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Article

Arbitration of Space-Related Disputes

Case Trends and Analysis

Journal International Institute of Space Law, Issue 1 2020
Keywords arbitration, dispute resolution, space-related disputes, satellites
Authors Vivasvat Dadwal and Madeleine Macdonald
AbstractAuthor's information

    Despite a consistent annual increase in the number of space-related disputes, the distinct role of arbitration in the resolution of these disputes remains understudied. To our knowledge, there exist no consolidated catalogues for publicly-reported space-related disputes that have been resolved through international arbitration. This research begins to fill that gap by cataloguing all publicly-reported space-related disputes that have been resolved through international arbitration to date. Results are categorized and analyzed according to: (i) type and subject matter of dispute submitted to international arbitration, as organized by industry and topic; (ii) kind of disputant currently employing international arbitration, as organized by type and size of actor; (iii) applicable law used in international arbitration; (iv) seat; and (v) arbitral institution administering the dispute. Results shed light on current industry practices and complement existing research on the use of arbitration clauses by companies providing space-related products and services. Scholars, policymakers, and legal practitioners may use the data to assess the strengths and weaknesses of the current dispute-resolution infrastructure and to inform future practices in the resolution of space-related disputes.


Vivasvat Dadwal
Vivasvat Dadwal, King & Spalding LLP.

Madeleine Macdonald
Madeleine Macdonald, Justice Canada.

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


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

Compromise, Commonhold and the Common Heritage of Mankind

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

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


Chelsey Denney
Chelsey Denney, chelseydenney@icloud.com.

    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.

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


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

Outer Space and Cyber-Attacks

Attributing Responsibility under International Space Law

Journal International Institute of Space Law, Issue 4 2020
Keywords outer space, cyber-attacks, responsibility, International Space Law
Authors Ishita Das
AbstractAuthor's information

    The linkages between the two domains of outer space and cyberspace are deepening with the commercialization of outer space and the deployment of an increasing number of satellites delivering communications, navigation, and military services. However, the vulnerabilities stemming from this relationship are yet to be addressed in a comprehensive manner. While there is no policy that specifically addresses this interface, International Space Law can deal with the problems arising in this regard. Article VI of the Outer Space Treaty deals with ‘international responsibility’. However, this relationship was not considered when the treaty was drafted back in the 1960s. Cyber-attacks may affect the space assets by interfering with (a) ‘flight control’ and (b) ‘payload control’. While with regard to the former scenario, the launching state may be held responsible for activities that cause damage to the surface of the Earth, in relation to the latter, the provisions of the Outer Space Treaty and the Liability Convention cannot really be invoked. The aim of this research paper is essentially fourfold: (1) provide a background to the interface of the outer space and cyberspace, especially in view of the rise in commercialization; (2) discuss how cyber-attacks affecting space assets may be dealt with under the Outer Space Treaty and the Liability Convention; (3) explore the challenges as regards determination of responsibility in the context of life cycles of the space assets and multiple parties and finally, (4) provide the concluding remarks and suggestions.


Ishita Das
Ishita Das, NALSAR University of Law, Hyderabad, India.
Article

Domestic Legislation and Challenges Related to Outer Space Laws in Pakistan

Journal International Institute of Space Law, Issue 5 2020
Keywords lawmaking process, treaty implementation, national space policy, civil space agency, national space regime, Pakistan space program
Authors Shakeel Ahmad
AbstractAuthor's information

    In Pakistan, there exists valuable technical and entrepreneurial capability that could be used to take full advantage of space benefits for national economic development. However, the country has not yet become a full spacefaring nation as compared to some other States. At national level, there is a strong realization to uplift national space program and many initiatives are being taken. However, lack of political will, interest in space related public policies are the main hindrances to formulate national space laws. The existing general national laws of Pakistan are somewhat relevant to outer space exploration and use, however, lack in full and systematic support of new developments as compared to various spacefaring nations. These are the challenges that must be addressed by Pakistan in order to legislate and to revisit its present structure, both legislative and decision-making, for outer space activities. This paper critically analyzes the domestic legislative hurdles and challenges with a view of recommending the adoption of relevant national laws and regulations in order to develop and sustain a full space economy as well as to implement Pakistan’s international obligations, in line with some other States.


Shakeel Ahmad
Shakeel Ahmad, Erin J.C. Arsenault Research Fellow, Institute of Air and Space Law, McGill University; email: shakeel.ahmad@mcgill.ca. Author has also served as a focal person for Centre of International Law at NDU, Islamabad, Pakistan.

    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.

    Outer Space is an international common area, where exploration and use are recognized as the rights of all countries (Art.1, Outer Space Treaty (OST)). States bear international responsibility for their national activities, including those carried out by non-governmental entities with the requirement of “authorization and continuing supervision by the appropriate State” (Art.6, OST). Due to the operational nature of space activities, it is physically and legally unrealistic to separate them by some territorial criteria. Hence, it is natural for safety operations and other common domains of traffic, such as aviation or maritime, to pursue a certain level of unification of national control, although concrete measures for realizing the OST requirements are entrusted to each State. Thus, establishing an international regime for space traffic management is becoming a critical issue in contemporary space governance. From this point of view, the implementation of Art. 6 of the OST must be revisited as a precedent since it is the sole and explicit requirement of international law for States when controlling their space activities. Practically, national legislation for implementing this requirement is lumbering, even within major space powers. Thus, it is only in this decade that national regulations have rapidly begun to emerge. Based on the analysis of several practical cases, focusing particularly on non-governmental space activities, this paper aims to present the possibility and boundary of effective “authorization and continuing supervision by the appropriate State” to retain effective control, for the safety and sustainability of space activities.


Yu Takeuchi
Yu Takeuchi, Management and Integration Department, Human Space Flight Technology Directorate, JAXA, 2-1-1 Sengen, Tsukuba, Ibaraki, Japan 305-8505; Institute of Space Law, Graduate School of Law, Keio University, 2-15-45 Mita, Minato-ku, Tokyo, Japan 108-8345.

    Even though much innovation was occurring in outer space in the ‘space age’, it is only recently that activities in the stratosphere and mesosphere have caught the fantasy of business. Sub-orbital flights and high-altitudinal platforms (HAPs) are some of the ways in which the region’s capabilities are being sought to be exploited. The area is also environmentally very sensitive because of the presence of the ozone layer. Legally however it is an indistinct area, where it is not clear whether the activities that take place are airspace or outer space activities. Referred to by different names by different authors, this area is being designated as Near Space for the purpose of this paper. Extending from approximately 18km – 160km above sea level this is a region where most aviation activities come to an end but the atmosphere is too dense to support space activities. Given the current debates, there is a high likelihood of the area being demarcated simply as airspace or outer space, without much consideration being given to its unique scientific, technical and economic capacities. This paper argues that it is the underlying State that has the greatest interest in preserving the Near Space above its territory, and that similar to the EEZ a specific legal regime for Near Space is needed. The example of EEZ will be used to show how national laws (even in absence of an international regime) can benefit both the underlying States as well as preserve what is right now a global commons.


Mini Gupta
Mini Gupta, Adv. LLM. (Air and Space) Law, Leiden University, Leiden, the Netherlands.

Tommaso Sgobba
Tommaso Sgobba, Executive Director, International Association for Advancement of Space Safety, Noordwijk, the Netherlands.

    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.
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