Arbitration as the Dispute Settlement Method to Address Harmful Interference in the Age of Mega-Constellations of Satellites
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Published:
Jan 31, 2024
Keywords:
arbitration, dispute settlement, harmful interference, satellite constellation, telecommunication satellite
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Abstract
The increasing demand for radio frequency spectrum usage for the launch of mega-constellations of telecommunication satellites will potentially increase incidents of harmful interference to radiocommunication. International law has yet to regulate a compulsory method of dispute settlement for harmful interference disputes. Currently, most cases of harmful interference are solved through technical and political means. However, those methods cannot address damage claims that may be caused by harmful interference, which may become increasingly common with the growing participation of private entities. Article 56 of the ITU Constitution has regulated several dispute resolution methods related to telecommunications, namely negotiation, diplomatic channels, other methods mutually agreed upon by the parties, and arbitration. This study aims to analyze these methods of dispute settlement and determine the most appropriate method to address harmful interference disputes. As the diplomatic dispute settlement methods do not result in enforceable legally binding decisions, this study argues that arbitration is the most appropriate method to settle disputes concerning harmful interference because it offers more neutrality in its proceedings and the confidentiality of sensitive information. It may also decide on damages as part of the arbitral award. Arbitration awards are final and binding, thus offering legal certainty to the parties to the dispute. States have generally recognized arbitration awards and created mechanisms to enforce arbitral awards. This study also recommends that the ITU implement compulsory arbitration with limitations and create a harm-claim threshold.
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How to Cite
Pratidina, S., Latipulhayat, A., & Handayani, I. (2024). Arbitration as the Dispute Settlement Method to Address Harmful Interference in the Age of Mega-Constellations of Satellites. Padjadjaran Journal of International Law, 8(1), 1-18. https://doi.org/10.23920/pjil.v8i1.1448
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This work is licensed under a Creative Commons Attribution 4.0 International License.
References
References
Books
Allison, Audrey L. The ITU and Managing Satellite Orbital and Spectrum Resources in the 21st Century, Cham: Springer, 2014.
Aust, Anthony. Modern Treaty Law and Practice, 2nd Edition, Cambridge University Press, Cambridge, 2007.
Bruce, Robert R., et. al. Dispute Resolution in the Telecommunications Sector: Current Practices and Future Directions, Geneva: International Telecommunications Union, The World Bank, 2004.
Dixon, Martin (et.al). Cases and Materials on International Law, 6th Edition, Oxford: Oxford University Press, 2016.
Merrills, J.G. International Dispute Settlement, 4th Edition, New York: Cambridge University Press, 2005.
Noussia, Kyriaki. Confidentiality in International Commercial Arbitration: A Comparative Analysis of the Position under English, US, German and French Law, Heidelberg: Springer, 2010.
Orakhelashvili, Alexander. Akehurst’s Modern Introduction to International Law, 9th Edition, Routledge, New York, 2022.
Rubino-Sammartano, Mauro. International Arbitration: Law and Practice, 2nd Edition, The Hague: Kluwer Law International, 2001.
Shaw, Malcolm. International Law, 8th Edition, Cambridge: Cambridge University Press, 2017.
Sourdin, Tania. Alternative Dispute Resolution, 5th Edition, Thomson Reuters (Professional) Australia Ltd., Sydney, 2016.
United Nations Office of Legal Affairs. Handbook on the Peaceful Settlement of Disputes between States, New York: United Nations, 1992.
Edited Books
Garner, Bryan A. editor, Black’s Law Dictionary, 9th Edition, St. Paul: Thomson Reuters, 2009
Bernhardt, Rudolph, editor. Encyclopedia of Public International Law, Amsterdam: North-Holland Publishing Company, 1981.
Chapter in Edited Books
Cappella, Matteo. “The Principle of Equitable Access in the Age of Mega-Constellations” in Legal Aspects Around Satellite Constellations edited by Anne Froehlich, Cham: Springer Nature Switzerland AG, 2019, pp. 11-23.
Carl August Fleischhauer, “Negotiation” in Encyclopedia of Public International Law edited by Rudolf Bernhardt, Amsterdam: North-Holland Publishing Company, 1981, pp. 152-154.
Kroon, Johan G. “Harmful Interference from the Netherlands Radiocommunication Agency Perspective” in Harmful Interference in Regulatory Perspective, edited by Mahulena Hofmann, New York: Routledge, 2022, pp. 163-172.
