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    The exploration of space originally gained impetus due to scientific interest and later owing to political and military strategies of the super powers. Today, not only United States of America and Russia, but many developing economies are interested in outer space. The economic considerations of undertaking mining in space is obvious given the abundance of resources available on the Moon, on Mars and the asteroids. Extra-terrestrial mining could cut down the costs of space travel and also provide material resources necessary for life on Earth. Private companies across the globe are investing in the exploration of space, leading to countries such as America and Luxembourg passing national legislation legalising the activities of these corporations and allowing them to appropriate to themselves the resources mined through their operations, without granting ownership of celestial bodies thereby complying with the Outer Space Treaty. This paper seeks to analyse the policy and legal implications of undertaking mining in space by commercial entities. The paper contemplates the possibility of conflict between the general principles of international space law contained in the five treaties with national legislations passed by USA and Luxembourg and more recently, the United Arab Emirates. A more unified approach by the international community on the subject of space mining is suggested which would harmonise the interests of the states as well as commercial players. The aim of this paper is to identify the legal and policy challenges in space mining and suggest a harmonised international framework which would benefit both corporations and states.


Maquelin Pereira
Maquelin Pereira, Amity University, Dubai.
Article

Space Tourism and Space Law: Approach Based on the Law Applicable to Astronauts

Journal International Institute of Space Law, Issue 1 2020
Keywords astronauts, space tourism, space law
Authors Jonathan Campos Percivalle de Andrade
AbstractAuthor's information

    Although space tourism is still an embryonic activity and has been gradually developing through private companies, it is a subject that soon, contrary to what has been happening, should occupy the great international forums that are dedicated to the space theme, such as the United Nations Committee for the Peaceful Uses of Space (COPUOS). The present work has the objective, from the existing legal regime for astronauts, especially the Agreement on the Rescue of Astronauts and Restitution of Astronauts and Objects Launched into Cosmic Space of 1968, outlining some rights that may be granted to space tourists recognized either from a specific international convention or from the analogous application of the 1968 Rescue Agreement, which, under the rules of the Vienna Convention on the Law of Treaties of 1969, proves to be more difficult in international law to occur. In any case, it seems incontestable, as observed in the 1968 Rescue Agreement, that space tourists be guaranteed the right (and at the same time the duty of States) to be saved, assisted and restored in case of problems in re-entry from the cooperation of the State that carry out these efforts jointly with the company responsible for the flight. Thus, the need to construct a regime for space tourists emerges, especially through an international convention that provides for its minimum rights, as well as the obligations of companies and States.


Jonathan Campos Percivalle de Andrade
Jonathan Campos Percivalle de Andrade, Peruíbe College, Brazil.
Article

A New Format for Space Law?

12th Nandasiri Jasentuliyana Keynote Lecture

Journal International Institute of Space Law, Issue 1 2020
Authors Stephan Hobe
Author's information

Stephan Hobe
Prof. Dr. Dr. h.c. Stephan Hobe, LL.M. is Director of the Institute of Air Law, Space Law and Cyber Law and Holder of the Chair for Public Internation Law, European Law, European and International Economic Law at the University of Cologne; Chair of the ILA Committee on Space Law; Chair of the IISL Directorate of Studies and Board Member of the European Centre for Space Law.
Article

Space Heritage: International Legal Aspects of Its Protection

Journal International Institute of Space Law, Issue 1 2020
Keywords space heritage, cultural heritage, UNESCO, space law
Authors Vladimir Savelev and Albert Khayrutdinov
AbstractAuthor's information

    The increasing involvement of States in the process of research and use of outer space, as well as the steady development of technical capabilities of space-faring commercial entities, entails a serious growth in the number of space flights. This may adversely affect the physical integrity and safety of the objects, which can be considered as space heritage for their undoubtful significance in the history of humanity. An international legal regime for a protection of such objects does not exist today. That is why necessity to analyse and summarize possible international legal aspects of the protection of historical and cultural heritage in outer space and on celestial bodies has grown and becomes the purpose of this paper. The proposed thesis will consist of 3 chapters except introduction and conclusion. The first chapter will examine the features of the legal status of ‘space heritage’. The second chapter will refer to existing practice of national initiatives into the preservation of space heritage. Thereby, the most vivid example in the field of State’s practice will be non-binding document, ‘NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the Historic and Scientific Value of U.S. Government Lunar Artifacts’, which aims to preserve the U.S. artifacts on lunar surface. Another example is the bill ‘One Small Step to Protect Human Heritage in Space Act’, which aims to protect the historic Apollo 11 landing sites. The last chapter will examine the different paths to establish appropriate protection of space heritage at the international level.


