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Article

Dispute Settlement and Decision Making in Relation to the Scarce Orbit-Spectrum Resource

‘Preventive’ and ‘Reactive’ ITU Procedures and Their Relevance for Private Sector Actors

Journal International Institute of Space Law, Issue 2 2019
Keywords ITU, Dispute Settlement, Spectrum Management, Private Actors
Authors Simona Spassova
AbstractAuthor's information

    The exploration and sustainable use of outer space is dependent, not only upon technological developments and capital investments, but also on the availability of the spectrum-orbit resource for the associated relevant radio communications. Even though the electromagnetic spectrum is a non-exhaustible resource, it is a limited and finite one. The increased number of actors and activities in space – both current and planned- is putting a strain on the coordination and allocation processes for available spectrum as well as on the subsequent observance of the international requirements in this respect. Hence, this paper focuses on the way geostatic positions are assigned and frequencies - allocated on an international level. These are complicated and highly time-consuming processes, involving technical and engineering expertise, coordination, compromise and some diplomacy too. On a global level these negotiations are done within the framework of the International Telecommunications Union (ITU) and spectrum/orbital positions can only be assigned to sovereign member states. At the same time, more and more satellite communication operators nowadays are private commercial entities, even if, licensed and supervised by their respective national administrations. The aim of this article is two-fold. First, it will examine the ways disputes related to the allocation and use of the spectrum resources are handled within the framework of the ITU. It identifies ‘preventive’ and ‘reactive’ efforts to settle disputes within the framework of the organization. In other words: what is the ITU doing to prevent the potential for conflict and what measures does it offer for resolution once a conflict has occurred? Different means of dispute resolution - will be examined together with the associated advantages. Secondly, the article will also analyse the role of private operators and not only Member States administrations in these processes. The ITU brings together also Sector members from the industry and in doing so, it for provides for multistakeholder discussion. Arguably, as the oldest UN agency, the Union is remarkably fast and adept when responding to technological challenges and considering the needs of the private sector. Is this so also when disputes are at stake, whereby private operators are not an official party?


Simona Spassova
Simona Spassova is Faculty Advisor to the Manfred Lachs Space Law Moot Court Team and a legal consultant for the International Finance Corporation.

Michael Friedl
Michael Friedl is a PhD candidate and research and teaching assistant at the University of Vienna, Austria.

Maximilian Gartner
Maximilian Gartner is a PhD candidate in a joint PhD program at the University of Bologna, Katholieke Universiteit Leuven and Mykolas Romeris University.
Editorial

Editorial

Journal European Journal of Law Reform, Issue 1 2019
Authors Dr Constantin Stefanou
Author's information

Dr Constantin Stefanou
Dr Constantin Stefanou is Managing Editor of EJLR and Director of the Sir William Dale Centre for Legislative Studies at the Institute of Advanced Legal Studies (University of London).
Article

Legislative Reform in Post-Conflict Settings

A Practitioner’s View

Journal European Journal of Law Reform, Issue 1 2019
Keywords post-conflict, rule of law, law reform, legislative reform
Authors Nathalia Berkowitz
AbstractAuthor's information

    Following conflict, considerable effort is often dedicated to legislative reform. This effort includes not only domestic actors but also international actors frequently acting with the aim of establishing the rule of law. This article seeks, first, to provide some context for legislative reform in post-conflict settings and outline some of the criticisms that have been made. Drawing on the work of legislative experts, the article then identifies some of the simple questions that those involved in legislative reform ask and discusses some of the key challenges in answering them. The article suggests that establishing the rule of law is more than putting laws ‘on the books’ and that the way in which legislation is created may itself contribute to developing the rule of law. It suggests that as the rule-of-law community develops new approaches, it might find it useful to draw on the approach of legislative experts and their concern with how effective legislation is created.


