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Article

Arbitration of Space-Related Disputes

Case Trends and Analysis

Journal International Institute of Space Law, Issue 1 2020
Keywords arbitration, dispute resolution, space-related disputes, satellites
Authors Vivasvat Dadwal and Madeleine Macdonald
AbstractAuthor's information

    Despite a consistent annual increase in the number of space-related disputes, the distinct role of arbitration in the resolution of these disputes remains understudied. To our knowledge, there exist no consolidated catalogues for publicly-reported space-related disputes that have been resolved through international arbitration. This research begins to fill that gap by cataloguing all publicly-reported space-related disputes that have been resolved through international arbitration to date. Results are categorized and analyzed according to: (i) type and subject matter of dispute submitted to international arbitration, as organized by industry and topic; (ii) kind of disputant currently employing international arbitration, as organized by type and size of actor; (iii) applicable law used in international arbitration; (iv) seat; and (v) arbitral institution administering the dispute. Results shed light on current industry practices and complement existing research on the use of arbitration clauses by companies providing space-related products and services. Scholars, policymakers, and legal practitioners may use the data to assess the strengths and weaknesses of the current dispute-resolution infrastructure and to inform future practices in the resolution of space-related disputes.


Vivasvat Dadwal
Vivasvat Dadwal, King & Spalding LLP.

Madeleine Macdonald
Madeleine Macdonald, Justice Canada.

    Satellite Constellations are often brighter and visible in the night sky and therefore an increase in the number of satellite constellations in the Earth’s orbit can threaten the dark skies of the earth. The bright trails of these satellites constellations on the Dark skies in large numbers can interfere with various Astronomical activities. Considering these interferences, this paper will discuss the legal measures under International Space law to protect Dark skies from Satellite constellations. Firstly, this paper will emphasize how an extension of the “Equitable Access principle” by the ITU to LEO and MEO will help in regulating the number of operating Satellite Constellations, thereby reducing the disturbances caused to Dark skies of the earth. Secondly, this paper will analyse how the concept of “Milestones based launching” of Satellite constellations as agreed under WRC 2019 can help in shaping mitigation measures. Thirdly, this paper will emphasize on the Role of Domestic Regulators such as FCC of U.S etc. and the development of National Policies to regulate Satellite Constellations in order to prevent their pollution of dark skies. Finally this paper will evaluate the importance of World Heritage Convention 1972 in protecting the Dark Skies.


Tejas Bharadwaj
Tejas Bharadwaj, BA. LLB Hons. Energy Law, University of Petroleum and Energy Studies, Dehradun.
Article

Charting a Human Rights Framework for Outer Space Settlements

Journal International Institute of Space Law, Issue 2 2020
Keywords rule of law, human rights, governance, sustainability, space law
Authors Jonathan Lim
AbstractAuthor's information

    The advancing commercialization and democratization of access to space requires a reconceptualization of the foundational principles and values offered by international human rights law (IHRL) to the specific technical, physiological, and legal challenges of outer space. The notion of human rights seeks to establish and safeguard the dignity and value of every human being – it is inherent, broad, and aims to promote tolerance, equality and respect in reducing conflict across diverse and isolated human communities. Technological advancements have given rise to novel and unanticipated human rights concerns in an era where the development of the law lags behind technology. Human rights offer a multitude of benefits conducive to the advancement of prolonged human habitation and activities in outer space. Determining what novel fundamental human rights are required in the context of space requires and understanding premised upon human dignity, respect, and fairness – as underpinned by their relation to human health, safety, wellbeing, and dignity.


