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Journal International Institute of Space Law x Year 2018 x

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.

Joanna Langlade
Alumna of the Leiden University Advanced LL.M. in Air and Space Law.
Article

Commercial OOS and Its Future: Policy and Legal Issues beyond Life Extension

Journal International Institute of Space Law, Issue 8 2018
Keywords on-orbit servicing (OOS), on-orbit assembly (OOA), on-orbit manufacturing (OOM), active debris removal (ADR), modular spacecraft concepts
Authors Olga Stelmakh-Drescher, Ian Christensen and Joerg Kreisel
AbstractAuthor's information

    Satellites have typically been viewed as high-cost, static platforms that once launched have a limited orbital lifetime and a physical and mechanical structure that cannot be altered or maintained (with very limited exceptions). However, in the current day, a number of technical and market innovations are being deployed by the private sector, which might change this paradigm. These include small satellites, on-orbit assembly (OOA) and modular spacecraft concepts, and on-orbit servicing (OOS) in particular.
    OOS represents a number of possible changes in the traditional conceptualization of space systems and operations, and requires new policy, regulatory, and legal approaches. OOS potentially allows operators to extend the lifetime of existing, hence, traditional satellites; and in future possibly provide repair services or correct on-orbit anomalies or other servicing based on cooperative design and related standards.
    Space debris is a growing concern for the use of outer space. At the dawn of the space era there was no interim solution for objects launched into space once their lifetime in orbit was over: they were either left in orbit, moved to a graveyard orbit or deorbited. OOS capabilities may become part of the solution through both life extension and deorbiting of existing space infrastructure elements as well as debris avoidance due to new cooperative design philosophies aiming at OOS. As such OOS has implications for space debris mitigation. Requirements laid down in national legislation are important to define the extent of execution of space debris mitigation guidelines, including the end-of-life plan. However, space debris implications are only one element which must be considered in relation to OOS capabilities.
    In many national jurisdictions OOS is a new application without clearly defined regulatory and licensing practices. States have an obligation to provide this authorization and supervision framework, while industry requires a permissive regulatory framework to provide legal certainty. All stakeholders are committed to preserving the safety of the operating environment.
    With that in mind, this paper analyzes the prerequisites for evolution of OOS and opportunities for market creation, provide an overview of existing boundary conditions regarding OOS policy and legal scope and its commercial implementation including risks and challenges to be address, and examine how development of technologies needed for OOS could influence insurance and serve as economic driver. Finally, the paper will try to envision the way ahead towards capacity-building for OOS.


Olga Stelmakh-Drescher
International Institute of Space Commerce, 147 S. Adams Street, Rockville MD, 20850, United States, osd@iisc.im (corresponding author).

Ian Christensen
Secure World Foundation, 525 Zang Street, Suite D, Broomfield, Colorado, 80021, United States, ichristensen@swfound.org.

Joerg Kreisel
JKIC, Christhauser Strasse 67a, D-42897, Remscheid, Germany, jk@jkic.de.

    The United Nations space treaties establish the basic legal framework governing outer space activities. While it is through national space legislation that the spirit and schemes in these treaties are further instilled into specific entities undertaking space activities, launch services contracts play a notable role in final stage of rendezvous and docking with the legal infrastructure at international level. For example, allocation of risk/liability mechanism in these contracts is deeply influenced by treaty provisions and national legislation. These arrangements seem to be made all the more complicated in the context of international launch projects. Growing demand from the small satellite sector for ride hitching opportunities in space launch begs the question of whether and how the launch service contracts need to be tailored to accommodate industry demand and regulatory needs. This paper purports to examine some of the regulatory issues surrounding risk/liability management under standard and piggyback launch services contracts, which reflect deliberate compliance on micro-level with the international and national legal framework on macro-level.


