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International Institute of Space Law

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Issue 1, 2018 Expand all abstracts
Article

Space Law and International Organizations

10th Nandasiri Jasentuliyana Keynote Lecture on Space Law

Authors Marco Ferrazzani
Author's information

Marco Ferrazzani
Legal Counsel of the European Space Agency. Director of the International Institute of Space Law.
Article

From the Unilateral Acts of States towards Unilateralism in Space Law

Keywords Unilateral acts of States, unilateralism, multilateralism, cooperation, space law making
Authors Tugrul Cakir
AbstractAuthor's information

    Unilateralism has generally been considered a concept with negative connotations. It should be underscored that in some cases unilateralism has resulted in changes either to customary law or treaty law, whereas in others it has not. Consequently, not every type of unilateralism can be perceived as a challenge to Space Law. Nevertheless, we can see the risks of unilateralism when not acquiesced to or generally supported by other States. It is obvious that the multilateral process is becoming more complicated than before which complicates finding multilateral solutions in Space Law. This paper argues that a better understanding of unilateral acts is necessary before delving into the matter of the unilateralism in Space Law.


Tugrul Cakir
Centre du Droit des Espaces et des Frontières, Université Jean Moulin Lyon III, France, PhD candidate, tugrul.cakir@etu.univ-lyon3.fr.
Article

Can Japan Launch Itself into Becoming a Leader in Global Space Business with Its New Space Legislation?

Keywords Japan, Space Startups, Space Activities Act, New Space Business, Venture Capital
Authors Masaya Uchino
AbstractAuthor's information

    On November 2016, the Japanese Diet passed the Space Activities Act (“SAA”) and the Satellite Remote Sensing Act in an effort to modernize its domestic space legislation and encourage its small but growing private sector to become global leaders in burgeoning new types of space business. This paper will examine whether it is feasible for these new laws to propel Japan enough to catch up with current market leaders such as SpaceX in the United States. The paper will have three parts. First, the paper will outline the legal regime that applies to the Japanese space industry. Second, the paper will analyze the impact of Japan’s new space legislation and provide a comparative analysis of how they measure up to other space-faring nations’ space laws. The paper will find that various aspects of Japan’s new space laws have great potential to attract significant foreign space business to be conducted in Japan. The third part of the paper examines whether the country’s economy can take advantage of these new legal developments and spur growth among startups. This article discusses how the Silicon Valley model may not be compatible with the financial culture in Japan. After examining how currently thriving startups are financed by corporate investments, the paper concludes that corporations need to finance space startups in more traditional forms of financing in Japan in order to infuse capital into the space industry. Drawing from legal and financial experts, this paper concludes that both legal and financial aspects are coming together for Japanese private space business. Depending on the industry’s momentum, the SAA may launch Japan to become globally competitive in the near future.


Masaya Uchino
ZeLo Law, Attorney-at-Law qualified in the United States (California and Hawaii).

Hamza Hameed
Legal Consultant, International Institute for the Unification of Private Law (UNIDROIT).
Article

Legal Challenges of Space 4.0

The Framework Conditions of Legal Certainty among States, International Organisations and Private Actors in the Changing Landscape of Space Activities

Keywords Space 4.0, NewSpace, ESA, Capacity Building, Cyber Security, Legal Challenges
Authors Gina Petrovici and Antonio Carlo
AbstractAuthor's information

    After more than 60 years of space activities, ongoing scientific and technological progress alongside increased international cooperation, Space 4.0 is entering this field, leaving its hallmark on what appears a new era of space activities. The space community is rapidly changing, and the world continues to face a growing need for dedicated space applications. The growing interest in space leads to an increasing participation of numerous new actors. Governments, private actors and international organisations are eager to fill these gaps in securing the global society’s needs. ESA’s efforts in this regard are reflected in the Space 4.0 concept, introduced at ESA’s Ministerial Council in December 2016 by the ESA Director General. This new conception – building on Industry 4.0 – is designed to host a new era of space activities, setting out to tackle global challenges using the advantages deriving from space and technological progress. These challenges range from climate change to shortage of resources, health, demographic development, digital divide and more. ESA is also highly active within UNISPACE and its objectives: space accessibility, economy, security and diplomacy to contribute to Space 2030 and the UN Sustainable Development Goals. Capacity building reflects the core objective of all international Space 4.0 efforts. This rapid changes and growth are meeting certain needs by bringing space closer to society and inspiring new generations. However, as these developments are taking place in a highly complex net of legal, regulatory and political considerations, they are themselves raising challenges. This paper focuses on the legal challenges raised by the new era Space 4.0 and outlines the framework conditions for legal certainty in this rapidly changing environment. It elaborates on the content of Space 4.0 and its implementation, the legal framework for space activities, and how this is currently challenged by two characteristics of the Space 4.0 development, commercialisation of space activities, along with increasing cyber-security concerns in the context of digital divide and big data.


Gina Petrovici
Master of Laws (LL.M) University of London.

Antonio Carlo
Sapienza University of Rome.

