IAC 2010: E7.1. Nandasiri Jasentuliyana Keynote Lecture on Space Law & Young Scholars

September 28, 2010 at 2:02 am | Posted in Blogcast, Space Law | Leave a comment

by P.J. Blount with the blog faculty

The 53rd International Colloquium on the Law of Outer Space began this morning at the IAC 2010 with E7.1. Nandasiri Jasentuliyana Keynote Lecture on Space Law & Young Scholars. The session was chaired by Vladimir Kopal, West Bohemian University, Czech Republic and Tanja Masson-Zwaan, International Institute of Space Law, the Netherlands. Mark Sundahl, Cleveland State University, United States served as Rapporteur.

The first presentation and keynote lecture was “A Concise History of Space Law” by Stephen Doyle of the United States. Doyle began by stating that space law developed in four principle periods on development 1) 1910-1957 development of concepts; 2)1957-1966 establishment of basic principles; 3) the development of rules and regulations at the national level since 1957; and 4) the development of rules and regulations for extraterrestrial human settlements and activities, which is still in the conceptual phase. His presentation began with the history of space law traced back to a law journal article by Emile Laude published in 1910. From this point Doyle covered the major pre-1957 works on space law. He asserted the launch of Sputnik was a gmae changer for space law. After that launch, he noted, the involvement of the U.N. and the formation of the ad hoc committee on space and how this led to the negotiations on the space treaties and the principles that followed the space treaties. He said that UNCOPUOS is still the most important actor in the development of space law. Next, he gave a brief overview of other international organizations that create and contribute to space law. Doyle then moved to a discussion on national space legislation and its development. In order to illustrate this he did a case study of the space law development in the United States beginning with the NAS Act of 1958 and tracing it through present day. He stated that this foundation has allowed the development of international cooperation and can lead to a very bright future for space activities.

The next presenter was Vladimir Kopal who presented “The Life and Work of Professor Vladimmir Mandl – A Pioneer of Space Law.” Kopal stated that Mandl was the author of the world’s first comprehensive monograph on space law. Mandl was born on 1899 in what is now the Czech Republic. He was trained as a lawyer and opened his own legal office in Pilsen. He turned his legal expertise to legal problems caused by industrial and technological developments, which led him to examine aviation law issues, and he wrote the first Czech language monograph on the subject. According to Kopal, Mandl later became a pilot. His aviation monograph was presented in order to him to become a docent at the University of Prague. He later became interested on space and began researching these matters, and made his first publications based on this subject matter. Kopal stated that Mandl emphasized that adopting other legal systems, such as the law of the sea, wholesale would be inadequate for the regulation of outer space and that a new system must be developed. Kopal also noted that Mandl put forth the idea of no claims of sovereignty in outer space in his works. Kopal noted that he teaching activities were terminated with the German occupation of Czechoslovakia in 1939. He died in 1941 at the age of 42. Kopal asserted that Mandl was the first person to approach the legal problems of spaceflight and work to develop a system to govern these issues.

Stephen Hobe, University of Cologne, gave a presentation titled “Vladimmir Mandl and Alex Meyer: Two Pioneers of Space Law.” Hobe said that his presentation was going to cover early German writings on space law. He reiterated the importance of Mandl’s German works to the field of space law, and how many of the principles that he put forth in his works are still being used today. Next, he covered Alex Meyer’s works on space law. He stated that Meyer was known as an aviation lawyer, but that he also did important research into space law. Meyer’s publications on space law began 5 years before the first spaceflight occurred. Meyer argued that the strict application of aviation law to space would be inadequate. Meyer also acknowledged the possibility of space to be used as an arena for armed conflict, and he endorsed a ba on the use of force in space.

Next, the student and young scholar presentations began. The first was from Phillip de Mann, Catholic University of Louvain, on “The Commercial Exploitation of Outer Space and Celestial Bodies – A Functional Solution to the Natural Resources Challenge.” He made a distinction between the legal regime in the exploitation of resources of celestial bodies and the exploitation of other resources in space (e.g. radio frequencies). He started with the celestial body concept, by stating that one must first grapple with what constitutes a celestial body, and that a functional approach to this definition is the most tenable in which the concept is defined by “virtue of of activities regulated.” Next, he moved to the non-appropriation provisions of the Outer Space Treaty. He argued that this provision should not be applicable to natural resources in space. He then argued that this is confirmed by the Moon Agreement which allows the appropriation of Celestial bodies. He then moved to definitions of natural resources and how the definition affects the legal regime, and how scarcity criteria should be applied in working on the management of resources.

The next presentation was by Mariam Yuzbashyan, excalibur Almaz Ltd, on “Potential Uniform International Legal Framework for Regulation of Private Space Activities.” She stated that current space activities are effected by globalization and commercialization. She argued that many aspects of private activities needed particularized regulations, but that a comprehensive regulation was still desirable. She suggested the development of International Space Private Law (ISPL). She said that ISPL had to be defined by its legal sources such as the Cape Town Convention, national space legislation, ISS IGA, and space law cases and arbitration practices.

“You Can Lead an Astronaut to Water . . . : Prospects for Legal Use and Water Rights on the Moon and Other Celestial Bodies” was presented by Joshua Easterson of the United States. Easterson set his presentation up in light of the recently discovered evidence of water on the Moon. He stated that terrestrially rights are usually apportioned via riparian rights or usage rights. He stated that unique characteristics of space water rights in space will be apportioned in a much different manner. He highlighted the importance on non-appropriation clauses and stated that this provision precluded usual appropriation of water rights as are done terrestrially. He then moved to analogies in international law such as the law of the sea, antarctic law, international commission on whales, and international water treaties. He stated that one of the best analogies is the ITU model used for radiocommunications. He then proposed the development of a new Moon treaty that sets forth a operational regime.

Next, the panel heard from Masatoshi Fukunaga, Keio University, on “Current Status and Recent Developments of Non-discriminatory Principle in the 1986 UN Principles on Remote Sensing.” Fukunaga focused on Principle 12 of the Principles on remote sensing. He presentation discussed how states have dealt with this principle. He stated that principle 12 governed access to data by sensed states. Next he moved to a case study of India to illustrate how the state has worked with this principle. He turned to the remote sensing policy of India that sets for non-discriminatory access for imagery up to 5.8 meters to all states. Next he spoke briefly on CEOS. He said the CEOS’ data policy and stated that it is similar to the Indian policy. He concluded by stating that the policy was still alive and viable, that it still has influence on relevant issues, and that its objective has changed from being sensed State oriented to being applied to more than just sensed States

Eduard van Asten, The Netherlands, presented “Legal Pluralism in Outer Space.” His presentation was on the regulation of pirate actors permanently located in Outer Space. He began by discussing the QUID, a space monetary system, put forth by Travelex in 2007. He used this as an example of how private actors might begin to regulate themselves. In a similar way he discussed the ISS IGA and national laws that apply to space actors, which illustrate the numerous sources for regulation of private actors.. He stated that there were numerous legal complications with these private actors that include the lack of sovereignty, inefficiency of jurisdiction, enforcement problems, variety of national laws, applicability of national laws, and private interests. He then began to discuss the theory of legal pluralism, which he summarized as the means by which a population observes more than one body of law. He said that these problems will lead to future normative development that will most likely develop in a legally pluralistic manner.

“Space and Lisbon – A New Type of Competence to Shape the Regulatory Framework for Commercial Space Activities” was presented by Matxalen Sanchez Aranzamendi, European Space Policy Institute. She began by noting that space activities are wider than just exploration activities. She stated that downstream services are very important to economic growth and that these areas should not be forgotten when space legislation is being developed. Next she discussed particular regulatory areas that affect these downstream services such as data regulation, telecommunications regulations, and export controls. She argued that in these regulatory areas there are converging competencies from different regulatory bodies. She then moved to the idea of space competence in the EU under the Lisbon Treaty and asserted that it was an effective way to organize the regulatory body in this area.

Michael Mineiro, McGill University, presented “Beyond the Looking Glass: The Application of Public Choice Theory to U.S. Commercial Communication Satellite Export Controls.” Mineiro presented a case study of public choice theory as applied to ITAR controls on communications satellites in in the United States. He then gave an overview of public choice theory as an economic modeling system that explains human behavior. He said under this theory behavior should be skewed in favor of exporters, but in reality that wasn’t happening. He, therefore, argued that the theory must be recalibrated in order to understand why the system was working the way that it does. He then stated that even after using a a recalibrated-cost theory the benefits are declining due to the development of technologies in other areas around the world. He then turned to other theories that can help to explain what is wrong with the system.

Next, Michael Chatzipanagiotis of Greece gave a presentation titled “Forum Selection Clauses in Suborbital Space Tourism Contracts and EC Law.” He started by stating that forum selection clauses are contract provisions in order allocate jurisdiction to particular courts. These are used by companies to stay out of unfavorable venues as well as to avoid multiple litigations in various jurisdictions. In order to be valid there must be consensus, a statement of objective factors, and reference to a particular legal relationship. He stated that the Brussels Convention and regulation set out what courts must do when presented with litigation wherein a forum selection clause is at issue. He stated that transportation contracts are not governed by the brussels convention. He stated that its unclear as to whether space tourism represents a transportation contract. It these contracts aren’t transportation contracts then they are governed as a commercial contract.

Finally, Guillermo Duberti, Universidad de Belgrano, presented “Re-thinking Responsibility in the Law of Outer Space.” Duberti stated that international law is dynamic and constantly changing and that law is following technological advances instead of preceding them. He stated that there was a conflict between general international law and space law. He says that this is because of the innovation of article VI. He stated that

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