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Article

The Principle of Non-Appropriation and the Exclusive Uses of LEO by Large Satellite Constellations

Journal International Institute of Space Law, Issue 8 2018
Keywords Non-Appropriation Principle, LEO, Exclusive Use, Large Satellite Constellation, Mega Constellation
Authors Yuri Takaya-Umehara, Quentin Verspieren and Goutham Karthikeyan
AbstractAuthor's information

    Newly proposed projects of large satellite constellations are challenging the established business models of the satellite industry. Targeting the Low Earth Orbit (LEO), already the most populated orbit for space applications, these constellations pose an increasing risk regarding the sustainable use of outer space. According to the Inter- Agency Space Debris Coordination Committee (IADC), presenting at the Scientific and Technical Subcommittee of the UN COPUOS in 2018, the implementation level of the IADC Space Debris Mitigation Guidelines in LEO is considered as “insufficient and no apparent trend towards a better implementation is observed", when compared with GEO. In parallel, 11 private entities such as OneWeb, Telesat and SpaceX have applied for approval from the U.S. Federal Communications Commission (FCC) to initiate large satellite constellation projects.
    Before the launch of these massive constellations, several legal issues have been identified from the perspectives of international obligations related to liability and registration. Taking them into consideration, as well as the IADC recommendations, the present article reviews one of the most fundamental principles in space law, the principle of non-appropriation, to clarify its applicability to the exclusive use of specific LEO orbits by large satellite constellations. After this clarification, the paper concludes with proposals for possible solutions.


Yuri Takaya-Umehara
The University of Tokyo.

Quentin Verspieren
The University of Tokyo.

Goutham Karthikeyan
The University of Tokyo & Institute of Space and Astronautical Science, Japan Aerospace Exploration Agency (ISAS-JAXA).

Helena Correia Mendonça
Vieira de Almeida & Associados.

Magda Cocco
Vieira de Almeida & Associados.

Cristina Melo Miranda
Vieira de Almeida & Associados.

P.J. Blount

Rafael Moro-Aguilar
Article

Access_open Personhood and legal status: reflections on the democratic rights of corporations

Journal Netherlands Journal of Legal Philosophy, Issue 1 2018
Keywords Corporations, democracy, legal personality, personhood, inclusion
Authors Ludvig Beckman
AbstractAuthor's information

    Corporations can have rights but whether they should also have democratic rights depends among other things on whether they are the kind of entities to which the democratic ideal applies. This paper distinguishes four different conceptions of “the person” that can have democratic rights. According to one view, the only necessary condition is legal personality, whereas according to the other three views, democratic inclusion is conditioned also by personhood in the natural sense of the term. Though it is uncontroversial that corporations can be legal persons, it is plausible to ascribe personhood in the natural sense to corporations only if personhood is conceptualized exclusively in terms of moral agency. The conclusion of the paper is that corporations can meet the necessary conditions for democratic inclusion but that it is not yet clear in democratic theory exactly what these conditions are.


Ludvig Beckman
Ludvig Beckman is professor of political science at Stockholm University.

    The judgment of the Inter-American Court of Human Rights in the case of Kaliña and Lokono Peoples v. Suriname is noteworthy for a number of reasons. Particularly important is the Court’s repeated citation and incorporation of various provisions of the 2007 United Nations Declaration on the Rights of Indigenous Peoples into its interpretation of the American Convention on Human Rights. This aids in greater understanding of the normative value of the Declaration’s provisions, particularly when coupled with the dramatic increase in affirmations of that instrument by UN treaty bodies, Special Procedures and others. The Court’s analysis also adds detail and further content to the bare architecture of the Declaration’s general principles and further contributes to the crystallisation of the discrete, although still evolving, body of law upholding indigenous peoples’ rights. Uptake of the Court’s jurisprudence by domestic tribunals further contributes to this state of dynamic interplay between sources and different fields of law.


Fergus MacKay JD
ECtHR Court Watch

ECtHR 23 January 2018, application no. 15374/11, Unfair dismissal, Other fundamental rights

Mr Güç – v – Turkey, Turkish case

Journal European Employment Law Cases, Issue 1 2018
Keywords Unfair dismissal, Other fundamental rights
Abstract

    Dismissal for harassment despite acquittal in criminal proceedings is not incompatible with Article 6(2) of the Convention (presumption of innocence).