Scheinder, Michael E. “Investment Disputes—Moving Beyond Arbitrations”, Diplomatic and Judicial Means of Dispute Settlement edited by Laurence Boisson de Chazournes, et. al., Leiden: Koninklijke Brill NV, 2013, pp. 119-151.
Oberst, Gerry. “European Law as an Instrument for Avoiding Harmful Interference” in Dispute Settlement in Harmful Interference edited by Mahulena Hofmann, New York: Routledge, 2022, pp. 125-142.
Ram S. Jakhu, “Regulatory Processes for Communications Satellite Radio Frequencies” in The Handbook of Satellite Applications, 2nd Edition edited by Joseph N. Pelton, et al., New York: Springer Science & Business Media, 2017, pp. 359-382.
von der Dunk, Frans G. “The ‘Space Side’ to ‘Harmful Interference’” in Dispute Settlement in Harmful Interference edited by Mahulena Hofmann, New York: Routledge, 2022, pp. 87-100.
Waibel, Michael. “The Diplomatic Channel” in Oxford Commentaries of International Law edited by James Crawford, et. al., Oxford: Oxford University Press, 2010, pp. 1086-1097.
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Vailshery, Lionel Sujay. “Number of satellites in orbit as of February 2023, by leading nations and organizations”, Statista,
Journal Articles
Barnidge, Robert. “The International Law as a Means of Negotiation Settlement”, Fordham International Law Journal, Vol. 36 Issue 3, 2013.
Boley, Aaron C. and Michael Byers. “Satellite mega‐constellations create risks in Low Earth Orbit, the atmosphere and on Earth”, Science Report, Vol. 11, 20 May 2021.
Jakhu, Ram S. and Karan Singh. “Space Security and Competition for Radio Frequencies and Geostationary Slots”, Zeitschrift für Luft, Vol. 58 No. 1, 2009.
Morozova, Elina and Yaroslav Vasyanin. “Mechanisms for Resolving Disputes Related to Violations of Coordination Agreements”, International Institute of Space Law, Issue 2, 2019.
Mountin, Sarah M. “The Legality and Implications of Intentional Interference with Commercial Communication Satellite Signals”, International Law Studies, Vol. 90, 30 June 2014.
Mouratidis, Kostas and Apostolos Papagiannakis. “COVID-19, internet, and mobility: The rise of telework, telehealth, e-learning, and e-shopping”, Sustainable Cities and Society, Vol. 74, 17 July 2021.
O’Grady, Rachael. “Dispute Resolution in the Commercial Space Age: Are All Space-Farers Adequately Catered For?”, ICC Dispute Resolution Bulletin, Issue 3, 2021.
Sharkey, William W. and Mark M. Bykowsky, “Can Market Forces and an Interference Limit Together Promote the Efficient Co-existence of Radio Systems?”, FCC Office of Economic Analysis, 16 April 2020.
Sugiyono, Heru, et. al. “The Law of Arbitration Rules that are Final and Binding,” Indonesia Law Review, Vol. 10 No. 3.
Treaties
Bilateral Agreement Between India and Maldives Related to Orbit Frequency Coordination of South Asia Satellite Proposed at 48°E.
Constitution of the International Telecommunication Union.
Convention on International Liability for Damage Caused by Space Objects.
Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Optional Protocol on the Compulsory Settlement of Disputes Relating to the Constitution of the International Telecommunication Union, to the Convention of the International Telecommunication Union and to the Administrative Regulations.
Radio Regulations of the International Telecommunications Union.
The Convention on International Liability for Damage Caused by Space Objects
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 1967.
United Nations Convention on the Law of the Sea.
Judgments, Orders, and Advisory Opinions
ICJ Reports, North Sea Continental Shelf (Germany v. Denmark; Germany v. Netherlands), 20 February 1969.
Other Documents
Directive (EU) 2018/1972 of The European Parliament and of The Council of 11 December 2018 on Establishing the European Electronic Communications Code (Recast).
European Commission Decision of 11 June 2019 setting up the Radio Spectrum Policy Group and repealing Decision 2002/622/EC.
Federal Communication Commission Technological Advisory Council, “Interference Limits Policy: The use of harm claim thresholds to improve the interference tolerance of wireless systems.” [White Paper]
Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities.
Books
Allison, Audrey L. The ITU and Managing Satellite Orbital and Spectrum Resources in the 21st Century, Cham: Springer, 2014.
