Search result: 24 articles

x
The search results will be filtered on:
Journal International Institute of Space Law x Year 2018 x

    Currently, the space industry is witnessing a commercialisation wave which, at least in parts, can be considered as disruptive. New technology and market trends associated to this commercialisation wave are circumscribed by the term NewSpace. Along with the NewSpace trend, there is a wave of investment in commercial space activities. Favourable framework conditions supporting commercialisation are key factors for investment decisions and the commercial success of companies along the entire value chain.
    Laws and regulations concerning commercial space activities are established in many countries, but they are currently reviewed and amended in the light of technology and market trends. Certain new services and applications are not yet addressed under national laws, or there is no consensus on their treatment at international level. Overall, there are significant uncertainties and/or evolutions regarding the legal framework in which space companies are operating. Companies along the value chain require different types of governmental approvals, including licenses under national space legislation, licenses under national telecommunications or media law, frequency assignments, market access authorizations, or export/import licenses. Delays in authorisation procedures and/or the denial/revocation of governmental approvals may have serious impacts on investments in space ventures.
    So far, investment treaties have not been extensively employed by the space industry for ensuring favourable political and legal conditions supporting their activities. However, the wave of commercial space companies and activities around the globe raises questions on the potential future role of public investment law.


Erik Pellander
BHO Legal, Germany, erik.pellander@bho-legal.com.

    The three “global commons (GC)” Antarctica, outer space and the high seas/deep seabed, which do not fall under the sovereignty of States (“State-free”), have become a symbol of peaceful cooperation and coordination of the international community. The international treaties which have already been negotiated from the 1950s show an astonishing degree of foresight concerning common public interest. Today, however, each of the three spaces is at risk in at least one of the following areas: peace and arms control, sustainability of use, and just and fair distribution of resources and benefits. This has gone so far that States have begun questioning the concept of nonappropriation. Could this potentially lead to conflicts – even armed conflicts? A new approach to the preservation and fair management of the GC is therefore necessary and requires appropriate political and diplomatic action. This paper intends to tackle the three GC together in order to identify steps for further developing their governance and to investigate, whether joint diplomatic initiatives for the three GC could be more effective than isolated efforts to deal with single hotspots. It will be argued that the future of the GC lies in the establishment of comparable moratoria, thresholds, fees and codes of conduct drawing from best practices in one or more of the three GC.


Kai-Uwe Schrogl
European Space Agency (ESA).
Article

The Proposed Public Procurement for Projects to Enhance Industrial Capabilities through Japanese Lessons Learned

Journal International Institute of Space Law, Issue 9 2018
Keywords H-IIA, H3, Ariane 6, COTS, public private partnership, procurement
Authors Mizuki Tani-Hatakenaka
AbstractAuthor's information

    This paper discusses a framework for governmental projects to enhance industrial capabilities through the lessons learned from the Japanese contractual practice of H3 launch vehicle, comparing with the NASA’s Commercial Orbit Transportation Service (COTS). In 1995, the research and development (R&D) of the H-IIA was started by a former body of JAXA, and each manufacturer was responsible for delivery as required. After twelve-times launches, the operation was privatized to Mitsubishi Heavy Industry, Ltd. (MHI). Concerning H3, MHI was selected as a R&D contractor and a launch provider. MHI established the H3 rocket system specification and responsible for delivering the first vehicle to JAXA in 2020, and JAXA is responsible for the total system including its launch base and the H3 flight demonstration. Such a framework gives MHI more creative freedom, but there can be a room for further clarification of the responsibilities. Coincidentally, such a framework between public and private entities is similar to that of the European new flagship launch vehicle, Ariane 6.
    Meanwhile in NASA’s COTS, partners are responsible for all of the development and operation but they are not required to deliver their vehicles to NASA, contrary to H3. It allows clear role allocation and companies’ maximum creativity. A series of contracts of the Commercial Resupply Services (CRS) after COTS is also remarkable to promote private investment, for example, around half of the total R&D cost is borne by private sectors. Also, cost accounting method does not seem to be applied for the price setting.
    The framework like H-2A is still necessary for high-risk R&D conducted by governmental agencies. It will be, however, necessary for projects, which aims at enhancing industrial capabilities through transferring the operations to the private sectors and encouraging innovation, to be taken different measures in relation to selection of prime contractor, delivery and payment in the development phase and to procurement of launch services in the operating phase.


