Losing Afghan Land, and Also Skies

Avantik Tamta*

Key Words: Consumer behavior – Kabul airspace – Rawlsian political conception theory – Taliban

With the Taliban taking over Afghanistan, massive uncertainty has sparked off in the realm of aviation. Considering most flights connecting the Indian subcontinent to the West rely on flying over the Afghani airspace, the recent Notice To Airmen (NOTAM) suggesting airlines to reroute their paths so as to avoid Afghan airspace, comes as a significant damper.

A closer look at the map and one would understand that the alternate to avoiding Kabul is to choose between the costlier and more inconvenient options of Iran, the Middle East and Belarus, which is infamous for arbitrary denial of flying permission.

Insurance worries aside, both government and airlines remain sincere adherents to the idea of evading hazardous flying. The shooting of the Malaysian Airlines plane near eastern Ukraine in 2014, and the downing of the Ukraine flight in 2020 by Iran, instill vivid reminders of the perils of choosing to be adventurous in the face of caution.


Although experts believe that the conflict is not particularly going to affect global crude oil prices in the long run, it is safe to infer that the regional instability will surely shoot up the price of oil till a recognized government is formed in the country. The inflationary standards of oil, coupled with increased flying time has sort of created a double whammy for air travelers and commercial participants alike. At a time, when the aviation industry is still recuperating from the insufferable hurdles posed by the COVID pandemic, such turmoil is bound to test the melting point of insignificant players.


Furthermore, the radical alteration of consumer behavior, post the pandemic, has essentially eradicated the prioritization of business travelers, given how business operate online instead of offline in the prevailing circumstances. The consequence is the compulsive change in strategy- to reorient preference to suit the requirements of leisure travelers over business travelers.


Interestingly, be it business travelers who value time over money, or leisure travelers who value money over time, the instant need to avoid Kabul airspace deters intentions to favor either. Rerouting will force additional flying time, and the additional flying time will factor in fuel surcharges which will reflect in increased costs. Therefore, there is no real escaping for the aviation industry this time, particularly in respect of flights to and from India.


Given the lucrative source of revenue in doling out overflying permits, the Taliban is most likely to engage with countries in amassing such convenient contracting of financial wealth. Regardless of such an initiative, it is quite unlikely, however, that sovereigns are going to engage with the likes of Taliban in procuring such permit, primarily because such a give and take could evidence formal recognition of a Taliban government within sovereign quarters.


Even if hypothetically speaking, we were to assume a light at the end of a tunnel in the sense of overflying permits being put in place, airlines are most likely to continue avoiding use of Afghani airspace during Taliban rule. The duplicity of the terror outfit aside, the possibility of having to request emergency landing during the path of flying seems like an inconvenient reality for airlines to justify to its passengers, if choosing to fly over Afghanistan. Consequently, airlines are predicted to avoid the Kabul airspace irrevocably during the continuance of the Taliban as a pseudo-State entity.


Dwindling profits, and increased operational costs of west-east connectivity is going to reflect in the substantial constriction of the frequency of flights flying in and out of New Delhi. While the assumption is still based on conjecture, one would assume that the consequence would also factor in within the future of India’s geopolitical nexus with its influential diplomatic partners in the west. While most of the world leaders, led by the People’s Republic China and Russia, have engaged in a strange strategy to bid time for the Taliban in amassing political momentum, it is absolutely crucial for India to effectively maneuver its influence as the chair of the UNSC in mobilizing international isolation of the Taliban. Only then can there be a sincere attempt at regaining the Afghani land for the Afghan people. Though the need to avoid military action is paramount, one must remember the Rawlsian political conception theory of Human Rights, which suggests the international community must use force when the factual sovereign unleashes terror on its own citizens. A duty lies on the international community to safeguard the interests of their international citizens when subjected to the tyranny of one particular sovereign/sovereign-like entity.


Even as countries await to successfully repatriate their citizens out of Afghanistan, there is no clarity regarding the future of Afghanistan and its people. If India is to hold on to its influence in the subcontinent, it must bypass Chinese influence in convincing the sovereign community of the perils of formally recognizing a Taliban government.