Kang Duan
China Great Wall Industry Corporation.
Article

The Principle of Non-Appropriation and the Exclusive Uses of LEO by Large Satellite Constellations

Journal International Institute of Space Law, Issue 8 2018
Keywords Non-Appropriation Principle, LEO, Exclusive Use, Large Satellite Constellation, Mega Constellation
Authors Yuri Takaya-Umehara, Quentin Verspieren and Goutham Karthikeyan
AbstractAuthor's information

    Newly proposed projects of large satellite constellations are challenging the established business models of the satellite industry. Targeting the Low Earth Orbit (LEO), already the most populated orbit for space applications, these constellations pose an increasing risk regarding the sustainable use of outer space. According to the Inter- Agency Space Debris Coordination Committee (IADC), presenting at the Scientific and Technical Subcommittee of the UN COPUOS in 2018, the implementation level of the IADC Space Debris Mitigation Guidelines in LEO is considered as “insufficient and no apparent trend towards a better implementation is observed", when compared with GEO. In parallel, 11 private entities such as OneWeb, Telesat and SpaceX have applied for approval from the U.S. Federal Communications Commission (FCC) to initiate large satellite constellation projects.
    Before the launch of these massive constellations, several legal issues have been identified from the perspectives of international obligations related to liability and registration. Taking them into consideration, as well as the IADC recommendations, the present article reviews one of the most fundamental principles in space law, the principle of non-appropriation, to clarify its applicability to the exclusive use of specific LEO orbits by large satellite constellations. After this clarification, the paper concludes with proposals for possible solutions.


Yuri Takaya-Umehara
The University of Tokyo.

Quentin Verspieren
The University of Tokyo.

Goutham Karthikeyan
The University of Tokyo & Institute of Space and Astronautical Science, Japan Aerospace Exploration Agency (ISAS-JAXA).

Gilles Doucet
Spectrum Space Security Inc.

Nicola Rohner
Article

What Are Space Resources? What Are Celestial Bodies?

The Need for Refined Legal Definitions in View of Recent Regulatory Efforts Concerning Space Resources

Journal International Institute of Space Law, Issue 5 2018
Authors Irmgard Marboe and Michael Friedl
AbstractAuthor's information

    Recent efforts in the regulation of the use of space resources have raised controversial discussions about the compatibility of respective national legislation with international law. The situation is relatively unclear, also because key terms in this context have so far remained relatively vague and undefined under international law, including most importantly the terms space resource and celestial body. The purpose of the present paper is to examine how these terms, as they are used in the UN space treaties, should and could be defined in order to provide better guidance to national legislators and international fora concerned with the formulation of recommendations on space resources governance at the international level. In addition to Articles 31 and 32 of the Vienna Convention on the Law of Treaties, approaches and definitions used in practice by scientists, such as astronomers, astrophysicist, and engineers, will be taken into account.
    As regards the term space resource it will be addressed to what extent the difference between renewable and non-renewable resources may be relevant for the legal qualification of outer space resources and the regulation of their use. As regards the term celestial body it will be asked whether it could be meaningful to differentiate the Moon – and other planets and stars – from asteroids in the development of legal regimes governing their use and exploitation. In this respect, recent scientific findings will be presented in more detail.
    Technological progress and its legal implications shall be discussed in view of the historical development of the legal regime of outer space, including the concepts of freedom of use, benefit of mankind and common heritage of mankind. The paper will also address comparable concepts and their development in the law of the sea.


Irmgard Marboe
University of Vienna, Austria.

Michael Friedl
University of Vienna, Austria.

    This paper tries to give orientation on which legal ramifications a plan for a Moon Village should observe. Through an analysis of the relevant provisions of international space law it shall be highlighted what kind of activities are compatible with international space law as well as which kind of legal developments of space law may be aimed at in order to make future activities of the Moon Village successful.


Stephan Hobe
Prof. Dr. Dr. h.c., LL.M. (McGill); Director of the Institute of Air Law, Space Law and Cyber Law; holder of the Jean-Monnet Chair for Public International Law, European Law, European and International Economic Law at the University of Cologne. stephan.hobe@uni-koeln.de.

Rada Popova
Teaching and Research Fellow and PhD candidate at the Institute of Air Law, Space Law and Cyber Law (University of Cologne); (Mag. iur) Law Master's Degree (University of Vienna); Researcher at the 2017 Centre for Studies and Research (Hague Academy of International Law). rada.popova@uni-koeln.de.

