ABSTRACT
The consensual or optional recourse to legal mechanisms by actors at all levels, applies equally in both international and domestic legal systems, albeit without precluding the potential for use of State machinery which may be brought to bear in certain circumstances against the traditional subjects of States. Because international tribunals do not exercise compulsory jurisdiction, any reference to judicial settlement can only be made by agreement of the disputing parties which may be in the form of a rule, decision, agreement, contract, convention, treaty, constituent instrument of an organization or agency, or relationship out of, or in relation to which, the dispute arises. This transpired when the question arose if the PCIJ, i.e., the predecessor of the International Court of Justice (ICJ), could deliver an advisory opinion in relation to obligations of the Soviet Union towards Finland regarding the Eastern
the League of Nations or the Court. The Court held… “it is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement”. Furthermore, as it has been contended,13 States have proven adept at constructing bespoke systems of dispute resolution concerning particular forms of subject matter or which are operable within particular treaty regimes,14 or within particular regional contexts or within international organizations. This said, procedural mechanisms for the settlement of disputes arising from outer space related
activity in the form in which they arise should not be exclusively governed by public international law, but should also contain elements of private international law.15 As disputes and conflicts could and do arise from activities of international persons, encompassing States, international intergovernmental organizations as well as individuals, recognized in theory and practice as the third category of international law subjects. Disputes and conflicts also arise from activities conducted by subjects of States, that is, nationals, both “physical” and “juridical” persons. Consequently, this chapter addresses the nature, techniques and particularities associated with settling disputes or resolving conflicts arising from outer space activities between any combination of international persons, or subjects of States, operating within either international or domestic legal systems. Section 2, examines differences between international and domestic legal systems in the context of constituent instruments establishing relationships out of, or in relation to which, disputes arise. An attempt is also made to detail and categorize the nature of disputes and conflicts which could and have in fact arisen from various forms of outer space activity. Section 3 examines techniques for settlement and resolution, in the course of which attention is paid to the Permanent Court of Arbitration 2011 Optional Rules for Arbitration of Disputes Relating to Outer Space Activities. Section 4 highlights a number of particularities and concludes the chapter.
