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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

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.

    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.

    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.

    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.

    Earth Observation (EO) data products are the result of significant financial investments, resources and time, as well as the outcome of complex activities operated by a plethora of actors that follow different interests. The high “cost factor” of establishing and maintaining a space remote sensing system has led satellite operators to distribute data on a commercial basis, becoming a profitable industry. Private data owners aim to safeguard their profit interests implementing different kinds of “protection” on data products by putting a higher burden of cost on the users. Primary areas of investigation regarding the protection of generated data are data access policies, the articulate terms and conditions as well as restrictions of supply and use of data under which the operator is licensed, and the applicable Intellectual Property (IP) law regime. In the European context of copyright law, a step further is accomplished through the sui generis right for database (Database Directive 96/9/EC). The inconsistencies among the different practices of EO data generators concerning access policy and the applicable legal frameworks of IP rights leads to a lack of uniformity, a high level of vagueness and affect the legal interoperability of data. As a result of the fast-moving changes in the EO data supply sector, a comprehensive legal framework is highly requested. This paper will address the priorities which should be undertaken in its delineation. Among those, the rationalization of data access and the choice of open data access for applications beneficial to the society (e.g., climate protection) will be used as guiding principles.


Sara Dalledonne
Sara Dalledonne, McGill University.
Article

The 1986 United Nations Principles on Remote Sensing Dealing with the Dual-Use Nature of Space Imagery

Journal International Institute of Space Law, Issue 3 2020
Keywords remote sensing principles, international space law, national space law, data access, dissemination, dual-use, national interests
Authors Anne-Sophie Martin
AbstractAuthor's information

    The 1986 United Nations Principles on Remote Sensing represent a fundamental tool within the international legal regime governing space activities. Indeed, they provide a set of non-binding provisions to guide States willing to conduct remote sensing activities. The paper considers these Principles in light of the dual-use nature of remote sensing technology and products, as well as given the “democratisation” of the use of Earth observation data. Nowadays, remote sensing satellites are operated in many civil, commercial and military applications. In this context, it is necessary to examine the scope of the Principles in order to figure out whether the current legal framework is appropriate, in particular given the dual-use nature of satellite imagery. In addition, some legal issues arise with regard to access to and processing of data which are generated by the private sector for governmental and military uses. In fact, it is now possible to extract military information from commercial and civil Earth observation programmes. So far, the Principles have continued to prove their value and usefulness. However, they do not have been reviewed, especially as regards the technological development of space systems and the evolution of data distribution. Lastly, the paper aims to analyse the Principles by taking into account the rule of access to EO data without discrimination but nevertheless limited for national security reasons.


Anne-Sophie Martin
Dr. Anne-Sophie Martin, Department of Political Sciences, Sapienza University of Rome, Piazzale Aldo Moro, 5, 00185, Rome, RM (Italy) martin.annesophie@yahoo.fr.

    This paper studies how a new regional approach may enhance legislating or implementing national space laws and regulations through the “National Space Legislation Initiative (NSLI),” which has been implemented under the framework of the Asia-Pacific Regional Space Agency Forum (APRSAF). APRSAF was established in 1993 and has been enhancing space activities and international cooperation in the Asia-Pacific region. The NSLI is a new APRSAF initiative launched in 2019 with a view to effectively studying the status of national space laws in the Asia-Pacific region. It aims to promote information sharing and mutual learning on the practices and examples of national space laws in the Asia- Pacific region. It also aims to enhance the capacity of drafting and implementing national space laws in the Asia-Pacific countries in accordance with international norms, including especially established international law rules. This paper first examines the current situations concerning national space law developments in the Asia-Pacific region and analyses how the NSLI can advance it within the APRSAF framework. In addition to analyzing the NSLI's study reports, the significance and implications of this Initiative will also be stated for the reference and future partnership in other countries and regions.


Ikuko Kuriyama
Ikuko Kuriyama, International Relations and Research Department, Japan Aerospace Exploration Agency.

Koichi Kikuchi
Koichi Kikuchi, Legal and Compliance Division, General Affairs Department, Japan Aerospace Exploration Agency.

Takashi Iwai
Takashi Iwai, Legal and Compliance Division, General Affairs Department, Japan Aerospace Exploration Agency.

Yoko Kagiwada
Yoko Kagiwada, International Affairs Division, International Relations and Research Department, Japan Aerospace Exploration Agency.

    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.
Article

Does the End Justify the Means?

A Legal Study on the Role and Consequences of Normative Pluralism in International Space Governance

Journal International Institute of Space Law, Issue 6 2020
Keywords space law, space governance, normative pluralism, soft law, national space law
Authors Alexander Soucek and Jenni Tapio
AbstractAuthor's information

    The exploration and use of outer space, an area beyond national jurisdiction, is subject to international legal norms: a multilateral effort since more than half a century. However, the pressure on solutions facilitated or enabled by public international law is augmenting, not least because of new space actors, novel ideas to use and explore outer space and the increasingly ubiquitous concern of maintaining the long-term sustainability of spaceflight. Different actors produce standards, best practices, guidelines and other governance tools; beyond COPUOS, various initiatives of different character by industry and other actors have emerged, in particular in the area of sustainable uses of outer space. This article explores the place and effects of normative pluralism and non-legally binding norms of behaviour in global space governance from a perspective of international law.


Alexander Soucek
Alexander Soucek, European Space Agency (ESA), Paris, France/Noordwijk, the Netherlands, alexander.soucek@esa.int.

Jenni Tapio
Jenni Tapio, Ministry of Economic Affairs and Employment of Finland, Finland, jenni.tapio@helsinki.fi.

    The US Space Force, established recently, is the sixth arm of the US Military. While the Force has not yet engaged in military activities in Outer Space, its parent act, the National Defence Authorisation Act, 2020, does not preclude the possibility of placing weapons, deploying trained personnel or even constructing bases in Outer Space. Further, it is pertinent to note that the legislation does not provide for undertaking dedicated risk assessments, which are required in order to anticipate and prevent harm to the space environment. These possibilities pose a serious threat to the peaceful use of outer space. Even though self-defence is often considered to be an inherent right of a State, the authors believe that the act of establishing commands and training individuals for warfighting missions in space is currently unnecessary, since such a practice has not been adopted by other space-faring nations. The institution of such a military force by the United States would lead to the creation of similar forces by other States, leading to a new arms race in Outer Space, which would further result in a circumstance where weapons in Outer Space would be inevitable and irreversible. Therefore, in order to keep Outer Space as a conflict-free zone, this paper aims to analyse the existing legal framework in light of recent developments, looks for solutions in general international law, and seeks to apply the same to the realm of outer space.


Sri Aditya Kumar
Sri Aditya Kumar, National Law University Odisha.

Omkar Hemanth
Omkar Hemanth, National Law University Odisha.

Jeevan Justin
Jeevan Justin, National Law University Odisha.

    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.
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