Profiteering and sovereign interests aside, we have a people looking to the international community for support. It will be nothing short of a betrayal if we were to defer the security of the people to selfish interests of artificial relevance quantified within the interaction of international powers. One must remember that we are dealing with an international crisis wherein lives are at stake and the cultural identity of a nation is being held at a ransom. The situation is a dire existential crisis for a community of people, and not an invitation for a series of proxy wars to be fought by nations. Consequently, any possibility of advantageous predicament to any international player must solely be co-incidental to the welfare and interests of the Afghani people, and not be prima facie driven by such vicarious intent.
With that being said, one can only hope that United States, United Kingdom, Russia, China, India and the various other powers that be, let their differences aside for a moment to truly appreciate the difficult times the people of Afghanistan are pulling themselves through. One hopes that they will collude just this once, to favor stability over instability, and permit the natural course of unhindered business to flow, err, take off.

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* Lecturer in Law, O.P. Jindal Global University, Sonipat, Haryana.

Arbitration of Space Disputes: A Review of the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities

Arthad Kurlekar*

Key Words: Arbitration – Outer Space – PCA Rules – UNCITRAL Rules

This year marks the ten year anniversary of the Permanent Court of Arbitration (“PCA”) Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (the “Rules”). With no publicly reported cases, the Rules are yet to gain popularity among potential users. A recent post, by Rosenberg and Dadwal highlights the conundrum stating that “[t]he PCA has administered disputes relating to outer space, but in those cases, the parties arbitrated their disputes under the 1976 UNCITRAL Arbitration Rules rather than the PCA Outer Space Rules”, attributing this to a lack of awarenessof the PCA and its Rules.

The question remains whether the Rules offer anything to incentivise users to deviate from the well-trodden path of selecting the UNCITRAL Rules? To address this, the postevaluates the features of the Rules, whicharearguably designed to better augment the resolution of disputes involving space law specific issues. The Rules have been inspired from the 2010 UNCITRAL Arbitration Rules with three majormodifications concerning: (i) the scope of application, specifically adapting the Rules to all users, private parties, states and international organisations; (ii) applicability of the confidentiality regime and (iii) procedure applicate to experts and scientific and technical information.

The Scope of Application

The introductory section to the Rules demonstrates that the PCA foresees the potential users of the Rules to be a combination of States, private actors and international organisations. It thus states that the Rules encompass procedural tools which could be utilized by States, international organisations or private entities in resolving disputes with an outer space element.The flexibility of the rules is in-keeping with the nature and operation of outer-space activities. For example, the launch of satellites of a private state actor, which occurs through a government facility, can involve state and non-state actors, which in case of a dispute would require the flexibility afforded by the Rules. Article 1(1) of the Rules extends the application of the Rules to “a defined legal relationship, whether contractual or not”. Together with the introductory paragraph, this leaves room for States to incorporate the Rules in their bilateral and multilateral treaties, or in statutes extending their application beyond contractual disputes.

To avoid issues of subject-matter jurisdiction, particularly on what constitutes “outer-space law issues”;Article 1(1) provides that the “characterization of the dispute as relating to outer space is not necessary for jurisdiction where parties have agreed to settle a specific dispute under these Rules”. This particular phrasing side-stepping rationemateriaejurisdiction hurdles is also seen in the other subject-indicative rules published by the PCA on relating to the environment and natural resources. Accordingly, the applicability of the Rules is independent of their designation as those concerning “outer space law” issues, with the only requirement being the agreement of the parties. In theory, therefore, nothing stops parties from adopting these rules for any of their disputes so long as all parties to the jurisdictional instrument agree.

Article 1(2) of the Rules, another modification to the UNCITRAL Rules, expressly accounts for the fact that States may have disputes against not just other States but also against private investors capable of settlement by arbitration.Therefore, it provides that the agreement represents a waiver of immunity from jurisdiction. However, it also qualifies this by stating that agreement to the Rules is not an automatic waiver of immunity from execution. The assurance of a waiver of jurisdictional immunity in case of an agreement to arbitrate disputes, together with the need foran express waiver requirement for immunity from execution, reflect prominent viewpoints on the issues. Specifically, it allows for the party entering into the arbitration agreement an assurance that it would be enforced, while simultaneously  also protecting a State’s exercise over its critical assets in case of an adverse outcome. Thisarguably helps balance bothParties’ interests.Thus, the Rules demonstrate that private users, and states (and indeed international organisations) are considered as potential users.

