National Security Law Commons^™

¿De Quién Son La Luna Y Los Demás Cuerpos Celestes?, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Probablemente esta sea la imagen más conocida de una bandera que se haya hecho nunca: Buzz Aldrin de pie junto a la primera bandera de EE UU clavada en la Luna. Pero para los que conocían la historia universal, también saltaron las alarmas. En la Tierra, hace menos de un siglo, clavar una bandera nacional en otra parte del mundo todavía equivalía a reclamar ese territorio. ¿Las barras y estrellas en la Luna significaron la creación de una colonia estadounidense?

Cuando la gente escucha por primera vez que soy un abogado que ejerce y enseña algo llamado «derecho espacial», la …

Who Owns The Moon? A Space Lawyer Answers, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Most likely, this is the best-known picture of a flag ever taken: Buzz Aldrin standing next to the first U.S. flag planted on the Moon. For those who knew their world history, it also rang some alarm bells. Only less than a century ago, back on Earth, planting a national flag in another part of the world still amounted to claiming that territory for the fatherland. Did the Stars and Stripes on the moon signify the establishment of an American colony?

When people hear for the first time that I am a lawyer practicing and teaching something called “space law,” …

Private Property Rights And The Public Interest In Exploration Of Outer Space, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

The impending missions to exploit natural resources of celestial bodies may at some point start interfering with the scientific interests, including those of astrobiology, in these bodies. While the legal status of celestial bodies at the highest level is clear, uncertainty has arisen as to the extent private property rights over such objects or over their resources are legally acceptable, legally impossible, or potentially legal. This also provides for a considerable amount of uncertainty regarding how the legal framework could or may need to be changed to accommodate private interests. The article analyzes the two main international treaties relevant from …

Cybersecurity And The Rights Of The Internet User In France, Jennifer Cross

Georgia Journal of International & Comparative Law

No abstract provided.

The Failure Of International Law In Palestine, Svetlana Sumina, Steven Gilmore

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

United To Deter: Dealing With New Means Of Supporting Terror, Frank A. Florio

University of Miami International and Comparative Law Review

No abstract provided.

The Politics Of Legal Arrangements: The "Duty Of Care," Justifying, Extending, And Perpetuating The Public-In-The-Private Forms Of Protection, Anna Leander

Indiana Journal of Global Legal Studies

This article explores the place of formal legal arrangements in the politics surrounding the hybrid, enmeshed public-in-the-private forms of authority this special issue focuses on. It does so by analyzing the significance of one specific legal arrangement, the Duty of Care, for the politics surrounding public-in-the-private forms of protection. I show that the Duty of Care does considerable political work. It contributes to decentering, commercializing, and depoliticizing protection. In so doing, the Duty of Care is justifying this specific form of protection, defining and extending its scope, and perpetuating it. The article makes this argument by drawing both on the …

Unmanned Aerial Vehicles: Their Use Of Satellite Services And (Space) Law, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

This chapter represents an effort to identify the components of international space law that apply to the use of unmanned aerial vehicles (UAVs). It argues that, while other national and international regimes of law apply to UAV activities, international space law is implicated only to the extent that UAV technology relies on satellite services for control and guidance purposes.

Asteroid Mining: International And National Legal Aspects, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

1. Introduction; Asteroid Mining and the Law … 2. The International Legal Context for Asteroid Mining—The Outer Space Treaty … 3. The International Legal Context for Asteroid Mining—The Moon Agreement … 4. Back to the Outer Space Treaty: Interpreting the Nonappropriation Prohibition … 5. Unilateral Action: Title IV, U.S. Commercial Space Launch Competitiveness Act … 6. Concluding Remarks

Asteroid mining is one of the hot topics today not only within the space arena at large but also in the more specific domain of space law, comprising “every legal or regulatory regime having a significant impact, even if implicitly or indirectly, …

Some Remarks Further To "Outer Space And International Geography: Article Ii And The Shape Of Global Order" By P. J. Blount, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Introduction ... The Key Role of Article II of the Outer Space Treaty ... Article II of the Outer Space Treaty and the Commercialization of Outer Space ... Space Mining: The Need for an Update of the Legal Framework ... Updating the Existing Legal Framework: Some Further Thoughts ... Concluding Remarks

The European Union And Space—Space For Competition?, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

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, …

What About Small Businesses? The Gdpr And Its Consequences For Small U.S.-Based Companies, Craig Mcallister