Vladimir Savelev
Vladimir Savelev, Рeoples’ Friendship University of Russia (RUDN University).

Albert Khayrutdinov
Albert Khayrutdinov, National University of Science and Technology (MISiS).
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.

    The stage has been set for humankind’s return to the Moon. This time, however, the purpose is different as the objective has been set for a permanent presence as opposed to the historic exploratory and scientific missions. A permanent presence may result in an intention that is more than purely scientific and thus conduct different from that of the historical missions. While international space law does in broad terms regulate human conduct on celestial bodies like the Moon, there have been differing interpretations of the types of conduct sanctioned by the law. There are of course also activities that might take place in breach of the law with total disregard of any international order. Irrespective of what may unfold in the future, states and other space actors that intend to participate in any Moon settlement will have to prepare themselves strategically for varying degrees of uncertainty and unfolding futures to ensure a state of situational readiness in the settlement process. This work endeavours to showcase the strength of futures methodologies to establish a range of possible futures that can inform the future status of the legal governance system applicable to the Moon landscape. This in turn can serve as the basis from which strategy can be devised that could contribute to a successful settlement mission irrespective of the unfolding future.


Anton de Waal Alberts
Anton de Waal Alberts, Provincial Legislature, Gauteng Province, Johannesburg, South Africa.

Peter Martinez
Peter Martinez, Secure World Foundation.
Article

Back to the Future: Roman Law and Ownership of Objects Created on Celestial Bodies

Journal International Institute of Space Law, Issue 2 2020
Keywords extraterrestrial settlement, Moon colony, Mars colony, ownership, Roman law, principle of specification
Authors Gabrielle Leterre
AbstractAuthor's information

    This contribution analyses the gap left by Article VIII of the Outer Space Treaty in matters involving ownership of objects created on celestial bodies and suggests leveraging the Roman law principle of specification to bridge it. Article VIII provides a clear provision: “ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and their component parts is not affected by their presence in outer space or on a celestial body …”. Ownership of an object created in space is therefore possible as long as its ownership was established on Earth. Unfortunately, it leaves open the crucial question for space activities of ownership of objects made of local resources like lunar soil, which have legally no owner. In this case, the specification principle, which has broad application through most national (terrestrial) legal orders, can provide a regime of ownership by stating that created objects belong to the creator when created out of another’s article.


Gabrielle Leterre
Gabrielle Leterre, University of Luxembourg with the support of the Luxembourg National Research Fund (FNR).

    The conception of space exploration and use as the province of all mankind is a founding principle of space law, enshrined in the Outer Space Treaty (OST) to ensure peace in outer space. In the years since the OST was drafted, the principle has retained its relevance over the years and finds expression in the Principle of Non-Appropriation, which prevents states from appropriating any celestial body in part or as a whole through claims of sovereignty, occupation or any other means. As settlements on celestial bodies move closer to reality, space law must find a place for these settlements or risk obsolescence. This paper argues for a rethinking of property rights, and eventually of sovereignty itself, in relation to the Principle of Non-Appropriation. It will explore what shape, if any, private property could take in a system where states are prohibited from claiming territory. It recommends a fresh look at the term ‘celestial body’ to apply only to larger bodies like planets and moons while excluding smaller bodies like asteroids and comets. Settlements on the newly defined celestial bodies could be defined as space objects to allow the launching states to maintain control over them. No existing state shall exercise jurisdiction over the settlements; rather an international body could grant private rights over plots of celestial bodies stopping short of absolute ownership. The paper further argues that in such a situation, the possibility of larger settlements declaring independence would have to be considered a legal possibility.


