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    Currently, the space industry is witnessing a commercialisation wave which, at least in parts, can be considered as disruptive. New technology and market trends associated to this commercialisation wave are circumscribed by the term NewSpace. Along with the NewSpace trend, there is a wave of investment in commercial space activities. Favourable framework conditions supporting commercialisation are key factors for investment decisions and the commercial success of companies along the entire value chain.
    Laws and regulations concerning commercial space activities are established in many countries, but they are currently reviewed and amended in the light of technology and market trends. Certain new services and applications are not yet addressed under national laws, or there is no consensus on their treatment at international level. Overall, there are significant uncertainties and/or evolutions regarding the legal framework in which space companies are operating. Companies along the value chain require different types of governmental approvals, including licenses under national space legislation, licenses under national telecommunications or media law, frequency assignments, market access authorizations, or export/import licenses. Delays in authorisation procedures and/or the denial/revocation of governmental approvals may have serious impacts on investments in space ventures.
    So far, investment treaties have not been extensively employed by the space industry for ensuring favourable political and legal conditions supporting their activities. However, the wave of commercial space companies and activities around the globe raises questions on the potential future role of public investment law.


Erik Pellander
BHO Legal, Germany, erik.pellander@bho-legal.com.

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

    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.

    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.

    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.

Irina Chernykh
Department of International Law, RUDN University.
Article

Evolving Norms on Pre-Launch Notifications of Space Launch Vehicles and Space Object Registration

A Historical Perspective in the Context of UNISPACE+50 Thematic Priority Three

Journal International Institute of Space Law, Issue 4 2018
Authors Kazushi Kobata
AbstractAuthor's information

    The development of the requirements for information exchange on space objects and events (now identified as UNISPACE+50 thematic priority three) has been accelerating from around the mid-2000s. However, it has yet to be highlighted that, for around 30 years, many proposals of these norms appeared repeatedly with many similarities in different international bodies. The purpose of this study is to better understand the chronology of the evolution of these norms, and to evaluate how and why certain current norms, specifically the “Guidelines for the Long-term Sustainability of Outer Space Activities” (“LTS Guidelines”), were able to evolve upon states reaching a consensus and agreeing upon formalized text, as compared to similar proposals in the past which failed to reach a consensus. Analyzing the conference room papers in the Ad hoc Committee (“AHC”) on the Prevention of an Arms Race in Outer Space (“PAROS”) in the Conference on Disarmament (“CD”) and the diplomatic records in Japan until the mid- 1990s, research shows that the following three proposals on Confidence Building Measures (“CBM”) of outer space (that were never implemented) ended up entering the discussion that led to the LTS Guidelines: (a) proposals on ensuring the immunity of satellites; (b) strengthening the Registration Convention; and (c) pre-launch notifications. This paper discusses the deliberative process of proposals (b) and (c) in the AHC, and how these two proposals later evolved into the LTS Guidelines on enhancing the practice of registering space objects as well as guidelines on pre-launch notification of space launch vehicles. It is noteworthy that, while the proposal on pre-launch notifications had gathered positive reactions in the AHC on PAROS, the US insisted that the issue be dealt with in the Missile Technology Control Regime (“MTCR”), which resulted in the formulation of the International Code of Conduct against Ballistic Missile Proliferation (also known as the Hague Code of Conduct or “HCOC”) after consultation with like-minded countries outside the UN. However, recently, these discussions regarding the current LTS Guidelines on pre-launch notification of space launch vehicles returned to be discussed at the UN and a consensus was partially reached. The HCOC is sometimes criticized by non-Subscribing States that it was formulated by the initiatives of non-UN countries that possess missile technology. However, the LTS Guidelines demonstrate that norms on prelaunch notification are also acceptable in the UN in the context of the safety of space activities. These findings indicate that the norms on outer space lie across multiple areas such as peaceful uses of outer space, disarmament, arms control and non-proliferation. They have gradually progressed to change the international arena, slowly and intermittently.


Kazushi Kobata
Deputy Manager, Legal and Compliance Division, Japan Aerospace Exploration, Agency (JAXA), Ochanomizu Sola city, 4-6 Kandasurugadai, Chiyoda-ku, Tokyo, 101-8008 Japan, kobata.kazushi@jaxa.jp. Researcher, Institute of Space Law, Keio University, 2-15-45 Mita, Minato-ku, Tokyo 108-8345 Japan.
Article

Legal Rights and Possibilities to Access Satellite Data for a Non-Member State of Space Community

Case of Republic of Serbia

Journal International Institute of Space Law, Issue 3 2018
Keywords satellite data, digital divide, space law, EU, Copernicus, Republic of Serbia
Authors Anja Nakarada Pecujlic and Marko Pajovic
AbstractAuthor's information

