By Sara Probber

Photo: NASA

On October 14, 2016 Niklas Hedman, the Chief of the Committee, Policy, and Legal Affairs section for the United Nations Office for Outer Space Affairs (“UNOOSA”) gave a speech at the American Society of International Law (“ASIL”).  During his talk, he discussed the events of the 59th session meeting of the Committee on the Peaceful Uses of Outer Space (“COPUOS”).  This committee deals with regulations that impact peaceful and civilian use of outer space.

Hedman emphasized the challenges that a shifting agenda have created for COPUOS.  This committee intends to shift their focus to a more theoretical agenda so that policies can be created more proactively than reactively.  However, COPUOS has faced challenges in building consensus since geopolitics play a highly impactful role. 

In the past, COPUOS has struggled to implement theoretical regulations.  Necessary, reactive laws have been easier to generate out of necessity.  Some laws that COPUOS has been successful in implementing include laws that regulate satellite registration and launches.  To generate its unified body of satellite registration law, COPUOS has been able to look at current practices and harmonize those practices with its model registration laws. 

Proactively creating and codifying law has been more challenging.  Without the driving force of necessity or the guidelines of current practice, consensus can be difficult to reach. For example, after forty years of debate, there is still no consensus on where air space ends and outer space begins.  Despite the political challenges of creating laws proactively, UNOOSA has had some success aggregating legal approaches of various states and providing model national space legislation as a form of soft law to guide emerging practices and in dealing with pressing practical issues like asteroids.

Given previous challenges, UNOOSA is cautiously optimistic about its new strategy.  As part of its annual meeting, UNOOSA members discussed improving space traffic management law, developing guidelines for small satellite activities, and creating guidelines for exploration, exploitation, and utilization of resources mined in outer space.

There is no defined set of laws for space traffic management.  On the intergovernmental level, COPUOS is hoping to fill this gap by exploring the necessary mechanisms for a comprehensive orbital law.  This will impact the role states play as they register and launch satellites into space.  
Small satellite activities also create issues based on satellite registration and liability.  Moreover, there must be consensus on whether a separate satellite regime is necessary.  This step could be beneficial because smaller satellites present unique opportunities and challenges.  Small satellite activities can be a gateway for developing space programs.  However, some small satellites are non-maneuverable and create significant issues in determining liability for collisions and space debris.   

Finally, COPUOS will explore emerging state practice in exploration, exploitation, and utilization of resources mined from celestial bodies.  This responsibility, however, is the most ambitious and perhaps the most controversial.  While the UN may issue model guidance, states have begun creating laws to regulate the exploitation of resources on celestial bodies.  For example, the US passed the Space Launch Competitiveness Act, which recognizes the right of citizens to own asteroid resources they obtain.  The Space Launch Competitiveness Act, which became law in 2015, was passed to encourage the development of the commercial space industry and encourage private sector investment by creating a pro-growth environment.

By dealing with topics that require consensus, Hedman says, COPUOS will be better able to address one of the thematic objectives from its conference: it will be able to enhance the legal regime of outer space governance and develop better strategies to fill gaps in current legislation.  However, in order to move from disparate actors to consensus-built law, COPUOS has a long and difficult trajectory.
By Jose Corte-Real

The Future Model for European Trade Deals?

After seven years of negotiations, the landmark Comprehensive Economic and Trade Agreement (CETA) was signed on October 30, 2016. The agreement, which has been touted as a major success for the future of EU trade deals, has also been the target of criticism and protests. With approval from the European Parliament and the Canadian Parliament, 90% of the deal will be able to take effect, leaving the rest of the deal to be ratified and implemented by each of the twenty-eight member states’ national legislatures.

The deal purports to remove 98% of tariffs between Canada and the EU, and officials hope it will generate a €10.9 billion ($14.3 billion Canadian) increase in trade worth. Further, EU exporters are estimated to save €500 million in duties annually, and there will be mutual recognition in regulated professions such as architecture, accounting, and engineering and easier transfers of company staff and other professionals between the EU and Canada. The European Commission also hopes CETA will create a more level playing field between Canada and the EU on intellectual property rights and strengthen the protection and enforcement of copyrights. “Canadians and Europeans share the understanding that in order for real and meaningful economic growth, we need to create more good, well-paying jobs for our citizens. Progressive trade agreements like the one signed today, will do just that,” Trudeau said, shortly after signing the landmark deal.

European Commission President Jean-Claude Juncker referred to a “new chapter” in relations between Canada and the EU, hoping this deal will open new opportunities for the millions of workers seeking them on both sides of the Atlantic.

