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International Institute of Space Law

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Issue 4, 2018 Expand all abstracts

    In 2010, the Scientific and Technical Subcommittee of the UNCOPUOS formed the Working Group on Long Term Sustainability (LTS) of Outer Space Activities, assigning it the task of formulating voluntary non-binding guidelines focusing on sustainable space utilization, space debris and space operations, space weather, and regulatory regimes. At its June 2016 meeting, the UNCOPUOS approved 12 of the proposed guidelines, while several remained on the UNCOPUOS agenda. Although the LTS Guidelines are voluntary, their adoption by the UNCOPUOS and consideration by the UNGA’s 4th Committee, are evidence of a growing awareness of their potential contribution to the evolution of space law applicable to all states. This paper explores whether the LTS Guidelines could evolve into customary legal norms as part of customary international law (CIL) and steps that could promote that evolution.


Larry F. Martinez
California State University, Long Beach, USA.

James H. Armstead
Attorney, USA.

Merve Erdem
University of Ankara, Turkey.
Article

A Vital Artery or a Stent Needing Replacement?

A Global Space Governance System without the Outer Space Treaty?

Authors Ram S. Jakhu and Steven Freeland
AbstractAuthor's information

    The 1967 Outer Space Treaty is the foundational framework of international space law that has succeeded in effectively governing outer space. However, it is becoming increasingly possible that a major space power, or a group of States, may consider withdrawing from the Outer Space Treaty, particularly in view of the current trend towards nationalistic political populism and isolationistic foreign policies to selectively withdraw from certain key international institutions and treaties. The Outer Space Treaty could be one such treaty, especially in relation to the exclusive national exploitation of space-based natural resources by private entities, and threats to national security. Such withdrawals would likely have serious implications for global space governance, which is essentially based on this Treaty. This paper critically addresses some of the most serious legal issues related to the void that such withdrawal might create in the prevailing international governance regime for outer space.


Ram S. Jakhu
Institute of Air and Space Law, McGill University, Montreal, Canada,ram.jakhu@mcgill.ca (corresponding author).

Steven Freeland
School of Law, Western Sydney University, Sydney, Australia, s.freeland@westernsydney.edu.au.

    Increasing commercialization and privatization of outer space and multifaceted uses and exploration of the space potential and benefits raise new challenges to the existing framework of international space law and its established procedural legal mechanisms. What are the legal perspectives of an adjustment, supersession or possible resistance of the five United Nations treaties on outer space? UNISPACE conferences have aimed to enhance international cooperation in the peaceful uses of outer space, including the promotion of common principles. UNISPACE+50 focuses, inter alia, on the issue of the “Legal regime of outer space and global space governance” and the effectiveness of the legal regime in the 21st century. Indeed, the international community is facing today new legal questions with respect to the exploitation of space recourses, multiplication of private space businesses, unilateral grants of national licenses to commercial sector, space traffic management, need for enhanced registration and precision of responsibility and liability regime, to name few. This presentation aims to introduce a general international legal framework of various procedural legal modes of further development of the five UN treaties, both in a de lege lata and de lege ferenda perspective. Light will be shed on the respective procedures of treaty law, prerequisites of the emergence of an international custom, role of non-legally binding standards, bottom-up impact of national legislations and assessment of an effective norm-making capacity of relevant stakeholders, all transposed in the space arena with regard to the current international space debate and practice of States. A selection of the most up-todate topics will serve as examples. This comprehensive legal outline aims to highlight various options that the UNISPACE dialogue and its agenda for the future can address.


Martina Smuclerova
Prague Security Studies Institute, Czech Republic, smuclerova@pssi.cz.
Article

UNISPACE +50: Time for the Moon Treaty

Authors Dennis C. O’Brien
Author's information

Dennis C. O’Brien
The Space Treaty Project.
Article

Normative References to Non-Legally Binding Instruments in National Space Laws

A Risk-Benefit Analysis in the Context of Public International and Domestic Law

Authors Alexander Soucek and Jenni Tapio
Author's information

Alexander Soucek
European Space Agency (ESA), The Netherlands, alexander.soucek@esa.int.