    In today’s technologically dependent society an average person interacts 36x per day with satellite through diverse applications (e.g. to note just one example - 3/4 of the data used in weather prediction models depend on satellite data). Because of this wide use of satellites, nowadays 80+ countries currently operate at least one satellite in space (latest countries to reach space were Ghana, Mongolia, Bangladesh and Angola). Especially for states that are less economically and technologically developed, space systems are particularly useful and necessary in order to achieve “frog leaping” and decrease the economic and social inequalities between developing and developed states. Involvement in space activities gives them the opportunity to utilize state of the art technology and solve local issues (e.g. environmental, e-health, e-medicine, transportation). Taking a closer look at the satellite data and imagery, it can be observed that the users are mainly public sector clients, such as military institutions for security uses as well as environmental and agricultural authorities. Hence, in the first line it is important to examine which legal framework is governing the access to satellite data and if public sector clients from the developing countries have the same guaranteed rights under international law as the developed nations. This paper will offer in its first part an overview of existing international norms regulating access to satellite data, focusing on relevant provisions in the corpus iuris spatialis. In the second part it will compare these legal rights with the praxis, i.e. determining what are actual possibilities to exercise these rights, if a state is not involved in space activities and has never been a member of space community like in the case of Republic of Serbia. In the third and final part, the paper will zoom in on the EU flagship programs - Copernicus and Galileo - and ESA’s data access policies in regards to states that are neither EU nor ESA member states, but are striving for full European integration, as Serbia.


Anja Nakarada Pecujlic
Institute for Air Law, Space Law and Cyber Law, University of Cologne, Albertus-Magnus-Platz, Cologne 50923, Germany (corresponding author), anja.n.pecujlic@outlook.com.

Marko Pajovic
Serbian Case for Space Foundation, Dr. Ivana Ribara 105, Belgrade 11070, Serbia, marko.pajovic@serbiancaseforspace.com.

    1. The main question of my research is “who will possess the intellectual property rights of remote sensing images, obtained from observation satellites, analyzed through big data analysis conducted by A.I.”
      In consideration of this theme, I am aiming to organize the following controversial points which may arise from the sale of satellite data:

      1. Intellectual property rights attributed to raw data;

      2. Copyright of the results of A.I. data analysis; and

      3. Rights (copyright and patent rights) of the firms that create the algorithms.

    2. To further examine this issue, I begin by discussing two topics from intellectual property law and international space law perspective:

      1. Points of contention regarding the attribution of copyright for satellite data extracted from observation satellites; and

      2. The idea of “the denial of preferential access right for the remote sensing data of surveyee’s countries” which was provided in the 1986 Remote Sensing Principles.

    3. In addition to the above, I aim to highlight areas that may be problematic in this new era for the space industry, as well as notable points for business players, by superimposing data analytic methodology with a discussion of the rights of A.I. deliverables. The aim of this paper is to integrate a space law issue (rights of remote sensing images) with an intellectual property law issue (with an emphasis on traditional issues as well as A.I. rights).

    4. To conclude, I will highlight certain opinions from a legislative perspective and emphasize the importance of critical importance of strategic contractual coverage of these issues.


Mihoko Shintani
TMI Associates.

    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.

    The aim of this paper is to present an overview of the assessment undertaken by the DG Competition of the European Commission on a series of merger and acquisition cases occurring in the space sector in the last 25 years. Not only do the decisions of the DG Competition record the evolution of the major actors in the space sector in Europe but they also demonstrate how the DG Competition of the European Commission has acknowledged the regulatory contribution of the European Space Agency to the creation and growth of the industrial landscape of the space sector in Europe. The paper is not meant to be a scholarly contribution to the analysis of EU competition law. It is, instead, a fact-finding exercise seen from the perspective of ESA’s industrial policy.


Marco Ferrazzani
European Space Agency (ESA), Legal Counsel and Head of Legal Services Department.

Ioanna Thoma
European Space Agency (ESA),Legal Officer.

    The growth of private launch service providers in the United States stems from choices made by legislators and policy-makers that, whether intentional or not, created a market for these launch services. The first of these choices was made in 1985 when President Reagan issued an executive order allowing NASA to use the Space Shuttle to deliver commercial satellites into orbit only if the satellite required the “unique capabilities” of the Shuttle. As a result, the need for launch services for satellites that did not meet this standard quickly grew and private industry soon began filling this need. The demand for private launch services became even greater when, in 1988, President Reagan issued another directive requiring government agencies to use commercial launch service providers “to the fullest extent feasible.” When the last operational Space Shuttle, the Atlantis, was retired in 2011, the U.S. government no longer had an operational launch vehicle that could reach the International Space Station. Not wanting to rely on foreign spacecraft and wanting to spur the further growth of private industry, NASA launched programs to encourage the development of private launch services to deliver crew and cargo to the ISS. These programs resulted in the rapid development of multiple private launch service providers that now compete to deliver cargo and crew to the ISS. This paper will explain the role that these policies played in the evolution of the U.S. launch service industry and whether the adoption of the US approach is appropriate for other countries where the governmental space programs and related private industry are quite different from the space program and private industry of the United States.


Mark J. Sundahl
Cleveland State University. m.sundahl@csuohio.edu.