Brooklyn Journal of Corporate, Financial & Commercial Law

Fast-approaching changes to European data privacy law will have consequences around the globe. Historically, despite having dramatically different approaches to data privacy and data protection, the European Union and the United States developed a framework to ensure that the highspeed freeway that is transatlantic data transfer moved uninterrupted. That framework was overturned in the wake of revelations regarding U.S. surveillance practices, and amidst skepticism that the United States did not adequately protect personal data. Further, the European Union enacted the General Data Protection Regulation (GDPR), a sweeping overhaul of the legal data protection landscape that will take effect in May …

The Scrivener’S Secrets Seen Through The Spyglass: Gchq And The International Right To Journalistic Expression, Matthew B. Hurowitz

Brooklyn Journal of International Law

As part of the U.K.’s electronic surveillance program, the Government Communications Headquarters (GCHQ), started in 1909 to combat German Spies, now collects metadata from both foreigners and its own citizens. Through the express statutory authority of the Regulation of Investigatory Powers Act of 2000 (RIPA), and a loophole in section 94 of the Telecommunications Act of 1984, the GCHQ collects metadata, which is all of the information that is extrinsic to the actual contents of a communication. The GCHQ can request an authorization from a public authority—a member of its own staff—to collect traffic data, service use information, or subscriber …

Global Cybersecurity, Surveillance, And Privacy: The Obama Administration's Conflicted Legacy, Peter Margulies

Indiana Journal of Global Legal Studies

To analyze the Obama administration's cyber efforts, this Article proposes a paradigm of stewardship with both discursive and structural dimensions. Discursive stewardship refers to the Executive's openness to dialogue with other stakeholders. Structural stewardship refers to the domestic and transnational distribution of decisional authority, including checks and balances that guard against the excesses of unilateral action. The Article concludes that the Obama administration made substantial progress in each of these realms. However, the outsized role of law enforcement agendas and dearth of clearly articulated checks on transnational surveillance drove headwinds that limited forward movement.

Behavioral Public Choice, U.S. National Security Interests, And Transnational Security Decision Making, David G. Delaney

Indiana Journal of Global Legal Studies

Transnational law both shapes and is shaped by policy decisions of public officials addressing global terrorist threats. These and other interrelated security and human rights concerns challenge executive officials in national governments and international organizations to simultaneously advance the rule of law and pursue other important welfare interests. This Article explores opportunities for transnational executives to improve their work and transnational legal frameworks. It proposes that behavioral insights into decision making and public policy making provide essential lessons for those efforts. The U.S. experience developing new policies to interrogate suspected terrorists following the Al Qaeda attacks of September 2001 provides …

A Comparative Approach To Counter-Terrorism Legislation And Legal Policy, Paul David Hill Jr

Senior Honors Theses

Since the 9/11 attacks, American legislation and legal policy in regards to classifying and processing captured terrorists has fallen short of being fully effective and lawful. Trial and error by the Bush and Obama administrations has uncovered two key lessons: (1) captured terrorists are not typical prisoners of war and thus their detainment must involve more legal scrutiny than the latter; and (2) captured terrorists are not ordinary criminals and thus the civilian criminal court system, due to constitutional constraints, is not capable of adequately trying every count of terrorism. Other nations, including France and Israel, approach this problem with …

Space Law And Gnss—A Look At The Legal Frameworks For “Outer Space”, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Global Navigation Satellite Systems (GNSS), obviously, make crucial use of satellites operating in an area commonly known as “outer space,” raising issues regarding which specific body of law might rule the operations of such satellite systems. Though the “horizontal” boundary between outer space and the underlying area of airspaces has never been authoritatively defined, it has generally been agreed that those two areas differ fundamentally as to the legal regimes ruling them, giving rise indeed to a specific body of “space law.”

A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany

International Law Studies

This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the “hardline” position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the …

Cfius In The Age Of Chinese Investment, Patrick Griffin

Fordham Law Review

As China’s economy has developed, its companies, both state-owned and privately held, have moved to expand their operations in the United States to the point where many now seek to invest in—and on occasion, acquire—U.S. counterparts. This trend has set off alarm bells over fears that China’s unique political and economic system, which gives the state extensive influence over all corporations regardless of their ownership structure, renders such transactions national security threats. Recent hostility toward Chinese-led inbound investment is not a new trend; Congress has attempted to assert itself into the screening process undertaken by the Committee on Foreign Investment …

