Time for India to Launch Space Tribunals?

The domain of space, because of its very nature, has customarily comprised a huge and

boundless area in which not very many players have had the opportunity to contribute.

Until recently, states, or state-owned entities, have been the largest stakeholders within

the space exploration ecosystem. However, with the advent of private players in outer

space exploration, this equilibrium has started to shift, and outer space is more accessible

than it has ever been before. This piece argues the foreseeable necessity to establish a

dispute resolution mechanism as we are now entering the golden age of tapping into the

highly accessible nature of commercial space.

Humankind has taken giant leaps since Russia first sent Yuri Gagarin to space, in

enormous part due to the expanding number of technologically superior private funded

projects venturing into the outer space and exploration. Particularly now, when Virgin

Orbit has just endeavored to test its satellite launcher and Space X became the principal

private entity to send astronauts to the International Space Station. Virgin Galactic intends

to make the world's first "commercial spaceline". Space X has created reusable rockets

and aims to initiate commercial orbital flights by 2023. One Web is looking at launching a

constellation of 648 satellites to the Low Earth Orbit to improve internet access. Moreover,

a Morgan Stanley report considers that the outer space exploration industry could be a

trillion-dollar industry by 2040.

India is very much a frontrunner in this exciting private and commercial space age.

Following the development in the space infrastructure and innovation pertaining to space-

tech, the Indian government not only opened the space sector for private entities, but also

created a dedicated unit called Indian National Space Promotion and Authorization

Centre or IN-SPACe in September 2020, in order to regulate space tech innovation.

According to reports, the program has already received applications from 22 Indian and

4 global firms, seeking approval for various space-based services.[1] The Indian Space

Research Organisation (ISRO) also launched New Space India Ltd, their commercial

arm established in March 2019 under the administrative control of Department of Space.

It will focus on building technologies, deep space missions and making human spaceflight

possible. ISRO wants to engage private entities and startups and level the playing field.

Digantaara, an Indian startup is focused on developing space debris tracking and

monitoring services. Agnikul Cosmos is an IIT-Madras incubated space tech startup

developing low-cost satellite launch vehicles. They have also signed a non-

disclosure agreement with the Department of Space (DoS) under the newly proposed IN-

SPACe entity. Pixxel, a Bengaluru based startup has joined IN-SPACe and working on

launching the country's first remote-sensing satellite on an ISRO PSCL rocket. Bellatrix Aerospace claims to specialize in electronic propulsions systems, launch vehicles and

rocket engines. Skyroot Aerospace, recipient of the National Startups Award in 2020 in

the Space Category, is building technologies for economic, reliable, and responsive

access to space.

These and the numerous other current private area space drives have made a few things

strikingly clear. To start with, the commercial space age has arrived and is here to stay.

Governments of certain countries including Canada, USA and India have even

recognized that the effective headway of human action in space relies not, at this point

on them, yet, upon the help and progress that the private players can make in this arena.

Second, the dispatch of the commercial space age will unavoidably lead to a consistently

developing number of progressively mind-boggling disputes. Third, the laws of space

should be modernized to adapt to this reality and to make meaningful avenues for private

ventures working in space.

Having said that, settlement of disputes in outer space is one of the emerging issues that must be addressed in this burgeoning space industry. One is forced to take note that such

space disputes will be heterogenous, emanating from contractual and national legal

obligations and from international treaties or conventions.

Before investigating the means to resolve present, and conceivably future space disputes

it is important to first comprehend the more extensive setting of international space law.

This is supported by the five United Nations deals that were declared during the Cold

War, amidst the strained political relations that, in enormous part, initially set off the

beginning of the space age (Space Treaties[2]). However, the Liability Convention is the

only treaty which provides for a dispute resolution mechanism for the parties involved, though the procedure or proposed method is non-binding in nature.