    Since its inception, space law has been governed by principles and rules established by governments and primarily applicable to government activities. Today we are experiencing policy changes to encourage private sector initiatives to carry out government missions and to expand potential profit-making opportunities. The space treaties allow for nongovernmental activities in space but only under the auspices of a nation. Each nation approaches legal solutions in their own way. These variations in national law may create challenges for all space-faring nations. If there are no international agreements, they may create a more fragmented, unpredictable, and unsustainable environment for all participants, both governments and private companies in outer space.
    The fragmentation of international law is defined by the development of sets of rules pertaining to specific subject areas that may claim autonomy from principles of general international law. Those subject areas reflect the larger global issues that include the environment, energy, resource availability, migration, health, and the proliferation of weapons of mass destruction. Space law is unique and may be considered one of the fragmented areas of international law. The principles of the now 50-year old treaties have been formally acknowledged by all space-faring nations. New developments may threaten that.
    At issue are many areas of space law including liability, property rights, and environmental harm. Different on-orbit space activities such as satellite servicing, exploiting resources, and removing debris highlight the types of space activities with many similar legal concerns but which may result in different rules in different nations and even for different rules within a nation. New and growing legal tensions among space-faring nations will arise.
    Solutions to this problem are all suboptimal. Neither top-down oversight nor separate bottom-up rules or guidelines will suffice as stable, predictable, and long-lasting regimes that create a favorable legal environment for future public and private space exploration and use.


Henry R. Hertzfeld
Director and Research Professor, Space Policy Institute, George Washington University, Washington, DC; hhertzfeld@law.gwu.edu.

    Cyber security opens a new dimension in the discussion on human activities in outer space. The part of the law pertaining to cyberspace which is of interest for this paper is the regulation related to cyber activities in outer space.
    Space activities are not immune from malicious cyber activities as transmission signals are vulnerable to cyber access. The range of threats is very wide and can include the loss of control, the disruption of services and the modification or loss of data. While it is clear that the malicious uses of cyberspace constitute a large spectrum of threats for space operations, the legal rules applicable to cyber operations have still to be determined.
    This paper will first tackle definitional matters in order to describe the technical nature of cyberspace and to address the question on how cyber law may touch upon outer space activities. Then, questions of the applicability of international law and space law to cyber activities as well as measures to address the consequences of cyber threats to the space infrastructure will be addressed.


Rada Popova
Teaching and Research Fellow and PhD candidate at the Institute of Air Law, Space Law and Cyber Law (University of Cologne); (Mag. iur) Law Master’s Degree (University of Vienna); Researcher at the 2017 Centre for Studies and Research (Hague Academy of International Law). Institute of Air Law, Space Law and Cyber Law, University of Cologne, Germany, rada.popova@uni-koeln.de.

    As in previous years, this third Progress Report provides an update on the developments of The Hague International Space Resources Governance Working Group. It focuses on the results of the last meeting of its first phase, which ended in December 2017 and provides an overview of the expected activities in its second phase from 2018-2019.
    Following a very brief recap of the purpose and functioning of the Working Group, the paper will focus on the major milestone achieved at the end of the first phase, namely the “Draft Building Blocks for the Development of an International Framework on Space Resource Activities”. The Building Blocks were formulated as a basis for negotiations on a future governance system for the use of space resources and were widely made available in order to gather feedback from the international community at large, the results of which will be presented.
    The paper will also report on other progress made during the second phase of the Working Group, such as the establishment of a technical panel and a socio-economic panel and the results of the fifth face-to-face meeting.
    Lastly, the paper provides insight into the prospects for a successful conclusion of the activities of the Working Group and the way forward toward an international framework for the governance of space resources.
    All authors are closely involved with the creation and activities of the Working Group.


Tanja Masson-Zwaan
International Institute of Air & Space Law, Leiden University, the Netherlands, t.l.masson@law.leidenuniv.nl (corresponding author).

René Lefeber
Netherlands Ministry of Foreign Affairs, the Netherlands, rene.lefeber@minbuza.nl.

Giuseppe Reibaldi
The Hague International Space Resources Governance Working Group, the Netherlands, giuseppe.reibaldi@gmail.com.

Dimitra Stefoudi
International Institute of Air & Space Law, Leiden University, the Netherlands, d.stefoudi@law.leidenuniv.nl.

Edward Burger
The author was a Research Fellow at the European Space Policy Institute (ESPI) at the time of presenting this paper at the IAC 2018.

