New Perspectives on Space Law
Total Page：16
File Type：pdf, Size：1020Kb
New Perspectives on Space Law Proceedings of the 53rd IISL Colloquium on The Law of Outer Space Young Scholars Session Edited by Mark J. Sundahl Cleveland-Marshall College of Law Cleveland State University, Ohio, USA V. Gopalakrishnan Indian Space Research Organisation Bangalore, India © 2011 International Institute of Space Law Edited by: Mark J. Sundahl Cleveland-Marshall College of Law Cleveland State University, Ohio, USA and V. Gopalakrishnan Indian Space Research Organisation Bangalore, India All rights reserved. No part of this book may be reproduced in any form or by any means, electronic or mechanical including photocopying, recording or by any information storage and retrieval system, without permission in writing from the copyright owner. First Edition: 2011 Published by: The International Institute of Space Law Paris, France with the generous support of the Indian Space Research Organisation (ISRO), Bangalore, India Printed at: Brilliant Printers Pvt. Ltd. Bangalore, 560 094, India CONTENTS Preface i Mentors iii I. The Nandasiri Jesentuliyana Keynote Lectures 1. A Concise History of Space Law: 1910-2009 01 Stephen E. Doyle 2. The Life and Work of Professor Vladimir Mandl – A Pioneer of Space Law 25 Vladimir Kopal 3. Vladimir Mandl, Alex Meyer, Welf-Heinrich Prince of Hanover Friedrich Wilhelm von Rauchhaupt – Early Writings in German on the Young Discipline of Space Law 30 Prof. Dr. Stephen Hobe II. Young Scholars Papers 1. The Commercial Exploitation of Outer Space and Celestial Bodies – A Functional Solution to the Natural Resource Challenge 43 Ph. De Man 2. Potential Uniform International Legal Framework for Regulation of Private Space Activities 70 Mariam Yuzbashyan 3. You can Lead an Astronaut to Water....: Prospects for Legal Use and Water Rights on the Moon and Other Celestial Bodies 84 Joshua Easterson 4. Current Status and Recent Developments of the Non-Discriminatory Principle in the 1986 UN Principles on Remote Sensing 105 M. Fukunaga 5. Legal Pluralism in Outer Space 116 Eduard van Asten 6. Space and Lisbon. A New Type of Competence to Shape the Regulatory Framework for Commercial Space Activities 145 Matxalen Sánchez Aranzamendi 7. Forum-Selection Clauses in Suborbital Space Tourism Contracts and EU Law 160 Michael Chatzipanagiotis 8. Rethinking Responsibility in the Law of Outer Space 174 Guillermo J. Duberti 9. Reflections on the Concepts of ‘Liability’ and ‘Responsibility’ in a Privatised Atmosphere 183 Joyeeta Chatterjee 10. One Man’s Space Junk is Another Man’s Archaeological Treasure: The Potential for Conflict and Compromise in the Emerging Fields of Environmental and Historic Preservation Law in Outer Space 202 Diana N. Viggiano 11. Recalibrating the Moon Treaty to the Domain of Development 222 Utsav Mukherjee 12. The Legal Framework of Satellite Positioning with Particular Reference to Privacy 236 Henna Niemi 13. Legal Aspects of Regional Space Cooperation in Latin America, Asia and Africa 250 C. Jimenez Monroy Preface Tanja Masson-Zwaan and Oscar Fernandez Brital The book before you contains papers by a new generation of space law scholars presented in the second ‘Young Scholars Session’ of the 53rd Colloquium on the Law of Outer Space that took place in Prague, Czech Republic in 2010. As that year marked the 50th anniversary of the IISL, it was decided to publish these papers in a special publication. The Young Scholars session was held for the first time in Daejeon, South Korea in 2009. The decision to dedicate one session each year to the new generation was made by the Board of Directors upon a proposal of the IISL Directorate of Studies. The young scholars session is combined with another new feature in the IISL Colloquia, the Nandasiri Jasentuliyana Keynote Lecture on Space Law, also initiated in 2009. This one-hour lecture, in honour of one of the two IISL Emeritus Presidents, is given each year by a renowned scholar and is aimed at a large audience. The 2010 lecture focused on the history of space law and some eminent pioneers, and was delivered as a joint effort by Dr. Doyle, Processor Kopal and Professor Hobe – these papers are also included in this book. Combining this keynote lecture with a session dedication to young space lawyers proved a successful concept, and this three-hour session, held as the opening event of each IISL Colloquium, has attracted full rooms so far. The increased attention of the IISL for young space law scholars must be seen in the context of two earlier efforts. The first of these started already in 1992 with the first Space Law Moot Court Competition held during the World Space Congress in Washington, D.C. The competition was later named after former ICJ President and former IISL President Judge Manfred Lachs – who was also a