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Journal International Institute of Space Law x

    The milestone provisions in the Outer Space Treaty designate outer space and celestial bodies as an area beyond national jurisdiction in which national jurisdiction extends only to space objects and persons in outer space. In view of upcoming commercial space mining activities and the recent national legal developments, it is of crucial importance to delineate the different levels of legal authority over space resource activities and to analyze them systematically. What is indisputable, in the first place, is that any national appropriation in outer space is prohibited by Article II OST, while the appropriation of resources is not explicitly mentioned. More specific provisions are formulated in the Moon Agreement. Its Article 11 prohibits the appropriation of resources on celestial bodies and states that such activities — as soon as they become feasible — must be regulated by the international community of States. While this moratorium on resource exploitation is binding only for the 18 ratifying State parties to the Moon Agreement, there is no doubt that the legal authority to regulate over outer space lies with the international community and not with single States. Unilateral legislative acts must conform to existing international provisions as outer space is an area beyond national jurisdiction. Where such explicit provisions are lacking – as is the case with the appropriation of space resources – the lawful scope of national authority must nevertheless be delineated through international regulation as States lack the national prescriptive authority to regulate over outer space and celestial bodies.


Stephan Hobe
Prof. Dr. Stephan Hobe is Director of the Institute of Air Law, Space Law and Cyber Law and Holder of the Chair for Public International Law, European Law, European and International Economic Law at the University of Cologne.

Rada Popova
Rada Popova is a senior lecturer (public international law, EU law and constitutional law) at the University of Cologne and research fellow at the Institute of Air Law and Space Law in Cologne.

Mahulena Hofmann
SES Chair in Space, SatCom and Media Law, University of Luxembourg.

    Most national commercial space legislation imposes a general obligation to comply with the Outer Space Treaty, often by reference to compliance with international obligations generally, on commercial entities seeking authorization to engage in space activities. Accordingly, a low-level or minimalistic harmonization exists in this respect. However, different wording in national space laws of even this very generally worded obligation as well as failure to include such an obligation in a select number of national space laws makes such harmonization imperfect. The consequences of this minimalistic, imperfect harmonization are a reduction in potential transparency benefits to private parties and missed opportunities to advance a coalescence of views of countries around Outer Space Treaty obligations. More detail in national space legislation regarding what the Outer Space Treaty requires may assist in achieving greater coalescence of views among countries of Outer Space Treaty obligations beyond what can be achieved relying on diplomacy alone within the UN Committee on Peaceful Uses of Outer Space (UNCOPUOS) and in other forums. It may also provide more transparency and certainty to private parties and confirm that OST obligations are minimally burdensome for commercial entities, thereby helping their business cases and expanding commercial space innovation and investment.


Matthew Schaefer
Haggart & Work Professor of International Trade Law & Founding Co-Director – Space, Cyber and Telecommunications Law Program, University of Nebraska College of Law.

    Among the numerous space activities, satellite communications remain the most widespread, essential, and advanced. To perform a communication function, satellites need to be placed in orbit and use the radio-frequency spectrum. Such limited natural resources, which require rational, equitable, efficient, and economical use in an interference-free environment, are managed by the International Telecommunication Union (ITU).
    Before a new satellite or a satellite network is brought into use, the relevant operator carries out coordination with other operators which utilize satellite networks in the adjacent orbital locations. The results of the coordination procedure are then reflected in coordination agreements. Though coordination may last for years, the difficulty is not so much the conclusion of an agreement as its due performance and enforcement.
    Coordination agreements generally contain mutually acceptable technical parameters for the operation of certain frequencies and their breach may cause harmful interference toward communications satellites. At the request of administrations, the ITU carries out investigations of harmful interference and formulates recommendations. Although such a process has a few drawbacks, complete disregard for the content of coordination agreements makes it totally meaningless.
    If the ITU’s recommendations cannot satisfy the parties or are not duly followed, or if damage was caused by harmful interference and requires compensation, a judicial recourse seems inevitable. As disputes may involve parties around the globe, to which court should they apply? Commonly drafted by technical experts, coordination agreements hardly provide for a dispute resolution mechanism or governing law, while the application of general rules may bring parties to an exotic jurisdiction equally irrelevant to both. Whatever court is chosen, the question of specific knowledge arises. However, the ITU’s practice has always been not to get involved in disputes.
    Therefore, disputes related to coordination agreements pose legal challenges. Where to adjudicate the case and what law to apply are just the tip of the iceberg, while the major question of whether there is a need for a specialized court remains significant. This field of space activities apparently requires legal advice.


Elina Morozova
E. Morozova, Head of International Legal Service, Intersputnik International Organization of Space Communications.