Mizuki Tani-Hatakenaka
Adv. LL.M Student of Air and Space Law, Law School, Leiden University, Steenschuur 25, Leiden, 2311 ES, the Netherlands, tani.mizuki@jaxa.jp.
Article

Fledgling Polish Space Industry Ready for Lift–Off

Law as a Risk Management Tool in the Emerging Space Sector

Journal International Institute of Space Law, Issue 9 2018
Keywords outer space, space activity, national space law, liability in space law, Polish space law
Authors Katarzyna Malinowska
AbstractAuthor's information

    This paper presents an overview of recent developments in Poland from a regulatory and institutional point of view, as well as at a programme level. Though Poles played an active part in setting out the foundations of the international space law, largely through the pioneer of space law – Polish Professor Manfred Lachs – for many years the Polish space industry barely existed, consisting only of the activities of a few engineers brave enough to set up start-ups and cooperate with big international players. The situation changed in 2012, when Poland joined ESA as a full member. Joining ESA and opening up the space industry to small players can be perceived as a significant trigger for the boost of Polish space projects. The first results came quickly. The number of Polish companies active in the sector is growing rapidly, already reaching 300 companies, forming a consistent, consolidated group of large, medium and small enterprises. Over the last five years, the attitude of the government has also been changing.
    Concerning regulatory challenges, Poland has still not adopted comprehensive space legislation, though in July 2017, a draft law on space activity was published by the government. The legal concept adopted in the national space law, especially about risk management, may influence the development of the whole national space activity, which still suffers from insufficient capital to bear the high level of risk related to ultra-hazardous activity such as space activity. The recent tendencies covering small sats, New Space, suborbital flight and space mining are also the subject of pending legislative discussions.


Katarzyna Malinowska
Professor at Kozminski University, Poland, katarzynamalinowska@kozminski.edu.pl.

P.J. Blount

Rafael Moro-Aguilar

    This article studies five category of malicious cyber activities against space assets in order to assess to what extent the existing international telecommunications law and space law address such activities and identify which rules should be pursued to effectively solve them. Five category of such activities include jamming, hijacking, hacking, spoofing, and robbing the control of telemetry, tracking and control (TT&C) of a satellite (a kind of anti-satellite (ASAT)). Actual incidents are selected for analysis. Those are: (i) jamming: Iranian deliberate harmful interference to the Eutelsat satellites solved in the ITU; (ii) hijacking: a terrorist organization, Liberation Tigers of Tamil Eelam (LTTE) hijacking US Intelsat-12 satellite solved by diplomatic negotiation between the Sri Lankan and US Governments using international telecommunications law developed by the ITU and individual national laws; (iii) hacking: alleged Chinese hacking of US NOAA’s information systems; (iv) spoofing: Iranian spoofing of the GPS signals to guide a US/CIA’s RQ-170 UAV into the Iranian territory; and (v) robbing the control of TT&C: alleged Chinese taking control of US remote sensing satellites including Landsat-7 and Terra AM-1. Concluding remarks include: 1) international telecommunications law developed in the ITU can adequately address harmful interference or hijacking as a result of malicious cyber activity as long as that is conducted by a non-State actor; 2) efforts have started in the ITU to strengthen its fact-finding ability in line with the TCBM measures taken in space activities. This orientation may be remembered as a beginning of the new stage that international space law and international telecommunications law would be merged into one field of law: 3) It remains unclear about the implications of an intangible damage occurred to a satellite when its TT&C is robbed of as a result of malicious cyber activity, while it is clear that such an action constitute the violation of the principles of respect for state sovereignty, national jurisdiction and non-intervention. Thus, for promoting peaceful uses of outer space, the elaboration of relevant Articles of the Outer Space Treaty is urgently needed to formulate clear conditions for national space activities.


Setsuko Aoki
Professor of Law, Keio University Law School, Japan, saoki@ls.keio.ac.jp.