Aust, Anthony. Modern Treaty Law and Practice, 2nd Edition, Cambridge University Press, Cambridge, 2007.
Bruce, Robert R., et. al. Dispute Resolution in the Telecommunications Sector: Current Practices and Future Directions, Geneva: International Telecommunications Union, The World Bank, 2004.
Dixon, Martin (et.al). Cases and Materials on International Law, 6th Edition, Oxford: Oxford University Press, 2016.
Merrills, J.G. International Dispute Settlement, 4th Edition, New York: Cambridge University Press, 2005.
Noussia, Kyriaki. Confidentiality in International Commercial Arbitration: A Comparative Analysis of the Position under English, US, German and French Law, Heidelberg: Springer, 2010.
Orakhelashvili, Alexander. Akehurst’s Modern Introduction to International Law, 9th Edition, Routledge, New York, 2022.
Rubino-Sammartano, Mauro. International Arbitration: Law and Practice, 2nd Edition, The Hague: Kluwer Law International, 2001.
Shaw, Malcolm. International Law, 8th Edition, Cambridge: Cambridge University Press, 2017.
Sourdin, Tania. Alternative Dispute Resolution, 5th Edition, Thomson Reuters (Professional) Australia Ltd., Sydney, 2016.
United Nations Office of Legal Affairs. Handbook on the Peaceful Settlement of Disputes between States, New York: United Nations, 1992.
Edited Books
Garner, Bryan A. editor, Black’s Law Dictionary, 9th Edition, St. Paul: Thomson Reuters, 2009
Bernhardt, Rudolph, editor. Encyclopedia of Public International Law, Amsterdam: North-Holland Publishing Company, 1981.
Chapter in Edited Books
Cappella, Matteo. “The Principle of Equitable Access in the Age of Mega-Constellations” in Legal Aspects Around Satellite Constellations edited by Anne Froehlich, Cham: Springer Nature Switzerland AG, 2019, pp. 11-23.
Carl August Fleischhauer, “Negotiation” in Encyclopedia of Public International Law edited by Rudolf Bernhardt, Amsterdam: North-Holland Publishing Company, 1981, pp. 152-154.
Kroon, Johan G. “Harmful Interference from the Netherlands Radiocommunication Agency Perspective” in Harmful Interference in Regulatory Perspective, edited by Mahulena Hofmann, New York: Routledge, 2022, pp. 163-172.
Scheinder, Michael E. “Investment Disputes—Moving Beyond Arbitrations”, Diplomatic and Judicial Means of Dispute Settlement edited by Laurence Boisson de Chazournes, et. al., Leiden: Koninklijke Brill NV, 2013, pp. 119-151.
Oberst, Gerry. “European Law as an Instrument for Avoiding Harmful Interference” in Dispute Settlement in Harmful Interference edited by Mahulena Hofmann, New York: Routledge, 2022, pp. 125-142.
Ram S. Jakhu, “Regulatory Processes for Communications Satellite Radio Frequencies” in The Handbook of Satellite Applications, 2nd Edition edited by Joseph N. Pelton, et al., New York: Springer Science & Business Media, 2017, pp. 359-382.
von der Dunk, Frans G. “The ‘Space Side’ to ‘Harmful Interference’” in Dispute Settlement in Harmful Interference edited by Mahulena Hofmann, New York: Routledge, 2022, pp. 87-100.
Waibel, Michael. “The Diplomatic Channel” in Oxford Commentaries of International Law edited by James Crawford, et. al., Oxford: Oxford University Press, 2010, pp. 1086-1097.
Zielinski, Laura Yvonne. “The Rise of Satellite Arbitrations” in The Guide to Telecoms Arbitrations edited by Wesley Pydiamah, London: Law Business Research Ltd, 2022, pp. 98-111.