Jenni Tapio
Bird & Bird Attorneys, University of Helsinki, Finland, jenni.tapio@helsinki.fi.
Article

International Legal Aspects on Sustainable Development of Outer Space Activities

Combine Safety and Effectiveness in the Long-Term

Authors Irina Chernykh
Author's information

Irina Chernykh
Department of International Law, RUDN University.

Edward Burger
The author was a Research Fellow at the European Space Policy Institute (ESPI) at the time of presenting this paper at the IAC 2018.

    China’s first space station, Tiangong-1, returned to earth on 1 April 2018 after more than six years in outer space. This was not isolated and some of the previous return of space objects are Cosmos 854 in 1978, Skylab in 1979, Delta II second stage in 1997, MIR Space Station in 2001, Italian BeppoSax in 2003, US-193 in 2008 and ESA’s GOCE in 2013. In light of these events and its inevitably increasing frequencies, it is necessary to reflect on the international law governing the re-entry of space objects.
    In the current international legal framework, the state obligations cover the whole process of re-entry without obvious loopholes, preventative ex ante and responsible ex post. But the state practice is largely uneven and there are controversies and ambiguities over obligations to forewarn hazardous events and disclose information for facilitating damage control and cleanup operation; under what conditions can reentry objects be actively removed; and how to return the objects and compensate the damages. This requires adjustment and fine-tuning of some critical notions in the space treaties and other legal documents, particularly, how to apply victim-oriented and environment-friendly principles in space sector, the balance between launching states’ jurisdiction and control of space objects and the interest of other states, the definition and determination of damages and state responsibility for hazardous activities.


Xiaodan Wu
Law School, China Central University of Finance and Economics.
Article

Evolving Norms on Pre-Launch Notifications of Space Launch Vehicles and Space Object Registration

A Historical Perspective in the Context of UNISPACE+50 Thematic Priority Three

Authors Kazushi Kobata
AbstractAuthor's information

    The development of the requirements for information exchange on space objects and events (now identified as UNISPACE+50 thematic priority three) has been accelerating from around the mid-2000s. However, it has yet to be highlighted that, for around 30 years, many proposals of these norms appeared repeatedly with many similarities in different international bodies. The purpose of this study is to better understand the chronology of the evolution of these norms, and to evaluate how and why certain current norms, specifically the “Guidelines for the Long-term Sustainability of Outer Space Activities” (“LTS Guidelines”), were able to evolve upon states reaching a consensus and agreeing upon formalized text, as compared to similar proposals in the past which failed to reach a consensus. Analyzing the conference room papers in the Ad hoc Committee (“AHC”) on the Prevention of an Arms Race in Outer Space (“PAROS”) in the Conference on Disarmament (“CD”) and the diplomatic records in Japan until the mid- 1990s, research shows that the following three proposals on Confidence Building Measures (“CBM”) of outer space (that were never implemented) ended up entering the discussion that led to the LTS Guidelines: (a) proposals on ensuring the immunity of satellites; (b) strengthening the Registration Convention; and (c) pre-launch notifications. This paper discusses the deliberative process of proposals (b) and (c) in the AHC, and how these two proposals later evolved into the LTS Guidelines on enhancing the practice of registering space objects as well as guidelines on pre-launch notification of space launch vehicles. It is noteworthy that, while the proposal on pre-launch notifications had gathered positive reactions in the AHC on PAROS, the US insisted that the issue be dealt with in the Missile Technology Control Regime (“MTCR”), which resulted in the formulation of the International Code of Conduct against Ballistic Missile Proliferation (also known as the Hague Code of Conduct or “HCOC”) after consultation with like-minded countries outside the UN. However, recently, these discussions regarding the current LTS Guidelines on pre-launch notification of space launch vehicles returned to be discussed at the UN and a consensus was partially reached. The HCOC is sometimes criticized by non-Subscribing States that it was formulated by the initiatives of non-UN countries that possess missile technology. However, the LTS Guidelines demonstrate that norms on prelaunch notification are also acceptable in the UN in the context of the safety of space activities. These findings indicate that the norms on outer space lie across multiple areas such as peaceful uses of outer space, disarmament, arms control and non-proliferation. They have gradually progressed to change the international arena, slowly and intermittently.