Yaroslav Vasyanin
Y. Vasyanin, Legal Counsel, International Legal Service, Intersputnik International Organization of Space Communications.

Michael Friedl
Michael Friedl is a PhD candidate and research and teaching assistant at the University of Vienna, Austria.

Maximilian Gartner
Maximilian Gartner is a PhD candidate in a joint PhD program at the University of Bologna, Katholieke Universiteit Leuven and Mykolas Romeris University.

    The increasing interest in extracting natural resources from celestial bodies raises many issues, among which guaranteeing environmental standards is paramount. There is more than a reasonable concern that industrial exploitation of the outer space lead to similar or even greater disasters than the ones already afflicting Earth. There is a consensus among the legal community that international law does provide environmental protection through the Outer Space Treaty in its Article IX. Because of its generality, however, this provision precludes the agreement from effectively protecting the outer space's environment in the context of specific activities. The present contribution aims to explore appropriate legal responses. One, often proposed, is that such a response should take the form of a new international agreement. Considering the lengthy process of treaty-making, and the reluctance of States to adopt binding international documents limiting their freedom in space, there is a high chance that space mining activities will have started by the time there is any kind of international agreement. Therefore, another approach must be envisaged, which rests with the analysis of existing environmental standards that could be leveraged to answer the challenges of space mining activities. Special attention will be paid to the enforcement of the Outer Space Treaty and how it should be combined with what is usually referred to as “soft laws”. As a conclusion, the contribution attempts to answer the question of the transforming role of States in complementing existing international standards for the protection of the outer space environment.


Gabrielle Leterre
Doctoral Researcher, Université du Luxembourg, Faculty of Law, Economics and Finance, Luxembourg.
Article

Real-Time Challenges for the Registration Regime: Where to?

Journal International Institute of Space Law, Issue 9 2018
Authors Georgia-Eleni Exarchou, Yvonne Vastaroucha, Pelagia-Ioanna Ageridou, e.a.
AbstractAuthor's information

    Registration is the sole basis for “jurisdiction and control” in outer space (Art. VIII OST) and also constitutes the basis for responsibility over a space object. It is therefore evident that ambiguities regarding registration are crucial for the safety of space operations. The discussion about registration has been escalating lately as space is becoming increasingly accessible with the diversification of space subjects. Simultaneously the practice of States indicates reduced diligence in registering their space objects. Initially, the present paper briefly recapitulates the different registries and processes based on the general rule that a launching State shall register a space object set by Art. II of the 1976 Registration Convention. It then turns to current challenges concerning the registration procedure as well as its consequences. Firstly, the term “launching State” is scrutinized, aiming to address several cases of private launches where registration was omitted. Subsequently, the challenges posed by the transfer of ownership of in-orbit space objects are discussed. In this context, it is examined whether there is a rule of international law allowing for the transfer of registration where the registering State has no effective control over an object. Secondly, the paper analyses the notion of “launching State” in light of joint launching and launchings realized by international organizations. It further attempts to answer the relevant question of registration of mega-constellations. The paper concludes by reviewing the possibility of the desirable harmonization and standardization of the registration regime under the Registration Convention, the UNGA Resolution 62/101 and the newly added Guideline 6 of the Guidelines for the Long-Term Sustainability of Outer Space Activities in light of the aforementioned developments.


Georgia-Eleni Exarchou
National & Kapodistrian University of Athens.

Yvonne Vastaroucha
National & Kapodistrian University of Athens.

Pelagia-Ioanna Ageridou,
National & Kapodistrian University of Athens.

Iliana Griva
National & Kapodistrian University of Athens.
Article

Fledgling Polish Space Industry Ready for Lift–Off

Law as a Risk Management Tool in the Emerging Space Sector

Journal International Institute of Space Law, Issue 9 2018
Keywords outer space, space activity, national space law, liability in space law, Polish space law
Authors Katarzyna Malinowska
AbstractAuthor's information

    This paper presents an overview of recent developments in Poland from a regulatory and institutional point of view, as well as at a programme level. Though Poles played an active part in setting out the foundations of the international space law, largely through the pioneer of space law – Polish Professor Manfred Lachs – for many years the Polish space industry barely existed, consisting only of the activities of a few engineers brave enough to set up start-ups and cooperate with big international players. The situation changed in 2012, when Poland joined ESA as a full member. Joining ESA and opening up the space industry to small players can be perceived as a significant trigger for the boost of Polish space projects. The first results came quickly. The number of Polish companies active in the sector is growing rapidly, already reaching 300 companies, forming a consistent, consolidated group of large, medium and small enterprises. Over the last five years, the attitude of the government has also been changing.
    Concerning regulatory challenges, Poland has still not adopted comprehensive space legislation, though in July 2017, a draft law on space activity was published by the government. The legal concept adopted in the national space law, especially about risk management, may influence the development of the whole national space activity, which still suffers from insufficient capital to bear the high level of risk related to ultra-hazardous activity such as space activity. The recent tendencies covering small sats, New Space, suborbital flight and space mining are also the subject of pending legislative discussions.