The seven years of negotiations between each of the EU member states and Canada were left hanging in the balance as Wallonia, Belgium’s southern French speaking region with a population of 3.6 million people voted to veto the agreement just a few days before the deal was due to be signed. Because all twenty-eight EU states had to agree on the deal before it Trudeau could sign it, Belgium’s veto almost pushed back the long-awaited deal yet again. Belgium was the lone holdout to signing the deal because its regions can veto international treaties. The protestors were fearful of an investor-state dispute mechanism provision and sought safeguards for labor, environmental and consumer standards, and more protection for Walloon farmers who believe they will face increased competition from Canadian imports. In order for the deal to move forward, a last minute addendum was added addressing the regional concerns.

Further criticisms of the deal include that it will weaken European consumer rights protections, including those concerning food safety, and that tariffs are already low and do not need lowering. The deal has also been criticized as being beneficial only to big business and multinational corporations while risking net-losses, unemployment, and environmental damage that might impact individual citizens. These criticisms seem to highlight how hard it is to get free trade agreements done in a multifaceted and multicultural economy such as the EU’s. CETA also brought up a lot of talk in Brussels regarding finding a new consensus on trade. Whatever this consensus is, it will be very relevant to how the EU approaches Brexit negotiations.

A Potential Model for Post-Brexit Relations with the UK?

Many of the British leaders who advocated a leave vote during the Brexit campaign pointed to Norway and Switzerland’s relationship with the EU as a model to aspire to. However, the CETA model may be significantly more appealing. Norway and Switzerland’s access to the European Union single market comes at a steep price. Both countries sign up for most EU regulations, accept the free movement of EU workers, and make payments into the EU budget. CETA seemingly will give Canada access to the EU single market without the obligations faced by Norway and Switzerland. However, some Brexit proponents still have apprehensions about using CETA as a viable model for a trade deal with the EU.

CETA’s removal of tariffs does not include some sensitive food items such as eggs and chicken. Further, the EU will still require Canada to comply with its rules of origin, which oblige non-EU states to undergo rigorous customs checks. Because of these customs requirements, Canadian exporters are expected to face extra costs in order to prove their goods are “made in Canada.”

Finally, the service industry, which makes up about 80% of the United Kingdom’s economy are only partially covered by CETA. Thus, although CETA could be a good starting model for discussions with the EU, it is expected that a trade deal between the UK and the EU would have to be significantly more comprehensive in order to deal with the intricate web of ties that currently link the UK and the EU.

How CETA Will Affect the Legal Landscape of Investor-State Disputes

A lot of debate has revolved around an investor-state dispute settlement mechanism included in the deal through which a permanent arbitration tribunal is to be established. This tribunal, which will settle disputes between companies and governments, has been controversial, with many protestors claiming it gives too much power to big multinationals at the expense of consumers and workers. Amongst other criticisms, critics allege that the investor-state dispute settlement provisions will allow U.S. companies to engage EU states in arbitration through Canadian subsidiaries.

Section 4 of CETA provides investment protection to foreign investors and guarantees a “fair and equitable treatment and full protection and security.” CETA will allow foreign corporations to sue states before arbitral tribunals if they claim to have suffered losses because a state violated its Non Discriminatory Treatment obligations (which can be found in section 3 of CETA) or because of a violation of the guaranteed investment protection.

Such investor-state arbitrations are not necessarily new under public international law, but for transatlantic trade and investment, the comprehensiveness of this parallel model of justice is new. In addressing fears of confidentiality of arbitral proceedings, CETA provides transparency by adopting the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration.
The tribunal will consist of fifteen members named by Canada and the EU, dealing with individual cases in panels of three, and an appeals mechanism will be established to ensure “legal correctness” of the awards. Further, the tribunal’s members will not be allowed to appear as experts or party counsel in other investor-state disputes.

These investor tribunals  are not a guaranteed part of CETA, and each national legislature will have to ratify them individually. For example, Belgium’s opposition to the court suggests that it might never be enacted there, meaning Canadian companies will not be able to use the arbitration tribunal to sue Belgium over policies that negatively affect their investments. This could serve as a model for other countries that worry this provision unduly gives too much power to corporations.

Moving Forward

Supporters of the deal say that it will create more than one million jobs, with the European Commission saying the deal will be worth €545 to each European citizen every year. Opponents are angry that CETA meetings were held in secret and fear that the deal has given too much power to corporations by making it easier for them to sue governments. However, only time will tell if this deal will boost the stagnant economies of these two global markets and serve as a viable model for the future of EU trade deals.
By Brian Chae

A pro-democracy protester shields his face from police tear gas during the demonstrations of Incendo, Creative Commons License

Since the handover of Hong Kong from British to Chinese sovereignty in 1997, the city has been imbued with a sense of exceptionalism and optimism; many citizens consider themselves ‘Hong Kongers’ first, Chinese second. Principles laid out in the Sino-British Joint Declaration provided for an autonomous Hong Kong. The new Basic Law (akin to a mini-constitution of Hong Kong) integrated these principles: stipulating a “high degree of autonomy” in the common law-based judiciary (Article 2), preservation of a capitalist system for fifty years (Article 5), and a commitment to ultimately implementing universal suffrage (Article 45).