Moreover, the PCA states that the Rules have been designed to “reflect the public international law element that pertains to disputes that may involve states”. This is reflected in the Rules, as an illustration, in Article 9 which provides for the possibility of five arbitrators, a procedural feature arguably typical to inter-state cases.[[1]]

Confidentiality

Disputes involving elements of outer space law may have aspects including trade secrets, or issues affecting national security. As a result, Article 17(6)  provides for clearly enunciated procedure to qualify documents as “classified” bolstering the confidentiality protections afforded to the Parties. The Tribunal is empowered to determine whether such information needs special measures of protection from disclosure, failing which it would cause serious harm to either party. If so, then, under Article 17(7) Tribunal has the power to determine the persons to whom the confidential information may be released and on what conditions. The Tribunal also has the power to decide whether a confidentiality adviser has to be appointed. Additionally, under Article 17(8) such a person would ordinarily be allowed access to the documents and then would prepare a report for the Tribunal on the specific issues designated by the Tribunal, without disclosing the confidential information to the Tribunal.These options, which the Tribunal is now expressly empowered to consider, help to address the potentially sensitive nature of disputes foreseen to arise because of the elements of outer space law involved.

Expertsand Scientific Information

As with arbitrations having technical components, the Rules envisage the appointment of a Tribunal-appointed expert (Article 29(1)), should the Tribunal consider necessary to help address the scientific and technical issues that may arise. Such issues can cover a broad range from technical specifications under a contract which would potentially require experts in the relevant sciences, to the determination and forecasting of losses accrued by a party which could potentially require forensic accountants, or a combination thereof.[2] As discussed above, the Tribunal may impose confidentiality requirements upon experts. Therefore, any appointed expert’s purview is subject to any restrictions the Tribunal may impose on the basis of the sensitivity of the information (Article 29(5)). The balance achieved in these provisions is designed considering that some or all of the members of the Tribunal itself may not be leading experts in the relevant field and could be assisted by experts, while recognising the fact that parties may have serious confidentiality concerns with sharing such data with experts.

Apart from experts, the Rules also envisage the possibility for the Tribunal to jointly or separately provide a “non-technical” document summarizing and explaining the background to any scientific, technical or other specialised information the Tribunal considers necessary to understand fully the matters in dispute (Article 27(4)). This could assist the Tribunal in contextualising any expert report and to fully understand the implications in light of the technical nature of outer space disputes.

These prominent modifications to the UNCITRAL Rules bring to fore the question of the suitability of the Rules to disputes relating to outer space issues vis-à-vis provisions of the 2010 UNCITRAL Rules.

The Rules present modest but important clarifications on all three aspects discussed above:

First, with respect to waiver of immunity from jurisdiction, the ILC has confirmed in Article 17 of its Draft Articles on Jurisdictional Immunities of States and Their Property 1991, that in its view, entering into an arbitration agreement results in a waiver of immunity from jurisdiction. However, a waiver mentioned as part of the Rules ensures that there is very little likelihood of any parallel proceedings in domestic courts in cases involving States.

Second, in terms of confidentiality, while the 2010 UNCITRAL Rules do not stipulate any specific obligation of confidentiality, Article 34 of the 2010 UNCITRAL Rules states that an award shall only be made public with the consent of all parties. A corollary of this is thatparties have a duty to keep the award confidential, if either party does not consent. The applicable confidentiality regime under the UNCITRAL Rulescan also be enhanced by encompassing confidentiality clauses particularly in the contracts/ instruments referring the matter toarbitration. The existence of confidentiality clauses in such contracts which may involve information protected by rights, with security implications or other sensitive purpose is unsurprising. However, clarifying and bolstering the regime applicable to confidentiality under the Rulesprovides clarity and added value to potential users.

Finally, the clarifications on the powers of the Tribunal to receive a non-technical document, and to appoint an expert, deal with the reality that a tribunal versed in legal matters may not be equally versed with the scientific and technical aspects in dispute, and might warrant (and benefit from) additional submissions either joint or separate to contextualise such information. While in principle, this matter can also be proposed and agreed under the 2010 UNCITRAL Arbitration Rules, the express reference to this power ensures more liberty in the hands of the Tribunal.These clarifications provide added value to potential users, but whether the Rules gain popularity with increasing activity of private actors in the space industry remains to be seen.

Any opinions or views expressed in the post are original, entirely personal and independent. Any views or opinions expressed do not represent the views of any organisation with which the author is affiliated at present or was affiliated in the past. It is also affirmed that the author has not received any funding from any organisation for the post.

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References: 

* Associate, Curtis Mallet Prevost Colt Mosle LLP, Geneva, LLM (MIDS), BCL (Oxon), BA.LLB (NUJS)

[1] Article 4 of Annex VII of the United Nations Convention on the Law of the Sea which provides for a five member tribunal to be constituted)

[2]See e.g.Kishenganga Arbitration (Pakistan v India), PCA Case No. 2011-01