The Case for a Compulsory Permanent Mechanism

In particular, this thesis argues that all space disputes with an international or transnational character should be subject to mandatory settlement mech- anisms before a permanent dispute settlement body. Stakeholders other than States and international organizations should be afforded full participation in international dispute settlement mechanisms.

While a general obligation to submit to ad hoc arbitration does provide some compulsion,133 this thesis contemplates a much deeper level. It is sub- mitted that it is necessary for a a neutral sectoralized supranational forum with mandatory jurisdiction in the context of international space law.134 _Oth-

erwise, the lack of a convincingly impartial forum with compulsory jurisdiction in an international transaction makes the consequences of a dispute much more acerbic.135

132_{B¨ockstiegel, K.-H., “Arbitration of Disputes Regarding Space Activities”, (1993) 36 Proc.}

Coll. Law of Outer Space 136 at 139

133_{See generallysupra Chapter 1}

134_{Havel, B.F., “International Instruments in Air, Space and Telecommunications Law:}

The Need for a Mandatory Supranational Dispute Settlement Mechanism”, in International Bureau of the Permanent Court of Arbitration (ed.),Arbitration in Air, Space and Telecom- munications Law: Enforcing Regulatory Measures, seesupra note 129 11

135_{Park, W.W., “Symposium: International Commercial Arbitration, Illusion and Reality}

The reasons for a compulsory and permanent institution are four-fold: 1. A compulsory, permanent institution will ensure the certainty that dis-

putes will be settled and the rule of law enforced within a flexible frame- work.

2. Given the high risks and unequal bargaining positions in space activities, disputing parties should not be allowed to opt out of peacefully settling their disputes.

3. A compulsory, permanent institution ensures the certainty of the law and prevents against the fragmentation of international space law.

4. A compulsory, permanent institution will be allowed to build up its le- gitimacy and jurisprudence, which is essential for confidence building. These four reasons will be dealt with consecutively.

A compulsory, permanent institution will allows for two certainties: that disputes are not left unresolved, and that space activities take place within a flexible yet legal framework. The permanence of dispute settlement institutions is a departure from the usualad hocapproach taken by most space agreements. It is important to understand the reasons that such ad hoc approaches have become the dominant methodology to dispute settlement in space transna- tional and international instruments. International disputes have a polemic entirely missing in domestic disputes: there is an inherent complexity and dis- trust between parties as well as the dispute settlement body. These issues are augmented given the extraordinary details of international space law and the intricacies of space activities. It is submitted however that a permanent tri- bunal without the formality of strictly adjudicatory structures can still these anxieties by granting parties a certain amount of control over the dispute and its settlement process. This institution should be able to resolve the opposing aspirations of flexibility and certainty.136 _{It is submitted that a compulsory}

mechanism will allow for certainty, and that its procedure should be adapted to allow for some flexibility. One example to follow would be that of the perma- nent arbitral process. In the arbitral procedure, parties have the choice of the arbitration venue, the size and composition of the arbitral panel, procedural rules and the substantive applicable law. In particular, this applicable law could be a coalescence of both lex specialis and general principles of interna- tional law.137 _{In the interests of promoting certainty, a permanent compulsory}

tribunal could provide a series of published, reasoned awards. Examples of this include those contained in the Rules of the London Court of International

136_{B¨ockstiegel, K.-H., “Arbitration of Disputes Regarding Space Activities”, (1994) 36 Proc.}

Coll. Law of Outer Space 137

Arbitration and the International Chamber of Commerce. This would serve to improve confidence in the rigor and consistency of the dispute settlement procedure.138 _{A compulsory, permanent and yet flexible dispute settlement}

mechanism will be able to handle the dual requirements of flexibility and cer- tainty.139

Activities in outer space comprise two factors: firstly, these are high risk, high stakes activities; secondly, there is a general inequality of bargaining posi- tions involved. Due to these two considerations, it is submitted that disputing parties should not be given an opt-out from peaceful settlement of their dis- putes. A compulsory, permanent dispute settlement mechanism will ensure this. In activities which involve high investment and risks, and which involve high stakes, a prolongation of any dispute is always deleterious. Certainty is necessary for such activities to prosper, in particular with so much risk already involved, parties prefer to minimize other external possibilities of hazards. A compulsory dispute settlement mechanism can work to reduce any further risk resulting from unresolved disputes. Further, space activities involve different actors of varying sizes and bargaining power. A compulsory dispute settlement mechanism is necessary to ensure that disputes are settled justly and fairly in accordance with the law. The situation in which disputes are settled by strong-arming should not become the norm in space activities. Additionally, with the multilateral derivation of space activities, this permanent, compul- sory mechanism would have a valuable hermeneutical and expository result. This is not possible withad hoc dispute settlement. Another consideration is that when parties such as States take unilateral perspectives and actions, the compromises behind a complicated multilateral treaty can unravel. States may invoke “national security” or “public policy” exceptions to circumvent treaty or contract obligations. A compulsory, permanent dispute settlement mech- anism has the added advantage of being able to actualize to the spirit and letter of these agreements, while adapting the practicable obligations to the changed circumstances. Indeed, this dispute settlement mechanism can do all this within a normatively consistent and coherent framework.140