Katarzyna Malinowska
Professor at Kozminski University, Poland, katarzynamalinowska@kozminski.edu.pl.

Marshall Mckellar
University of Mississippi School of Law.
Article

“Leviathan Lite” - Towards a Global Stewardship Organization for Space Domain Awareness, Conduct, And Remediation

Journal International Institute of Space Law, Issue 8 2018
Keywords Satellite Regulation, Space Traffic Management, Social Contract
Authors Harrison E. Kearby, John M. Horack and Elizabeth K. Newton
AbstractAuthor's information

    This paper examines the dimensions, legal and policy implications, and ramifications of a proposed International Space Situational Awareness Organization (ISSAO), whose charter would be to provide leadership for international and collaborative stewardship of the space environment in LEO and beyond. As ever more satellites, rockets, and space stations are launched into space, the need for debris tracking, debris remediation, orbital traffic deconfliction, and definitions of ‘best practices in caretaking the space environment’ grow. Current organizations and programs are successful, at least to some extent, in educating the world on the potential dangers of space debris, and the importance of space situational awareness, yet they have little legal or political standing to provide enforcement, compliance, or remediation. Many global discussions related to space situational domain awareness have called for a cooperative international effort to create guidelines, if not charter an organization tasked with the stewardship of the space environment. Here, we examine important precedents set forth in international law and cooperation, and apply these to a proposed comprehensive body to steward space situational awareness and debris mitigation. We elucidate the requirements, enforceable powers, and probable limits of such an organization as well as important questions to be answered prior to establishment of such a body.


Harrison E. Kearby
Department of Mechanical and Aerospace Engineering, John Glenn College of Public Affairs, The Ohio State University.

John M. Horack
Department of Mechanical and Aerospace Engineering, The Ohio State University.

Elizabeth K. Newton
John Glenn College of Public Affairs, The Ohio State University.

Gilles Doucet
Spectrum Space Security Inc.

    This article studies five category of malicious cyber activities against space assets in order to assess to what extent the existing international telecommunications law and space law address such activities and identify which rules should be pursued to effectively solve them. Five category of such activities include jamming, hijacking, hacking, spoofing, and robbing the control of telemetry, tracking and control (TT&C) of a satellite (a kind of anti-satellite (ASAT)). Actual incidents are selected for analysis. Those are: (i) jamming: Iranian deliberate harmful interference to the Eutelsat satellites solved in the ITU; (ii) hijacking: a terrorist organization, Liberation Tigers of Tamil Eelam (LTTE) hijacking US Intelsat-12 satellite solved by diplomatic negotiation between the Sri Lankan and US Governments using international telecommunications law developed by the ITU and individual national laws; (iii) hacking: alleged Chinese hacking of US NOAA’s information systems; (iv) spoofing: Iranian spoofing of the GPS signals to guide a US/CIA’s RQ-170 UAV into the Iranian territory; and (v) robbing the control of TT&C: alleged Chinese taking control of US remote sensing satellites including Landsat-7 and Terra AM-1. Concluding remarks include: 1) international telecommunications law developed in the ITU can adequately address harmful interference or hijacking as a result of malicious cyber activity as long as that is conducted by a non-State actor; 2) efforts have started in the ITU to strengthen its fact-finding ability in line with the TCBM measures taken in space activities. This orientation may be remembered as a beginning of the new stage that international space law and international telecommunications law would be merged into one field of law: 3) It remains unclear about the implications of an intangible damage occurred to a satellite when its TT&C is robbed of as a result of malicious cyber activity, while it is clear that such an action constitute the violation of the principles of respect for state sovereignty, national jurisdiction and non-intervention. Thus, for promoting peaceful uses of outer space, the elaboration of relevant Articles of the Outer Space Treaty is urgently needed to formulate clear conditions for national space activities.


Setsuko Aoki
Professor of Law, Keio University Law School, Japan, saoki@ls.keio.ac.jp.

    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.
Article

Normative References to Non-Legally Binding Instruments in National Space Laws

A Risk-Benefit Analysis in the Context of Public International and Domestic Law

Journal International Institute of Space Law, Issue 4 2018
Authors Alexander Soucek and Jenni Tapio
Author's information

Alexander Soucek
European Space Agency (ESA), The Netherlands, alexander.soucek@esa.int.

