Law Commons^™

Federal Versus State: Private Commercial Spaceflight Operator Immunity Regulation In The United States, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

The 2004 Commercial Space Launch Amendments Act provided the first national statute dedicated to private commercial spaceflight, further elaborated by a Chapter in the Code of Federal Regulations. A major element of that regulation concerns the “informed consent” requirement, which constitutes the main condition upon which a private commercial spaceflight operator is allowed to fly paying passengers into the edge of outer space and back. The requirement as such does not automatically equate with a statutory waiver of passenger liability, which was a major reason for a handful of individual US states to add by way of statutes such immunity …

Trying To Fit A Square Peg Into A Round Hole? Applying Air Law To Manned Commercial Spaceflight—The Case Study Of Curaçao, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

In appraising applicable legislation and regulation to various types of flights using various types of aircraft in Curaçao, it will become clear that it will not be easy to apply this regime without much further ado to sub-orbital flights. While perhaps on individual aspects certain definitions used may prima facie relatively easily apply or be made to apply, the extended details of almost all of those regimes at some point or other would likely go astray of what would make sense with respect to sub-orbital flights.

It is not accidental therefore, that the FAA has chosen to start from the …

Beyond What? Beyond Earth Orbit? . . . ! The Applicability Of The Registration Convention To Private Commercial Manned Sub-Orbital Spaceflight, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

I. Space Tourism: Where Are We Going and What Is Taking Us There? ... A. Space Tourism as the Newest Kid on the Block ... B. Conducting Sub-Orbital Operations with Aircraft or Space Objects ... C. Manned Sub-Orbital Spaceflight and the Requirement of Proper International Registration

II. Registration: As Aircraft or as Space Object? ... A. International, European, and U.S. Approaches to Regulating Sub-Orbital Spaceflight ... B. Applying the Registration Convention to Private Commercial Manned Spaceflight ... C. The Core Problem with Application of the Registration Convention to Sub-Orbital Flights

III. Back to Semantics: The Definitions of Beyond, Earth Orbit, …

Cutting The Bread, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Why the draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Received Force against Outer Space Objects (PPWT) will not work—whereas the Code of Conduct for Outer Space Activities may.

Maintaining The Master International Frequency Register, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

The present paper is the written elaboration of a presentation held under the same title at the workshop “International Regulations of Space Communications” held in Luxembourg on 24 and 25 May 2012. Consequently, the topic of this paper, the maintenance of the Master International Frequency Register as a key tool for allowing satellite communications to be a viable international sector of space activities, is viewed through the looking glass of the session title, “WRC-12 from the Perspective of International Telecommunications Law.”

In other words, it does not purport to deal with the actual details of maintaining the Register …

The Integrated Approach—Regulating Private Human Spaceflight As Space Activity, Aircraft Operation, And High-Risk Adventure Tourism, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

One of the overriding issues concerning private human spaceflight concerns how to properly regulate this specific new type of activity. Noting that in the discussion regarding regulation thereof usually the three distinct regimes of space law, air law and high-risk adventure tourism law are drawn upon to look for solutions, the present paper addresses the key elements of each of these approaches as they are to some extent already currently being applied and where, as a consequence, gaps and overlaps arise, as well as presents an effort to address the latter in a sensible, coherent, efficient and feasible manner.

Mixing U.S. And Dutch Approaches: Towards Curaçao’S Legislation On Private Commercial Spaceflight, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

One of the more advanced projects to offer private commercial spaceflights concerns Curaçao, the Dutch island in the Caribbean, from where Space Expedition Corporation (SXC) aims to start launching such flights as of 2014 with vehicles to be developed by XCOR. Not only is the island still part of the Kingdom of the Netherlands, albeit as of recently as an autonomous “Land,” SXC is a company with its origins in the Netherlands, too. On the other hand, XCOR, which is going to wet lease its vehicles to SXC, is a US company, and its operations consequently will—to the extent applicable—(also) …

Outer Space Law Principles And Privacy, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

When the space law era was ushered in during the late 1950s, it was already clear to some observers that, sooner or later, life on Earth would be monitored from a distance without those living on it necessarily knowing about it—Big Brother in optima forma.

