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Journal International Institute of Space Law x

    The milestone provisions in the Outer Space Treaty designate outer space and celestial bodies as an area beyond national jurisdiction in which national jurisdiction extends only to space objects and persons in outer space. In view of upcoming commercial space mining activities and the recent national legal developments, it is of crucial importance to delineate the different levels of legal authority over space resource activities and to analyze them systematically. What is indisputable, in the first place, is that any national appropriation in outer space is prohibited by Article II OST, while the appropriation of resources is not explicitly mentioned. More specific provisions are formulated in the Moon Agreement. Its Article 11 prohibits the appropriation of resources on celestial bodies and states that such activities — as soon as they become feasible — must be regulated by the international community of States. While this moratorium on resource exploitation is binding only for the 18 ratifying State parties to the Moon Agreement, there is no doubt that the legal authority to regulate over outer space lies with the international community and not with single States. Unilateral legislative acts must conform to existing international provisions as outer space is an area beyond national jurisdiction. Where such explicit provisions are lacking – as is the case with the appropriation of space resources – the lawful scope of national authority must nevertheless be delineated through international regulation as States lack the national prescriptive authority to regulate over outer space and celestial bodies.


Stephan Hobe
Prof. Dr. Stephan Hobe is Director of the Institute of Air Law, Space Law and Cyber Law and Holder of the Chair for Public International Law, European Law, European and International Economic Law at the University of Cologne.

Rada Popova
Rada Popova is a senior lecturer (public international law, EU law and constitutional law) at the University of Cologne and research fellow at the Institute of Air Law and Space Law in Cologne.

    Lagrangian Points constitute a stable gravitational point between two or more celestial bodies. Previously used for scientific endeavours, such as the SOHO mission, in the future, Lagrangian Points may also serve to be both commercially and strategically advantageous given the nominal amount of resources required to keep a satellite or similar orbital asset in station-keeping on a Lagrangian Point.
    To that extent, Lagrangian Points may be viewed as having a commercial ‘value ’ because of the competitive advantage afforded to the owner/operator of a spacecraft occupying such a position. This ‘value ’proposition has certain similarities with geostationary orbital positions in Earth orbit.
    Although propertisation of space and celestial bodies is prohibited under the Outer Space Treaty 1967 (UN), orbits within space still remain rivalrous and commercially lucrative (Green, et al. 2018). By operating in a Lagrangian Point, satellites could effectively exclude competing services from also operating within those Lagrangian Points. For example, where one satellite — or a satellite constellation — operates within a Lagrangian Point, another satellite or satellite constellation might be precluded from operating within the same space of that Lagrangian Point, or its proximity.
    This paper builds on previous work regarding the regulation of natural monopolies to mitigate anti-competitive behaviour risks (Green, et al. 2018) and proposes recommendations on how the risk of natural monopolies forming amongst Lagrangian Point missions may be mitigated under a variety of instruments available to both UNOOSA and the ITU.
    In addition to this, this paper considers the military use of Lagrangian Points to mitigate the risk of transforming space into a warfare domain.


Thomas Green
Thomas Green, PhD Student, University of Wollongong.

Patrick Neumann
Patrick Neumann, Chief Scientist, Neumann Space Pty Ltd.

Kent Grey
Kent Grey, Partner, Minter Ellison, 25 Grenfell Street, Adelaide 5000 Australia.

Trevor Sandlin
Trevor Sandlin, Executive Officer, USNS Fall River, United States Merchant Marine.

