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43.2-Whole-Issue.Pdf JOURNAL OF SPACE LAW VOLUME 43, NUMBER 2 2019 JOURNAL OF SPACE LAW VOLUME 43 2019 NUMBER 2 EDITOR-IN-CHIEF Michelle L.D. Hanlon EXECUTIVE EDITOR EXECUTIVE EDITOR Jeremy J. Grunert Christian J. Robison ADVISORY EDITOR Charles Stotler SENIOR EDITORS: STAFF EDITORS: Charles Ellzey Brooke F. Benjamin Laura Brady Sean P. Taylor Jennifer Brooks Nestor Delgado Hunter Williams Tara Fulmer Michael D. Kreft Robert C. Moore Sarah Schofield Nathaniel R. Snyder Mariel Spencer Anne K. Tolbert Cameron Woo Founder, Dr. Stephen Gorove (1917-2001) All correspondence with reference to this publication should be directed to the JOURNAL OF SPACE LAW, University of Mississippi School of Law, 481 Coliseum Drive, University, Mississippi 38677; [email protected]; tel: +1.662.915.2688. The subscription rate for 2020 is US$250 for U.S. domestic individuals and organizations; US$265 for non-U.S. domestic individuals and organizations. Single issues may be ordered at US$125 per issue. Add US$10 for airmail. Visit our website: airandspacelaw.olemiss.edu Follow us on Facebook, LinkedIn and Twitter. Copyright © Journal of Space Law 2019. Suggested abbreviation: J. SPACE L. ISSN: 0095-7577 JOURNAL OF SPACE LAW VOLUME 43 2019 NUMBER 2 CONTENTS From the Editor ..................................................................................... iii Articles Exploring the Legal Challenges if Future On-Orbit Servicing Missions and Proximity Operations .................................... Anne-Sophie Martin and Steven Freeland 196 Interdisciplinary Team Teaching in Space Legal Education ....................................................................... Ermanno Napolitano 223 Where No War Has Gone Before: Outer Space and the Adequacy of the Current Law of Armed Conflict ...... Gemmo Bautista Fernandez 245 Law Without Gravity: Arbitrating Space Disputes at the Permanent Court of Arbitration and the Relevance of Adverse Inferences ................................................................................. Stefan Pislevik 280 The Legal Imperative to Mitigate the Plume Effect: An “Aggravation and Frustration” that Imperils our History and our Future ........................... Michelle L.D. Hanlon and Bailey Cunningham 309 Student Article When Galaxies Collide: Resolving Criminal Justice Disputes Among Nations in Space............................................................... Caleb Ohmer 344 i Book Reviews Promoting Productive Cooperation Between Space Lawyers and Engineers .................................................................... Daniel A. Porras 376 Accessory to War: The Unspoken Alliance Between Astrophysics and the Military .................................................................... Jeremy J. Grunert 379 ii FROM THE EDITOR Volume 43.2 is undoubtedly eclectic, yet surprisingly thematic and focused on issues very close to our hearts. While many space lawyers would not only be able – but would leap at the opportunity – to work in the vacuum of space, the fact is no one benefits if we try to operate in a vacuum of knowledge. Now more than ever, space lawyers need to understand the technology that is being used, stretched and manipulated to harness the resources of space. We need to engage with engineers and scientists and share cross- disciplinary advice and guidance. After all, we all share the same dream. We seek to expand the human experience to embrace space as our next home. Start-ups and private space companies should view regulations as benefits, not anathemas. Non-lawyers need to appreciate that the law will help. And lawyers need to recognize how to help. At the University of Mississippi School of Law we are focused on bringing the technological aspects of space into the forefront of our legal education. Our classes include technical presentations about the capabilities of current technologies, as well as the limits that need to be overcome. We don’t just study what law might apply to asteroid mining, we learn how and when and where such mining might occur. And we challenge our students not to exploit, but fill gaps in the law that will properly balance commercial investment and the responsibilities imposed by the outer space treaty regime, international law and foundational moralities. This issue talks about exciting new technologies, troubling realities associated with space exploration, yawning gaps related to armed conflict and the importance of dispute resolution – fundamental to any aspect of society or industry. Our student Article wraps this issue up well. The message from every author is that international collaboration is a necessity. It’s not an Earth shattering message to be sure (pun intended), but it is one that bears repeating. Ad infinitum if need be. With thanks, as ever, to