Nathalia Berkowitz
Nathalia Berkowitz is a former Barrister and legislative drafter working as an independent consultant focusing on rule of law reform. Nathalia has over 10 years’ experience supporting legislative reform and judicial process in countries around the world. She is a UK [Government] deployable civilian expert and faculty member of the University of Salamanca’s Global and International Studies Program. She can be contacted at nathaliapendo@gmail.com.
Article

Judging Reformers and Reforming Judges

Journal European Journal of Law Reform, Issue 1 2019
Keywords law reform, common law, judges, United Kingdom Supreme Court, legal reasoning
Authors James Lee
AbstractAuthor's information

    This article examines the practice and limits of judicial law reform. In particular, I consider the question of when initiation of a reform is appropriate for the judiciary as opposed to the legislature, an issue which has been a matter of controversy amongst the Justices of the United Kingdom Supreme Court. This question is assessed in the light of the institutional and constitutional competences of the courts, particularly with respect to the structure of common law reasoning. It is also argued that it is important to have regard to perspectives of the relevant judges, in understanding the individual and collective approaches to the judicial development of the law.


James Lee
James Lee is Reader in English Law and PC Woo Research Fellow 2016-2017 at The Dickson Poon School of Law, King’s College London, and Associate Academic Fellow of the Honourable Society of the Inner Temple; Senior Visiting Fellow, Gilbert + Tobin Centre of Public Law, University of New South Wales; and Visiting Professor, Hong Kong University. I am grateful to Enrico Albanesi, Mark Lunney, Jonathan Teasdale and all those who attended the Law Reform Workshop at the Institute of Advanced Legal Studies in November 2017 and a Kirby Seminar at the School of Law at the University of New England at which drafts of this article were presented. I thank both PC Woo & Co and the Faculty of Law at UNSW for the generous support for the project of which this article forms part. All views, and any errors, are my own.
Article

Law Reform in a Federal System

The Australian Example

Journal European Journal of Law Reform, Issue 1 2019
Keywords customary law, federal system, Australia
Authors Kathryn Cronin
AbstractAuthor's information

    The Australian law reform arrangements comprise a ‘crowded field’ of law reformers. These include permanent, semi-permanent and ad hoc commissions, committees and inquiries charged with examining and recommending reform of Commonwealth/federal and state laws. These are supplemented by citizen-led deliberative forums on law reform. The author’s experience in her roles as a commissioner and deputy president of the Australian Law Reform Commission (ALRC) and also as counsel assigned to advise the Joint Standing Committee on Migration in the Australian Federal Parliament highlighted facets of Australian law reform – the particular role of a law commission working in a federal system and the co-option of legal expertise to scrutinize law reforms proposed within the parliamentary committee system.


Kathryn Cronin
Kathryn Cronin is former Deputy President Australian Law Reform Commissioner and now barrister at Garden Court Chambers.
Article

Is There a Law Commission in France?

About the Commission Supérieure de Codification

Journal European Journal of Law Reform, Issue 1 2019
Keywords High Commission on Codification, France, Law Commission, codification, law reform
Authors Bertrand-Léo Combrade
AbstractAuthor's information

    The ‘Commission Supérieure de Codification (‘High Commission on Codification’) is a body that was created with the aim of providing support for the process of codifying the texts of positive law. Analysis of both its place in France’s institutional architecture and its working methods highlights certain particularities in the body’s functioning and raises questions as to its degree of proximity to the Law Commissions.


Bertrand-Léo Combrade
Lecturer in public law, Researcher at CURAPP-ESS (University of Picardy-Jules Verne), Associate researcher at ISJPS (Sorbonne Law School).
Article

Lessons from a Single Jurisdiction with Two Governments

Governments and the Initiation of Law Reform in England and Wales

Journal European Journal of Law Reform, Issue 1 2019
Keywords law reform, UK devolution, law reform agencies, relations with governments, reform proposals
Authors Richard Percival
AbstractAuthor's information

    This article sets out the centrality of government to the initiation of law reform in respect of the (England and Wales) Law Commission and the Scottish Law Commission (and by extension, those law reform agencies based on the British model), and then considers in the light of recent experience how the existing approach works in the unique context of a single jurisdiction – England and Wales – which now has two governments – the UK Government for England, and the devolved Welsh Government. Having identified shortcomings, the article makes suggestions for improved institutional arrangements to meet the particular law reform needs of Wales.