Security Council Resolution 2178 (2014): An Ineffective Response To The Foreign Terrorist Fighter Phenomenon, Cory Kopitzke

Indiana Journal of Global Legal Studies

Thousands of foreign terrorist fighters poured into the Middle East from almost every country across the globe. Radicalized by professionally edited videos and propaganda disseminated through the Internet, people from all walks of life were captivated by the Islamic State's rhetoric, and nations were struggling to figure out how to stop them. One solution came in the form of a United Nations Security Council Resolution- Resolution 2178 (2014). This resolution is directed specifically at foreign terrorist fighters and calls upon all Member States to act with haste to address this new phenomenon. Critics were quick to call into question the …

The New Era Of Doing Business With Iran: Iran’S International Commercial Transactions And Global Security, John Changiz Vafai

Pace International Law Review

On January 17, 2016, in a statement following his signing of the Joint Comprehensive Plan of Action (JCPOA) with Iran, President Obama addressed that country’s people, stating that “yours is a great civilization, with a vibrant culture that has so much to contribute to the world – in commerce, and in science and the arts.” While the former U.S. President’s evaluation of the Iranian people’s greatness is indisputable, there are questions concerning doing business with Iran which transcend conventional legal issues and commercial problems.

Given the juxtaposition of Iran’s duopolistic government structure and ideologically oriented decision-making processes, questions arise as …

The European Union And The Outer Space Treaty: Will The Twain Ever Meet?, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

In spite of the envisaged Brexit and other crises and problems currently threatening the European Union (EU), that half-way house between a group of cooperating states and a single quasi-federal union of states remains an important player in today’s world, also – at least from a bird’s eye view – in terms of outer space. Its member states Germany and France have the largest space budgets of all European states (discounting the Russian Federation as a European state), and the European flagship projects Galileo and Copernicus, with the European Commission on behalf of the Union in the driver’s seat, are …

Transfer Of Ownership In Orbit: From Fiction To Problem, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

For many years, the concept of transfer of ownership of a satellite in orbit was not something on the radar screen of anyone seriously involved in space law, if indeed it was not considered a concept of an essentially fictional nature. Space law after all developed, as far as the key UN treaties were concerned, in a period when only States—and only very few States at that—were interested in and possessed the capability of conducting space activities, and they did so for largely military/strategic or scientific purposes. The idea of transferring ownership over satellites or other spacecraft involved in such …

The Second African National Space Law: The Nigerian Nasrda Act And The Draft Regulations On Licensing And Supervision, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

The number of countries with more or less comprehensive national space legislation addressing in particular the authorization and supervision of private space activities continues to grow, and several more countries are currently in the process of adding themselves to that list. One of the more recent and most interesting ones among them is Nigeria, as the second African country after South Africa and—after Brazil—the second leading spacefaring nation from the developing world, to draft, further to a fairly recently established succinct framework law, a set of regulations addressing precisely those issues.

The paper briefly recaps the underlying international obligations, in …

Kiwis In Space: New Zealand’S “Outer Space And High-Altitude Activities Act”, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

The number of countries with more or less comprehensive national space legislation that addresses in particular the authorization and supervision of private space activities continues to grow, and several more countries are currently in the process of adding themselves to that list. One of the more recent ones among them is New Zealand, which has an extensive “Outer Space and High-Altitude Activities Act” that is to enter into force in December 2017.

The paper briefly recaps the general underlying international obligations, in particular as following from Articles VI, VII, and VIII of the Outer Space Treaty, the Liability Convention, and …

A Survey Of Possible Legal Responses To International Terrorism: Prevention, Punishment, And Cooperative Action, Jordan J. Paust

Georgia Journal of International & Comparative Law

No abstract provided.

Aviation Law - Insurance - Neither “War Risk” Nor Other Standard Terms Denoting Civil Disturbance Within The Exclusionary Clauses Of All Risks Policies Encompass The Destruction Of An Aircraft By Hijackers, Kathy D. Izell

Georgia Journal of International & Comparative Law

No abstract provided.

United States Obligations Under Status Of Forces Agreements: A New Method Of Extradition?, William J. Norton

Georgia Journal of International & Comparative Law

No abstract provided.

Book Review: The Soviet Union In World Affairs, A Documented Analysis, 1964-1972. By Professor W. W. Kulski. Syracuse: Syracuse University Press, 1972. Pp. 526. $17.50., Jacob D. Beam

Georgia Journal of International & Comparative Law

No abstract provided.