By Alexandra Dolce
LL.M. Space Law Candidate, University of Mississippi
Jurisdiction is a court’s ability to adjudicate a case and the geographical area where a court or government agency can exercise its power. It can fall into several categories:
- Subject-matter jurisdiction
- Personal jurisdiction
- Territorial jurisdiction
But where does jurisdiction fall when it comes to outer space? What about space legislation? Article II of the Outer Space Treaty says that “Outer space, including the Moon and other Celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use and occupation, or by any other means.” Because no nation can claim outer space, the moon, or other celestial bodies as their own, no one can claim to have astral jurisdiction.
Space legislation is largely considered international law, and international law focuses on the relationship between and among nation-states. Article 92 of the United Nations Charter establishes the International Court of Justice (ICJ). According to Columbia Law School, the ICJ “is charged with settling legal disputes submitted to it by states and giving advisory opinions on legal questions from U.N. bodies and agencies.”
The problem with the ICJ is that it only allows nations to bring claims, and only certain issues may be brought before this court. These issues are:
- Interpretation of a treaty
- Questions of international law
- Facts, which if established, would constitute a breach of international obligations
- The nature and extent of reparation for the breach of an international obligation
The ICJ is not suitable for litigation for private party litigation or issues that arise within a state territory.
RELATED: Space Law: Current Agreements and the Future Possibilities
Outer Space Jurisdiction and Non-State Commercial Actors
However, what happens if there is a dispute concerning non-state private actors? For example, imagine that a private space mining company from the United States decides to sue a private space mining company from India for alleged wrongful appropriation that occurred on the moon or on Mars.
Since the incident occurred in outer space, neither India nor the United States theoretically has jurisdiction. There is also a presumption that these parties are not collaborating with each other, and there are no contractual obligations binding them to a specific geographical area to resolve disputes. Unfortunately, there is no current answer to this type of dispute.
At present, the primary method used to resolve outer space disputes is arbitration. Arbitration is a dispute resolution method where both parties present their case to an arbitrator or a panel of arbitrators. The arbitrator(s) then makes a decision on the case.
Approximately 10 years ago, the Permanent Court of Arbitration (PCA), “an intergovernmental organization providing a variety of dispute resolution services to theinternational community” published its “Optional Rules for Arbitration Disputes Relating to Outer Space Activities.”
There are several advantages to using these rules, including access to international experts in the field. However, the primary shortcoming of these rules is that they primarily cater to private organizations in the satellite and telecommunications sector.
To date, all of the current disputes have been related to:
- Satellite launch and delivery
- Regulatory measures
- Leasing and satellite capacity
But in the future, will the PCA resolve legal disputes arising out of public access to outer space? That remains to be seen.
How We Can Fix the Jurisdictional Gap in Outer Space
According to Andrew G. Haley, the President of the International Astronautical Federation in 1958, “Law must precede man into space.” So before private actor disputes occur – and they will – there should be space legislation in place that anticipates and addresses the various disputes and legal issues that can occur in outer space.
This new space legislation will have to be innovative enough to accommodate the changing dynamics of space exploration, tourism, commercialization and habitation. Also, it should be neutral enough to not interfere with a nation’s sovereignty.
The first way of solving the jurisdictional gap in outer space is for merchants to agree to privately resolve problematic issues and breaches of law through mediation. The parties involved will also voluntarily enforce the decision achieved through mediation.
This model of handling disputes dates back to the Middle Ages, and it was created in the absence of codes of law to meet the needs of merchants. However, changing the path of behavior from dependence on codified law and/or established custom to private adjudication has to be created by improving awareness.
In other words, the space industry must enlighten nations and private actors to the possibility of using private mediation to resolve disputes. Private adjudication is less formal, but it can create customs in international law. Those customs may establish a framework for codified private international laws or state laws in regard to commercial space activities and dispute resolution for incidents occurring in outer space.
Second, nations can require commercial parties to waive national jurisdiction and agree to have various disputes arbitrated by multinational tribunals. This waiver would be incorporated into national space legislation and required for commercial space activities in outer space. Companies would be expressly bound by these tribunal rulings.
Third, spacefaring nations can establish an International Space Tribunal (IST), where private space disputes of all kinds would be adjudicated. These disputes would have to take place in outer space or beyond national air space.
The IST could establish unique rules for space legislation and evidence. Its rulings could initially construct a legal foundation, based on precedence, through interpretation of “treaties, customary international law, widely recognized principles of law, the decisions of national lower courts and scholarly writings,” which are the five sources of international law.
It’s inevitable that there will be disputes between private non-state actors in outer space. Unfortunately, current space legislation does not adequately accommodate dispute resolution requirements concerning these actors. It is imperative to establish a legal framework now to avoid legal mayhem and to ensure the absence of forum shopping, uniformity, predictability, and judicial efficiency.
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