At the same time, with space activities primarily being undertaken by the two superpowers and their acolytes for military/strategic/political purposes (and secondarily for scientific ones), such concerns largely focused on spying in the context of the Cold War. Satellites clearly were excellent tools for finding the whereabouts of the opponent’s tanks, troops, aircraft, warships, …

Crossing A Rubycon? The International Legal Framework For Isos—Before And After Privatization, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

The present chapter analyzes the activities of international satellite organizations (ISOs), former ISOs, and private satellite operators from the perspective of the four principal international space law treaties, consisting of the Outer Space Treaty, the Rescue and Return Agreement, the Liability Convention, and the Registration Convention. In addition, it considers a United Nations Resolution dealing specifically with Direct Broadcasting by Satellite, as it is one of the major categories of activities that international satellite organizations such as INTELSAT and EUTELSAT have traditionally undertaken, as well as the International Telecommunication Union (ITU), which oversees the international regime developed to deal with …

Towards 'Flags Of Convenience' In Space?, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

With the increasing privatization of outer space activities, the issue of appropriate national licensing thereof and the consequent risks of cheap 'flags of convenience' being sought for the purpose is becoming more relevant. The paper assesses the possibility of such 'flags of convenience' arising in the context of space activities, as well as what could be done about it, all with reference to the law of the sea where the concept originally was coined.

Contradictio In Terminis Or Realpolitik? A Qualified Plea For A Role Of 'Soft Law' In The Context Of Space Activities, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Discusses the issue of 'soft law' in the context of space activities, the characteristics of 'law' and '(international) space law,' the role of 'law' per se in the context of space activities, the use of qualified language in legal documents (including clauses beginning with words like should or may).

It is finally submitted that, while never losing sight of the benefits of a clear and coherent legal framework probably still best reflected through a treaty regime, in the arena of space activities there is considerable benefit from such mechanisms usually labelled 'soft law', whether in the context of customary …

Another Additional To National Space Legislation: The Austrian Outer Space Act, Adopted 6 December 2011, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

On December 6, 2011, the Austrian Parliament unanimously adopted the Bundesgesetz über die Genehmigung von Weltraumaktivitäten und die Einrichtung eines Weltraumregisters (Weltraumgesetz), or Austrian Space Act. Thus, Austria became the sixth EU member state and one of more than a dozen states globally adopting a comprehensive national act focusing on national activities related to or in outer space, and more specifically the prospect of fundamental private participation therein. Following the same analytical approach as with regard to the Swedish, UK, South African, Russian, Australian, Ukrainian, Norwegian, Brazilian, and Dutch national space acts, the present paper will analyze this most …

A Tale Of Two Oceans: Governance Of Terrestrial And Outer Space “Global Commons”, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

The governance of outer space is a key factor in determining whether that area will continue to remain open for scientific and other peaceful activities for the benefit of all mankind. At the same time, it is widely recognized that such governance is far from comprehensively realized as of today, and to the extent it does exist moreover, challenged by major developments, in particular in the area of private participation to space activities.

Taking such developments into account, efforts to further develop a proper system of governance for outer space often look for help to other existing, often more elaborated …

A New 'Star' In The Firmament--Teaching Space And Telecoms Law As A Post-Graduate Ll.M. Programme, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Contents

I. Congratulatory message to Professor Doo-Hwan Kim on his 77th anniversary

II. Teaching space law: the beginnings

III. Teaching space law: broadening the picture

IV. Teaching space law and telecommunications law

Space For Celestial Symphonies? Towards The Establishment Of International Radio Quiet Zones, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

The growth of low- and medium-Earth orbit mobile satellite communications poses a threat to radio astronomers which could be mitigated by the establishment of international radio quiet zones (IRQZs), where communications traffic is managed (not eliminated) to allow radio astronomy to continue. Using the prototype of national such zones in the USA, this article explains how the system would work and discusses the international legal parameters that would bound it, drawing on current aerospace, outer space and high seas legislation. Precedents for an IRQZ—Exclusive Economic Zones, denuclearized zones and the Antarctic regime—are also examined.

Space Tourism, Private Spaceflight And The Law: Key Aspects, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

The arrival of ‘space tourism,’ or more appropriately ‘private spaceflight,’ requires the law of outer space to change and adapt to this revolutionary development, as deriving precisely from the principled private participation in these activities. After defining the proper concepts, this paper discusses key legal aspects of authorization and supervision, liability and registration, and how they re.ect and impact on space tourism. Key legal aspects related to certification of craft, crew and passengers, while not yet much articulated at the international level will also be touched upon precisely in order to demonstrate that the law could well be driven first …

Sun, Sea, Sand ... And Space: Launching Tourists Into Outer Space From The Dutch Caribbean, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

With the first space tourist flights coming ever closer to reality, the interests in becoming part of this challenging new chapter of human spaceflight are also spreading across the globe. One of the legally most interesting projects concerns the plans of Space Experience Curac;ao, a Dutch company, to develop a spaceport on the island of Curaçao in the Dutch Antilles, so far famous largely for its holiday resorts. The aim is to allow as of 2014 commercial spaceflights to be undertaken from the island as well as to start offering such flights itself from the island. The Dutch Antilles are …

The Legal Framework For Space Projects In Europe: Aspects Of Applicable Law And Dispute Resolution, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Space projects in Europe take place in a complicated environment involving many public, private and intergovernmental actors, where the participation of the private sector, as independent space operators or as sub-contractors to others, is usually subsumed under the label of 'the space industry,' producing hardware, software and services to be used in outer space, in support of space activities, or using products, data or information generated with the help of space activities.

Such private, semi-private and quasi-private actors use contracts as the main mechanism to protect their interests, the freedom to contract within the rule oflaw being the paramount overarching …

Introduction To National Space Legislation In Europe: Issues Of Authorization Of Private Space Activities In The Light Of Developments In European Space Cooperation, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

This book is, at the heart, a result of a Practitioners’ Forum of the European Centre of Space Law (ECSL), organized in Paris in December 2008. Having been established in the early 90s, ECSL Practitioners’ Fora are organized more or less annually, and have presented unique oneday occasions for academics and practitioners from all corners of the European space endeavor and space industry to discuss topical and important legal issues.

The Eu Space Competence As Per The Treaty Of Lisbon: Sea Change Or Empty Shell?, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

The entry into force of the Treaty of Lisbon late 2009 introduced a so-called 'space competence' of the European Union into the already complicated legal European 'spacescape' . It has been hailed by some as a sea change, a watershed following which the EU finally and irreversibly has entered the realm of legislating for space, whereas others fail to see it as more than an empty shell, a fig leaf for politicians to be able to show at least some progress towards a united European approach and policy with respect to space.

Whilst some discussion has focused on whether this …

The Origins Of Authorisation: Article Vi Of The Outer Space Treaty And International Space Law, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

First three paragraphs:

The issue of authorisation of private space activities, the key theme of the present book, ultimately goes back to the principled political disagreements in the 50s and 60s between the two (then) superpowers in space, the United States and the Soviet Union, on the proper role of other entities than states in space activities. The Soviet Union, true to its communist ideology, was squarely against any private activities in most economically-relevant areas of society, but certainly so in an area of such strategic concern as outer space. l By contrast, the United States throughout its existence has …

Liability And Insurance In The Context Of National Authorisation, A. Kerrest De Rozavel, F. G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

First three paragraphs:

It is probably difficult to overstate the importance of liability and the related area of insurance when domestic legislation in the field of space activities is concerned, as such activities still constitute a relatively hazardous undertaking and the risks of something going horribly wrong are always close at hand. Moreover, though fortunately so far major accidents as a consequence of space activities—at least on earth—have not occurred, if they would occur there should be little doubt that they may cause major damage, potentially even of a catastrophic size. As a consequence, the question as regards who would …

The Issue Of National Security In The Context Of National Space Legislation—Comparing European And Non-European States, F. G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

First three paragraphs:

The inherent dual-use character of most, if not all space activities cannot fail to exercise a considerable impact also on the involvement of private actors in space. Much technology used for and/or developed by private space activities may potentially be put at the use of those wishing to change a particular political status quo, and likewise the material results of some private space activities may, consciously or inadvertently, come to be used against the national security interests of one state or another. Hence, issues of national security will likely also have an effect on the issue of …

Too-Close Encounters Of The Third Party Kind: Will The Liability Convention Stand The Test Of The Cosmos 2251-Iridium 33 Collision?, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Cynics would say: space lawyers must have been waiting for this for decades, and now will of course immediately call for additional regulation. But indeed, the recent collision between the Cosmos 2251 and the Iridium 33 satellite, the first time since the Cosmos 954 disintegrated over Canada that the Liability Convention stands a chance of officially being invoked, raises a number of issues regarding the applicability of that Convention, and the level of precision with which it can be applied.

The present paper undertakes a critical analysis of some of these issues. Notably, this concerns the involvement of a commercial …

Europe And Security Issues In Space: The Institutional Setting, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

In the current timeframe, the relevance of discussions on the existing use of space for national security purposes and the potential of it to be used for non-peaceful purposes are clearly increasing. As a consequence, it becomes more important to address the role of Europe as a geopolitical, albeit far from monolithic, entity in this context.

From this perspective, the present paper analyzes some of the fundamental institutional parameters shaping the European presence in the space security domain, focusing on the two key players in space, which are truly European, the European Space Agency (ESA) and the European Union (EU). …

Regulation Of Space Activities In The Netherlands: From Hugo Grotius To The High Ground Of Outer Space, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

The Netherlands, being aware of its relative size when compared to the major spacefaring nations not only globally but also in the European context, has always addressed outer space and space activities from the perspective of the role it could feasibly play. It has thus concentrated on a few niche areas which were either closely aligned to existing capabilities and experience or seemed to offer possibilities for mid-size economies and societies to play an important role.

The longstanding focus on scientific/technical aspects of space activities on the one hand, and on an international/legal context for them on the other, constitutes …

Space Law In The Age Of The International Space Station, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

This article focuses on the special context where humans from various nations work and live together in one orbiting laboratory, the International Space Station (ISS), and the legal rules pertinent to those activities. This essentially concerns the application of an existing body of international treaties on space and space activities to the ISS, as well as the special legal framework that has been established to deal with the various ramifications of this very international operating environment. Within that context moreover, the specific European parameters stemming from the fact that the European Space Agency (ESA) serves as the vehicle for the …

A European “Equivalent” To United States Export Controls: European Law On The Control Of International Trade In Dual-Use Space Technologies, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Abstract This article analyzes the system developed within Europe, more precisely within the European Union through European Community law, to address the security-sensitive issues involved in the export of hardware, software, and knowledge for the purpose of space activities and major space applications. The subject is introduced with reference to the far better known export control developments within the United States, such as those concerning International Traffic in Arms Regulations, and the international understandings under the Missile Technology Control Regime and Wassenaar Arrangement. European Community Regulations for export controls provide for a complex system of balances between national sovereignty and …

Europe And The 'Resolution Revolution': 'European' Legal Approaches To Privacy And Their Relevance For Space Remote Sensing Activities, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

English abstract: With the increasing general availability of very high resolution (VHR) satellite remote sensing data, issues of potential invasion of personal spheres of privacy will become ever more important. As of yet, there is no international law providing for a clear-cut regime balancing the freedom of information, including information gathering, with the rights of individual persons to remain free from interference with their privacy. The latter issues therefore essentially can be tackled only at a national level, with the obvious disadvantage that any regulation remains principally limited in scope to the national jurisdiction concerned.

Also at the European level …

European Satellite Earth Observation: Law, Regulations, Policies, Projects, And Programmes, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Outer space is no longer the exclusive domain of the two Cold War superpowers, the United States and the Soviet Union. In fact, many states now understand the potential benefits that outer space activities can bring and have become active in outer space activities in their own ways. Amongst the major players in outer space, specifically the area of satellite earth observation, one area stands out: Europe. Europe is not a single state, such as the United States, Russia, Japan, China, India, or Brazil; rather, Europe is comprised of a number of sovereign member states. The term Europe as used …