    Article VI of the Outer Space Treaty, requiring “authorization and continuing supervision” of “national activities in outer space” including those of “nongovernmental entities”, has always been viewed as the primary international obligation driving the establishment of national space legislation for the purpose of addressing private sector space activities. As the Article itself did not provide any further guidance on precisely what categories of ‘national activities by nongovernmental entities’ should thus be subjected to national space law and in particular to a national licensing regime, in academia generally three different interpretations soon came to be put forward on how to interpret the key notion of ‘national’ in this context as scoping such national regimes.
    Looking back at 50 years of national space legislation addressing private sector space activities, however, we now have the possibility to look not only at the writings of learned experts, at best a subsidiary source of public international law, but at actual State practice-cum-opinio iuris on the matter. The present paper, on the basis of a survey of more than two dozen existing national space laws, will therefore be able to considerably narrow the appropriate interpretation of ‘national activities in outer space’, so as to diminish the uncertainty as regards what categories of private space activities States may be held responsible for, thus both narrowing the permissible discretion of individual States in scoping their national space law regimes and increasing the coherence and transparency of space law at the international level.


Frans G. von der Dunk
University of Nebraska-Lincoln, College of Law, Space, Cyber and Telecommunications Law Program.

Mahulena Hofmann
SES Chair in Space, SatCom and Media Law, University of Luxembourg.

    This paper will critically evaluate the provisions of the Space Industry Act 2018, its relationship with the Outer Space Act 1986 and the underlying arguments behind the UK Government’s decision to use the new Act to encourage both the development of launch systems within the UK and the attendant infrastructure. It will also consider the ramifications for the space economy within the UK and how the legislation will facilitate access to space for small space start-up companies and encourage the growth of a nascent space tourism industry. Given that the UK has taken the opportunity to revivify its national space law, the paper will go on to discuss some of the key points of significance in the new legislation. In particular, the 2018 Act lacks specific detail on many key regulatory issues, instead providing a skeleton outline which requires augmentation by way of secondary legislation. The paper will consider the way in which the UK will seek to fulfil its international treaty obligations within the legislative framework and whether the legislation can serve to contribute to the growth of the UK space economy amidst unprecedented political turmoil.


Christopher J. Newman
Professor of Space Law & Policy, Northumbria Law School, Northumbria University at Newcastle.

    Most if not all space activities require the use of the radio frequency spectrum (RFS); the RFS is essential for satellite and other wireless communications and scientific probes. Countries with advanced industries in the space sector obviously have more developed legislation than States that only aspire to participate in space activities. Even these, however, regulate space activities by which they are directly affected, primarily through their adherence to the International Telecommunication Union Radio Regulations (ITU-RR) and policies embedded in the space treaties. Thus, it can be said that most countries have some basic national legislation related to space activities.
    Some emerging economies have changed the focus of their activities, from wanting to acquire a satellite for communications, to obtaining a remote-sensing /earth observation satellite. Regardless of the change in focus, they face similar issues: budgetary and personnel constraints, as well as policies of industrialized countries regarding transfer of technology. Despite these challenges, less developed countries have contributed to the expansion of space activities and their regulation, at the national and international level. They participate in ITU Study Groups, and in the UN COPUOS’ sessions, bringing a different perspective to the deliberations of these entities.
    This paper will focus on Emerging Market Economies (EMEs), 5G networks and satellite mega- constellations; it will provide an overview of some of their contributions to space law and space activities, while keeping in mind limitations they continue facing.


Sylvia Ospina
S. Ospina & Associates - Consultants POB 141814, Coral Gables, FLA 33114.

    Most national commercial space legislation imposes a general obligation to comply with the Outer Space Treaty, often by reference to compliance with international obligations generally, on commercial entities seeking authorization to engage in space activities. Accordingly, a low-level or minimalistic harmonization exists in this respect. However, different wording in national space laws of even this very generally worded obligation as well as failure to include such an obligation in a select number of national space laws makes such harmonization imperfect. The consequences of this minimalistic, imperfect harmonization are a reduction in potential transparency benefits to private parties and missed opportunities to advance a coalescence of views of countries around Outer Space Treaty obligations. More detail in national space legislation regarding what the Outer Space Treaty requires may assist in achieving greater coalescence of views among countries of Outer Space Treaty obligations beyond what can be achieved relying on diplomacy alone within the UN Committee on Peaceful Uses of Outer Space (UNCOPUOS) and in other forums. It may also provide more transparency and certainty to private parties and confirm that OST obligations are minimally burdensome for commercial entities, thereby helping their business cases and expanding commercial space innovation and investment.