Kazushi Kobata
Deputy Manager, Legal and Compliance Division, Japan Aerospace Exploration, Agency (JAXA), Ochanomizu Sola city, 4-6 Kandasurugadai, Chiyoda-ku, Tokyo, 101-8008 Japan, kobata.kazushi@jaxa.jp. Researcher, Institute of Space Law, Keio University, 2-15-45 Mita, Minato-ku, Tokyo 108-8345 Japan.

    The grand project of “Belt and Road” Space Information Corridor proposed by China, which aims to integrate its space-based platforms for comprehensive space applications under the Belt and Road Initiative, resonates with calls and recommendations of the United Nations conferences on the exploration and peaceful uses of outer space for increased international cooperation in space projects to address common challenges. This project is expected to translate the potentials of space technology for socioeconomic development into real benefits for billions of people along the Belt and Road region. The Chinese government has released guidelines in 2016 to identify the general goals and major tasks.
    As we celebrate legacy of the UNISPACE conferences this year, it is beneficial to also focus on the ramifications of large scale space projects for governance of space activities on national, regional and international level. On the one hand, policy and legal aspects are important factors to be taken into account in project planning and implementation. On the other hand, the need to accommodate requirements of space projects could stimulate adjustment or innovation in space policies and regulations. The “B&R” Space Information Corridor offers us a chance to explore such interaction between space project and space governance. Based on analysis of the relevant aspects of legal environment, this paper purports to examine opportunities and challenges confronted with during implementation of the “mega-project” from legal perspectives.


Kang Duan
China Great Wall Industry Corporation.

    International cooperation is the key to the strongest peace in the world, to really constructive relations and the political, economic, cultural and humanistic development among all countries, all peoples and all mankind. There is an “extraordinary danger of the current moment,” the Science and Security Board of the Bulletin of the Atomic Scientists said on January 25, 2018, when it decided to move the hand of the iconic Doomsday Clock to 2 minutes to midnight. The last time the symbolic Clock was this closing to midnight was in 1953, at the height of the First Cold War. (2) Now, 65 years later, we are in a Second Cold War, which propels a new and millionaire arms race into space, preparing a space war of inestimable consequences. The world community is “seriously concerned” about this concrete possibility, that can result in a limitless global collapse.
    The UN General Assembly Resolution 72-77, of December 7, 2017, makes an appeal “to all States Members, in particular those with major space capabilities, to contribute actively to preventing an arms race in outer space with a view to promoting and strengthening international cooperation in the exploration and use of outer space for peaceful purposes”. This resolution also “requests the Committee [The United Nations Committee on the Peaceful Uses of Outer Space – UNCOPUOS] to continue to consider, as a matter of priority, ways and means of maintaining outer space for peaceful purposes.” In its point of view, “the Committee should continue to consider the broader perspective of space security and associated matters that would be instrumental in ensuring the safe and responsible conduct of space activities, including ways to promote international, regional and inter regional cooperation to that end.” (3) As if that were not enough, we are facing an unprecedented climate crisis today. The mainstream media seek to conceal or minimize the fact. But this is part of the problem of the need to maximize international cooperation. Without it, the crisis will continue to spread and threaten the lives of millions of people around the world. In this way, can international space cooperation be carried out effectively “on an equitable and mutually acceptable basis,” as proposed the Declaration on International Cooperation (General Assembly Resolution 51/122, of December 13, 1996)? (4)
    Is it possible to ensure today “an equitable situation” on “a mutually acceptable basis” between developed and developing nations, whose distance increases more and more, mainly in military affairs? The present paper aims to discuss this and other similar issues.


José Monserrat Filho
Brazilian Association of Air and Space Law (SBDA); Brazilian Society for the Progress of Science (SBPC); International Institute of Space Law (IISL).