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    My paper advocates for the creation of a legal policy aimed at accelerating the initiation of the “Space Debris Removal Business” as quickly as possible. This policy is focused on government compensation for situations where the damage in outer space exceeds an insured amount. The policy will cover any damage derived from active orbital services, including Space Debris Removal.
    There is a common understanding across the globe that Space Debris Remediation is becoming necessary to keep space activities safe and sustainable. It would be ideal if a core set of laws were applicable to all nations. However, because Space Debris is increasing rapidly, we cannot wait for the formulation of international standards.
    Therefore, I would like to propose a measure to minimize the barriers of entry into the “Space Debris Removal Business,” which features a compulsory insurance and governmental compensation system (by referring the system in the field of rocket launch) to encourage private companies to conduct Space Debris Removal as a part of their core businesses.
    To sum up, until the moment an international rule is established, each country should proceed in haste to implement legislation for eliminating space debris. As industrial technologies develop, I expect to see more nations voluntarily remove broken satellites as well as upper stages of rockets that they themselves launched. I hope to support a burgeoning international debate on this issue.


Mihoko Shintani
Partner, Lawyer, TMI Associates, 23rd Floor, Roppongi Hills Mori Tower, 6-10-1 Roppongi, Minato-ku, Tokyo 106-6123, Japan & Attorney-at-Law, Japan Aerospace Exploration Agency (JAXA), Ochanomizu Sola City, 4-6 Kandasurugadai, Chiyoda-ku, Tokyo 101-8008 Japan.

Irmgard Marboe
University of Vienna, Austria.
Article

Prescribing the Best Medicine for the Struggling Space Mining Industry

An International Regulatory Agency or a New NASA Office?

Journal International Institute of Space Law, Issue 5 2019
Authors Michael Weinhoffer
AbstractAuthor's information

    The space mining industry is literally having trouble getting off the ground. Although there is an abundance of valuable mineral resources on the Moon and near-Earth asteroids and supportive legal instruments, no commercial space mining missions have launched as of this writing. Moreover, the two most prominent space mining companies were bought by other companies at the end of 2018, and their space mining plans seem to be on hold. No matter the cause of this stalemate, it is argued in this paper that the near-term establishment of an international space mining authority with regulatory power would be detrimental to the already fragile industry. While over-extraction and ownership of space resources are serious concerns, provisions of the Outer Space Treaty, national legislation, and non-binding international guidelines will sufficiently mitigate the impacts of these legal questions on the industry in the near-term. Rather than implement a binding legal agreement on commercial space mining or establish an international agency to regulate the industry, it is proposed that a space mining technology office be established in NASA’s Space Technology Directorate. Discussions about the legal challenges of commercial space mining should continue, but it is necessary for NASA to assist this industry so that lunar resource extraction will play a critical role in the Artemis program, which aims to achieve a sustained lunar presence by 2028. The Artemis program is steaming ahead, but lunar mining companies, whose achievements will significantly enhance the scientific value of the Artemis program, must not get left behind.


Michael Weinhoffer
Embry-Riddle Aeronautical University, Daytona Beach, Florida, United States.

    A set of principles are proposed for multilateral agreements to allow real property rights on celestial bodies within the confines of the Outer Space Treaty (OST). They are:

  • Clear affirmation that the “province of all mankind” language of the OST is fundamentally incompatible with the “common heritage of all mankind” language of the Moon Agreement. Although many parties to the latter are also parties to the OST, it should be affirmed as logically impossible for states to be parties to both treaties.

  • Formal recognition of the utter impracticality of the view that whoever mines resources in space must “share any benefit with all states,” a prevailing false interpretation of the “province of all mankind” language in Article II. The notion that the sale of liquid oxygen from the Moon to Elon Musk for a trip to Mars should somehow benefit Botswana is absurd. But for imports of space resources to Earth, one way of dealing with the issue could be a tariff that would fund a development bank, from which nations could borrow to fund their own space projects.

  • A requirement that all parties to the agreements will recognize property claims on celestial bodies of individuals from any nation, including nonparty nations, subject to certain conditions. The U.S. Homestead Act of 1862 could be used as a model, requiring an individual to inhabit a prospective piece of real estate for some designated period of time, and improve it in some sense, in order to gain title. The General Mining Act of 1872 might also be used as a model, regulating mining claims and requiring their purchase for a fee from a governing body, if they are considered to be found on publicly owned land.

  • A distinction between resources extracted in space for personal use, such as harvesting lunar water for life support; resources extracted in space for space commerce, such as harvesting lunar water to create propellant to sell; and resources brought back to Earth from space and for sale in the terrestrial economy.