Law Review

Access_open 2018/1 EELC’s review of the year 2017

Journal European Employment Law Cases, Issue 1 2018
Authors Ruben Houweling, Catherine Barnard, Zef Even e.a.
Abstract

    This is the first time we have produced a review of employment law cases from the previous year, based on analysis by various of our academic board members. But before looking at their findings, we would first like to make some general remarks.


Ruben Houweling

Catherine Barnard

Zef Even

Amber Zwanenburg

Daiva Petrylaitė

Petr Hůrka

Jean-Philippe Lhernould

Erika Kovács

Jan-Pieter Vos

Andrej Poruban

Luca Ratti

Niklas Bruun

Francesca Maffei
ECtHR Court Watch

ECtHR 23 January 2018, application no. 60392/08, Unfair dismissal, Other fundamental rights

Seven – v – Turkey, Turkish case

Journal European Employment Law Cases, Issue 1 2018
Keywords Unfair dismissal, Other fundamental rights
Abstract

    The Turkish Supreme Administrative Court cast doubt on a dismissed police officer’s innocence by failing, in an appeal review, to take proper account of the fact that he had been acquitted of rape, in breach of the presumption of innocence contained in Article 6 §2 of the European Convention on Human Rights.

Article

What Are Space Resources? What Are Celestial Bodies?

The Need for Refined Legal Definitions in View of Recent Regulatory Efforts Concerning Space Resources

Journal International Institute of Space Law, Issue 5 2018
Authors Irmgard Marboe and Michael Friedl
AbstractAuthor's information

    Recent efforts in the regulation of the use of space resources have raised controversial discussions about the compatibility of respective national legislation with international law. The situation is relatively unclear, also because key terms in this context have so far remained relatively vague and undefined under international law, including most importantly the terms space resource and celestial body. The purpose of the present paper is to examine how these terms, as they are used in the UN space treaties, should and could be defined in order to provide better guidance to national legislators and international fora concerned with the formulation of recommendations on space resources governance at the international level. In addition to Articles 31 and 32 of the Vienna Convention on the Law of Treaties, approaches and definitions used in practice by scientists, such as astronomers, astrophysicist, and engineers, will be taken into account.
    As regards the term space resource it will be addressed to what extent the difference between renewable and non-renewable resources may be relevant for the legal qualification of outer space resources and the regulation of their use. As regards the term celestial body it will be asked whether it could be meaningful to differentiate the Moon – and other planets and stars – from asteroids in the development of legal regimes governing their use and exploitation. In this respect, recent scientific findings will be presented in more detail.
    Technological progress and its legal implications shall be discussed in view of the historical development of the legal regime of outer space, including the concepts of freedom of use, benefit of mankind and common heritage of mankind. The paper will also address comparable concepts and their development in the law of the sea.


Irmgard Marboe
University of Vienna, Austria.

Michael Friedl
University of Vienna, Austria.

Roy Balleste
School of Law, St. Thomas University, 16401 NW 37th Avenue Street, Miami Gardens, Florida 33054, USA.

    Since its inception, space law has been governed by principles and rules established by governments and primarily applicable to government activities. Today we are experiencing policy changes to encourage private sector initiatives to carry out government missions and to expand potential profit-making opportunities. The space treaties allow for nongovernmental activities in space but only under the auspices of a nation. Each nation approaches legal solutions in their own way. These variations in national law may create challenges for all space-faring nations. If there are no international agreements, they may create a more fragmented, unpredictable, and unsustainable environment for all participants, both governments and private companies in outer space.
    The fragmentation of international law is defined by the development of sets of rules pertaining to specific subject areas that may claim autonomy from principles of general international law. Those subject areas reflect the larger global issues that include the environment, energy, resource availability, migration, health, and the proliferation of weapons of mass destruction. Space law is unique and may be considered one of the fragmented areas of international law. The principles of the now 50-year old treaties have been formally acknowledged by all space-faring nations. New developments may threaten that.
    At issue are many areas of space law including liability, property rights, and environmental harm. Different on-orbit space activities such as satellite servicing, exploiting resources, and removing debris highlight the types of space activities with many similar legal concerns but which may result in different rules in different nations and even for different rules within a nation. New and growing legal tensions among space-faring nations will arise.
    Solutions to this problem are all suboptimal. Neither top-down oversight nor separate bottom-up rules or guidelines will suffice as stable, predictable, and long-lasting regimes that create a favorable legal environment for future public and private space exploration and use.