Arpit Gupta
Arpit Gupta, Gupta H.C. Overseas, arpit.gupta@guptaoverseas.com.
Article

Compromise, Commonhold and the Common Heritage of Mankind

Journal International Institute of Space Law, Issue 2 2020
Keywords commonhold, property, real estate, common heritage of mankind, colonization
Authors Chelsey Denney
AbstractAuthor's information

    This paper addresses the limitations that conflicting approaches to celestial property rights place upon the development of settlements on the Moon and Mars. It does not seek to engage in the ongoing debate about the legitimacy of private property rights in outer space. Instead, the focus is on providing an alternative method of ownership that would enable the existence of private property, whilst protecting the right of all nations to be involved in the management of a territory seen by many as the “Common heritage of mankind”. It is argued this compromise would be best achieved through a modified version of Commonhold, a system of property ownership currently used within England and Wales. The premise of Commonhold being that although owners possess the freehold title to their property, there is a shared ownership of, and responsibility for, common areas. It is proposed that a comparable system could be constructed for use within this context, with representatives from each interested country able to discuss and vote upon a number of issues relating to the management of celestial territory. This model would also facilitate the inclusion of covenants, such as a stewardship covenant, ensuring owners used their land in a sustainable way. By guaranteeing that some areas remain commonly owned, it safeguards the right of all nations to use and benefit in some way from celestial territories. Further, the credibility of a model involving multinational cooperation and management would be demonstrated by a comparison between the management committee proposed here, and the European Council and Antarctic Treaty Consultative Meetings. Ultimately, it is concluded that Commonhold provides, if not a perfect solution, at least a base upon which to work.


Chelsey Denney
Chelsey Denney, chelseydenney@icloud.com.
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.

    There is currently a gap in space law that has had a detrimental effect on private activity in outer space. Article II of the Outer Space Treaty prohibits appropriation. The Moon Treaty includes a process for overriding that prohibition (an implementation agreement (IA) under Article 11), but most countries have not adopted it because it uses the term “Common Heritage of Mankind”. But the CHM has no independent legal meaning; it is whatever the implementation agreement says it is. Both the ban on appropriation and the concerns about the CHM are addressed by the Model Implementation Agreement. Without an IA, everyone fears the worst. But if the specific language of an IA is agreed to beforehand, then countries could adopt the Moon Treaty while being assured that they are protecting their national interests.


Dennis O’Brien
Dennis O’Brien, President, The Space Treaty Project, Ukiah, CA/USA; email: dennisobrien@spacetreaty.org.

    The planned creation of colonies on said celestial bodies implies the establishment of permanent human communities on them as well as the creation of permanent structures on (or below) their surface. Obviously, this will be a new phase in the context of space use and exploration. Although, in the light of international law and space law, there can be no colonies (in the traditional sense) in outer space, plans for inhabiting the Moon or Mars can be legally justified in the context of the freedom of exploration and use of outer space. However, the spirit and the provisions of the space treaties in force do not seem able to provide a robust legal framework for the creation of such “space communities”. Consequently, the adoption of a specific, ad hoc legal framework could substantially facilitate the functioning of permanent space settlements. Νo one, however, can rule out the prospect of these newly founded communities opting for an independent and autonomous course through the adoption of their own laws.


George (Georgios) D. Kyriakopoulos
George (Georgios) D. Kyriakopoulos is assistant Professor of International Law at the School of Law, National and Kapodistrian University of Athens.

    This paper attempts to analyse how the law applicable to property rights over various things in outer space should be determined considering the framework of ‘jurisdiction and control’ provided by international law in the age of settling on the Moon and Mars. This thought experiment reveals current uncertainty and the need to embrace private interests in space law.


