International Institute of Space Law

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Issue 7, 2020 Expand all abstracts

    The present paper focuses on analysis of international humanitarian law application to space in the light of IHL status as lex specialis due to circumstances of armed conflict and space law status as lex specialis due to area of application. How “non-aggressive” and “non-military” activities correlate to possibility of use of force and recourse to self-defence in space? Shall international humanitarian law norms prevail over regulations under international space law on use of weapons and establishment of semi- and demilitarized zones? Are attacks on space objects, which have plurality of launching states, legitimate? In which cases targeting dual-use space objects is legal? Following answers to these questions the paper draws attention to theatre of war in space area and destruction of space objects in light of damage caused by space debris to space environment. Issues of combatants from civilians distinction among astronauts and obligations on rendering assistance to them are analysed. Based on the done analysis the paper elaborates on proper modes of actions in the situation of international armed conflict in space from the point of view of both, international space and humanitarian law obligations fulfilment. Possibility of non-international armed conflict in space due to plurality of launching states of space objects is presented. Finally, topics for further research are introduced (obligations of neutral parties in control of private national space activities and compensation of damage, caused by space objects, during armed conflict) and conclusions on future development of space related international humanitarian law norms are formulated.

Darya Bohdan
Darya Bohdan, PhD Student at Department of International Law, Belarusian State University, Minsk, Belarus. This paper represents the personal opinion of the author and shall not be attributed to any organization with which she is affiliated.

Access_open Space Force: The Harbinger of Cold War 2?

Authors Sri Aditya Kumar, Omkar Hemanth and Jeevan Justin
AbstractAuthor's information

    The US Space Force, established recently, is the sixth arm of the US Military. While the Force has not yet engaged in military activities in Outer Space, its parent act, the National Defence Authorisation Act, 2020, does not preclude the possibility of placing weapons, deploying trained personnel or even constructing bases in Outer Space. Further, it is pertinent to note that the legislation does not provide for undertaking dedicated risk assessments, which are required in order to anticipate and prevent harm to the space environment. These possibilities pose a serious threat to the peaceful use of outer space. Even though self-defence is often considered to be an inherent right of a State, the authors believe that the act of establishing commands and training individuals for warfighting missions in space is currently unnecessary, since such a practice has not been adopted by other space-faring nations. The institution of such a military force by the United States would lead to the creation of similar forces by other States, leading to a new arms race in Outer Space, which would further result in a circumstance where weapons in Outer Space would be inevitable and irreversible. Therefore, in order to keep Outer Space as a conflict-free zone, this paper aims to analyse the existing legal framework in light of recent developments, looks for solutions in general international law, and seeks to apply the same to the realm of outer space.

Sri Aditya Kumar
Sri Aditya Kumar, National Law University Odisha.

Omkar Hemanth
Omkar Hemanth, National Law University Odisha.

Jeevan Justin
Jeevan Justin, National Law University Odisha.

Access_open An International Trust Model to Deal with the New Space Era

From the “De Iure Condito” Regime to a “De Iure Condendo” System for Outer Space

Authors Ivan Fino
AbstractAuthor's information

    Considering the acceleration of climate change, in the future outer space might be our last Noah’s Ark. Humans must now look to space as an opportunity to support growing resource requirements. Unfortunately, the existing international legal framework discourages investments in the space economy. Once an enterprise invests in developing a mining site, it cannot claim any ownership because of the non-appropriation principle of Article 2, Outer Space Treaty (OST); thus, other entities could legally access and exploit the same resource without any participation in the initial financial investment. Taking this into consideration, the question arises, which legal regime could ensure effective allocation of resources? The aim of this research is to develop a new legal model for outer space, considering the weak points of the current regime and the needs of the new space economy. Food for thought will be drawn from the hypothetical adoption of various international environments’ legal framework. The proposed model would take the best features of these legal regimes and its structure would be based on a mix between a classical legal trust model and a public trust model.

Ivan Fino
Ivan Fino, Università degli Studi di Torino, Facoltà di Giurisprudenza; ivan.fino@edu.unito.it.