Jenni Tapio
Bird & Bird Attorneys, University of Helsinki, Finland, jenni.tapio@helsinki.fi.

    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

Transferring Rights of Satellite Imagery and Data: Current Contract Practice and New Challenges

Journal International Institute of Space Law, Issue 3 2018
Keywords geospatial, remote sensing, Incoterms, intellectual property
Authors Jordi Sandalinas Baró
AbstractAuthor's information

    The present work refers to the challenge of understanding the emerging contractual paradigm referred to satellite imagery and data online commerce. Issues like the role of consent in new online contract forms will be analyzed. In this regard, the formation of online contracts requires the existence of consent given by the parties to the contract. The formation of contracts known as “click-wrap”, “browse-wrap” and “shrink-wrap” agreements constitute a new paradigm in the tradition of online commerce related to satellite imagery and data. The author highlights other legal challenges encountered during his research and practice such as the Intellectual Property Paradigm regarding Geospatial imagery and data commercial transactions. Moreover, Value Added Data and the Exhaustion of Rights Principle of the rights deserve also some close attention and must be added to the present study.


Jordi Sandalinas Baró
Attorney at Law, Maritime SDI, Drone and Satellite Law, Lecturer and Course Instructor, Universitat Oberta de Catalunya, CEO Image Sea Solutions, Coordinator SpaceLaw.net, email: advocat@sandalinas.com.

Catherine Doldirina
International Institute of Space Law, Italy, kdoldyrina@yahoo.com.

    This paper analyzes, on the one hand, the legitimate expectations and needs of the industries in terms of intellectual property protection for outer space research, as they need to be protected against violations and be free to grant exploitation licenses. On the other hand, it investigates if the use and exploitation of outer space and celestial bodies is carried out for the benefit and in the interest of all countries.
    The key issue of the protection of inventions in accordance with national and international regulations will also be addressed in the paper.
    The paper will start from a combined analysis of art. 5 of the IGA, establishing that each Partner shall retain jurisdiction and control over the elements it registers, and art. 21 of the IGA, which regulates intellectual property based on the quasi-territorial principle, and sets out that the regulations of the State in whose registered modules the invention occurs shall apply. The paper aims to examine national intellectual property protection regulations, highlighting possible conflicts of applicable national laws with respect to the place where the invention occurs and inventor nationality, but also regarding the recognition of the different patent systems adopted by ISS Partner States. European Partner States enjoy a privileged position, as set forth by paragraph 2 of art. 21 of the IGA.
    As the unique environment of the ISS calls for quick recognition of intellectual property licenses obtained in other Partner States, the paper will analyze the different Partners’ national legislation, existing International Conventions on the matter, such as the TRIPS Agreement, and European patent regulations, which streamline procedures and introduce stringent minimum protection standards in all the areas of intellectual property.


Gabriella Catalano Sgrosso
University of Rome, Italy, sgrossogabriella@gmail.com.

    The basic principles of space law such as the freedom of use of outer space and the UN Remote Sensing Principles, grants the freedom of remote sensing activities from outer space, and although many technological difficulties exist, as a result of continuous endeavor in R&D, the possible civil and private use of satellite remote sensing data to solve various issues is increasing in various fields such as disaster management, global environment issues, and is expected to further increase.
    The expansion of the use of Satellite Remote Sensing Data by current and new users is welcomed, however not all data could be with no restrictions. As a solution to this matter, on November 15th, 2017, the Remote Sensing Data Act came into full effect in Japan. The Act was established based on the fact that the use of satellite remote sensing data by private actors have increased, rules are necessary to prevent wrongful use, and a legal system is necessary to promote the new industry and services that use satellite remote sensing data. It is similar to the legislation related to remote sensing in many other countries that have high resolution satellites such as the U.S., Canada, France and Germany.
    The Act mainly sets an authorization regime for use of satellite remote sensing instruments, and a Certificate for the use of satellite remote sensing data, in order to ensure appropriate handling of remote sensing data. Japan Aerospace Exploration Agency (JAXA) is subject to these authorization and certificates. JAXA has worked closely with the Cabinet Office on the application, and now gains two authorization of the satellites, including the first Authorization based on this law.
    This paper introduces the legal system in brief, and how JAXA responds to the authorization scheme. Furthermore, describes the impacts of the law on the practical use of data, and suggestions for future improvements.


Daisuke Saisho
Japan Aerospace Exploration Agency, Management and Integration Department, Space Technology Directorate I, Japan Aerospace Exploration Agency,2-1-1 Sengen, Tsukuba, Ibaraki, Japan, 305-0061.
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