Website
Cao, Sissi. “From Boeing to Astra, the Space Industry Is Vying to Challenge Starlink’s Dominance”, Observer, 5 November 2021
Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations, “List of experts for the purposes of article 2 of Annex VIII (Special Arbitration) to the Convention”,
Eutelsat Communications Press Release, “Eutelsat statement on operations at 28.5° East”, Eutelsat,
Frąckiewicz, Marcin. “Starlink’s Global Reach: A Comprehensive List of Countries with Access to the Revolutionary Satellite Internet Constellation”, TS2,
International Telecommunication Union, “List of Countries having ratified, accepted, approved (or acceded to) the Optional Protocol on the Compulsory Settlement of Disputes relating to the Constitution, to the Convention and to the Administrative Regulations (Geneva, 1992)”, International Telecommunications Union,
Jakhu, Ram S. “Dispute Resolution under the ITU Agreements”,
Jakhu, Ram. “Satellites: Unintentional and Intentional Interference”,
Jane Parsons, “Publish and be damned: should we embrace the systematic publication of arbitral awards?”, Thomson Reuters Practical Law Arbitration Blog,
New York Arbitration Convention Contracting States,
Permanent Court of Arbitration, “Panels of Arbitrators and Experts for Space-related Disputes”,
Rainbow, Jason. “Eutelsat says satellite jammers within Iran are disrupting foreign channels,” Space News,
Radio Spectrum Policy Group, “Progress Report of the RSPG Sub-Group on ‘Good offices’ to assist in bilateral negotiations between Member States”,
Rosenberg, Charles B. and Vivasvat Dadwal. “The 10 Year Anniversary of the PCA Outer Space Rules: A Failed Mission or The Next Generation?”, Kluwer Arbitration Blog,
SES Press Release, “SES and Eutelsat Settle Their Dispute And Conclude A Series Of Agreements Concerning The 28.5 Degrees East Orbital Position”, SES,
Vailshery, Lionel Sujay. “Number of satellites in orbit as of February 2023, by leading nations and organizations”, Statista,
Journal Articles
Barnidge, Robert. “The International Law as a Means of Negotiation Settlement”, Fordham International Law Journal, Vol. 36 Issue 3, 2013.
Boley, Aaron C. and Michael Byers. “Satellite mega‐constellations create risks in Low Earth Orbit, the atmosphere and on Earth”, Science Report, Vol. 11, 20 May 2021.
Jakhu, Ram S. and Karan Singh. “Space Security and Competition for Radio Frequencies and Geostationary Slots”, Zeitschrift für Luft, Vol. 58 No. 1, 2009.
Morozova, Elina and Yaroslav Vasyanin. “Mechanisms for Resolving Disputes Related to Violations of Coordination Agreements”, International Institute of Space Law, Issue 2, 2019.
Mountin, Sarah M. “The Legality and Implications of Intentional Interference with Commercial Communication Satellite Signals”, International Law Studies, Vol. 90, 30 June 2014.
Mouratidis, Kostas and Apostolos Papagiannakis. “COVID-19, internet, and mobility: The rise of telework, telehealth, e-learning, and e-shopping”, Sustainable Cities and Society, Vol. 74, 17 July 2021.
O’Grady, Rachael. “Dispute Resolution in the Commercial Space Age: Are All Space-Farers Adequately Catered For?”, ICC Dispute Resolution Bulletin, Issue 3, 2021.
Sharkey, William W. and Mark M. Bykowsky, “Can Market Forces and an Interference Limit Together Promote the Efficient Co-existence of Radio Systems?”, FCC Office of Economic Analysis, 16 April 2020.
Sugiyono, Heru, et. al. “The Law of Arbitration Rules that are Final and Binding,” Indonesia Law Review, Vol. 10 No. 3.
Treaties
Bilateral Agreement Between India and Maldives Related to Orbit Frequency Coordination of South Asia Satellite Proposed at 48°E.
Constitution of the International Telecommunication Union.
Convention on International Liability for Damage Caused by Space Objects.
Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Optional Protocol on the Compulsory Settlement of Disputes Relating to the Constitution of the International Telecommunication Union, to the Convention of the International Telecommunication Union and to the Administrative Regulations.
Radio Regulations of the International Telecommunications Union.
The Convention on International Liability for Damage Caused by Space Objects
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 1967.
United Nations Convention on the Law of the Sea.
Judgments, Orders, and Advisory Opinions
ICJ Reports, North Sea Continental Shelf (Germany v. Denmark; Germany v. Netherlands), 20 February 1969.
Other Documents
Directive (EU) 2018/1972 of The European Parliament and of The Council of 11 December 2018 on Establishing the European Electronic Communications Code (Recast).
European Commission Decision of 11 June 2019 setting up the Radio Spectrum Policy Group and repealing Decision 2002/622/EC.
Federal Communication Commission Technological Advisory Council, “Interference Limits Policy: The use of harm claim thresholds to improve the interference tolerance of wireless systems.” [White Paper]
Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities.