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Journal International Institute of Space Law x Year 2018 x
Report

The 2018 Manfred Lachs Space Law Moot Court Competition

Case Concerning Conflicting Activities in Outer Space, Planetary Protection, and Outer Space Security (The Democratic Republic of Neapilia v. The Republic of Kalvion)

Journal International Institute of Space Law, Issue 12 2018
Authors Melissa K. Force
Author's information

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

Jonathan Percivalle de Andrade
Peruíbe College.

    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.

    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.

    China’s first space station, Tiangong-1, returned to earth on 1 April 2018 after more than six years in outer space. This was not isolated and some of the previous return of space objects are Cosmos 854 in 1978, Skylab in 1979, Delta II second stage in 1997, MIR Space Station in 2001, Italian BeppoSax in 2003, US-193 in 2008 and ESA’s GOCE in 2013. In light of these events and its inevitably increasing frequencies, it is necessary to reflect on the international law governing the re-entry of space objects.
    In the current international legal framework, the state obligations cover the whole process of re-entry without obvious loopholes, preventative ex ante and responsible ex post. But the state practice is largely uneven and there are controversies and ambiguities over obligations to forewarn hazardous events and disclose information for facilitating damage control and cleanup operation; under what conditions can reentry objects be actively removed; and how to return the objects and compensate the damages. This requires adjustment and fine-tuning of some critical notions in the space treaties and other legal documents, particularly, how to apply victim-oriented and environment-friendly principles in space sector, the balance between launching states’ jurisdiction and control of space objects and the interest of other states, the definition and determination of damages and state responsibility for hazardous activities.


Xiaodan Wu
Law School, China Central University of Finance and Economics.
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.

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

Mitigation of Anti-Competitive Behaviour in Telecommunication Satellite Orbits and Management of Natural Monopolies

Journal International Institute of Space Law, Issue 2 2018
Keywords anti-competitive conduct, constellation satellites, monopoly
Authors Thomas Green, Patrick Neumann and Kent Grey
AbstractAuthor's information

    Previous activities in developing satellite networks for telecommunications such as the TelStar, Relay and Syncom satellite networks of the early 1960s through to the Iridium, Globalstar and ORBCOMM constellations of the 1990s were reserved to geostationary orbits and low orbits with less than 100 satellites comprising their network. These satellite networks distinguished themselves by being business-to-government and business-tobusiness facing by contracting with government and domestic carriage and media providers for the supply of services. Customers for these services did not constitute either small to medium sized businesses, or individuals in the general public.
    With the advent of what has been dubbed ‘NewSpace’, however, new entrants into the market are developing constellation satellite networks that operate in Low Earth Orbit (LEO). Unlike the legacy satellite telecommunication networks of the 1960s-1990s, these constellation satellite networks are focused on, amongst other things, Internet of Things (IOT) devices, asset management and tracking, Wi-Fi hot-spotting, backhaul networking and contracting with small businesses and the general public.
    Regional examples of these new telecommunication heavyweights include Fleet Space Technologies (Fleet) - an Australian company undertaking to launch 100 satellites into LEO, Sky and Space Global (SAS) - an Australian-British-Israeli consortium that intends to provide a constellation of 200 small satellites, OneWeb’s planned fleet of 650 satellites that may be expanded to 2,000 satellites, and, SpaceX’s planned StarLink network of 12,000 satellites. In addition, companies such as Spire and PlanetLabs intend to provide geospatial information through their own constellation networks to government and educational institutions alongside the private sector.
    Although propertisation of space and celestial bodies is prohibited under the Outer Space Treaty 1967 (UN), near-Earth orbits still remain rivalrous and commercially lucrative. By operating in a LEO environment, these satellite constellation networks have the potential to exclude competing services by new entrants to market. For example, where one constellation network has an orbital plane or orbital shell, another constellation may not be able to have the same orbital plane or orbital shell.
    Presently, the literature to date focuses on the allocation of spectrum bandwidth, and space traffic management with a focus on orbital debris mitigation. This paper addresses these concerns and offers recommendations on how the risk of ‘natural’ monopolies forming for specific constellation satellite networks in LEO may be mitigated under instruments available to both UNOOSA and the ITU.


Thomas Green
(Corresponding author), Neumann Space Pty Ltd, 1/41 Wood Avenue, Brompton 5007 South Australia, tom@neumannspace.com.

Patrick Neumann
Neumann Space Pty Ltd, 1/41 Wood Avenue, Brompton 5007 South Australia.

Kent Grey
b Partner, Minter Ellison, 25 Grenfell Street, Adelaide 5000 Australia, kent.grey@minterellison.com.
Article

Public Procurement Rules, Forms of Financing and Their Impact on Competition in the Space Field

A General Overview with a Focus on the Italian Legislative Framework and Its Practical Implementation

Journal International Institute of Space Law, Issue 2 2018
Authors Marina Gagliardi, Giorgio Garagnani, Nicoletta Bini e.a.
Author's information

Marina Gagliardi
Italian Space Agency.

Giorgio Garagnani
Italian Space Agency.

Nicoletta Bini
Italian Space Agency.

Cristina Marabottini
Italian Space Agency.
Article

Legal Challenges of Space 4.0

The Framework Conditions of Legal Certainty among States, International Organisations and Private Actors in the Changing Landscape of Space Activities

Journal International Institute of Space Law, Issue 1 2018
Keywords Space 4.0, NewSpace, ESA, Capacity Building, Cyber Security, Legal Challenges
Authors Gina Petrovici and Antonio Carlo
AbstractAuthor's information

    After more than 60 years of space activities, ongoing scientific and technological progress alongside increased international cooperation, Space 4.0 is entering this field, leaving its hallmark on what appears a new era of space activities. The space community is rapidly changing, and the world continues to face a growing need for dedicated space applications. The growing interest in space leads to an increasing participation of numerous new actors. Governments, private actors and international organisations are eager to fill these gaps in securing the global society’s needs. ESA’s efforts in this regard are reflected in the Space 4.0 concept, introduced at ESA’s Ministerial Council in December 2016 by the ESA Director General. This new conception – building on Industry 4.0 – is designed to host a new era of space activities, setting out to tackle global challenges using the advantages deriving from space and technological progress. These challenges range from climate change to shortage of resources, health, demographic development, digital divide and more. ESA is also highly active within UNISPACE and its objectives: space accessibility, economy, security and diplomacy to contribute to Space 2030 and the UN Sustainable Development Goals. Capacity building reflects the core objective of all international Space 4.0 efforts. This rapid changes and growth are meeting certain needs by bringing space closer to society and inspiring new generations. However, as these developments are taking place in a highly complex net of legal, regulatory and political considerations, they are themselves raising challenges. This paper focuses on the legal challenges raised by the new era Space 4.0 and outlines the framework conditions for legal certainty in this rapidly changing environment. It elaborates on the content of Space 4.0 and its implementation, the legal framework for space activities, and how this is currently challenged by two characteristics of the Space 4.0 development, commercialisation of space activities, along with increasing cyber-security concerns in the context of digital divide and big data.


Gina Petrovici
Master of Laws (LL.M) University of London.

Antonio Carlo
Sapienza University of Rome.
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