Richard Percival
Richard Percival is Professor of Criminal Law and Practice (law reform) at Sheffield University, UK. An earlier form of this paper was presented at the third IALS Law Reform Project workshop on 1 November 2017.
Article

The Role of International Territorial Administration in (Semi) Permanent Lunar Presence

Journal International Institute of Space Law, Issue 1 2019
Keywords International Territorial Administration, Governance, International Law, Space Law
Authors Matija Renčelj
AbstractAuthor's information

    The aim of this paper is to analyse examples of ITA as a relevant model in administering celestial bodies. Proposed missions to the Moon promise ambitious plans which will change the way humanity perceives (and administers?) our closest celestial neighbour. Examples of ITA, which first emerged in the 19th and early 20th century are valuable resources for understanding how international organisations can undertake administration of increased presence on celestial bodies. In fact, international organisations already perform such powers (i) either vaguely, e.g. through the OST or (ii) through a clear regulatory mechanism that assigns slots in Geostationary orbit. In order for the regulatory framework to get up to speed with developments in space exploration the solution is two-fold: (i) avoid fragmenting debates on niche-topics (resources, cultural heritage, safety standards) but rather tackle them through a comprehensive framework and (ii) allow the UN (or a body designated by the UN) to actively administer activities on celestial bodies. ITA mechanisms developed in the past 100 years, have proven flexible enough to adapt to multiple scenarios and different political realities. Furthermore they allow international organisations to assume powers of administration without acquiring ownership over the territory and are hence in line with the provisions laid down in the OST. The analysed mechanisms in no way represent a magic solutions to all the alleged shortcomings of the current regulatory environment, it is nevertheless important to establish a nexus between developed examples of ITA and potential future mechanisms administering activities on celestial bodies.


Matija Renčelj
Member States Relationships & Partnerships Office, European Space Agency.

    On-orbit Servicing (OOS) will revolutionize the satellite industry, by offering tools that enable life-extension and debris remediation. However, the advanced technology heightens the risk of liability for damages and the overall perceived security in space. In addition, international OOS missions challenges the traditional concepts in the international space Treaties. Whilst OOS is not prohibited under the current legal framework, it is clear that the legal framework needs to be supplemented in order to address the new challenges. Based on the findings of the regulatory landscape, the paper offers various suggestions as to how the legal and political challenges can be addressed. These suggestions include meeting security concerns through a greater sense of transparency and trust, enabled by for example more information on the locations of the satellites, and rules for OOS behaviour.


Thea Flem Dethlefsen
LLM (Adv.) candidate in Air and Space Law, International Institute of Air and Space Law, Leiden University.

    The proliferation of space debris and the imminent deployment of large constellations of satellites in LEO could negatively impact the long-term sustainability of outer space activities. A potential solution to clean up space and maintain a sustainable space environment is Active Debris Removal (ADR). The ADR is a potential revenue earning activity, but such activity needs a legal framework that will dissolve the existing concerns. Space law is fundamental for supporting a potential business case for commercial ADR missions. This paper will bring into discussion an international mechanism addressing the financial means for commercial ADR activity with a focus on LEO. By doing so, this paper will address the advent of ADR as lucrative activity and will analyze the proposal to finance an international fund by the launching states and ADR operators in a “Pay or play” fashion.
    In particular, this paper will analyze the need of an international funding mechanism for space debris removal and analyze the liability issues affecting the launching state and indirectly the private company with ADR capabilities. This paper aims to answer why private companies should contribute to an international fund for space debris removal depending on the Post-Mission Disposal capabilities of the satellites deployed in orbit and/or ADR solutions identified in case the satellites fail to answer the control commands. Further, this paper will analyze the prospects to manage the activity for ADR by accessing this fund.


