Outer space is no longer a silent frontier of exploration. It is rapidly transforming into a bustling commercial domain, where private enterprise has joined states in advancing humanity’s celestial ambitions.
Thousands of satellites now orbit Earth, forming the backbone of communication, navigation and surveillance infrastructures that sustain global life. Yet as orbit grows congested, the risks of collision, debris and interference multiply. In this evolving environment, disputes over avoidance maneuvers, debris damage and contractual breaches are not hypothetical.
The law, however, lags behind the technology it seeks to govern. The Outer Space Treaty of 1967 and its progeny, notably the Liability Convention of 1972, were conceived in an era of state monopolies in space. They frame outer space as a realm of sovereign responsibility rather than private enterprise.
Under the Liability Convention, only states may bring claims against other states for damage caused by space objects. Private operators must rely on their home government’s willingness to espouse their claims a process that is politicised, cumbersome and uncertain. Even when invoked, the convention’s dispute mechanism, a Claims Commission whose findings are merely recommendatory, offers no binding remedy. The result is a legal architecture that recognises responsibility but denies remedy.
Recourse to domestic courts provides little solace. National litigation in space disputes encounters profound jurisdictional and procedural barriers: sovereign immunity, conflicting laws, questions of attribution, and the technical opacity of orbital activity. A collision involving a US satellite operated from Luxembourg and a Japanese satellite launched from French Guiana could implicate multiple legal systems, none clearly preeminent.
As Stephan Hobe and Frans von der Dunk have noted, this ‘jurisdictional entanglement’ renders terrestrial courts structurally ill-suited for adjudicating orbital controversies. The absence of a neutral, expert and enforceable dispute mechanism thus constitutes one of the most acute governance deficits in the emerging space economy.
In this void, international arbitration offers a compelling and credible solution. Arbitration has long been the preferred mechanism for transnational commercial and technical disputes from maritime collisions to investment claims under the ICSID Convention. Its virtues are well established: neutrality, flexibility, expertise, and enforceability. Parties may select arbitrators versed in both law and the science of orbital mechanics, define procedural rules and designate the seat and language of proceedings.
Unlike diplomatic negotiation, arbitration is depoliticised and procedurally disciplined, providing reasoned adjudication rather than compromise. Most crucially, arbitral awards are binding and enforceable in over 170 jurisdictions under the 1958 New York Convention. Arbitration therefore provides what outer space governance presently lacks: binding justice beyond sovereignty.
The Permanent Court of Arbitration anticipated this need with its Optional Rules for Arbitration of Disputes Relating to Outer Space Activities 2011. These rules adapt traditional arbitral practice to the unique contexts of space activity, allowing disputes between states, private actors, or combinations thereof, and addressing issues such as damage, interference and licensing. Yet their critical limitation remains consent.
Arbitration cannot bind parties that have not agreed to it. While contractual relationships may embed arbitration clauses in advance, non-contractual disputes such as collisions or signal interference between operators lacking any prior nexus remain outside its reach. Once damage occurs, mutual consent is improbable.
The next phase of legal evolution must therefore institutionalise pre-commitment to arbitration. This could take the form of a multilateral treaty or harmonised domestic legislation conditioning launch authorisation on consent to arbitrate specified categories of disputes, such as those involving collision, interference, or debris-related damage.
Such a model would establish a regime of universal arbitral jurisdiction among registered space operators, ensuring that all who access outer space are bound by a shared procedural order. This would not create new obligations ex nihilo, but would operationalise existing duties of due regard and responsibility under Article VI of the Outer Space Treaty.
This model has strong precedents. The ICSID Convention embodies the logic of pre-committed consent, enabling investors to arbitrate against states in a neutral forum. Similarly, maritime law evolved from ad hoc diplomacy to binding adjudication through the mechanisms of the United Nations Convention on the Law of the Sea. Space, as the newest global commons, demands an analogous juridical innovation. As Fabio Tronchetti and Joanne Irene Gabrynowicz argue, the sustainability of commercial space depends not only on technological capacity but also on the institutionalization of accountability.
Arbitration cannot, of course, resolve every cosmic controversy. Collisions with unidentified debris will continue to frustrate attribution – and arbitration alone cannot replace a robust space traffic management regime. Yet it can inject into the orbital order what the current framework lacks: predictability, neutrality and enforceability. Embedding arbitration into the licensing and regulatory architecture of space activity would reduce diplomatic friction, deter negligence and elevate outer space from an ungoverned expanse to a rule-based domain.
Ultimately, the question is not merely technical but philosophical too. To govern space is to extend legality beyond sovereignty, to tether the infinite to the institutional. Arbitration, in this sense, is more than a procedural device; it is a juridical declaration that humanity’s ascent into the cosmos must be accompanied by its commitment to justice.
The writer is a lawyer and currently serves as a research associate at the United Nations Division, Ministry of Foreign Affairs, Government of Pakistan.