Fumiko Masuda
Fumiko Masuda, Okayama University.
Article

‘For All Moonkind’

Legal Issues of Human Settlements on the Moon: Jurisdiction, Freedom and Inclusiveness

Journal International Institute of Space Law, Issue 2 2020
Keywords settlements, moon, jurisdiction, freedom, inclusiveness
Authors Frans G. von der Dunk
AbstractAuthor's information

    After a long period of subdued interests in the Earth’s single celestial companion, plans to send humankind back to the Moon are hatched in abundance again, and one major difference is that this time many of those plans focus on remaining there and ultimately build semi-permanent or even permanent habitats. This obviously raises a number of issues that the short visits to the Moon by humankind so far, manned as well as unmanned, did not raise. Most fundamentally, the absence of exercise of jurisdiction on a territorial basis (as per Article II of the Outer Space Treaty) may no longer be sufficient to guarantee the baseline freedom of exploration and use (as per Article I of the Outer Space Treaty). Questions now arise as to how far the quasi-territorial jurisdiction over registered space objects (as per Article VIII of the Outer Space Treaty) can continue to exclude access to such space objects once transformed to or included in permanent habitats on the Moon in spite of the requisite free access to all areas as well as all stations and installations there (as per Articles I and XII of the Outer Space Treaty) and the similarly foundational understanding that activities on the Moon should be for the benefit and in the interests of all countries (as per Article I of the Outer Space Treaty). At what point would (hu)mankind settling on the Moon effectively become ‘Moonkind’, and what changes would, or should, that give rise to? These are the overarching questions the present paper will tackle.


Frans G. von der Dunk
Frans G. von der Dunk, University of Nebraska-Lincoln, College of Law, Space, Cyber and Telecommunications Law Program. No affiliation whatsoever exists between the author and the organization ‘For All Moonkind’; this paper does in no way represent or reflect the aims or opinions of that organization; and neither the title nor the contents of the paper are in any way intended to serve as endorsements of, interference with or otherwise result in harm to the mission of that organization.
Article

Developing and Managing Moon and Mars Settlements in Accordance with International Space Law

Journal International Institute of Space Law, Issue 2 2020
Keywords Artemis Accords, Moon village, Mars city, International Space Station, adaptive governance, space law
Authors Antonino Salmeri
AbstractAuthor's information

    Moving from the premise that future Moon and Mars settlements shall not take place in a lawless space, this paper addresses the question of how to develop and manage them in accordance with international space law. To this end, it conducts a systematic analysis of the Outer Space Treaty (OST), with the goal of assessing the scope of the freedom to use celestial bodies under international space law. Based on this analysis, and building on the successful experience of the International Space Station, the paper proposes the development of open international settlements made of shared modular facilities. In accordance with the principles of adaptive governance and subsidiarity, the paper argues that the regulation of such settlements should be based on a multi-level framework integrating international recommendations and bilateral arrangements. Under the proposed governance scheme, international recommendations should provide a general framework enabling the development of the settlement, while leaving its management to the mutual agreement of the parties.


Antonino Salmeri
Antonino Salmeri, University of Luxembourg. Doctoral Researcher in Space Law at the University of Luxembourg, under the supervision of Prof. Mahulena Hofmann and with the support of the Luxembourg National Research Fund (FNR) (PRIDE17/12251371). Email: antonino.salmeri@uni.lu.

    With the shortage of space and resources on earth to support increasing human population, plans are devised for human habitation on the moon and other celestial bodies. While the State agencies of the developed States are involved in implementing such plans from a long period of time, the private space players are not far behind in involving themselves in such endeavours. Rapid scientific and technological innovations are indicating the fact that the idea of human settlement on the moon and other celestial bodies is not a far-fetched dream. However, the possible legal impediments under the international space treaties as well as under conflicting municipal laws seem to be the major concerns in the practical implementation of such a fascinating idea. To start with, it is significant to bear in mind that the international space law has developed on the basis of the principle of common rights as against individual rights. In furtherance of this spirit of common rights, one of the fundamental principles of international space law is the principle of national nonappropriation enshrined under Article II of the Outer Space Treaty 1967. The idea of celestial settlement is seen as a threat to this fundamental principle as human settlements might lead to the claim of State sovereignty and consequently national appropriation in contravention of Article II. An incidental question that arises out of such settlements is also the possibility of private property claims and rights for resource exploitation by the settlers, which again brings forward debates under Article II of the Outer Space Treaty and Article 11 of the Moon Agreement 1979. Protection of celestial environment is another area of concern arising out of celestial settlements. While the celestial environment is known to be fragile, the current treaty norms under Article IX of the Outer Space Treaty and Article 7 of the Moon Agreement are grossly inadequate to regulate environmental pollution. Added to this, the liability norms under the space treaties are human-centric, and hence, they don’t fix any liability for damage caused to celestial environment. Another limb of concern in celestial settlements stems from the need for regulating the activities of settlers. While there would be concerns about the applicable law governing the human activities, exercise of jurisdiction and law enforcement would become much more complicated in the absence of judiciary and executive machinery on the celestial bodies. Hence, the celestial settlements need to be organised and well-planned to avoid the situation of costs outweighing the benefits in economic, social and legal sense.