all our student editors, especially Senior Editors Charles Ellzey, Hunter Williams and Sean Taylor who have committed so much time and thought to this issue, our process and the future of the Journal of Space Law. With students like this, I can assure you, humanity’s future in space is very bright. I also single out our Executive Editors, CJ Robison and Jeremy Grunert. CJ, who always finds time. And Jeremy, without whom this issue would have been both less lyrical and massively delayed. We hope you enjoy, and we look forward to your contributions. Michelle L.D. Hanlon Editor-in-Chief Oxford, Mississippi December, 2019 EXPLORING THE LEGAL CHALLENGES OF FUTURE ON-ORBIT SERVICING MISSIONS AND PROXIMITY OPERATIONS Anne-Sophie Martin* and Steven Freeland** ABSTRACT On-orbit servicing (OOS) and rendezvous and proximity oper- ations (RPO) currently represent key elements regarding future on- orbit activities. If successfully implemented, these types of missions will greatly increase the viability of and benefits from space activi- ties. Several countries and companies are seeking to develop active debris removal (ADR), OOS, and RPO capabilities. However, these proposed activities raise several legal, safety, security and policy challenges. Indeed, the planned future servicing missions through a so-called space tug –including orbit correction, refueling, space * Dr. Anne-Sophie Martin is a Doctor of Law specializing in International Law and Space Law. Her doctoral research focused on the legal aspects of dual-use satellites. She received her LL.M in Space Law and Telecommunications Law from the University of Paris-Sud XI (France) and her PhD from Sapienza University of Rome (Italy). On August 2017, she attended the Centre for Studies and Research of The Hague Academy of Inter- national Law. She is a visiting researcher within the Centre for a Spacefaring Civiliza- tion. Member, International Institute of Space Law; Member, Space Generation Advisory Council; Member, International Institute of Space Commerce; Member, European Cen- tre of Space Law; Young Professional Member, American Institute of Aeronautics and Astronautics; Member, For All Moonkind Legal Council; Member, French Society of Air and Space Law. Email contact [email protected]. ** Professor of International Law, Western Sydney University; Visiting Professor, University of Vienna: Permanent Visiting Professor, iCourts Centre of Excellence for International Courts, University of Copenhagen; Visiting Professor, Université Tou- louse1 Capitole; Associate member, Centre for Research in Air and Space Law, McGill University; Member of Faculty, London Institute of Space Policy and Law; Adjunct Pro- fessor, University of Hong Kong; Adjunct Professor, University of Adelaide; Member, Australian Space Agency Advisory Group; Director, International Institute of Space Law; Member of the Space Law Committee, International Law Association; Member of the Space Law Committee, International Bar Association; Member, European Centre of Space Law. Email contact [email protected]. 196 2019] LEGAL CHALLENGES OF FUTURE OOS 197 debris removal and substitution of payload—highlight a new para- digm in space activities. On the one hand there is a necessity to avoid collision in orbit; on the other hand, in the case of on-orbit rendezvous, the activity is predicated on the docking of two space objects. This article identifies and discusses some of these major challenges, including any associated risks to space security, the “weaponization” of space and their impact on the sustainability of the space environment. I. INTRODUCTION OOS activities have recently caught the attention of the inter- national community due to the rising commercial interests behind these activities.1 OOS missions, however, have occurred since the early age of space exploration.2 Previous missions such as the Gem- ini and Apollo programs undertook RPO activities.3 Skylab and So- lar Maximum Mission (SMM) conducted on-orbit activities to repair essential components, with SMM harnessing a modular design us- ing orbital replacement units (ORUs).4 The Hubble Space Telescope (HST) was serviced five times, including replacement of circuit boards.5 The International Space Station (ISS) was assembled on- orbit and is continually refueled with propellant through robotic re- fueling missions (RRMs), with new modules added to boost its ca- pabilities and offer new scientific possibilities.6 These activities were all carried out by humans or by robotic systems such as the Canadarm2.7 1 This paper will not address the commercial viability of OOS missions, RPO, and ADR activities. See, e.g., Andrew Robert Graham & Jennifer Kingston, Assessment of the Commercial Viability of Selected Options for On-Orbit Servicing (OOS), 117
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