much-appreciated teacher. The competition, currently in its 20th year, has motivated and inspired hundreds of students from all over the world to study space law, and many of them have grown to become recognised experts in the field. The other effort to involve the younger generation started in 2001, when the first I.H.Ph. Diederiks-Verschoor Award for Best Paper by a Young Author was granted to a young Brazilian scholar. This award, initiated by Oscar Fernandez Brital (Argentina) in honour of the Institute’s first President Emeritus, has since then been granted annually. It is given to the author of the best paper accepted for presentation at the Institute’s Colloquium. Authors must not be older than 40 years and may not have published more than five papers in the Proceedings of IISL Colloquia. The award consists of a medal and a prize, and has so far been given to young scholars from Brazil, Australia, Singapore, Japan, the UK, Hong Kong, Italy, Russia and Belgium. 2011 marks the 10th anniversary of the creation of this award. Yet another reason to celebrate! The extension of this attention for, and encouragement and recognition of young scholars by means of the Young Scholars Session was both necessary and useful. It is a well-known fact that many space lawyers are blessed with a (very!) long life, looking at for instance the respectable ages of the late Eugène Pépin, or more recently Eilene Galloway, who until the very end of her New Perspectives on Space Law i almost 104 years continued to write excellent analyses on space law. Many of the Institute’s current active Directors or Members have witnessed the early days of the space age, and those of the Institute. They are an immense resource of knowledge and experience and are treasured by all. On the other hand, it is essential to make room for new talent, to enable the new generation to develop, to become more deeply involved with the Institute, to build up their experience, so that they can eventually take the lead and carry the torch. We must continue to find ways to nurture the space lawyers of tomorrow. The Young Scholars Session is the third step on this path, and will be followed very soon by more. An interesting feature of the Young Scholars Session in 2010 is that authors have been ‘teamed up’ with a mentor who advised them on their paper where necessary and served as ‘sparring partner’ in the final drafting processes. We would like to pay tribute to these mentors, for having accepted to take on this task and dedicated time to the excellent young authors whose papers you can read in this publication. Their names are listed, along with their mentees, elsewhere in this book. Thanks are also due to the editors of this book. First, Professor Mark Sundahl of Cleveland State University (Ohio, USA) who also serves as Assistant Executive Secretary of the IISL, for having coordinated the publication process and liaised with authors and mentors. His patience, hard work and many ideas have helped this new initiative to be realised. Second, Mr. Gopalakrishnan from ISRO, India, who kindly accepted to co-edit with Mr. Mark J. Sundahl and help in the publication process. We are most grateful to the Indian Space Research Organisation (ISRO) for its generous support in sponsoring this publication. It is wonderful that India, a country where the average age is about 25, took up this effort. India has the greatest number of participating teams in the moot court competition's Asia Pacific round, and their performance is outstanding. But students in India and other emerging space (law) powers suffer from the lack of available research resources, and therefore this book will be a welcome addition to them, especially considering the way in which this book will be published. Since it is important to keep up with technological developments in this increasingly digital era, the IISL has decided to publish this book as its very first e-publication. Besides a very limited number of printed copies, the book will be made available to all as a free electronic publication, that can be downloaded from our website at www.iislweb.org. This way, the papers by the new generation of space lawyers can reach the largest audience, and thus generate ever more interest in our fascinating field of activity. But we are convinced that the ‘older’ space lawyers will also be inspired by the words written by the young scholars; we thank them for the wise lessons they teach us, because, “who dares to teach must never cease to learn”. Happy reading! The Hague/Buenos Aires, July 2011 ii New Perspectives on Space Law Mentors The successful publication of this volume and the quality of the papers herein is to a large extent due to the generous contributions of time and intellectual guidance by the scholars listed below who served as mentors to the authors.