Jonathan Lim
Jonathan Lim, Jus Ad Astra.
Article

Data Law Aspects of Commercial Satellite Remote Sensing: New Challenges for the New Opportunities

Journal International Institute of Space Law, Issue 3 2020
Keywords commercial satellite remote sensing, satellite data, personal data law, platform
Authors Souichirou Kozuka and Mayu Terada
AbstractAuthor's information

    As the commercial satellite remote sensing has grown to bear the typical features of data industry, the relevance of data law to this industry sector has become apparent. However, the data law differs significantly from one jurisdiction to another. The difference is especially big with regard to the regulation on profiling. Given such feature of data law, it should be crucial that the data law does not undermine the internationally recognised principle of the freedom of remote sensing activities, pronounced in the United Nations Principles of Satellite Remote Sensing. It is the cause of difficulties that the commercial satellite remote sensing faces, because the satellite data most likely threatens the personal privacy when used as part of the “big data” and identifies a person through profiling. One possible solution may be to interpret and implement the data law in a manner that least compromises the principles on satellite remote sensing developed by the space law. Another, more practical solution is to develop private arrangements, requiring the data provider to guarantee compliance with the relevant data law, as well as indicating the standardised conditions for trade in data on the platform. Lawyers should find the way to respect both the space law and data law and ensure that the “free flow of data with trust” is realised for satellite data.


Souichirou Kozuka
Souichirou Kozuka, Faculty of law, Gakushuin University.

Mayu Terada
Mayu Terada, Department of Politics and International Studies, International Christian University.

    Outer Space Treaty Article VI imposes State responsibility for the outer space activities of non-governmental entities subject to its jurisdiction. The intersection of outer space and cyberspace presents the issue of when a cyberspace activity constitutes a space activity for purposes of Article VI. The answer is fairly direct when a cyber activity is performed or engaged in by a satellite or other space object situated in space. The answer is not as clear when terrestrial cyber activity is deployed that has an effect in outer space. This paper will explore when and under what circumstances terrestrial cyber activity of non-governmental actors can be deemed to be a space activity which evokes State responsibility under Article VI. This necessitates examining what constitutes a “space activity” for purposes of Article VI. Since the Outer Space Treaty does not define the term “space activity,” the issue exists as to whether the term “space activity” is subject to definition by domestic legislation or whether it is subject to international definition. Although Article VI uses the mandatory term “shall,” it is unclear if State responsibility is strictly applied without any exception or if factors such as the actor’s intent or lack of intent, and/or the State’s exercise or lack of exercise of supervision or due diligence are relevant in determining whether a State has complied with its Article VI’s supervisory responsibility for terrestrial cyber activity of natural or juridical persons subject to its jurisdiction. Lastly, the paper will briefly explore whether a State can sufficiently supervise the terrestrial cyber activities of its nongovernmental actors which may constitute a space activity.


George Anthony Long
George Anthony Long, Managing Member, Legal Parallax, LLC, United States; www.legalparallax.com, gal@legalparallax.com. © George Anthony Long (2020).
Article

Domestic Legislation and Challenges Related to Outer Space Laws in Pakistan

Journal International Institute of Space Law, Issue 5 2020
Keywords lawmaking process, treaty implementation, national space policy, civil space agency, national space regime, Pakistan space program
Authors Shakeel Ahmad
AbstractAuthor's information

    In Pakistan, there exists valuable technical and entrepreneurial capability that could be used to take full advantage of space benefits for national economic development. However, the country has not yet become a full spacefaring nation as compared to some other States. At national level, there is a strong realization to uplift national space program and many initiatives are being taken. However, lack of political will, interest in space related public policies are the main hindrances to formulate national space laws. The existing general national laws of Pakistan are somewhat relevant to outer space exploration and use, however, lack in full and systematic support of new developments as compared to various spacefaring nations. These are the challenges that must be addressed by Pakistan in order to legislate and to revisit its present structure, both legislative and decision-making, for outer space activities. This paper critically analyzes the domestic legislative hurdles and challenges with a view of recommending the adoption of relevant national laws and regulations in order to develop and sustain a full space economy as well as to implement Pakistan’s international obligations, in line with some other States.


Shakeel Ahmad
Shakeel Ahmad, Erin J.C. Arsenault Research Fellow, Institute of Air and Space Law, McGill University; email: shakeel.ahmad@mcgill.ca. Author has also served as a focal person for Centre of International Law at NDU, Islamabad, Pakistan.

    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.

    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.

