NAVIGATING THE GREY-AREA OF ENVIRO-SPACE DISPUTES: IS ARBITRATION THE WAY TO GO?
Updated: Dec 27, 2021
The Editorial Column is authored by Nishi Kaur, Junior Editor at RGNUL Financial and Mercantile Law Review.
The quest for an effective mechanism for deciding the increasing volume of disputes concerning environmental damage or environmental disputes, has dominated much of the discourse in the international and the domestic scenario. Environmental disputes are a sub-category of public disputes that involve various resources, parties and a combination of issues such as health, economic development, governance etc. They may occur ‘Upstream’ i.e., during policy-making or ‘Downstream’ i.e., over the after-effects of administrative decisions.
Enviro-space disputes are a subsequent subset of environmental disputes that arise out of the environmental impact of space activities. The impact may or may not be limited to the Earth and its atmosphere. The advent of ‘the space exploration age’, makes it imperative to incorporate ‘space pollution’ in a discourse about the environment. However, the Indian legal framework fails to even recognize ‘space’ to be a part of the environment. This gives rise to a situation where Alternative Dispute Resolution (‘ADR’) mechanisms like arbitration become the best bet for conflict-ridden parties.
This blog-post would firstly, discuss the shortcomings of The National Green Tribunal (‘NGT’), when it comes to resolving enviro-space disputes. Subsequently, this piece would try to make a case for arbitration as a way to navigate these shortcomings.
2. ENVIRO SPACE DISPUTES - THE INDIAN SCENARIO
An analysis of the NGT is relevant since it is the primary and specialized body for environmental dispute resolution in India. The NGT, amongst other prominent concerns, such as lack of power of judicial review, is primarily riddled with two problems:
2.1 Absence of a Framework for Enviro-Space Disputes:
Not only does India not include the word ‘Space’ in its definition of ‘Environment’ under Section 2(a) of the Environment (Protection) Act, 1986, but it also lacks a framework to regulate space activities altogether. In such a scenario, the NGT stands inept at handling enforcement of liability in ‘enviro-space disputes’ since Section 14 of the NGT Act limits its jurisdiction to only cases concerning substantial questions relating to the ‘Environment’ (of which space does not form a part). What makes this situation further precarious is the fact that the Supreme Court has also expressed reservations about deciding cases that require environmental expertise, in a catena of judgements such as M. C. Mehta v. Union of India[i], Indian Council for Enviro- Legal Action v. Union of India[ii] and AP Pollution Control Board v. M. V. Nayudu[iii]. This has led to a grey-area in determining the jurisdiction of space-pollution conflicts.
2.2 Lack of Adequate Expertise:
NGT lacks both in the numerical strength and the ‘holistic environmental expertise’ of its members. The NGT, in the past eleven years has never met its full strength of 21 members as mandated by Section 4 of the NGT Act, 2010. Further, the expert members of the quasi-judicial body are mostly ex-bureaucrats of the Indian Forest Service. While these members possess expertise when it comes to forests, they are unequipped to handle other issues within the ambit of environmental conflicts such as water pollution, hazardous substances and most importantly, space-pollution. This lack of expertise has even drawn the attention of the Apex Court. In Hanuman Laxman Aroskar v. Union of India[iv], wherein a bench headed by Justice D.Y. Chandrachud while overturning the decision of the Tribunal, questioned the lack of expert members in its panel.
