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  • Research Handbooks in International Law series

Edited by Frans von der Dunk

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  • Research Handbooks in International Law series

Edited by Frans von der Dunk

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  • Research Handbooks in International Law series

Irmgard Marboe

Chapter 3 focuses on space law as it has developed at the national level in a number of states, largely in implementation of the international space treaties and their concepts of state responsibility, state liability and registration. The core aspect of such national legislation from this perspective concerns in particular the handling of private activities in or related to outer space; from this (limited) perspective more than a dozen states have so far indeed drafted national space legislation (the United States, Norway, Sweden, the United Kingdom, the Russian Federation, South Africa, Ukraine, Hong Kong, Australia, Brazil, South Korea, Belgium, the Netherlands, France, Austria and Kazakhstan; in more limited fashion also for example Canada, Germany, Italy, Spain, Japan and Argentina). These laws notably deal with the licensing of space activities, requirements regarding liability and insurance, registration and jurisdictional issues, and usually apply to private activities conducted from within a state’s jurisdiction. From a broader angle, national law has also dealt with sub-issues such as registration or liability, with attendant issues such as the role of national space and/or licensing agencies, and with specific areas. Examples of the latter concern the use of satellites in the context of national telecommunications legislation or national security aspects of satellite remote sensing. In a number of respects, moreover, such national laws also reflect more nationally oriented legal or policy issues, such as handling liability for damage caused to national citizens or environmental concerns.
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  • Research Handbooks in International Law series

Fabio Tronchetti

Since space activities from the beginning for a very large part were militarily oriented or related to defence and security issues, special attention has been paid to such aspects also in the legal context. Firstly, from this perspective, the 1967 Outer Space Treaty and 1979 Moon Agreement provided for some broad, albeit rather vague, clauses limiting the use of space for military purposes. Secondly, a few general treaties dealing with disarmament and arms control implicitly or explicitly but prominently included space-related issues, such as the 1963 and 1996 Test Ban Treaties or the 1972 bilateral US–Soviet ABM Treaty. Thirdly, as per Article III of the Outer Space Treaty, also general public international law related to the use of force or threat thereof (jus ad bello), the rights to self-defence, retaliation and countermeasures, and general humanitarian law (jus in bello) in principle apply to outer space and space activities. Fourthly, specific regimes, both international (the Missile Technology Control Regime (MTCR) and Wassenaar Arrangement), and national (the US International Traffic in Arms Regulations – ITARs), and even EU (following Regulation 1334/2000) regulations on the international trade in military or dual-use goods have substantially affected space activities.
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  • Research Handbooks in International Law series

Fabio Tronchetti

Increasingly, it seems to be becoming feasible to use natural resources from outer space, in addition to ‘merely’ using space as an area and/or its physical characteristics such as micro-gravity or orbits and orbital slots for operating satellites. Plans so far concentrate on the moon and asteroids, with other planets as a further possibility, for harvesting highly valuable materials such as Helium-3. Though not yet operational, the potential future value has already raised major discussions in the legal area, firstly as to the legal status of such celestial bodies – common heritage of mankind as per the Moon Agreement? A global commons open to all interested to exploit for their own particular purposes? Following from that discussion, would it be desirable or necessary to develop a specific legal regime – on the international level or on the national level? Would the existing regimes for Antarctica, the ocean floor or the earth orbits offer the most appropriate examples or precedents? And should private appropriation of celestial bodies or parts thereof be allowed, recognized and/or internationally regulated, or do existing regimes sufficiently allow commercial exploitation without private ownership of territory – just as the freedom of the high seas has not prevented fishermen from exploiting the living resources successfully for centuries?
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  • Research Handbooks in International Law series

Fabio Tronchetti

Satellite remote sensing is a space sector with a few specific legal characteristics, addressed by the space treaties, general international law on information and sovereignty (especially over permanent natural resources), and the authoritative UN Remote Sensing Principles. From a broader perspective, also data dissemination policies of specific international and national institutions in areas such as meteorology, are to be taken into consideration. Due to the increasing practical application of remote sensing data furthermore, the applicability of intellectual property rights, notably copyrights and database rights, has become an issue. Recently, moreover, the sector has been undergoing a number of important developments, in particular concerning the increasing commercial availability of very high resolution data (which raises issues of security as well as privacy) and the use of remote sensing data in the context of disaster prevention and mitigation (which raises questions of obligations to share data and related liability issues) as per the International Charter for Space and Major Disasters. A final important issue here is the European flagship initiative to establish a Global Monitoring for Environment and Security (GMES), now Copernicus infrastructure.
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  • Research Handbooks in International Law series

Lesley Jane Smith

The application of satellite information for navigation purposes (more precisely: positioning, navigation and timing, PNT) has taken great strides since GPS and GLONASS signals became easily accessible to civil users in the 1990s. The added value of such satellite information was recognized early on, in not only the aviation, but also the maritime sector. Initial observations addressed Global Navigation Satellite Systems (GNSS) largely as a system exclusively for use in aviation; accompanying considerations for introducing a suitable legal regime at that stage were primarily driven by the concerns of the aviation sector. Viewed historically, the single-state governance of the above systems has precluded the development of any international overarching unified regulatory regime for GNSS as a system. With the advent of other (GNSS) such as EGNOS/Galileo (Europe), Beidou/Compass (China), GAGAN/IRNSS (India) and MSAS/QZSS (Japan), many other applications – in other transport sectors, in time-dependent business sectors such as banking, telecommunications and energy, as well as many leisure sectors – are now beginning to use GNSS. This has revived discussions as to whether all aspects and uses of GNSS should be addressed in a single upstream, general international regime, rather than leaving each sector to regulate the use of GNSS independently. In terms of the current law, the absence of a tailor-made specific global legal framework for GNSS means that its legal parameters are driven by a maze of sector-specific international obligations (such as those under the international space treaties) and sector-specific frameworks (such as that for aviation). The application of these rules has to be viewed in relation to the individual upstream operations and downstream services of the specific sector in question.
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  • Research Handbooks in International Law series

Frans von der Dunk

Satellite communications represents the largest and most commercialized space sector by far. At the same time, in many respects it only forms a specific sector of telecommunications in general, happening to make use of satellites as part of relevant telecommunication networks. Following from this, also in terms of legal analysis satellite communications in many respects is subject implicitly or explicitly to much broader scoped telecommunication law regimes. Chapter 8, however, largely focuses on the specific analyses of satellite communications law as a sector in its own right, and then within that context further focuses on two regimes from the very start specifically targeting that sector. The starting point for any analysis here concerns the competences of the International Telecommunication Union (ITU) to coordinate internationally the allotment, allocation and assignment of satellite frequencies and attendant orbital slots/orbits, as following from the ITU Constitution, ITU Convention and Radio Regulations, and ensure the efficient use of satellite communications more broadly speaking. In addition, the UN Principles on Direct Television Broadcasting by Satellite, an important yet ultimate flawed and failed effort to address some general international public aspects of one branch of satellite communications, direct TV broadcasting by satellite, reflected the important global political elements involved in this global sector. Even from a somewhat narrower perspective of ‘satellite communications’ as a sector of space applications in its own right ignoring such usage of satellite communication frequencies for, for instance, remote sensing or TT & C (telemetry, tracking, and command), more regimes than those two would be involved, notably those of international trade in satellite services, the role of intergovernmental satellite organizations and the specific European satellite communications regime, but those will be addressed elsewhere in the appropriate chapters and only referenced in this chapter.
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  • Research Handbooks in International Law series

Carla Sharpe and Fabio Tronchetti

Despite experience with space stations being been fairly limited to only two space stations having been operational for a more than a few weeks, namely the Soviet/Russian Mir and the International Space Station (ISS), and experience with an international space station limited even further to only the ISS, this experience has given and continues to give rise to a distinct evolving body of legal rules and principles. Special issues concerning the applicability of such generic issues as jurisdiction, the status of astronauts and liability as arising from the space treaties, in particular the Intergovernmental Agreement underlying the ISS and the various Memoranda of Understanding, internal ESA arrangements and other bilateral or single-state implementing regulations constitute very interesting new features of space law. The IGA, for example, provides for unique legal solutions to intellectual property rights jurisdiction, in particular with a view to European participation, and criminal jurisdiction, following on from a US–Russian compromise. In addition, an extended inter-party waiver of liability and the fundamental application of the concept of time-sharing in terms of usage of the manned facilities part of the ISS are noteworthy. _ The importance of these legal discussions lies not only in the present, but extends into the future, with a view to plans for ever more extended human presence in outer space, including possible colonization of the moon, asteroids or planets, whereby the same fundamental legal issues of jurisdiction, status of ‘territory’ of astronauts, and liability issues respectively will arise and have to be addressed.
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  • Research Handbooks in International Law series

Frans von der Dunk

The two most visible and revolutionary events in the past two decades in terms of space activities highly relevant for space law no doubt were the orbital flight of Dennis Tito, the first space tourist, on board the ISS in 2001, and the sub-orbital flights of Scale Composites’ SpaceShipOne in 2004 winning the Ansari X-Prize, triggering several projects about to send space tourists by the hundreds into the lower areas of outer space anytime soon. These events also triggered a major discussion on the possible desirability or need to overhaul the current space law regime or at least to fundamentally adapt it to the impending realities of private manned spaceflight. These discussions have already led to adaptations in the legal regime applicable to the ISS to accommodate, respectively, further orbital tourists and amendments to the US Commercial Space Launch Act handling the building of commercial spaceports for sub-orbital flights as well as such flights themselves. Most of the discussions have focused so far on liability and certification issues, borrowing essentially from existing space law but also from air law and high-adventure tourism law, as well as on the status of astronauts and (other) spaceflight participants. With plans to start offering similar sub-orbital flights from various places around the world, moreover, the above legal questions obtain a distinctly international flavour as well, ranging from discussions in the aviation sector (the International Civil Aviation Organisation, ICAO, and the European Aviation Safety Agency, EASA) on adapting aircraft certification processes to discussions in the space sector (the UN Committee on the Peaceful Uses of Outer Space, UN COPUOS) on the risk of ‘flags of convenience’.