  • A permissive interpretation of Article IX of the OST, which requires avoiding “harmful contamination” of celestial bodies. There is need for a clear interpretation of this clause that would not preclude, say, humans landing on Mars, yet would also ensure the preservation of heritage sites, such as the Apollo landing sites on the Moon or Viking landing sites on Mars.


Rand E. Simberg

    The Hague International Space Resources Governance Working Group has been developing the conceptual “building blocks” for the future development of an international framework for regulating the extraction of natural resources from celestial bodies. One of these building blocks contemplates the potential creation of an international registry for determining the priority rights of an entity to engage in resource extraction on a celestial body (or on a particular part of a celestial body). The purpose of this registry would be both (1) to ensure that such entities can operate without interference and (2) to ensure that such entities operate with due regard for the interests of other operators. This paper proposes a structure for such a registry as well as a process for granting priority rights to a particular entity. The proposed structure and process draws from three existing international registries of different types: (1) the United Nations Register of Objects Launched into Outer Space, (2) the ITU Master International Frequency Register, and (3) the International Registry of Mobile Assets created by the Cape Town Convention on International Interests in Mobile Equipment. Each of these registries serve as helpful examples of how to create an international registry for resource extraction. The UN Register provides an example of how to describe the location and nature of the resource extraction activities. The procedure used when updating the ITU Master Register could be transferred, with some alterations, to maintaining the resource extraction registry. Finally, the Cape Town Convention registry operates in conjunction with priority rules that would work equally well for resource extraction. In addition to ensuring the priority of the right to engage in resource extraction, the Cape Town Convention registry also gives guidance regarding how the registry could be used to protect scientific, historical, and cultural sites on celestial bodies. Eventually, this registry could be expanded to govern the use of land on celestial bodies regardless of the nature of such use, including other commercial operations or even residential housing.


Mark J. Sundahl
Cleveland State University.

P.J. Blount
University of Luxembourg.

Chuck Dickey
TCTB, LLC, P. O. Box 591031, Houston, TX 77259.

    In 2018, the president of the United States released his Space Policy Directive-3, which commands several sectors of the federal executive apparatus to reassess their current and future efforts to address space traffic management and space situational awareness issues. The reasons for this Directive can be boiled down to the belief that the continued use of the orbital realm depends on responsible management, which in turn depends on myriad factors that include the development of new technologies, the refinement of data gathering, and the clarification of governmental operational roles. In particular, the Directive calls for enhanced standardization of safety and best practices, and doles out tasks for relevant agencies, among which the Federal Communications Commission plays a significant role. Given the FCCs influence on the licensure of satellites and the proliferation of constellations, it will be a leader in fulfilling the obligations set out in SPD-3. In October of 2018, the FCC announced it would revisit its much older orbital debris management rules, with an eye towards their revision and in light of its responsibility for increasing traffic in outer space. In November, they released their Notice of Proposed Rulemaking, in which they tackle a multitude of germane topics, from spectrum use to orbital lifetime, and from choice of orbit to post-mission disposal. The comment period opened up in early 2019, and more than eighty comments were submitted to the FCC by various industry representatives, federal agencies, and international entities. This essay proposes to examine how the FCC’s planned changes will address concerns outlined in SPD-3, what work remains to be done, and challenges the agency faces in ensuring U.S. compliance with international space law and environmental obligations.


Michael S. Dodge
Assistant Professor, University of North Dakota, Department of Space Studies.

    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.

Hannah L. Kohler
J.D. Georgetown Law 2015; B.A. Penn State 2012; attorney, NASA Goddard Space Flight Center, Office of Chief Counsel.
Article

Dispute Settlement and Decision Making in Relation to the Scarce Orbit-Spectrum Resource

‘Preventive’ and ‘Reactive’ ITU Procedures and Their Relevance for Private Sector Actors

Journal International Institute of Space Law, Issue 2 2019
Keywords ITU, Dispute Settlement, Spectrum Management, Private Actors
Authors Simona Spassova
AbstractAuthor's information