    Despite the increasing influence of cyber activities on our everyday lives, researchers encounter difficulties in understanding this subject matter and in legally qualifying these activities and their effects. Current discussions tend to concentrate on distinct aspects, which lead to a fragmented, rather than a holistic understanding of the legal aspects of cyber activities. This paper approaches the legal dimension of cyber activities from a more general direction and searches for elements and legal principles that may be found in international law, including space law, and can apply to cyber activities.


Stefan A. Kaiser
LLM (McGill). Wassenberg, Germany, stefanakaiser@aol.com
Article

Normative References to Non-Legally Binding Instruments in National Space Laws

A Risk-Benefit Analysis in the Context of Public International and Domestic Law

Journal International Institute of Space Law, Issue 4 2018
Authors Alexander Soucek and Jenni Tapio
Author's information

Alexander Soucek
European Space Agency (ESA), The Netherlands, alexander.soucek@esa.int.

Jenni Tapio
Bird & Bird Attorneys, University of Helsinki, Finland, jenni.tapio@helsinki.fi.

    The grand project of “Belt and Road” Space Information Corridor proposed by China, which aims to integrate its space-based platforms for comprehensive space applications under the Belt and Road Initiative, resonates with calls and recommendations of the United Nations conferences on the exploration and peaceful uses of outer space for increased international cooperation in space projects to address common challenges. This project is expected to translate the potentials of space technology for socioeconomic development into real benefits for billions of people along the Belt and Road region. The Chinese government has released guidelines in 2016 to identify the general goals and major tasks.
    As we celebrate legacy of the UNISPACE conferences this year, it is beneficial to also focus on the ramifications of large scale space projects for governance of space activities on national, regional and international level. On the one hand, policy and legal aspects are important factors to be taken into account in project planning and implementation. On the other hand, the need to accommodate requirements of space projects could stimulate adjustment or innovation in space policies and regulations. The “B&R” Space Information Corridor offers us a chance to explore such interaction between space project and space governance. Based on analysis of the relevant aspects of legal environment, this paper purports to examine opportunities and challenges confronted with during implementation of the “mega-project” from legal perspectives.


Kang Duan
China Great Wall Industry Corporation.
Article

Legal Rights and Possibilities to Access Satellite Data for a Non-Member State of Space Community

Case of Republic of Serbia

Journal International Institute of Space Law, Issue 3 2018
Keywords satellite data, digital divide, space law, EU, Copernicus, Republic of Serbia
Authors Anja Nakarada Pecujlic and Marko Pajovic
AbstractAuthor's information

    In today’s technologically dependent society an average person interacts 36x per day with satellite through diverse applications (e.g. to note just one example - 3/4 of the data used in weather prediction models depend on satellite data). Because of this wide use of satellites, nowadays 80+ countries currently operate at least one satellite in space (latest countries to reach space were Ghana, Mongolia, Bangladesh and Angola). Especially for states that are less economically and technologically developed, space systems are particularly useful and necessary in order to achieve “frog leaping” and decrease the economic and social inequalities between developing and developed states. Involvement in space activities gives them the opportunity to utilize state of the art technology and solve local issues (e.g. environmental, e-health, e-medicine, transportation). Taking a closer look at the satellite data and imagery, it can be observed that the users are mainly public sector clients, such as military institutions for security uses as well as environmental and agricultural authorities. Hence, in the first line it is important to examine which legal framework is governing the access to satellite data and if public sector clients from the developing countries have the same guaranteed rights under international law as the developed nations. This paper will offer in its first part an overview of existing international norms regulating access to satellite data, focusing on relevant provisions in the corpus iuris spatialis. In the second part it will compare these legal rights with the praxis, i.e. determining what are actual possibilities to exercise these rights, if a state is not involved in space activities and has never been a member of space community like in the case of Republic of Serbia. In the third and final part, the paper will zoom in on the EU flagship programs - Copernicus and Galileo - and ESA’s data access policies in regards to states that are neither EU nor ESA member states, but are striving for full European integration, as Serbia.