    The majority of the world still does not have access to the internet, and this “digital divide” is not only an issue in developing countries. Unconnected populations exist in every country, and regulators must find ways to provide universal access to the internet. Furthermore, the demand for connectivity (internet and data) is growing exponentially, and existing terrestrial solutions likely will be insufficient. Regulators must foster new technologies such as the newest non-geostationary satellite constellations, which have almost no delay for two-way voice and data connections and can provide broadband to the most remote and unconnected populations and industries. To ensure the fast deployment of these solutions, regulators should support technology-neutral regulations (such as blanket licensing) that encourage speedy rollout of innovative services, as well as have transparent “open skies” policies that promote competition (which has been proven to boost economies).


Ruth Pritchard-Kelly
Vice President of Regulatory Affairs, OneWeb.

    From the inception of European integration, a regime trying to regulate and arrange competition as much as considered necessary for the benefit of society at large has been one of the core elements of the European Union’s legal order. While the European Union has over the past few decades become more and more involved in the European space effort, this has so far hardly given rise to fundamental application of this competition regime to space activities, even if space also in Europe increasingly has become commercialized and privatized. The current paper investigates the reasons and rationale for this special situation, addressing inter alia the special character of outer space activities and the space industry and the role of the European Space Agency in this respect.


Frans G. von der Dunk
University of Nebraska-Lincoln.
Article

From the Unilateral Acts of States towards Unilateralism in Space Law

Journal International Institute of Space Law, Issue 1 2018
Keywords Unilateral acts of States, unilateralism, multilateralism, cooperation, space law making
Authors Tugrul Cakir
AbstractAuthor's information

    Unilateralism has generally been considered a concept with negative connotations. It should be underscored that in some cases unilateralism has resulted in changes either to customary law or treaty law, whereas in others it has not. Consequently, not every type of unilateralism can be perceived as a challenge to Space Law. Nevertheless, we can see the risks of unilateralism when not acquiesced to or generally supported by other States. It is obvious that the multilateral process is becoming more complicated than before which complicates finding multilateral solutions in Space Law. This paper argues that a better understanding of unilateral acts is necessary before delving into the matter of the unilateralism in Space Law.


Tugrul Cakir
Centre du Droit des Espaces et des Frontières, Université Jean Moulin Lyon III, France, PhD candidate, tugrul.cakir@etu.univ-lyon3.fr.

    Whether it is for environmental purposes, by monitoring the Earth’s forests, oceans or the Arctic, or military purposes, such as target selection or troop movements, our modern society has become increasingly dependent on remote sensing activities by satellite; one of the most extensively practised space activities. In addition to these scientific and military uses, a significant commercial remote sensing market has developed predicted to be worth between US$8 and US$15 billion by 2026. Moreover, the technological capabilities of remote sensing satellites are ever improving; for example, with the Airbus Spot 6 and Spot 7 satellites that boast a 70 cm resolution or BlackSky’s Global satellite that boasts a 1 m resolution.
    However, these developments occur against a backdrop of meagre legal regulation of the activity, especially considering how commonplace remote sensing is and the fastpaced technological developments. On an international level, remote sensing activities are primarily addressed through the Remote Sensing Principles under UNGA Resolution 41/65. Yet, the Principles hardly address private entities, the scope is very limited, and the status of the Principles is contentious. In contrast, national space legislation is binding and more apt at keeping up with the developments because it is less complicated to adopt and amend such legislation than to reach consensus within the international community. Nevertheless, few states have actually addressed remote sensing in their national space legislation.
    This paper examines whether the best approach towards creating a stronger framework for regulating remote sensing activities, even on an international level, would be a bottom-up approach through national space legislation. First, it will examine the regulation of remote sensing under international law. Thereafter, this paper will discuss the regulation of remote sensing activities in a selected number of national space legislations, namely France, Germany, and the United States. Third, it will discuss, briefly, the bottom-up approach to international law-making. Finally, in light of the aforementioned considerations this paper will argue that more states should regulate remote sensing activities in their national space legislation, and that this could contribute to create more certainty about remote sensing activities on an international level but will also signal the challenges that such a bottom-up approach will bring with it.


Vincent Seffinga
Department of Law, European University Institute, Villa Salviati, Via Bolognese 156, 50139 Florence, Italy, Vincent.Seffinga@EUI.eu.

Scarlet Wagner
Lund University.
Article

The 2017 Manfred Lachs Space Law Moot Court Competition

Case Concerning Lunar Facilities and Withdrawal from the Outer Space Treaty (Republic of Perovsk v. Republic of Titan)

Journal International Institute of Space Law, Issue 12 2017
Authors Melissa K. Force
Author's information

Melissa K. Force
Co-Chair, Manfred Lachs Space Law Moot Court Committee, IISL.

Olga A. Volynskaya
Russian Foreign Trade Academy, Russian Federation, o.a.volynskaya@gmail.com.
Article

Report of the 32nd IAA/IISL Scientific-Legal Roundtable

Technological and Legal Challenges for On-Orbit Servicing

Journal International Institute of Space Law, Issue 7 2017
Authors Marc Haese

Marc Haese
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