARITIME SATELLITE ORGANIZATION (INMARSAT ) with Annexand Operating Agreement (1976); as amended 1985; with Protocol (1981), available at(http://www.tufts.edu/departments/fletcher/multi/texts/BH688.txt).19 NANDASIRI JASENTULIYANA, INTERNATIONAL SPACE LAW AND THE UNITED NATIONS, 220-223,KLUWER LAW INTERNATIONAL, 1999.5