    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.

    The present paper focuses on analysis of international humanitarian law application to space in the light of IHL status as lex specialis due to circumstances of armed conflict and space law status as lex specialis due to area of application. How “non-aggressive” and “non-military” activities correlate to possibility of use of force and recourse to self-defence in space? Shall international humanitarian law norms prevail over regulations under international space law on use of weapons and establishment of semi- and demilitarized zones? Are attacks on space objects, which have plurality of launching states, legitimate? In which cases targeting dual-use space objects is legal? Following answers to these questions the paper draws attention to theatre of war in space area and destruction of space objects in light of damage caused by space debris to space environment. Issues of combatants from civilians distinction among astronauts and obligations on rendering assistance to them are analysed. Based on the done analysis the paper elaborates on proper modes of actions in the situation of international armed conflict in space from the point of view of both, international space and humanitarian law obligations fulfilment. Possibility of non-international armed conflict in space due to plurality of launching states of space objects is presented. Finally, topics for further research are introduced (obligations of neutral parties in control of private national space activities and compensation of damage, caused by space objects, during armed conflict) and conclusions on future development of space related international humanitarian law norms are formulated.


Darya Bohdan
Darya Bohdan, PhD Student at Department of International Law, Belarusian State University, Minsk, Belarus. This paper represents the personal opinion of the author and shall not be attributed to any organization with which she is affiliated.
Article

An International Trust Model to Deal with the New Space Era

From the “De Iure Condito” Regime to a “De Iure Condendo” System for Outer Space

Journal International Institute of Space Law, Issue 7 2020
Authors Ivan Fino
AbstractAuthor's information

    Considering the acceleration of climate change, in the future outer space might be our last Noah’s Ark. Humans must now look to space as an opportunity to support growing resource requirements. Unfortunately, the existing international legal framework discourages investments in the space economy. Once an enterprise invests in developing a mining site, it cannot claim any ownership because of the non-appropriation principle of Article 2, Outer Space Treaty (OST); thus, other entities could legally access and exploit the same resource without any participation in the initial financial investment. Taking this into consideration, the question arises, which legal regime could ensure effective allocation of resources? The aim of this research is to develop a new legal model for outer space, considering the weak points of the current regime and the needs of the new space economy. Food for thought will be drawn from the hypothetical adoption of various international environments’ legal framework. The proposed model would take the best features of these legal regimes and its structure would be based on a mix between a classical legal trust model and a public trust model.


Ivan Fino
Ivan Fino, Università degli Studi di Torino, Facoltà di Giurisprudenza; ivan.fino@edu.unito.it.

    In 2020, SpaceX, OneWeb, and other companies lead the construction of the space-based internet constellation. Although it may take time for these constellations to enter extensive commerce, for space-based internet constellation operators (hereinafter Operators), obtaining an operating license is as important as achieving technical goals. As the laws and regulations on telecommunication qualification authorization, radio equipment type approval (hereinafter TA), and cross-border data protection, and Operators need to conduct compliance reviews before conduct business in accordance with the characteristics of their spacebased internet access products. Factors such as a vast land area, huge population, and complex terrain are expected to create a huge satellite Network market in China.

    This paper will analyze and classify the satellite Network products related to China’s laws and regulations currently in force. This paper focuses on Regulations of the People’s Republic of China on the Management of Radio Operation, Administrative Provisions on the Establishment of Space radiocommunication Networks as well as the Setup and Use of Earth Stations, Telecommunication Regulation of the People’s Republic of China, and other related regulations, etc. This paper will give a brief compliance guide for satellite network operators who plan to conduct business in China by analyzing business models and laws. Finally, this paper will analyze the legislative trends of laws and regulations related to the satellite network and policy trends and the changes and opportunities that may be brought to satellite network compliance.


Huxiao Yang
Huxiao Yang, Innovation Academy for Microsatellites of CAS, Building 4-5, No. 99 of Haike Rd, Zhangjiang High-Tech Park, Shanghai, P.R.China 210210, yanghx@mircosate.com.
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