Capitalizing upon Article 45, civil society in the former colony has actively pushed for democracy. The outlook was bright when the Chinese government announced in 2007 that from 2017 on, universal suffrage would be used to elect the city’s Chief Executive (akin to the American President) and legislature. Tensions came to a head in 2014, however, when the Chinese government announced it would screen nominees for the Chief Executive, in order to ensure that only two or three patriotic candidates would appear on the ballot. This sparked the Umbrella Revolution, beginning with a three-month saga of massive protests that brought the key global financial center to a standstill. The civil conflict continues to this day, and only recently has the Chinese government intervened to block the appointment of two pro-democracy youths to the city’s legislature on grounds that they had not fulfilled their oath requirements.

Most observers are quick to condemn the Chinese government; proponents of the twenty-first century liberal zeitgeist demand self-determination for this unique city. American readers may draw parallels between Hong Kong’s “One Country, Two Systems” model and America’s constitutional federalism, taking issue with China’s violation of Hong Kong’s “traditional state rights.” However, there are reasons why both lines of thought are inapposite to the Hong Kong model. The liberal argument is difficult to uphold because Hong Kong is not in itself a sovereign state, nation or distinct ethnic region. This is not disputed and international relations scholars have largely stayed away from the Hong Kong issue. The federalist argument is much more interesting however, because it calls for a genuine inquiry into the legal basis of Hong Kong’s push for autonomy and independence from the Chinese core. The following comparative analysis will explain why American federalism does not lend support to Hong Kong’s claim.

The Hong Kong-China Vertical Separation of Powers Flows in Reverse to that of American Federalism

Though American conservatives bemoan the erosion of states’ rights by the federal government, they always have the opportunity to claim in court that the federal government has abused the authority granted to it by the states. The reverse is true in Hong Kong; all the autonomy the city enjoys was granted to it by the central government. Unlike California, Hong Kong enjoys zero sovereignty at a baseline level and therefore has no original claim to self-governance. Whereas the American states have decided to surrender some of their autonomy to a central government in the interest of efficiency and common principles, the Chinese government decided to grant limited autonomy to Hong Kong as part of an economic and political calculation. Is Chin therefore mischaracterized as invading Hong Kong’s rights when the city has no sovereign claim to independence?

The Guarantees of Autonomy Enshrined in the Hong Kong Basic Law are Illusory

Pro-democracy proponents may answer “no,” by pointing to the aforementioned provisions of the Basic Law that would seem to guarantee certain rights: (1) a “highly autonomous judiciary” free to adjudicate its own cases, (2) a fifty-year “capitalism guarantee,” and (3) enunciation of universal suffrage as an ultimate goal. The first right eclipses all others in significance, as a highly autonomous judiciary could have final adjudicative power on matters of Hong Kong governance.

However, “high autonomy” certainly does not constitute absolute autonomy, and Article 158 of the Basic Law expressly stipulates that Hong Kong courts “shall, before making their final judgments which are not appealable, seek an interpretation [on the Basic Law, from the central government, in cases that concern central government interests, i.e. the relationship between Hong Kong and China.]” Interpretations by the central government bind Hong Kong courts, effectively giving China the final say on matters that would alter the balance of power between the core and Hong Kong. This gives the central government the potential power to interpret the other guarantees of capitalism and universal suffrage into nullity.

Pro-democracy activists can claim that this provision should be interpreted to mean that Chinese interpretations should only be issued at the invitation of the Hong Kong Court of Final Appeals; as a textual matter it makes no provision for unilateral Chinese intervention. On the other hand, Hong Kong courts clearly have a legal obligation to seek such interpretations in relevant cases. The question then becomes who has the power to decide when a case is relevant and requires Chinese interpretation: the central government or the city? This is not answered by the statutory text, but given the preceding analysis, the Chinese government is probably the winner. Whereas the Ninth Amendment of the American Constitution clearly limits the authority of the federal government to those specifically addressed in the Constitution, the Chinese government is not limited by such negative grants of authority; it is the supreme sovereign that has chosen to empower Hong Kong with limited autonomy and it cannot be presumed to have delegated any more power than expressly declared.