    International cooperation is the key to the strongest peace in the world, to really constructive relations and the political, economic, cultural and humanistic development among all countries, all peoples and all mankind. There is an “extraordinary danger of the current moment,” the Science and Security Board of the Bulletin of the Atomic Scientists said on January 25, 2018, when it decided to move the hand of the iconic Doomsday Clock to 2 minutes to midnight. The last time the symbolic Clock was this closing to midnight was in 1953, at the height of the First Cold War. (2) Now, 65 years later, we are in a Second Cold War, which propels a new and millionaire arms race into space, preparing a space war of inestimable consequences. The world community is “seriously concerned” about this concrete possibility, that can result in a limitless global collapse.
    The UN General Assembly Resolution 72-77, of December 7, 2017, makes an appeal “to all States Members, in particular those with major space capabilities, to contribute actively to preventing an arms race in outer space with a view to promoting and strengthening international cooperation in the exploration and use of outer space for peaceful purposes”. This resolution also “requests the Committee [The United Nations Committee on the Peaceful Uses of Outer Space – UNCOPUOS] to continue to consider, as a matter of priority, ways and means of maintaining outer space for peaceful purposes.” In its point of view, “the Committee should continue to consider the broader perspective of space security and associated matters that would be instrumental in ensuring the safe and responsible conduct of space activities, including ways to promote international, regional and inter regional cooperation to that end.” (3) As if that were not enough, we are facing an unprecedented climate crisis today. The mainstream media seek to conceal or minimize the fact. But this is part of the problem of the need to maximize international cooperation. Without it, the crisis will continue to spread and threaten the lives of millions of people around the world. In this way, can international space cooperation be carried out effectively “on an equitable and mutually acceptable basis,” as proposed the Declaration on International Cooperation (General Assembly Resolution 51/122, of December 13, 1996)? (4)
    Is it possible to ensure today “an equitable situation” on “a mutually acceptable basis” between developed and developing nations, whose distance increases more and more, mainly in military affairs? The present paper aims to discuss this and other similar issues.


José Monserrat Filho
Brazilian Association of Air and Space Law (SBDA); Brazilian Society for the Progress of Science (SBPC); International Institute of Space Law (IISL).

    Increasing commercialization and privatization of outer space and multifaceted uses and exploration of the space potential and benefits raise new challenges to the existing framework of international space law and its established procedural legal mechanisms. What are the legal perspectives of an adjustment, supersession or possible resistance of the five United Nations treaties on outer space? UNISPACE conferences have aimed to enhance international cooperation in the peaceful uses of outer space, including the promotion of common principles. UNISPACE+50 focuses, inter alia, on the issue of the “Legal regime of outer space and global space governance” and the effectiveness of the legal regime in the 21st century. Indeed, the international community is facing today new legal questions with respect to the exploitation of space recourses, multiplication of private space businesses, unilateral grants of national licenses to commercial sector, space traffic management, need for enhanced registration and precision of responsibility and liability regime, to name few. This presentation aims to introduce a general international legal framework of various procedural legal modes of further development of the five UN treaties, both in a de lege lata and de lege ferenda perspective. Light will be shed on the respective procedures of treaty law, prerequisites of the emergence of an international custom, role of non-legally binding standards, bottom-up impact of national legislations and assessment of an effective norm-making capacity of relevant stakeholders, all transposed in the space arena with regard to the current international space debate and practice of States. A selection of the most up-todate topics will serve as examples. This comprehensive legal outline aims to highlight various options that the UNISPACE dialogue and its agenda for the future can address.


Martina Smuclerova
Prague Security Studies Institute, Czech Republic, smuclerova@pssi.cz.
Article

A Vital Artery or a Stent Needing Replacement?

A Global Space Governance System without the Outer Space Treaty?

Journal International Institute of Space Law, Issue 4 2018
Authors Ram S. Jakhu and Steven Freeland
AbstractAuthor's information

    The 1967 Outer Space Treaty is the foundational framework of international space law that has succeeded in effectively governing outer space. However, it is becoming increasingly possible that a major space power, or a group of States, may consider withdrawing from the Outer Space Treaty, particularly in view of the current trend towards nationalistic political populism and isolationistic foreign policies to selectively withdraw from certain key international institutions and treaties. The Outer Space Treaty could be one such treaty, especially in relation to the exclusive national exploitation of space-based natural resources by private entities, and threats to national security. Such withdrawals would likely have serious implications for global space governance, which is essentially based on this Treaty. This paper critically addresses some of the most serious legal issues related to the void that such withdrawal might create in the prevailing international governance regime for outer space.


Ram S. Jakhu
Institute of Air and Space Law, McGill University, Montreal, Canada,ram.jakhu@mcgill.ca (corresponding author).

Steven Freeland
School of Law, Western Sydney University, Sydney, Australia, s.freeland@westernsydney.edu.au.

Dennis C. O’Brien
The Space Treaty Project.
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