Henry R. Hertzfeld
Director and Research Professor, Space Policy Institute, George Washington University, Washington, DC; hhertzfeld@law.gwu.edu.

    Artificial intelligence is an emerging technology which is anticipated to revolutionize society and industry. Artificial intelligence also presents a potential technological component to ensure the cyber and physical security of space assets. However, the use of artificial intelligence in space assets may conflict with certain legal obligations or duties imposed by the space law treaty regime.
    Outer Space Treaty Article VIII obligates a State to retain control over a space object it launches. Using artificial intelligence in space assets presents the question of whether such reliance abdicates a State’s obligation to retain control over a space object it launched or which is registered to it. If so, then issues will exist regarding how a State may balance the use of artificial intelligence in space assets with its obligations under the Outer Space Treaty. For instance, in the emerging autonomous or driverless motor vehicle technology, some jurisdictions in the United States are contemplating laws which mandate human ability to override or otherwise intervene in decision making by artificial intelligence in certain circumstances.
    Similarly, Article III of the Liability Convention imposes liability based on a State’s fault or fault of persons for whom the State is responsible. The use of artificial intelligence in space assets presents the possibility of negating Article III’s fault-based concept. The unsettled liability issues associated with autonomous motor vehicles may very well foreshadow liability and fault allocation issues arising from the use of artificial intelligence in space assets.
    This paper will examine whether the use of artificial intelligence in space assets conforms with a State’s obligation under Outer Space Treaty Article VIII and Liability Convention Article III and analyze what measures, if any, may be necessary to ensure that the provisions are not undermined by the use of artificial intelligence in space assets.


George Anthony Long
Managing Member, Legal Parallax, LLC, United States. gal@legalparallax.com.

    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.

    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

A Vital Artery or a Stent Needing Replacement?

A Global Space Governance System without the Outer Space Treaty?

Journal International Institute of Space Law, Issue 4 2018
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.

Irina Chernykh
Department of International Law, RUDN University.
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

Journal International Institute of Space Law, Issue 4 2018
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.

Catherine Doldirina
International Institute of Space Law, Italy, kdoldyrina@yahoo.com.
Article

Big Data Flow from Space to the EU

Open Access and Open Dissemination Policy vs. the Common European Data Space

Journal International Institute of Space Law, Issue 3 2018
Authors Maria Elena De Maestri
Author's information

Maria Elena De Maestri
University of Genoa.

    The paper provides an overview on recent legal issues in Earth Observation data and services resulting from changes in technologies and markets, which at least some qualify as disruptive. The developments bring some well-known legal issues in Earth Observation into new perspectives. In addition, many typical legal issues in the IT and E-commerce sectors become now directly relevant in Earth Observation.
    The market for Earth Observation data and services is changing dramatically. Around the world, government agencies and commercial companies are investing in new Earth Observation satellites, sometimes including large constellations of small satellites. The rise of Earth Observation satellites goes along with a massive increase in available data. Overall, the Earth Observation market is showing positive developments, with average yearly growth rates of 10% or more. Earth Observation data and services are now increasingly provided via the internet, through online platforms with typical ecommerce type elements. Cloud computing services are used to handle the massive data volumes to be accessed via such platforms. Generally, we see a slow shift from the traditional data provision approach based on data licenses to more comprehensive services based on contracts and related Service Level Agreements (SLA). From the legal perspective, the above-described technology and market developments do not raise previously unknown issues. Commercial E-commerce platforms and Cloud Computing services have been introduced since several years and the legal issues related to them have been tackled by legislation, codes of conduct and business practice. However, the transposition to and use within the Earth Observation sector raises challenges for institutional and commercial stakeholders. In addition, some well-known legal issues in Earth Observation come into new perspectives. This includes data policies, copyright, data licensing, personal data protection, standardization and interoperability, as well as warranty and liability for Earth Observation data and services. The paper provides an overview from a European perspective.


Ingo Baumann
BHO Legal, Germany, ingo.baumann@bho-legal.com.
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