    Recently, SpaceX announced that it would send passengers to the moon in 2018. With the new round of space exploration boom, national research institutions, commercial enterprises are committed to the study of more advanced and economical spacecraft to explore and develop outer space. As a result, more spacecraft will be launched into space. Therefore, it is necessary to establish a system of traffic rules for navigation in outer space.
    Although different modes of transport follow different traffic rules, however, many of these traffic rules are similar. The rules of preventing collisions in outer space should also be similar to other rules of preventing collisions in basic principles and measures to preventing collisions. This is not only the consideration of the efficiency of making rules, but to consider the coordination of navigation in outer space and air navigation, because the navigation in outer space and air navigation are not two independent concepts. As a representative of a type of spacecraft designed for space travel, SpaceShipTwo, the spacecraft of Virgin Galactic, has both the characteristics of spacecraft and aircraft. This type of aircraft is similar to a seaplane, which could both navigation in water and air. While a seaplane is navigating in water, it follows the rules of water navigation, such as the 2005 COLREGS, while this seaplane navigating in the air, it follows the rules of air navigation.
    It seems to increase the burden of the pilot that demand a seaplane to follow different rules of preventing collisions in the water or the air. However, Because of the similar basic principles and measures to preventing collisions in both rules of water navigation and air navigation, this worry seems to be misplaced.
    This paper will first address the commonality in all modes of traffic rules. Especially the basic principles and measures to preventing a collision. It will list the essential principles and measures in air navigation, and study whether these principles and measures can be applied to air navigation. Finally, the paper will address the problems may be involved in the air traffic management while spacecraft are navigating in the air.


Huxiao Yang
Civil Aviation University of China (author).

Chang Dai
Leiden University (co-author).

    The Act on the Exploration and Use of Space Resources (the Space Resources Act) adopted by Luxemburg Parliament in July 2017, in particular Article 1 which stipulates that “Space resources are capable of being appropriated”, has raised various discussions in the international community. Along with the U.S. Commercial Space Launch Competitiveness Act of 2015 (CSLCA), State Parties to the Outer Space Treaty (OST), which prohibits national appropriation of outer space whereby, has taken the first step towards an overall commercial exploitation of space resources by national recognition of private property rights thereon. Yet, such initiative, creating property rights over space resources obtained in missions conducted by private entities, has raised an inevitable question for other space-faring nations who might be State Parties to the OST or the Moon Agreement (MOON) or both of them: what should they do in their domestic laws?
    The CSLCA, in particular Title IV, was deliberately designed in a way that obviously act in accordance with existing international law. However, it grants ownership and other rights of space resources only to citizens of U.S., because of which the controversies raised by this nationality-oriented approach are continuing to focus on if its unilateral interpretation does accord with Art. I and II of the OST. The Space Resources Act, however, by stipulating conformity with Luxemburg’s international obligations in Art. 2(3) in the Space Resources Act, has taken an approach that is heading to the same direction yet different goal. Luxemburg is neither one of the super space powers nor a potential one when it officially announced its ambition on a domestic regulatory framework for commercial space industries. At the current stage, the legal certainty provided by the Space Resources Act works for the blueprint for the promising commercial investment in the space field. This article examines the similarities and differences between the CSLCA, in particular Title IV, and the Space Resources Act. By such review, this article presents the legal interpretation of core principles of international space law which converge to States’ practices on a national basis, and demonstrates to what extent are they in consistency with international space law to try to figure out for other States if there are more options of establishing a national legal framework for exploiting space resources.


Yangzi Tao
Keio University.

    The aim of this paper is to analyze the concept of ‘non-appropriation’ in outer space from a legal point of view. The Outer Space Treaty in its Article II provides that outer space, including the Moon and other celestial bodies, is not subject to national appropriation by any means. In the absence of an official interpretation, the precise meaning of this provision has been discussed for decades. This paper will approach the problem by going back to the origin of the concept ‘appropriation’: more than 1500 years ago Roman lawyers had already developed different categories to indicate the relationship between a person and a thing. Ownership and use were the criteria utilized to classify each thing. Over time, these categories evolved and eventually led to the development of ‘property law’. Among them, the concept of res communes omnium was elaborated. Its peculiar features will be examined in this paper, underlining the economic function and the multifaceted nature specific of this category of things. Res communes omnium are emblematic of how ancient notions can find new life in the regulation of the cosmic dimension. Many of the legal problems faced by the international community today with regard to the cosmic environment are not different from the ones already faced by Roman lawyers when trying to regulate the reality around them. This paper will demonstrate how the ‘non-appropriation’ principle can be interpreted under the light of Roman legal theories. Building upon these findings, the legal status of outer space will be clarified and the scope of application of Article II of the Outer Space Treaty redefined. Roman theories on property rights can offer legal arguments for the use of space resources without breaching the Outer Space Treaty. Underlining the legal feasibility of commercial use of space resources as well as of settlements on other celestial bodies can hopefully represent an incentive for the international community to establish a regime regarding these activities. If that is not achieved, uncertainty will prevail and conflicts are certain to arise.