Claudiu Mihai Tăiatu
LLM (Adv.) in Air and Space Law, International Institute of Air and Space Law, Leiden University.
Article

A Treaty of Many Minds: An In-Depth Look at the Travaux Préparatoires of the Principles Declaration of 1963

Journal International Institute of Space Law, Issue 1 2019
Keywords Principles Declaration, Mexico, travaux préparatoires, lacunae, insuffisance sociale, non liquet
Authors Howard Chang
AbstractAuthor's information

    Much of the current literature on interpretation of the Outer Space Treaty of 1967 (OST) focuses on the OST’s own travaux préparatoires, but not on the Principles Declaration of 1963 (Principles Declaration), the basic ideas of which were incorporated into the OST. Many of these ideas expressed in the travaux of the Principles Declaration give a very forward-looking glimpse at issues in outer space, whether they were emphasized or simply discussed.
    This paper will show the vast behind-the-scenes discussions of issues not expressly included in the OST: issues such as commercialism in space, extraterrestrial contact, space crimes, stationary satellites, etc. For instance, in a working paper submitted by the delegation of Mexico to the ad hoc committee preceding the Committee on the Peaceful Uses of Outer Space (COPUOS), Mexico asked, inter alia, to what extent a launching State is responsible for changes that occur in human beings who it sends to inhabit celestial bodies other than Earth. This forward-looking issue was passed over in favor of the more pressing issues of the time: disarmament, liability, peaceful purposes, etc. However, the travaux’s mention of these issues may help illuminate current gaps in the law and give guidance on how to proceed within the current legal regime.


Howard Chang
Georgetown University Law Center, 600 New Jersey Ave NW, Washington, DC 20001.

    The Moon contains resources such as Helium-3, Titanium, and Rare Earth Elements, that can potentially be extracted and incorporated into different products.
    The Outer Space treaty provides every state the right to extract and use resources from the Moon, however with limitations under the treaty. Under Article IV para 2 of the treaty, all State parties are mandated to ‘use’ the Moon exclusively for peaceful purposes. However the treaty fails to define the term ‘peaceful’. This ambiguity offers opportunity of such extracted minerals to be used for military purposes, i.e. incorporated into weapons, armours, structures etc. by Space powers in the future. In that case, is military use of these lunar resources permitted under the Outer Space Treaty?
    Thus to analyse the legality this paper will adopt the rules of interpretation under The Vienna Convention on the Law of Treaties to establish that the term ”peaceful” can only be interpreted as ”Non-Military” and that any interpretation allowing ”Use” of the moon and its resources for military purposes would defeat the object and purpose of the treaty. The paper will also discuss the interpretative evolution of Peace, from Negative Peace i.e. mere absence of war or aggression, to a broader concept of Positive Peace to conclude that military use of resources extracted from the Moon is Non-peaceful and is prohibited under Outer Space Treaty. Finally, the paper will end at a functional approach to tackle the problems posed by the dual use of these Lunar Resources.


Tejas Bharadwaj
T. Bharadwaj, student, BA. LL.B School of Law, University of Petroleum and Energy Studies, Dehradun, Uttarakhand, India.

Harshith Iyer
H. Iyer, Student, B. Com. LL.B School of Law, University of Petroleum and Energy Studies, Dehradun, Uttarakhand, India.