Matthew Schaefer
Haggart & Work Professor of International Trade Law & Founding Co-Director – Space, Cyber and Telecommunications Law Program, University of Nebraska College of Law.

    Since 2005 a growing number of states have adopted national space legislation to ensure adherence to international obligations, clarify rights under international space law, and promote regulatory certainty for space activities under their jurisdiction. While a certain degree of similarity is seen in the interpretation of these international obligations, the purpose of this paper is to demonstrate that diverging interpretations on a national level already exist. The interpretations that are reflected in national space legislation are often contextual and products of national space capabilities and ambitions. As such the Report of the Study Group of the International Law Commission on the Fragmentation of International Law regarding competing lex specialis, each with its own purpose and reasoning, will be discussed by analogy to provide insight into the processes and consequences of fragmentation of international law through diverging interpretations. Thereafter, this paper will present a brief comparative study on the scope of various national space legislation. This study will highlight variations in the interpretation of what it means to “carry out a space activity” under Article VI OST. Particular attention will be given to who is defined as carrying out a space activity and what is defined as a space activity. The conclusion will underline a need and urgency for coordination in the interpretation and application of space law, which is both beneficial and necessary to avoid the negative consequences of the fragmentation of international space law.


Vincent Seffinga
Vincent Seffinga, Department of Law, European University Institute, Villa Salviati, Via Bolognese 156, 50139 Florence, Italy.

Mari Eldholm
Mari Eldholm, in private capacity.

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

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

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

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

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


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

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


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

Thea Flem Dethlefsen
LLB and LLM, University of Copenhagen, Denmark. Adv. LL.M. Air and Space Law, Leiden University (2018).

Heejeong Vicky Jeong
LLB (Hons.), London School of Economics and Political Science, UK. Adv. LL.M. Air and Space Law, Leiden University (2018).

Antonino Salmeri
LLM (cum laude), University of Catania, LLM (cum laude) Law and Government of the EU, LUISS University, Rome. Adv. LLM Air and Space Law, Leiden University (2018).

    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).

    From ESA’s Moon Village to Elon Musk’s Martian cities, there is increasing talk of establishing permanent human settlements or outposts in outer space. November 2018 will mark 18 years of continuous human presence in space via the International Space Station (ISS). However, these new proposals are different for several reasons. They are intended to have a permanence never envisioned for the ISS, they are intended to be ‘home’ to more than professional astronauts and fewer than a handful of space tourists, and they will be located on the Moon and other celestial bodies. The ISS is treated by the existing space law regime as a space object, or an assembly of separate space objects, regarded as functionally no different from any other space object. However, whether this approach could be taken for facilities on the Moon and other celestial bodies is the proposed focus of this paper. None of the space law treaties provide a precise definition of the term ‘space object’, however the generally accepted understanding is that “space objects may be defined as artificial man made objects that are brought into space and are designed for use in outer space.” That is not to lament the lack of a specific definition, as it would most likely be disadvantageous to have been lumbered with the 1967 conception of ‘space object’. The nonspecificity of the treaties allow scope for development and adaptation to deal with the uses now proposed. Article VIII of the Outer Space Treaty potentially provides aid in this quest as it indicates that ‘objects constructed on a celestial body’ fall within the scope of ‘space object’. Therefore, it is most likely possible to construct a regime providing a legal basis for governance of space settlements and outposts utilizing the existing ‘space object’ concept. However, there will still be potential issue around the nonappropriation principle codified in Article II of the Outer Space Treaty. Which this paper will also explore. This is a topic which is vital for the maintenance of the existing space law regime and is of growing relevance as more proposals for permanent human presence are made.


Thomas Cheney
Northumbria University, United Kingdom; thomas.cheney@northumbria.ac.uk.
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.

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

    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.
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.
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