There are industry specific intergovernmental departments and treaties that have adopted

arbitration as a dispute settlement mechanism within their instruments either as a

mandatory resort or an optional provision. Any dispute between member states of

International Telecommunications Satellite Organization (ITSO Agreement) and The

European Telecommunications Satellite Organization (EUTELSAT) must resolve it through arbitration. Whereas, the International Mobile Satellite Organization (IMSO)

Convention holds an optional arbitration provision.

In addition, the Permanent Court of Arbitration adopted the Optional Rules for

Arbitration of Disputes Relating to Outer Space Activities in December 2011. The Rules

provide for a binding dispute resolution process and aim to correct a portion of the

inadequacies of other dispute resolution instruments concerning space law, including the

absence of a response for private entities against states and the restrictions of the Liability

Convention. Some of the remarkable features of the rules are:

(i) Specialized Panel of Arbitrators[3]

(ii) Specialized Panel of Scientific Experts[4]

(iii) Confidentiality[5] and

(iv) Non-Technical Documents[6].

The Permanent Court of Arbitration (CA) has resolved space related issues using the arbitration rules of the London Court of International Arbitration, International Centre for Dispute Resolution and International Chamber of Commerce However, it appears that, until now, the PCA Outer Space Rules have not been used to arbitrate a space related issue. With the increase in convolutions of space disputes and more private parties entering the realm the application of PA Outer Space Rules is likely to increase.

The recently signed Artemis Accords focuses on advancing the civil exploration and use

of outer space this will create imaginative opportunities for private entities around the

world for space-tech and space expiration. Further in February 2021 the Dubai

International Financial Centre (DIFC) Courts launched a new initiative Courts of Space.

The primary objectives of this court are as follows:

(i) an international working group of public and private sector experts to explore space related legal innovations and providing an outlook on space related disputes;

(ii) creation of space dispute guide; and

(iii) training of judges to become experts on space-related disputes.

With the increase in non-state entities performing commercial space activities, alongside

the intricacies of specialized nature of the space industry and the multi jurisdictions which

space exploration involves, there is a need to accommodate a viable and a specialized

dispute resolution mechanism. Considering the innately universal nature of space

exploration and activity along with its exceptionally technological and scientific character,

it is of utmost importance that such a resolution mechanism, involves a means of quick

and effective resolution that are final and binding in nature; supports party autonomy

and confidentiality and addresses the necessity of specialists with the technical know-how such as scientific experts and other experts to resolve disputes. The impartial and classified of arbitration makes it a natural mechanism to determine the inescapable expansion in

questions within this industry over the century.

Private players exploring outer space and making commercial space travel possible is not

sci-fi anymore. The significant developments in the space sector will increase space-tech

involvement of private actors and the potential for the country. This will inevitably

accompany space disputes arising out of such contractual and service-based relations.

As the commercial space era proceeds to quickly advance, arbitration is going to assume

a wide role in the resolution of disputes. Absorbing this growth, it is more important now

than ever for India to formulate a dispute resolution mechanism or a separate specialised

space tribunal for resolution of space law related disputes with private players. By

arbitration as a prevalent method to determine such disputes with specialised space

tribunals in the country akin to DIFC's initiative, it might prompt a superior and more

proficient exploration of space where individuals and entities are less frazzled about

uncertainties over potential liabilities and more about accomplishment of missions.

BIBLOGRAPHY

[1] Kumar, C., 2020. Big bets on India: Amazon, OneWeb, 24 others seek nod for space business. The Times of India

[2] (i) The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty); (ii) The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space; (iii) The 1972 Convention on International Liability for Damage Caused by Space Objects (Liability Convention); (iv) The 1976 Convention of Registration of Objects Launched Into Outer Space, 1976 (Registration Convention); and (v) The 1984 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, though this remains largely ineffective given that it has not been ratified, to date, by the main space-faring nations (Moon Agreement). 14 ITSO Agreement Art. XVI(a), EUTELSAT Art. XV 15 IMSO Art. 17

[3] Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, Article 10(4)

[4] Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, Article 29(1)

[5] Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, Article 17(4)

[6] Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, Article 27(4)