Anja Nakarada Pecujlic
Institute for Air Law, Space Law and Cyber Law, University of Cologne, Albertus-Magnus-Platz, Cologne 50923, Germany (corresponding author), anja.n.pecujlic@outlook.com.

Marko Pajovic
Serbian Case for Space Foundation, Dr. Ivana Ribara 105, Belgrade 11070, Serbia, marko.pajovic@serbiancaseforspace.com.
Article

Transferring Rights of Satellite Imagery and Data: Current Contract Practice and New Challenges

Journal International Institute of Space Law, Issue 3 2018
Keywords geospatial, remote sensing, Incoterms, intellectual property
Authors Jordi Sandalinas Baró
AbstractAuthor's information

    The present work refers to the challenge of understanding the emerging contractual paradigm referred to satellite imagery and data online commerce. Issues like the role of consent in new online contract forms will be analyzed. In this regard, the formation of online contracts requires the existence of consent given by the parties to the contract. The formation of contracts known as “click-wrap”, “browse-wrap” and “shrink-wrap” agreements constitute a new paradigm in the tradition of online commerce related to satellite imagery and data. The author highlights other legal challenges encountered during his research and practice such as the Intellectual Property Paradigm regarding Geospatial imagery and data commercial transactions. Moreover, Value Added Data and the Exhaustion of Rights Principle of the rights deserve also some close attention and must be added to the present study.


Jordi Sandalinas Baró
Attorney at Law, Maritime SDI, Drone and Satellite Law, Lecturer and Course Instructor, Universitat Oberta de Catalunya, CEO Image Sea Solutions, Coordinator SpaceLaw.net, email: advocat@sandalinas.com.

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.

    This paper analyzes, on the one hand, the legitimate expectations and needs of the industries in terms of intellectual property protection for outer space research, as they need to be protected against violations and be free to grant exploitation licenses. On the other hand, it investigates if the use and exploitation of outer space and celestial bodies is carried out for the benefit and in the interest of all countries.
    The key issue of the protection of inventions in accordance with national and international regulations will also be addressed in the paper.
    The paper will start from a combined analysis of art. 5 of the IGA, establishing that each Partner shall retain jurisdiction and control over the elements it registers, and art. 21 of the IGA, which regulates intellectual property based on the quasi-territorial principle, and sets out that the regulations of the State in whose registered modules the invention occurs shall apply. The paper aims to examine national intellectual property protection regulations, highlighting possible conflicts of applicable national laws with respect to the place where the invention occurs and inventor nationality, but also regarding the recognition of the different patent systems adopted by ISS Partner States. European Partner States enjoy a privileged position, as set forth by paragraph 2 of art. 21 of the IGA.
    As the unique environment of the ISS calls for quick recognition of intellectual property licenses obtained in other Partner States, the paper will analyze the different Partners’ national legislation, existing International Conventions on the matter, such as the TRIPS Agreement, and European patent regulations, which streamline procedures and introduce stringent minimum protection standards in all the areas of intellectual property.


Gabriella Catalano Sgrosso
University of Rome, Italy, sgrossogabriella@gmail.com.

    The aim of this paper is to present an overview of the assessment undertaken by the DG Competition of the European Commission on a series of merger and acquisition cases occurring in the space sector in the last 25 years. Not only do the decisions of the DG Competition record the evolution of the major actors in the space sector in Europe but they also demonstrate how the DG Competition of the European Commission has acknowledged the regulatory contribution of the European Space Agency to the creation and growth of the industrial landscape of the space sector in Europe. The paper is not meant to be a scholarly contribution to the analysis of EU competition law. It is, instead, a fact-finding exercise seen from the perspective of ESA’s industrial policy.


Marco Ferrazzani
European Space Agency (ESA), Legal Counsel and Head of Legal Services Department.

Ioanna Thoma
European Space Agency (ESA),Legal Officer.