Access_open A Compliance Guide for Satellite Network Operators Who Plan to Conduct Business in China

Keywords space-based internet access, licensing system, market access
Authors Huxiao Yang
AbstractAuthor's information

    In 2020, SpaceX, OneWeb, and other companies lead the construction of the space-based internet constellation. Although it may take time for these constellations to enter extensive commerce, for space-based internet constellation operators (hereinafter Operators), obtaining an operating license is as important as achieving technical goals. As the laws and regulations on telecommunication qualification authorization, radio equipment type approval (hereinafter TA), and cross-border data protection, and Operators need to conduct compliance reviews before conduct business in accordance with the characteristics of their spacebased internet access products. Factors such as a vast land area, huge population, and complex terrain are expected to create a huge satellite Network market in China.

    This paper will analyze and classify the satellite Network products related to China’s laws and regulations currently in force. This paper focuses on Regulations of the People’s Republic of China on the Management of Radio Operation, Administrative Provisions on the Establishment of Space radiocommunication Networks as well as the Setup and Use of Earth Stations, Telecommunication Regulation of the People’s Republic of China, and other related regulations, etc. This paper will give a brief compliance guide for satellite network operators who plan to conduct business in China by analyzing business models and laws. Finally, this paper will analyze the legislative trends of laws and regulations related to the satellite network and policy trends and the changes and opportunities that may be brought to satellite network compliance.

Huxiao Yang
Huxiao Yang, Innovation Academy for Microsatellites of CAS, Building 4-5, No. 99 of Haike Rd, Zhangjiang High-Tech Park, Shanghai, P.R.China 210210, yanghx@mircosate.com.

Access_open The Continuity of Obligation to Provide the Services of Global Navigation Satellite System

Looking Space Law through the Lens of Human Rights

Keywords space law, GNSS, discontinuity, right to life, positive obligations, erga omnes obligations
Authors Atefeh Abedinpour and S. Hadi Mahmoudi
AbstractAuthor's information

    Nowadays, dramatic advancement in space technologies has impressed all the aspects of human life. The protection of human life in aviation and maritime has firmly tied to precise data and crucial information derived from the Global Navigation Satellite System (GNSS). The present article aims to find a binding solution to ensure the continuity of providing positioning satellite services for aviation and sea navigation for all States. For this purpose, after analyzing the Convention on International Liability for Damage Caused by Space Objects and the Charter on the Rights and Obligations of States Relating to the GNSS Services and the International Convention for the Safety of Life at Sea, this article seeks to address three crucial questions using the qualitative method. First, what are the harmful effects of malfunction and discontinuity of GNSS services on human life? Second, is there any obligatory provision in Space Law instruments that ensures the continuity of obligation to provide GNSS services? Therefore, from the human rights law perspective, this study tries to recognize the provision of GNSS services as a legal obligation of the provider States and prove that all the provider States should not discontinue these services.

Atefeh Abedinpour
Atefeh Abedinpour, Shahid Beheshti University, LL.M. Graduated in International law.

S. Hadi Mahmoudi
S. Hadi Mahmoudi, Asst. Prof., International Law department, Faculty of Law, Shahid Beheshti University, Tehran, Iran.

    Even though much innovation was occurring in outer space in the ‘space age’, it is only recently that activities in the stratosphere and mesosphere have caught the fantasy of business. Sub-orbital flights and high-altitudinal platforms (HAPs) are some of the ways in which the region’s capabilities are being sought to be exploited. The area is also environmentally very sensitive because of the presence of the ozone layer. Legally however it is an indistinct area, where it is not clear whether the activities that take place are airspace or outer space activities. Referred to by different names by different authors, this area is being designated as Near Space for the purpose of this paper. Extending from approximately 18km – 160km above sea level this is a region where most aviation activities come to an end but the atmosphere is too dense to support space activities. Given the current debates, there is a high likelihood of the area being demarcated simply as airspace or outer space, without much consideration being given to its unique scientific, technical and economic capacities. This paper argues that it is the underlying State that has the greatest interest in preserving the Near Space above its territory, and that similar to the EEZ a specific legal regime for Near Space is needed. The example of EEZ will be used to show how national laws (even in absence of an international regime) can benefit both the underlying States as well as preserve what is right now a global commons.

