07 July 2014

Draft Protocol on Dispute Settlement to the Treaty Governing the Activities of States on the Celestial Bodies of the Solar System, Part 1

DRAFT PROTOCOL ON DISPUTE SETTLEMENT TO THE TREATY GOVERNING THE ACTIVITIES OF STATES ON THE CELESTIAL BODIES OF THE SOLAR SYSTEM
(Dispute Settlement Protocol to the Solar System Treaty)

OPSA-2014-04

2014

PART 1
SETTLEMENT OF DISPUTES

SECTION 1
GENERAL PROVISIONS

ARTICLE 1
OBLIGATION TO SETTLE DISPUTES BY PEACEFUL MEANS

States Parties shall settle any dispute between them concerning the interpretation or application of this Treaty by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter.

ARTICLE 2
SETTLEMENT OF DISPUTES BY ANY PEACEFUL MEANS CHOSEN BY THE PARTIES

Nothing in this Part impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Treaty by any peaceful means of their own choice.

ARTICLE 3
PROCEDURE WHERE NO SETTLEMENT HAS BEEN REACHED BY THE PARTIES

1. If the States Parties which are parties to a dispute concerning the interpretation or application of this Treaty have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.

2. If the parties have also agreed on a time-limit, paragraph 1 applies only upon the expiration of that time-limit.

ARTICLE 4
OBLIGATIONS UNDER GENERAL, MUNTILATERAL OR BILATERAL AGREEMENTS

If the States Parties which are parties to a dispute concerning the interpretation or application of this Treaty have agreed, through a general, muntilateral or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.

ARTICLE 5
OBLIGATION TO EXCHANGE VIEWS

1. When a dispute arises between States Parties concerning the interpretation or application of this Treaty, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.

2. The parties shall also proceed expeditiously to an exchange of views where a procedure for the settlement of such a dispute has been terminated without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of implementing the settlement.

ARTICLE 6
CONCILIATION

1. A State Party which is a party to a dispute concerning the interpretation or application of this Treaty may invite the other party or parties to submit the dispute to conciliation in accordance with the procedure under Part 2, Section 1 of this Protocol, or another conciliation procedure.

2. If the invitation is accepted and if the parties agree upon the conciliation procedure to be applied, any party may submit the dispute to that procedure.

3. If the invitation is not accepted or the parties do not agree upon the procedure, the conciliation proceedings shall be deemed to be terminated.

4. Unless the parties otherwise agree, when a dispute has been submitted to conciliation, the proceedings may be terminated only in accordance with the agreed conciliation procedure.

SECTION 2
COMPULSORY PROCEDURES ENTAILING BINDING DECISIONS

ARTICLE 7
APPLICATION OF PROCEDURES UNDER THIS SECTION

Subject to Section 3, any dispute concerning the interpretation or application of this Treaty shall, where no settlement has been reached by recourse to Section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.

ARTICLE 8
CHOICE OF PROCEDURE

1. When signing, ratifying or acceding to this Treaty or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Treaty:

(a) the International Tribunal for the Solar System established in accordance with Part 3 of this Protocol;

(b) the International Court of Justice;

(c) an arbitral tribunal constituted in accordance with Part 4 of this Protocol;

(d) a special arbitral tribunal constituted in accordance with Part 5 of this Protocol for one or more of the categories of disputes specified therein.

2. A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Part 4 of this Protocol.

3. If the parties to a dispute have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure, unless the parties otherwise agree.

4. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Part 4 of this Protocol, unless the parties otherwise agree.

5. A declaration made under paragraph 1 shall remain in force until three months after notice of revocation has been deposited with the Secretary-General of the United Nations.

6. A new declaration, a notice of revocation or the expiry of a declaration does not in any way affect proceedings pending before a court or tribunal having jurisdiction under this Article, unless the parties otherwise agree.

7. Declarations and notices referred to in this Article shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the States Parties.

ARTICLE 9
JURISDICTION

1. A court or tribunal referred to in Article 8 of this Protocol shall have jurisdiction over any dispute concerning the interpretation or application of this Treaty which is submitted to it in accordance with this Part.

2. A court or tribunal referred to in Article 8 of this Protocol shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Treaty, which is submitted to it in accordance with the agreement.

3. The International Tribunal for the Solar System established in accordance with Part 3 of this Protocol shall have jurisdiction in any matter which is submitted to it in accordance therewith.

4. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.