Andrea Capurso
LL.M. Candidate, IIASL, Leiden University, The Netherlands, capurso.andre@gmail.com.

Scarlet Wagner
Lund University.
Article

Regulating Remote Sensing in National Space Legislation to Increase Legal Certainty on an International Level

Keywords Space, Law, National, Earth Observation, Remote Sensing
Authors Vincent Seffinga
AbstractAuthor's information

    Whether it is for environmental purposes, by monitoring the Earth’s forests, oceans or the Arctic, or military purposes, such as target selection or troop movements, our modern society has become increasingly dependent on remote sensing activities by satellite; one of the most extensively practised space activities. In addition to these scientific and military uses, a significant commercial remote sensing market has developed predicted to be worth between US$8 and US$15 billion by 2026. Moreover, the technological capabilities of remote sensing satellites are ever improving; for example, with the Airbus Spot 6 and Spot 7 satellites that boast a 70 cm resolution or BlackSky’s Global satellite that boasts a 1 m resolution.
    However, these developments occur against a backdrop of meagre legal regulation of the activity, especially considering how commonplace remote sensing is and the fastpaced technological developments. On an international level, remote sensing activities are primarily addressed through the Remote Sensing Principles under UNGA Resolution 41/65. Yet, the Principles hardly address private entities, the scope is very limited, and the status of the Principles is contentious. In contrast, national space legislation is binding and more apt at keeping up with the developments because it is less complicated to adopt and amend such legislation than to reach consensus within the international community. Nevertheless, few states have actually addressed remote sensing in their national space legislation.
    This paper examines whether the best approach towards creating a stronger framework for regulating remote sensing activities, even on an international level, would be a bottom-up approach through national space legislation. First, it will examine the regulation of remote sensing under international law. Thereafter, this paper will discuss the regulation of remote sensing activities in a selected number of national space legislations, namely France, Germany, and the United States. Third, it will discuss, briefly, the bottom-up approach to international law-making. Finally, in light of the aforementioned considerations this paper will argue that more states should regulate remote sensing activities in their national space legislation, and that this could contribute to create more certainty about remote sensing activities on an international level but will also signal the challenges that such a bottom-up approach will bring with it.


Vincent Seffinga
Department of Law, European University Institute, Villa Salviati, Via Bolognese 156, 50139 Florence, Italy, Vincent.Seffinga@EUI.eu.

    This paper seeks to critically analyze and review the draft Space Activities Bill, 2017 (“Space Activities Bill”) that was issued by the Government of India on 21 November 2017 for comments. The critique provided in this paper is especially from international law perspective. As the Space Activities Bill provides, its aim is to encourage enhanced participation of non-governmental/ private sector agencies in space activities in India, in compliance with international treaty obligations. Yet a closer look at the said Bill reveals that it essentially only provides for the following: (a) authorisation and license for commercial space activities and prohibition of unauthorised space activity; (b) liability and indemnification to Central Government for damage arising out of commercial space activities; and (c) registration of space objects. Thus, the Space Activities Bill is immoderately focused on liability for damage due to private space activities. While focusing on authorization and liability, other important aspects that may incur international responsibility have been ignored; for example, the definitions under the Space Activities often do not clarify the legal position well. India being a space player for decades and party to most space treaties, the Space Activities Bill should provide a mechanism and procedure for implementing the international obligations undertaken by India under these treaties, such as, carrying out space activities out for the benefit of all; non-appropriation of outer space; and spacesustainability. However, the said Bill, which aims to act as an umbrella space legislation, does not include several such international obligations. Thus the paper argues that while liability and registration are important aspects of space law, there are other important aspects, which should not be ignored while enacting a national space legislation.


Upasana Dasgupta
Doctoral Candidate at the Institute of Air and Space Law, McGill University.

    In the light of the recently renovated interest in returning humans to the Moon, this paper addresses the main legal challenges related, with the goal to show practical solutions under the current system of international space law.
    In order to do so, the paper first presents an overview of current lunar exploration programs, arguing that public and private missions raise different challenges and thus require specific models.
    Following, it accordingly assesses possible legal solutions for the regulation of these programs. On the one hand, States’ exploration programs may be governed by a revised version of the Intergovernmental Agreement already concluded for the International Space Station. On the other hand, private activities could be better organized relying on Articles VI-IX OST as integrated by a new UNGA Resolution, ad hoc bilateral agreements and specific provisions in national space legislations.
    Finally, the paper concludes underlining the importance of international cooperation as the key to ensure the peaceful use and exploration of outer space.


Antonino Salmeri
Antonino Salmeri is a Doctoral Candidate in Space Law at the University of Luxembourg, where under the supervision of Prof. Mahulena Hofmann he is writing his dissertation on Enforcement Challenges of Space Mining as Multi-Level Regulatory System. Furthermore, Mr. Salmeri holds an Advanced LL.M. in Air & Space Law (cum laude) from the University of Leiden, an LL.M. in Law and Government of the European Union (cum laude) from the LUISS Guido Carli University and a Master Degree in Law (cum laude) from the University of Catania.