Mini Gupta
Mini Gupta, Adv. LLM. (Air and Space) Law, Leiden University, Leiden, the Netherlands.

Tommaso Sgobba
Tommaso Sgobba, Executive Director, International Association for Advancement of Space Safety, Noordwijk, the Netherlands.

Access_open Leiden LL.M. Students and the Legal and Policy Aspects of Space Resource Utilization

Keywords space resource utilization, The Hague Working Group, Building Blocks, IIASL, students
Authors Scott Schneider, Aniela Barug, Wataru Inagaki e.a.
AbstractAuthor's information

    The International Institute of Air and Space Law (“IIASL”) at Leiden University in the Netherlands has offered its Master of Advanced Studies in Air and Space Law since 2000. Each year, students from all over the world join this program and engage in an intense year of studies as a highly diverse group in terms of geography, gender, age and background. Legal and policy aspects of space resource utilization (“SRU”) forms a prominent part of the teaching program and is run during several consecutive days of teaching activities. After students receive an introductory overview of scientific aspects of SRU, an in-depth overview of relevant provisions of the 1967 Outer Space Treaty and the 1979 Moon Agreement is provided. The Hague International Space Resource Governance Working Group and the 20 ‘Building Blocks’ it adopted in November 2019 is also discussed. Finally, an interactive class exercise is held, whereby three groups of students debate several questions from different perspectives before reporting to the full class. Because students are encouraged to take on the perspectives of various stakeholders, interesting and original views are presented and offer a useful contribution to the international debate on SRU. In this paper, the staff and students of the IIASL explain and assess the interactive and multi-faceted educational method used. The student’s approaches to the questions are outlined and the outcome of their discussions are presented.

Scott Schneider
Scott Schneider, International Institute of Air and Space Law, Leiden University, the Netherlands.

Aniela Barug
Aniela Barug, International Institute of Air and Space Law, Leiden University, the Netherlands.

Wataru Inagaki
Wataru Inagaki, International Institute of Air and Space Law, Leiden University, the Netherlands.

Tanja Masson-Zwaan
Tanja Masson-Zwaan, International Institute of Air and Space Law, Leiden University, the Netherlands.

Dimitra Stefoudi
Dimitra Stefoudi, Leiden University, the Netherlands.

Access_open The Militarization of Outer Space as a Factor of Innovation of International Humanitarian Law

A Comparative Research

Keywords international humanitarian law, outer space
Authors Alexsandro Souza de Lima
AbstractAuthor's information

    Humanity, in more recent years, has witnessed a dramatic acceleration of changes in various aspects of life. The various technological advances throughout history have their effects in many different fields of science, among which International Humanitarian Law (IHL) is not exempt. In addition to customary norms, IHL has been codified in various treaties. It should be also noted that other normative instruments have been dynamically inserted within the scope of IHL, with the purpose of following the evolution of war technology, linked to the reception of humanitarian issues by States, standing as additional protocols. However, there is controversy about the need to update IHL in the face of certain new technologies, even though they may make belligerence possible in other environments, such as cyber and outer space. At this point, some theorists argue that the principles enshrined in that branch of law are sufficient to cope with the aforementioned developments. However, practice has shown that these new war like scenarios have raised doubts in the international community as to the applicability of IHL in certain circumstances that were previously unexplored. For this reason, efforts have been made to understand the topic, resulting in documents that, if not binding, at least bring a guiding character to the issue. It is, therefore, this theme that this research project addresses, seeking to identify the need to update the IHL due to the novelty of the considered environment.

Alexsandro Souza de Lima
Alexsandro Souza de Lima, Outer Space Affairs Monitoring Department, Institutional Security Office of The Presidency of The Republic of Brazil.