International Institute of Space Law

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Issue 6, 2020 Expand all abstracts

Does the End Justify the Means?

A Legal Study on the Role and Consequences of Normative Pluralism in International Space Governance

Keywords space law, space governance, normative pluralism, soft law, national space law
Authors Alexander Soucek and Jenni Tapio
AbstractAuthor's information

    The exploration and use of outer space, an area beyond national jurisdiction, is subject to international legal norms: a multilateral effort since more than half a century. However, the pressure on solutions facilitated or enabled by public international law is augmenting, not least because of new space actors, novel ideas to use and explore outer space and the increasingly ubiquitous concern of maintaining the long-term sustainability of spaceflight. Different actors produce standards, best practices, guidelines and other governance tools; beyond COPUOS, various initiatives of different character by industry and other actors have emerged, in particular in the area of sustainable uses of outer space. This article explores the place and effects of normative pluralism and non-legally binding norms of behaviour in global space governance from a perspective of international law.

Alexander Soucek
Alexander Soucek, European Space Agency (ESA), Paris, France/Noordwijk, the Netherlands, alexander.soucek@esa.int.

Jenni Tapio
Jenni Tapio, Ministry of Economic Affairs and Employment of Finland, Finland, jenni.tapio@helsinki.fi.

    Outer Space is an international common area, where exploration and use are recognized as the rights of all countries (Art.1, Outer Space Treaty (OST)). States bear international responsibility for their national activities, including those carried out by non-governmental entities with the requirement of “authorization and continuing supervision by the appropriate State” (Art.6, OST). Due to the operational nature of space activities, it is physically and legally unrealistic to separate them by some territorial criteria. Hence, it is natural for safety operations and other common domains of traffic, such as aviation or maritime, to pursue a certain level of unification of national control, although concrete measures for realizing the OST requirements are entrusted to each State. Thus, establishing an international regime for space traffic management is becoming a critical issue in contemporary space governance. From this point of view, the implementation of Art. 6 of the OST must be revisited as a precedent since it is the sole and explicit requirement of international law for States when controlling their space activities. Practically, national legislation for implementing this requirement is lumbering, even within major space powers. Thus, it is only in this decade that national regulations have rapidly begun to emerge. Based on the analysis of several practical cases, focusing particularly on non-governmental space activities, this paper aims to present the possibility and boundary of effective “authorization and continuing supervision by the appropriate State” to retain effective control, for the safety and sustainability of space activities.

Yu Takeuchi
Yu Takeuchi, Management and Integration Department, Human Space Flight Technology Directorate, JAXA, 2-1-1 Sengen, Tsukuba, Ibaraki, Japan 305-8505; Institute of Space Law, Graduate School of Law, Keio University, 2-15-45 Mita, Minato-ku, Tokyo, Japan 108-8345.

    Artificial intelligence (AI) is increasingly used in space activities. AI employs machine learning techniques, which enable the system to automatically improve its performance by exposure to large amounts of data. Such technological developments entail that space activities will be conducted with increased system autonomy. However, this makes its behavior largely unpredictable, Thus, questions arise on how AI impacts the current system of liability under international space law. This paper submits that cases that require ‘fault’ of the launching State will become (even) more difficult to handle, in view of the challenges in defining ‘fault’ and in establishing causal connection between the fault and the damage. Fault may be indicated by non-compliance with established international rules or codes of conduct, by insufficient regard of other States’ interests under Art. IX OST, or by unreasonable behavior. These parameters are examined in relation to AI, alongside additional AI-specific factors, e.g. training data. If AI is used to support human decisions through recommendations, then human factors should also be considered, such as appropriate warnings and user-friendly system design. Moreover, explainability of AI decisions is highly desirable, but also hard to materialize owing to the complexity of AI systems. In any case, comparing AI behavior with human behavior should not be excluded, but extreme caution is required. The paper concludes that it is necessary to establish international regulations on space activities, even in non-binding form, and international, performance-based safety standards. Any gaps in victim protection will have to be filled by national legislation and insurance.

Michael Chatzipanagiotis
Dr. Michael Chatzipanagiotis, Lecturer in Law, University of Cyprus.

Back to the Future: Space Law in a Networked World

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

    Space technologies and their ever-growing innovative practical applications are changing the way humanity functions. This trend towards transformational change and the ‘democratisation’ of space is expected to extensively penetrate into our everyday lives. Currently, space activities are being undertaken by numerous domestic and international operators, which range from owners of a single satellite to corporations planning to operate large constellations of satellites. These NewSpace activities, while offering unprecedented opportunities for humanity in aiming towards a prosperous world, also pose some unparalleled challenges to the foundational norm and objective of international space law – that the ‘exploration and use of outer space shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development’. In this paper, the authors discuss some of these challenges posed by NewSpace activities, particularly with respect to communications, and propose specific steps to be taken by the international community to maintain and update the international space regulatory framework. Based on three case studies of three intergovernmental organisations – involving the originally constituted structure of INTELSAT and the current structures of INTERSPUTNIK and ARABSAT, this paper describes their appropriateness in maintaining the key above-mentioned objective of international space law.

Ram S. Jakhu
Ram S. Jakhu, Associate Professor/Acting Director, Institute of Air and Space Law, McGill University, Canada.

