Jurisdiction and Responsibility

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26.1
Technology and the Unique Challenges of Applying Law to the Realm of Outer Space and Space Activities
F.G. von der Dunk
Dr. Frans G. von der Dunk is the Harvey & Susan Perlman Alumni/Othmer Professor of Space Law at the University of Nebraska-Lincoln College of Law’s unique Program in Space, Cyber and National Security Law, as well as the Director of Black Holes B.V., a leading space law and policy consultancy based in The Netherlands.

For better or worse, technology at heart is—except to the extent that artificial intelligence fundamentally becomes involved—not so much a creator as a facilitator and enhancer of human acts, actions and activities, allowing them to become more effective, less costly, or sometimes even just merely feasible. Perhaps nowhere that is more pertinent then when it comes to human activities in outer space, which are still overwhelmingly conducted remotely and hence crucially dependent on technology. Given that “the law” has always been geared to address humans and their acts, actions, and activities, this gives rise to a rather special approach to maintaining and further developing a legal regime for outer space. The present Article intends to address and assess some of the most pertinent aspects of the unique body of space law from precisely this perspective, to shed some light on how “the law” would, could, and/or should handle relevant human endeavours in or with regard to outer space, in particular in the context of legal responsibilities and liabilities.

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26.1
Interplanetary Risk Regulation
Jonathan B. Wiener
William R. Perkins Professor of Law, and Professor of Environmental Policy and Public Policy, Duke University; Co-Director, Duke Center on Risk; University Fellow, Resources for the Future (RFF)

For helpful comments on prior drafts, the authors thank Larry Helfer, Erika Nesvold, Arden Rowell, and Katrina Wyman; for helpful discussions, the authors thank Dan Bodansky, Dagomar Degroot, Tyler Felgenhauer, David Fidler, Alissa Haddaji, Benedict Kingsbury, Bhavya Lal, Irmgard Marboe, Betsy Pugel, Margaret Race, Surabhi Ranganathan, Martin Rees, John Rummel, Dan Scolnic, Jessica Snyder, Phil Stern, Yirong Sun, Frans von der Dunk, Giovanni Zanalda, and participants at the Chicago Journal of International Law Symposium on “Technological Innovation in Global Governance” (January 2025); the conference on “Space Law and Earth Justice” at NYU Law School (March 2025); the Duke Space Symposium (April 2025); and the annual conference of the Society for Environmental Law and Economics (SELE) held at the School of Transnational Governance of EUI in Florence (May 2025). The views expressed in this article represent the personal views of the authors only.

Charles (Chase) Hamilton
Associate, Akin Gump Strauss Hauer & Feld LLP; Graduate Fellow of the Duke Center on Risk

Space exploration promises new opportunities but also new risks. After centuries of national settlements and international conflicts on Earth, and the Cold War era of two great power states racing to the Moon, today we see a rapidly proliferating arena of actors, both governmental and non-governmental, undertaking bold new ventures off-Earth while posing an array of new risks. These multiple activities, actors, and risks raise the prospects of regulatory gaps, costs, conflicts, and complexities that warrant reconsideration and renovation of legacy legal regimes such as the international space law agreements. New approaches are needed, beyond current national and international law, beyond global governance. We suggest that interplanetary risks warrant new institutions for risk regulation at the interplanetary scale. We discuss several examples, recognizing that interplanetary risks may be difficult to foresee. Some interplanetary risks may arise in the future, such as if settlements on other planets entail the need to manage interplanetary relations. Some interplanetary risks are already arising today, such as space debris, space weather, planetary protection against harmful contamination, planetary defense against asteroids, conflict among spacefaring actors, and potentially settling and terraforming other planets (whether to conduct scientific research, exploit space mining, or hedge against risks to life on Earth). These interplanetary risks pose potential tragedies of the commons, tragedies of complexity, and tragedies of the uncommons, in turn challenging regulatory institutions to manage collective action, risk-risk tradeoffs, and extreme catastrophic/existential risks. Optimal interplanetary risk regulation can learn from experience in terrestrial risk regulation, including by designing for adaptive policy learning. Beyond national and international law on Earth, the new space era will need interplanetary risk regulation.

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17.1
The Law of Unintended Consequences: The 2015 E.U. Insolvency Regulation and Employee Claims in Cross-Border Insolvencies
Joshua W. Eastby
J.D. Candidate, 2017

The author would like to thank the CJIL board and staff for their helpful edits and suggestions, Professor Douglas Baird, for his enthusiastic feedback, Meredith Quarello for her patience and support, and Andrew Mackie-Mason, for his feedback and comments