Air and Space Law Commons^™

Shaking The Foundations Of The Law: Some Legal Issues Posed By A Detection Of Extra-Terrestrial Life, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

In order to properly address the legal issues posed by a proper detection of extra-terrestrial life (not just a mere serious possibility, as with the recent discovery of actual water on Mars), because of its extraordinary character it is necessary to briefly revisit the foundations of ‘the law’ as a social construct, and explore its relationship to ‘ethics’ as another social construct. The type of ‘law’ being discussed here is, of course, man-made, and made to deal with human activities, including human reactions to (other) events. Human-made law has for example been defined as “the principles and regulations established in …

Space Traffic Management: A Challenge Of Cosmic Proportions, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Space traffic management has often, for example in the IAA Cosmic Study of 2006, been rather broadly defined as “the set of technical and regulatory provisions for promoting safe access into outer space, operations in outer space and return from space to Earth free of physical or radio-frequency interference.” Oftentimes, especially in space law literature, references or even comparisons have been made to traffic management as it has developed in aviation and (to a lesser extent) in maritime transport.

However, it should be realized that space traffic management, especially under the definition quoted, comprises a considerably larger range of activities …

The Us Space Launch Competitiveness Act Of 2015, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

On November 25, 2015, President Obama signed into law the US Commercial Space Launch Competitiveness Act (H.R. 2262). This Act encompasses four titles: I. Spurring Private Aerospace Competitiveness and Entrepreneurship (acronym: SPACE), II. Commercial Remote Sensing, III. Office of Space Commerce, and IV. Space Resource Exploration and Utilization.

Title I amends the Commercial Space Launch Act, which comprises the licensing regime for launches, reentries, and launch port activities, including those carrying spaceflight participants on board.

Title II amends the Land Remote Sensing Policy Act, which allowed for the licensing of private commercial satellite remote-sensing operations, and essentially requires the Secretary …

Legal Aspects Of Satellite Communications—A Mini Handbook, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Satellite communications, the most extensive, commercialized, and applications-oriented of outer space activities, is not a sector ruled by a single, coherent legal regime even at the international level. Already at present at least ten regimes would potentially or actually impact any particular satellite operation, service, or scenario. The current contribution, intended as a “mini-handbook” excerpted from the 2015 Handbook of Space Law published by the present author, addresses only the three generally most important of those regimes: the generic body of international space law, the regime developed in the context of the International Telecommunication Union (ITU), and the trade regime …

Legal Aspects Of Navigation: The Cases For Privacy And Liability: An Introduction For Non-Lawyers, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Navigation making use of advanced technologies—notably involving radiowaves providing precise information on positioning, navigation options, and on the surrounding geographic environment—has become an ever more present phenomenon in today’s societies. Needless to say, this raises also a number of profound legal issues, some more general in nature, some more specific to the navigation sector or even a specific subsector thereof, alternatively taking on a specific flavor once arising in that context. Among those, arguably the issues of privacy and protection of data against undue interference, respectively liability for erroneous positioning, navigation, or environmental information and any damage or loss suffered …

About The New Pca Rules And Their Application To Satellite Communication Disputes, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

In 2011 the PCA Optional Rules for Arbitration of Disputes Relating to Outer Space Activities were adopted. The present contribution addresses the possible relevance of these new rules for disputes regarding international satellite communication, noting the existence of various dispute settlement regimes already available and analyzing their respective usefulness for such international satellite communications disputes.

Effective Exercise Of ‘In-Space Jurisdiction’: The Us Approach And The Problems It Is Facing, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

As mankind moves closer to the fiftieth anniversary of the conclusion of the Outer Space Treaty, the framework international treaty laying down the baseline regime for space activities, it may be considered a major achievement that the treaty, as well as some of its offspring—notably the Rescue Agreement, Liability Convention, and Registration Convention—seem to be as relevant as ever. This is a major feat in an international era of many fundamental changes in the geopolitical, economic, and social context.

Nevertheless, the increasing involvement of private entities in many fields of space activity beyond the (by now) more “traditional” ones of …

The “Space Side” To “Harmful Interference”—Evaluating Regulatory Instruments In Addressing Interference Issues In The Context Of Satellite Communications, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Interference issues in the context of satellite communications can, in principle, be tackled with legal means from a variety of angles, due to the multifaceted character of both interference and satellite communications as a sector. From that perspective, the present contribution addresses the most important regulatory instruments available to address the particular aspects of satellite communications related to their usage of outer space, and represents a first summary effort to evaluate their particular scope, approach, and general effectiveness.

Autonomous Weapons And Human Responsibilities, Jack M. Beard

Nebraska College of Law: Faculty Publications

Although remote-controlled robots flying over the Middle East and Central Asia now dominate reports on new military technologies, robots that are capable of detecting, identifying, and killing enemies on their own are quietly but steadily movingfrom the theoretical to the practical. The enormous difficulty in assigning responsibilities to humans and states for the actions ofthese machines grows with their increasing autonomy. These developments implicate serious legal, ethical, and societal concerns. This Article focuses on the accountability of states and underlying human responsibilities for autonomous weapons under International Humanitarian Law or the Law of Armed Conflict. After reviewing the evolution of …

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 …

From Space Tourists To Unruly Passengers? The U.S. Struggle With "On-Orbit Jurisdiction", F. G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

With the first proper commercial sub-orbital “space tourist” flights seemingly around the corner, the need to develop a proper legal system addressing all relevant parameters, scenarios, and events also arises more visibly. This is particularly true for the United States, where so far the major developments in private manned spaceflight are concentrated, some of which may soon move from relatively straightforward up-and-down sub-orbital trajectories to longer-duration suborbital and/or orbital flights, or even long-duration presence in (potentially private) space stations. As one author succinctly put it: humans are essentially unpredictable, and the longer their flights will be, the less preordained and …

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, …

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.

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, …

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.

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) …

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 …

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 …

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 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.

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 …

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 …

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 …