With the recent proliferation of international courts and tribunals, there is a very real fear that the concurrent jurisdictions of these tribunals will lead to the fragmentation of the law. It is submitted that a compulsory, permanent dispute settlement mechanism for space activities ensures the certainty of the

138_{Article 16.1, Rules of the London Court of International Arbitration (1985); Article 20(1),}

International Chamber of Commerce Rules of Arbitration (1988), ICC Publ. No. 447 (1988)

139_{Havel, B.F., “International Instruments in Air, Space and Telecommunications Law:}

The Need for a Mandatory Supranational Dispute Settlement Mechanism”, in International Bureau of the Permanent Court of Arbitration (ed.),Arbitration in Air, Space and Telecom- munications Law: Enforcing Regulatory Measures, seesupra note 129 at 36

140_{Noyes, J.E., “The Functions of Compromissory Clauses in US Treaties”, (1994) 34 Vir-}

law, and prevents the fragmentation of international space law. A compulsory, permanent mechanism has the opportunity to generate a sustainable corpus

of awards, case law, and norm-creation. It is able to provide a compass of precedent, and allows the evolution of a body of law that adequately reflects the condition of space exploration and industry as the most intricate domain of human endeavor. International space law encompasses an intricate gossamer of public international law, private international law, and domestic legislation.141

Ad hocdispute settlement is insufficient for such a sophisticated system of law. A permanent, compulsory dispute settlement institution maximizes certainty and also allows the development of a pattern of normative coherence.

One of the biggest issues in international space law is confidence building. In a realm of activity that is at once so novel and so full of potential, it is unsurprising that mutual distrust accompanies much of the interaction between actors in the field. A compulsory, permanent institution allows for confidence building. It has the opportunity to strengthen perceptions of its legitimacy, and cultivate its jurisprudence in a manner that increases parties’ confidence in the international legal system relating to space activities. Rules evolved within this framework then, would contribute to rule coherency and legitimacy. Rules advanced on anad hoc basis serve only to increase distrust in the system. As such, a permanent, compulsory dispute settlement mechanism is necessary to ensure legitimacy and confidence in the international legal system.142

It is realistic and jurisprudentially appropriate to project for the establish- ment of a sectorialized dispute settlement mechanism for disputes arising from space activities.143 There is a global trend moving in the direction of the es- tablishment of sector-specific dispute settlement mechanisms in various areas of the law. In 1998 for example, the international community established a new international criminal court.144 Further, although one of the central precepts of international dispute settlement has been consent, this requirement has been chipped away at by the various international instruments in which parties are obliged to submit to a specific compulsory and permanent mechanism of dis- pute settlement. The convincing and recursive preference for a compulsory,

141_{For a comparative look at international air law from this perspective, see generally Cheng,}

B.,The Law of International Air Transport(1962); Cheng, C.-J., (ed.),The Use of Airspace and Outer Space for all Mankind in the 21st Century, seesupranote 103

142_{Franck, T.M., “Legitimacy of the International System”, (1988) 82 AJIL 705 at 752} 143_{For support as to sector-specific international dispute settlement in other comparable}

areas of the law, see generally Jackson, J.H.,The World Trading System: Law and Policy of International Economic Relations, 2nd ed., (1997) 112 - 127 (economic policy); Franck, T.M.,Fairness in International Law and Institutions, seesupranote 54 at 5 (general public international law); Eaton, P., “The Nigerian Tragedy, Environmental Regulation of Transna- tional Corporations, and the Human Right to a Healthy Environment”, (1997) 15 Boston Univ. ILJ 261 (environmental law)

144_{Bassiouni, M.C. and Blakesley, C.L., “The Need for an International Criminal Court in}

permanent dispute settlement mechanism signifies a macro change in actors’ attitudes towards the loosening of the requirement of consent.

At present, there is no international or transnational instrument that pro- vides for the compulsory submission of space disputes to a standing dispute settlement mechanism.145 _{In mooting a permanent system of compulsory space}

dispute settlement, it is apparent that a flexible approach should be preferred to a rigid, hierarchical and formal system such as adjudication. It is indicative that there is no multilateral treaty providing for the recognition and enforce- ment of civil and commercial adjudicatory judgments.146 In direct contrast, the New York Convention on the Recognition and Enforcement of Foreign Ar- bitral Awards147_{has widespread State support and provides a useful model for}

a recognition process for supranational arbitrations.148 _{The Convention allows}

domestic enforcement of international commercial arbitration awards in con- tract and other transactional disputes. These considerations should be kept in mind in considering the structure of any compulsory, permanent dispute settlement mechanism for space disputes.