Sandeepa Bhat
Prof. Dr. Sandeepa Bhat B, Professor of Law, The WB National University of Juridical Sciences Salt Lake City, Kolkata, India. E-mail: sandeep@nujs.edu.
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.

    In 1986 the UN General Assembly adopted the Remote Sensing Principles, a set of voluntary guidelines aimed to govern a newly established field of space activities. In the discussions that preceded the adoption of the Principles, States expressed their concerns about the new technology that enabled the continuous observation of the Earth from outer space. The concern that Earth observation would provide unfair advantage to the few States that were able to procure remote sensing satellites, combined with an effort to secure their corresponding national interests, prompted States to agree to conduct remote sensing activities on the basis of “respect for the principle of full and permanent sovereignty of all States over their wealth and resources and with regard to the rights and interests of other States and entities under their jurisdiction”. This paper will examine how the principle of respect to State sovereignty functions in light of the advancements in Earth observation applications, namely the improving resolution of satellite imagery, the capabilities of high-throughput satellites to store and disseminate data, as well as the growing convergence of space technology in non-space applications. In particular, it will examine the extent to which countries can exercise their sovereign right over information regarding territories under their jurisdiction, when this information is gathered by satellites. To this end, it will focus on the concept of sovereignty as it was formulated in the UN Remote Sensing Principles, by comparison to equivalent regimes for monitoring from the air and from the sea. Whereas space law establishes the freedom of exploration and use of outer space, an area outside the sovereignty of any State, air law, law of the sea and other fields of international law limit the freedom of conduct of other States within the territory under a State’s jurisdiction without that State’s explicit permission. The paper will also assess the benefits and drawbacks of the rapid development of Earth observation technology and the effects of the regulatory limitations in this regard. Ultimately, it will support that the current legal regime should not be interpreted as hindering the evolution of remote sensing, but as encouraging the identification and overcoming of the rising challenges, in order to enhance the benefits from Earth observation technology and its applications.


Dimitra Stefoudi
Dimitra Stefoudi, International Institute of Air and Space Law, Leiden University, the Netherlands.

    Remote sensing satellites are applying in different fields for a long time. The last two decades have shown a growing trend towards an application of the remote sensing results in the litigation. In territorial, maritime and other disputes parties start using images acquired by remote sensing satellite as an evidence. Unfortunately, not all international judicial institutions take the remote sensing results into account in its decisions. One of the main obstacles is probability of providing falsified information by the numerous service providers in the remote sensing area. On the one hand remote sensing technologies are available to everyone, on the other hand, quality of such images or credibility can be challenged by the disputing party or by the Court itself. To resolve this problem a special universal independent organization-provider of the “pure data” can be created. Also, international space law is silent about possible ways how to share of the remote sensing data or whether it is necessary to establish a special fund. By contrast, States have already started to make governmental funds of remote sensing results at the national level. This paper attempts to suggest the best way of the consolidating results which have been made by the governmental, international non- and intergovernmental organizations for creating the world fund of remote sensing data. The article consists of 3 parts: analysis of the case study, forms of international cooperation of the States and organizations on the sharing/buying of the remote sensing date and international legal aspects of this issue.


Irina Chernykh
Irina Chernykh, Department of International Law, Peoples’ Friendship University of Russia RUDN University.
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