3. ARBITRATION AS A SOLUTION
Commercial Arbitration offers itself as a tailor-made solution to fill this vacuum of resolution of enviro-legal disputes with a commercial or contractual aspect. It primarily offers these solutions:
Firstly, Arbitration provides an enviro-space dispute framework and an effective mechanism for imposing liability. Commercial arbitration provides the parties with the ability to choose a foreign or domestic law to govern the proceedings. This counters the lack of an efficient legal framework for imputing liability. The Delhi High Court in its recent judgement in Dholi Spintex Pvt. Ltd. v. Louis Dreyfus Company India Pvt. Ltd[v] has also reaffirmed this position. When it comes to space pollution disputes, treaties such as the ‘five United Nations treaties on outer space’ govern the proceedings. In countries like India where there is no legal framework to govern space activities, arbitration fills this gap. It even recognizes intangible assets such as aerial space and outer space property rights Devas v. India[vi] as investments. This recognition is important since it is one of the few ways to impose liability in space pollution disputes. Most investment protection treaties mandate the States to give Full Protection and Security (FPS) to investors and their investments. Thus, the investors can hold the State liable to protect their investments i.e., Satellites from space debris. Another way of imputing liability is through the Articles VII and IX of the Outer Space Treaty, 1967. Article VII of the Outer Space Treaty talks about the liability for damage caused by debris from outer space launches. This provision is further elaborated in the Liability Convention of 1972, and it sets up a liability regime which holds ‘launching States’ liable even for space debris caused by private entities. Article IX of the Outer Space Treaty mandates the State to conduct outer space activities with regard to the interests of the other parties to the treaty. This provision can be liberally construed to impose liability for space pollution. These provisions coupled with the precedent of Urbaser SA & Ors v. Argentina[vii], where the tribunal acknowledged international human rights to be under its jurisdiction, provide a band-aid solution to the lack of a legal framework in space pollution disputes.
Secondly, Arbitration also solves the problem of lack of expertise. Commercial arbitration provides the parties with the freedom to choose an arbitrator who possesses the requisite expertise and skill-set to resolve issues of a complex, inter-disciplinary nature. Apart from choosing an arbitrator, the parties may also involve expert opinion through appointment of persons relevant to the dispute. The Arbitral Tribunal, after discussing with the parties may also appoint an expert. Arbitral proceedings are flexible to such an extent that:
i. One or more of the parties, a court or an arbitral Tribunal may request for a list of neutral experts.
ii. The parties may request an ADR center like the International Chamber of Commerce to make an appointment binding upon them.
iii. The Tribunal may even order the parties to provide a non-technical document summarizing the information required to understand the dispute at hand.
iv. The parties may also involve a third party such as affected persons.
International commercial arbitration, undeniably provides the best way out for parties grappling with enviro-space disputes. However, though procedurally suitable, arbitration poses a few concerns:
Firstly, international commercial arbitration is private in nature. In fact, the confidentiality of the procedure is one of the main reasons why parties opt for arbitration in the first place. Contrastingly, the environment is a matter of public interest. This gives rise to a ‘conflict of interest’ situation wherein the need for confidentiality of the arbitration and duty to maintain transparency in matters of public interest, find themselves at loggerheads.
Secondly, environmental disputes often require involvement of third parties in the form of amici curiae or ‘affected persons’, to make the dispute resolution process more objective. In commercial arbitration this involvement is not desirable since it may comprise the confidentiality of the setting. The question that arises in this regard is how efficacious arbitration may prove to be in the absence of third-party expertise, in resolving environmental disputes.
In conclusion, though arbitration is the best bet for parties in enviro-space disputes, it is not a foolproof bet. There is a need to devise new or hybrid forms of ADR mechanisms that recognize both the interests of the parties involved and the interest of the public at large.
ENDNOTES: [i] M. C. Mehta v. Union of India, 1987 AIR 1086. [ii] Indian Council for Enviro- Legal Action v. Union of India, 1996 AIR 1446. [iii] AP Pollution Control Board v. M. V. Nayudu, 1994 (3) SCC 1. [iv]Hanuman Laxman Aroskar v. Union of India, 2019 SCC OnLine SC 441. [v] Dholi Spintex Pvt. Ltd. v. Louis Dreyfus Company India Pvt. Ltd, 2008 (14) SCC 271. [vi] Telcom Devas Mauritius Limited v. Republic of India, PCA Case No. 2013-09. [vii] Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. ARB/07/26.