Upasana Dasgupta
Upasana Dasgupta, Erin J C Arsenault Doctoral Fellow, Institute of Air and Space Law, McGill University, Canada.

Steven Freeland
Steven Freeland, Professor of International Law, Western Sydney University, Australia.

    This paper addresses the issue of cybersecurity in the context of the space environment and discusses, from a legal perspective, what it means for a space operator to be cyber-secure. This paper will argue that cybersecurity law should be understood as a governance framework constructed from a variety of documents that includes traditional legal documents, but that also relies on policies, technical standards, and technical specifications. This paper will then discuss how a lawyer is supposed “do” cybersecurity for space clients, in particular when the law itself is difficult to pinpoint.

P.J. Blount
SES / University of Luxembourg, Luxembourg, pjblount@gmail.com. The views expressed in this paper are the author’s own and do not represent the views of his employer or any organizations with which he is affiliated. This research is made possible by a generous Industrial Fellowship grant from the Luxembourg National Research Fund.

New Space Law Created to Enable Space Innovation While Preserving the RF Environment in Space

Notable Outcomes of the ITU’s 2019 World Radio Conference

Authors Audrey L. Allison
AbstractAuthor's information

    Suddenly, Low Earth Orbit is becoming increasingly crowded at an accelerating pace. As the first “megaconstellations” of hundreds and thousands of small communications satellites are being launched into new constellations, there are also a growing number of smaller satellites being launched by newly space-faring nations as well as non-profit institutions. In both cases, there is an urgent need for appropriate global and national legal/regulatory frameworks to support and govern these innovations within the bounds of the Outer Space Treaty. One venerable regulatory institution is addressing these challenges: the International Telecommunication Union (ITU). The ITU’s ongoing activities to incrementally prepare a basis in international law to both encourage and regulate these new space innovations quietly establishes a proven model for the world to follow. In 2019, the ITU and its members gathered for its quadrennial treaty conference, the World Radiocommunication Conference (WRC-19), to address, among other items, how to handle the filings for new very large non-geostationary satellite constellations and the growing number of cubesats, which are often launched without adherence to the ITU’s Radio Regulations, a treaty instrument on access to radiofrequency spectrum and the orbits. This paper examines how the ITU develops a legal framework to balance the encouragement of innovative space services whilst ensuring that existing international legal norms are observed. In particular, it will provide insights the innovative results achieved by WRC-19. The ITU’s longstanding history of successfully facilitating new space technologies is remarkable and offers an often overlooked model for other institutions for adopting space law.

Audrey L. Allison
Audrey L. Allison, The Boeing Company.

    The European Union has turned into a significant player in the area of space activities and this has been accompanied by legislative steps. In 2018, it formulated a Proposal for a Regulation Establishing the Space Programme of the Union and the European Union Agency for the Space Programme which seeks to regulate the governance of the key components of the EU space activities. In parallel, the Union adopted also the Directive No 2018/1972 establishing the European Communications Code, which represents the recent developments in the approach to frequency spectrum applicable also to space communication. It is interesting to see that from the legislative point of view European Union is approaching the regulation of space activities and telecommunication differently. Whereas telecommunication, including space communication, is regulated as a part of the European internal market and the respective procedures are substantially harmonised, space activities are based on the provision of the Lisbon Treaty which expressly prohibits any harmonization of national space laws. The common denominator for both areas is the method to codify a whole package of new and older activities in a single document.

Mahulena Hofmann
Mahulena Hofmann, University of Luxembourg.

    Previous work has been undertaken (Green, Neumann, Grey 2018) to consider the development of the Newspace Sector and its impact on space activities in Low Earth Orbit (LEO). This previous work noted that although propertisation of space and celestial bodies is prohibited pursuant to the Outer Space Treaty 1967 (UN), orbits within space still remain rivalrous and commercially lucrative. For example, by operating in a LEO environment, a constellation of satellites would prevent other competitors from also operating and providing services within that same orbital plane or orbital shell. A regulatory scheme may be advantageous in mitigating anti-competitive conduct between private enterprises by allowing new entrants to market to gain access to commercially lucrative orbital planes, while ensuring access for government continues for national security and emergency response activities. This paper will consider these issues and explore what a regulatory or licensing scheme would look like for private enterprises operating in LEO and how UNOOSA and the ITU may act as arbiters. This paper will also offer solutions to facilitate a regulatory; or, licensing scheme that prevents anti-competitive conduct.

Thomas Green
Thomas Green, PhD Student, University of Wollongong; tjg171@uowmail.edu.au.

Patrick Neumann
Patrick Neumann, Chief Scientist, Neumann Space Pty Ltd; paddy@neumannspace.com.

Kent Grey
Kent Grey, Partner, Minter Ellison, 25 Grenfell Street, Adelaide 5000 Australia; kent.grey@minterellison.com.

Trevor Sandlin
Trevor Sandlin, Chief Mate AGT, USNS Salvor, United States Merchant Marine; sandlin.trevor@gmail.com.

Thomas Cullum
Thomas Cullum, Engineer, Neumann Space Pty Ltd; tomc@neumannspace.com.

Ilana Pender-Rose
Ilana Pender-Rose; ilanapenderrose@gmail.com.

Robert Mahoney
Robert Mahoney, Founder, Southern Cross Innovations; robert.mahoney24@gmail.com.