    The exploration and sustainable use of outer space is dependent, not only upon technological developments and capital investments, but also on the availability of the spectrum-orbit resource for the associated relevant radio communications. Even though the electromagnetic spectrum is a non-exhaustible resource, it is a limited and finite one. The increased number of actors and activities in space – both current and planned- is putting a strain on the coordination and allocation processes for available spectrum as well as on the subsequent observance of the international requirements in this respect. Hence, this paper focuses on the way geostatic positions are assigned and frequencies - allocated on an international level. These are complicated and highly time-consuming processes, involving technical and engineering expertise, coordination, compromise and some diplomacy too. On a global level these negotiations are done within the framework of the International Telecommunications Union (ITU) and spectrum/orbital positions can only be assigned to sovereign member states. At the same time, more and more satellite communication operators nowadays are private commercial entities, even if, licensed and supervised by their respective national administrations. The aim of this article is two-fold. First, it will examine the ways disputes related to the allocation and use of the spectrum resources are handled within the framework of the ITU. It identifies ‘preventive’ and ‘reactive’ efforts to settle disputes within the framework of the organization. In other words: what is the ITU doing to prevent the potential for conflict and what measures does it offer for resolution once a conflict has occurred? Different means of dispute resolution - will be examined together with the associated advantages. Secondly, the article will also analyse the role of private operators and not only Member States administrations in these processes. The ITU brings together also Sector members from the industry and in doing so, it for provides for multistakeholder discussion. Arguably, as the oldest UN agency, the Union is remarkably fast and adept when responding to technological challenges and considering the needs of the private sector. Is this so also when disputes are at stake, whereby private operators are not an official party?


Simona Spassova
Simona Spassova is Faculty Advisor to the Manfred Lachs Space Law Moot Court Team and a legal consultant for the International Finance Corporation.

    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.
Article

A Treaty of Many Minds: An In-Depth Look at the Travaux Préparatoires of the Principles Declaration of 1963

Journal International Institute of Space Law, Issue 1 2019
Keywords Principles Declaration, Mexico, travaux préparatoires, lacunae, insuffisance sociale, non liquet
Authors Howard Chang
AbstractAuthor's information

    Much of the current literature on interpretation of the Outer Space Treaty of 1967 (OST) focuses on the OST’s own travaux préparatoires, but not on the Principles Declaration of 1963 (Principles Declaration), the basic ideas of which were incorporated into the OST. Many of these ideas expressed in the travaux of the Principles Declaration give a very forward-looking glimpse at issues in outer space, whether they were emphasized or simply discussed.
    This paper will show the vast behind-the-scenes discussions of issues not expressly included in the OST: issues such as commercialism in space, extraterrestrial contact, space crimes, stationary satellites, etc. For instance, in a working paper submitted by the delegation of Mexico to the ad hoc committee preceding the Committee on the Peaceful Uses of Outer Space (COPUOS), Mexico asked, inter alia, to what extent a launching State is responsible for changes that occur in human beings who it sends to inhabit celestial bodies other than Earth. This forward-looking issue was passed over in favor of the more pressing issues of the time: disarmament, liability, peaceful purposes, etc. However, the travaux’s mention of these issues may help illuminate current gaps in the law and give guidance on how to proceed within the current legal regime.


Howard Chang
Georgetown University Law Center, 600 New Jersey Ave NW, Washington, DC 20001.

    Air, Water, Food, Shelter, Sleep: These are the five basic requirements for a human being to survive. Providing these basics to a single person is a harrowing challenge; providing them to 1,200 souls on the merciless Martian landscape is nearly impossible. Nonetheless, in 2032 SpaceX successfully constructed Valinor – the first human scientific settlement on Mars-by transporting hundreds of scientists, engineers, scientific experiments and the most technologically advanced survival equipment ever created to the red planet. Each year saw more successful missions to Valinor, and the world community grew more excited about the realization of mankind’s expansion into the cosmos. However, after 15 years of exciting scientific discoveries and over 350 billion dollars invested in its survival and sustainability, Valinor remained monetarily profitless. After the stock market crash of 2047, SpaceX was purchased by OnlyEarth Corp., an oil conglomerate that saw Valinor as a threat to its fiscal security. Over the next three years, OnlyEarth reduced its regular supply missions to Valinor, demanding that Valinor produce massive quantities of Martian raw materials in exchange for fresh supplies from Earth. When Valinor refused to comply with these demands, OnlyEarth ended re-supply missions altogether. With the flow of corporate resources now stemmed, Valinor’s leadership was forced to redesign the sociopolitical and legal structure of its 1,200+ inhabitants to ensure the colony’s survival.


Marshall Mckellar
Marshall Mckellar is Assistant Chief Counsel, NASA: Kennedy Space Center.

Yvonne Vastaroucha
Yvonne Vastaroucha is National and Kapodistrian University of Athens, Faculty of Law.

Setsuko Aoki
Professor of Law, Keio University Law School, Tokyo, Japan.

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).

Jonathan Percivalle de Andrade
Peruíbe College.

    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.
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