It may very well be that by unilaterally issuing interpretations that bound Hong Kong courts to block the appointment of the two pro-democracy legislators, China abused that discretion in deciding whether Hong Kong was obligated to seek the interpretation. However as a purely legal matter, Hong Kong cannot claim an absolute right to contradict the will of the Chinese government because it possesses no independent sovereignty, and any guarantees of autonomy are subject to final interpretation by the Chinese government.
By Boris Lubarsky

Photo: Boris Lubarsky

On October 5, 2016 Edward Snowden participated in his second roundtable discussion at Georgetown University via Skype, from asylum in Moscow. Snowden is currently living in Russia after he leaked classified information in 2013, disclosing the government’s ongoing surveillance programs that included surveillance on American citizens. He is wanted by the United States’ government for theft of government property and violation of the Espionage Act.

The event coincided with the recent release of Oliver Stone’s new film “Snowden” and was moderated by Kevin Bankston, Director of New America’s Open Technology Institute. At the roundtable, Snowden discussed the role of encryption and the myth of ‘going dark.’

Recently, the FBI has warned that the encryption of electronic communications has led to terrorist’s ‘going dark’ or communicating in a way the FBI cannot access or intercept. FBI director James Comey called for telecommunications companies to expand and build up their real-time intercept capabilities. Director Comey further advocated that companies should always be able to decrypt any information sent using their service. Presently, Congress has yet to enact legislation that would prohibit end-to-end encryption.

Similarly, agencies within the EU and UK have also called for a legislative ban on end-to-end encryption. Earlier this year the French and German interior ministers advocated that internet companies should be able to decrypt any communication on its service. If these proposals were enacted it would effectively outlaw end-to-end encryption. The United Kingdom has also pushed to ban end-to-end encryption, with Prime Minister Cameron speaking against it and during a debate in the House of Lords Baroness Shields made a similar argument. “There is an alarming movement towards end-to-end encrypted applications,” she said. “It is absolutely essential that these companies which understand and build those stacks of technology are able to decrypt that information and provide it to law enforcement in extremis.”

End-to-end encryption is a system of communicating in which only the communicating users can read the message. End-to-end encryption works by providing both sender and recipient with an encryption key – only this key can unlock the contents of the message. Before an email is transmitted it is encrypted by the sender using his key, then the encrypted email is sent to the internet service provider which delivers the email to the intended recipient. While encrypted, the email is effectively garbled white noise – even if it were intercepted it would be unintelligible. The recipient uses his copy of the encryption key to unlock the message and read its contents.

Snowden, however, painted a starkly different picture than those advocating against encryption. Specifically, Snowden noted that encryption is not an insurmountable obstacle for intelligence services or law enforcement. “Anyone that says that information is going dark because encryption exists isn’t telling the truth.” Snowden mentioned numerous ways to surmount encryption but focused a common age-old method: allow the target to decrypt the information for you.

For an illustrative example, Snowden pointed to the 2015 arrest of Ross Ulbricht, the convicted ringleader of the infamous Silk Road Marketplace, an online black market selling everything from drugs to murder for hire. On the day of Ulbricht’s arrest, the FBI followed him to a public library and waited for him to unlock his computer and begin using it. Then two agents posing as quarreling lovers had a loud fight to distract Ulbricht; as soon as he turned to look at the disturbance an agent snatched his laptop and inserted a flash drive to clone the data on the computer. Only then was Ulbricht informed of his arrest and presented with a warrant. Ulbricht’s computer was encrypted, but by using standard police techniques the FBI was able to access the information anyway.

Snowden noted that, traditionally, law enforcement had to physically surveil the individual subject of an investigation and from that evidence obtain a warrant that allowed a search or seizure; however, with electronic communications the government could instead conduct mass surveillance for the same cost. Snowden further proposed that “when [the government] can monitor a hundred times as many people with the same amount of money – it’s time to review the privacy settings with fresh eyes; because with that order of magnitude change it’s a good rule of thumb for a review.” The advent of cellular phones and computers has created exactly this exponential decrease in the cost of surveillance.

Snowden acknowledged that encryption will raise the cost of surveillance worldwide, however this increase in cost means that “now they can’t do things in bulk and shifts from mass surveillance to individualized surveillance.” Snowden indicated that this individualized surveillance is exactly what law enforcement has traditionally done and strikes the correct balance between personal liberty and society safety.

Lastly, encryption is not just used by members of terrorist cells. Encryption provides law-abiding citizens a secure means to protect their data against criminals and hackers. The European Union Agency for Information and Security has supported encryption and come out strongly against back doors that would jeopardize end-to-end encryption. Technology companies such as Apple, Google, Facebook, and Microsoft all similarly support encryption and resist weakening that encryption with back door access.