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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.
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