ARTICLE 10
EXPERTS

In any dispute involving scientific or technical matters, a court or tribunal exercising jurisdiction under this section may, at the request of a party or proprio motu, select in consultation with the parties no fewer than two scientific or technical experts chosen preferably from the relevant list prepared in accordance with Article 81 of this Protocol, to sit with the court or tribunal but without the right to vote.

ARTICLE 11
PROVISIONAL MEASURES

1. If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.

2. Provisional measures may be modified or revoked as soon as the circumstances justifying them have changed or ceased to exist.

3. Provisional measures may be prescribed, modified or revoked under this Article only at the request of a party to the dispute and after the parties have been given an opportunity to be heard.

4. The court or tribunal shall forthwith give notice to the parties to the dispute, and to such other States Parties as it considers appropriate, of the prescription, modification or revocation of provisional measures.

5. Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Solar System may prescribe, modify or revoke provisional measures in accordance with this Article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. Once constituted, the tribunal to which the dispute has been submitted may modify, revoke or affirm those provisional measures, acting in conformity with paragraphs 1 to 4.

6. The parties to the dispute shall comply promptly with any provisional measures prescribed under this Article.

ARTICLE 12
ACCESS

1. All the dispute settlement procedures specified in this Part shall be open to States Parties.

2. The dispute settlement procedures specified in this Part shall be open to entities other than States Parties only as specifically provided for in this Treaty.

ARTICLE 13
PROMPT RELEASE OF SPACECRAFT AND CREWS

1. Where the authorities of a State Party have detained a spacecraft registered by another State Party and it is alleged that the detaining State has not complied with the provisions of this Treaty for the prompt release of the spacecraft or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under Article 8 of this Protocol or to the International Tribunal for the Solar System, unless the parties otherwise agree.

2. The application for release may be made only by or on behalf of the State of registry of the spacecraft.

3. The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the spacecraft, its owner or its crew. The authorities of the detaining State remain competent to release the spacecraft or its crew at any time.

4. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining State shall comply promptly with the decision of the court or tribunal concerning the release of the spacecraft or its crew.

ARTICLE 14
APPLICABLE LAW

1. A court or tribunal having jurisdiction under this section shall apply this Treaty and other rules of international law not incompatible with this Treaty.

2. Paragraph l does not prejudice the power of the court or tribunal having jurisdiction under this section to decide a case ex aequo et bono, if the parties so agree.

ARTICLE 15
EXHAUSTION OF LOCAL REMEDIES

Any dispute between States Parties concerning the interpretation or application of this Treaty may be submitted to the procedures provided for in this section only after local remedies have been exhausted where this is required by international law.

ARTICLE 16
FINALITY AND BINDING FORCE OF DECISIONS

1. Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.

2. Any such decision shall have no binding force except between the parties and in respect of that particular dispute.

SECTION 3
LIMITATIONS AND EXCEPTIONS TO APPLICABILITY OF SECTION 2

ARTICLE 17
OPTIONAL EXCEPTIONS TO APPLICABILITY OF SECTION 2

1. When signing, ratifying or acceding to this Treaty or at any time thereafter, a State may, without prejudice to the obligations arising under Section 1, declare in writing that it does not accept any one or more of the procedures provided for in Section 2 with respect to disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Treaty.

2. A State Party which has made a declaration under paragraph 1 may at any time withdraw it, or agree to submit a dispute excluded by such declaration to any procedure specified in this Treaty.

3. A State Party which has made a declaration under paragraph 1 shall not be entitled to submit any dispute falling within the excepted category of disputes to any procedure in this Treaty as against another State Party, without the consent of that party.

4. If one of the States Parties has made a declaration under paragraph 1(a), any other State Party may submit any dispute falling within an excepted category against the declarant party to the procedure specified in such declaration.

5. A new declaration, or the withdrawal of a declaration, does not in any way affect proceedings pending before a court or tribunal in accordance with this Article, unless the parties otherwise agree.

6. Declarations and notices of withdrawal of declarations under this Article shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the States Parties.

ARTICLE 18
RIGHT OF THE PARTIES TO AGREE UPON A PROCEDURE

1. A dispute excepted by a declaration made under Article 17 of this Protocol from the dispute settlement procedures provided for in Section 2 may be submitted to such procedures only by agreement of the parties to the dispute.

2. Nothing in this section impairs the right of the parties to the dispute to agree to some other procedure for the settlement of such dispute or to reach an amicable settlement.

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