    Air, Water, Food, Shelter, Sleep: These are the five basic requirements for a human being to survive. Providing these basics to a single person is a harrowing challenge; providing them to 1,200 souls on the merciless Martian landscape is nearly impossible. Nonetheless, in 2032 SpaceX successfully constructed Valinor – the first human scientific settlement on Mars-by transporting hundreds of scientists, engineers, scientific experiments and the most technologically advanced survival equipment ever created to the red planet. Each year saw more successful missions to Valinor, and the world community grew more excited about the realization of mankind’s expansion into the cosmos. However, after 15 years of exciting scientific discoveries and over 350 billion dollars invested in its survival and sustainability, Valinor remained monetarily profitless. After the stock market crash of 2047, SpaceX was purchased by OnlyEarth Corp., an oil conglomerate that saw Valinor as a threat to its fiscal security. Over the next three years, OnlyEarth reduced its regular supply missions to Valinor, demanding that Valinor produce massive quantities of Martian raw materials in exchange for fresh supplies from Earth. When Valinor refused to comply with these demands, OnlyEarth ended re-supply missions altogether. With the flow of corporate resources now stemmed, Valinor’s leadership was forced to redesign the sociopolitical and legal structure of its 1,200+ inhabitants to ensure the colony’s survival.


Marshall Mckellar
Marshall Mckellar is Assistant Chief Counsel, NASA: Kennedy Space Center.

Yvonne Vastaroucha
Yvonne Vastaroucha is National and Kapodistrian University of Athens, Faculty of Law.

    The increasing interest in extracting natural resources from celestial bodies raises many issues, among which guaranteeing environmental standards is paramount. There is more than a reasonable concern that industrial exploitation of the outer space lead to similar or even greater disasters than the ones already afflicting Earth. There is a consensus among the legal community that international law does provide environmental protection through the Outer Space Treaty in its Article IX. Because of its generality, however, this provision precludes the agreement from effectively protecting the outer space's environment in the context of specific activities. The present contribution aims to explore appropriate legal responses. One, often proposed, is that such a response should take the form of a new international agreement. Considering the lengthy process of treaty-making, and the reluctance of States to adopt binding international documents limiting their freedom in space, there is a high chance that space mining activities will have started by the time there is any kind of international agreement. Therefore, another approach must be envisaged, which rests with the analysis of existing environmental standards that could be leveraged to answer the challenges of space mining activities. Special attention will be paid to the enforcement of the Outer Space Treaty and how it should be combined with what is usually referred to as “soft laws”. As a conclusion, the contribution attempts to answer the question of the transforming role of States in complementing existing international standards for the protection of the outer space environment.


Gabrielle Leterre
Doctoral Researcher, Université du Luxembourg, Faculty of Law, Economics and Finance, Luxembourg.

Setsuko Aoki
Professor of Law, Keio University Law School, Tokyo, Japan.
Article

The Documentation of Human Rights Violations by Satellites: The Satellite Sentinel Project

Journal International Institute of Space Law, Issue 1 2019
Keywords Documentation of international crimes, satellite images, evidence, Space Law instruments
Authors Ingrid Barbosa Oliveira and Jonathan Percivalle de Andrade
AbstractAuthor's information

    The present work aims to examine and study the organization “The Satellite Sentinel Project”, created to monitor the commission of international crimes in Sudan, which was essential to support the attacked civilian population and document human rights violations that occurred during the Civil War. By that, it is possible to understand that space technology can also be considered an important asset in the human rights protection systems, especially regarding the production of evidence of heinous acts of violence. Therefore, an important question arises: are those images able to guarantee legal standards to human rights systems regardless of the lack of regulation of satellite use in this particular area? For this purpose, the Sudan case was studied in light of the evidence obtained by the Satellite Sentinel Project, in order to understand its effectiveness. In sequence, the Space Law instruments, which regulate Earth observation and remote sensing activities, were examined. Finally, the discussion relied on the lawfulness and admissibility of satellite imagery as evidence before accountability proceedings.


Ingrid Barbosa Oliveira
I. B. Oliveira, Faculty of Law, International Law Postgraduate Center, Catholic University of Santos, Santos, São Paulo, Brazil.

Jonathan Percivalle de Andrade
J. P. de Andrade, Faculty of Law, Department of International Law, University of São Paulo, São Paulo, Brazil.
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