    The growth of private launch service providers in the United States stems from choices made by legislators and policy-makers that, whether intentional or not, created a market for these launch services. The first of these choices was made in 1985 when President Reagan issued an executive order allowing NASA to use the Space Shuttle to deliver commercial satellites into orbit only if the satellite required the “unique capabilities” of the Shuttle. As a result, the need for launch services for satellites that did not meet this standard quickly grew and private industry soon began filling this need. The demand for private launch services became even greater when, in 1988, President Reagan issued another directive requiring government agencies to use commercial launch service providers “to the fullest extent feasible.” When the last operational Space Shuttle, the Atlantis, was retired in 2011, the U.S. government no longer had an operational launch vehicle that could reach the International Space Station. Not wanting to rely on foreign spacecraft and wanting to spur the further growth of private industry, NASA launched programs to encourage the development of private launch services to deliver crew and cargo to the ISS. These programs resulted in the rapid development of multiple private launch service providers that now compete to deliver cargo and crew to the ISS. This paper will explain the role that these policies played in the evolution of the U.S. launch service industry and whether the adoption of the US approach is appropriate for other countries where the governmental space programs and related private industry are quite different from the space program and private industry of the United States.


Mark J. Sundahl
Cleveland State University. m.sundahl@csuohio.edu.

    The majority of the world still does not have access to the internet, and this “digital divide” is not only an issue in developing countries. Unconnected populations exist in every country, and regulators must find ways to provide universal access to the internet. Furthermore, the demand for connectivity (internet and data) is growing exponentially, and existing terrestrial solutions likely will be insufficient. Regulators must foster new technologies such as the newest non-geostationary satellite constellations, which have almost no delay for two-way voice and data connections and can provide broadband to the most remote and unconnected populations and industries. To ensure the fast deployment of these solutions, regulators should support technology-neutral regulations (such as blanket licensing) that encourage speedy rollout of innovative services, as well as have transparent “open skies” policies that promote competition (which has been proven to boost economies).


Ruth Pritchard-Kelly
Vice President of Regulatory Affairs, OneWeb.
Article

The Belt and Road Initiative (B&R) Provides Opportunity for China to Dominate Space Cooperation in Asia?

An Analysis from the Legal Perspective

Journal International Institute of Space Law, Issue 2 2018
Keywords Asian Space Cooperation, B&R Initiative, Competition to Regional Space Dominance, Chinese National Space Legislation, APSCO’s Legal Framework
Authors Mingyan Nie
AbstractAuthor's information

    The co-existence of more than one regional space cooperation entity in Asia presents the competition on the cooperation of space affairs in this territory. Against this background, the Asian space powers take all possible measures to attract more space partners. The Belt&Road Initiative (B&R), which is defined as a comprehensive strategy for China to meet the challenges brought by the globalization, provides opportunities for the space field. However, legal improvements are demanded to be made on both domestic and regional levels for responding to the relevant legal challenges. On the domestic level, the Chinese space regulation which is intended to be formulated before the year of 2020 is recommended to encompass fundamental principles and provisions friendly to non-governmental entities and foreign partners. On the regional level, the Asia-Pacific Space Cooperation Organization (APSCO) is required to transform its role from Chinese platform to compete with its Asian rivals on space cooperation affairs to a co-builder and services provider of the B&R space programs (e.g., the SIC). Accordingly, legal coordination approached to ensure implementing the “co-sharing” principle is needed to be made between APSCO and the SIC sponsor; moreover, APSCO itself must do modifying jobs to improve its legal framework to adapt the requirements of its new role.


Mingyan Nie
Faculty of Law, Nanjing University of Aeronautics and Astronautics.

    From the inception of European integration, a regime trying to regulate and arrange competition as much as considered necessary for the benefit of society at large has been one of the core elements of the European Union’s legal order. While the European Union has over the past few decades become more and more involved in the European space effort, this has so far hardly given rise to fundamental application of this competition regime to space activities, even if space also in Europe increasingly has become commercialized and privatized. The current paper investigates the reasons and rationale for this special situation, addressing inter alia the special character of outer space activities and the space industry and the role of the European Space Agency in this respect.


Frans G. von der Dunk
University of Nebraska-Lincoln.
Showing 1 - 20 of 24 results
« 1
You can search full text for articles by entering your search term in the search field. If you click the search button the search results will be shown on a fresh page where the search results can be narrowed down by category or year.