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February 01, 2023

Space and National Security: International Cooperation, Competition, and Commerce

By: Melissa de Zwart and Christopher J. Borgen


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This article considers developments in space activities over the past ten years and their relationship to national security. It proceeds in three sections: U.S. approaches to space law and policy in an era of geopolitical and technological change, a comparative overview of the Australian experience, and a conclusion.

U.S. Space Policy and National Security: Challenges and Opportunities

While the decade since 2012 has been marked by tectonic shifts in domestic and international politics, space activities have been changing due to rapidly evolving technology and an increase in the number and types of actors. Both who is acting and what can be done have expanded. In 2011, there were approximately 1,030 operational satellites; by 2022, that estimate had increased to 5,465. Statista, Number of Active Satellites from 1957 to 2021; Union of Concerned Scientists, UCS Satellite Database, May 1, 2022. Moreover, the population of satellites has been shifting from government-owned to private satellites; of the current total, about 2,500 belong to SpaceX, with other companies also developing increasingly larger satellite constellations. See Melissa de Zwart & Joel Lisk, Low Earth Orbit, Satellite Constellations, and Regulation, Flinders Univ. (2022) (discussing international legal regulation of satellite constellations and Australia’s policies). As for the regulatory challenges posed by emerging space activities, consider, for example, the development of rendezvous and proximity operations (RPO), the technique of one un-crewed spacecraft approaching and flying in close formation to, or docking with, another un-crewed craft. RPO can be used for commercial purposes, such as repairing and refueling satellites, as well as for intelligence-gathering regarding other spacecraft, the suspected purpose in past or possible future RPO by certain Russian satellites. See Adrian Beil, Russia Launches Potential Inspector Satellite on Soyuz-2.1v, (Aug. 1, 2022). The complex evolution of space activities, of which RPO is merely one example, holds both opportunities and risks for national security. A summary of the 2011 U.S. National Security Space Strategy described Earth orbit as “congested, contested, and competitive.” U.S. Dep’t of Def. & U.S. Off. of Dir. of Nat’l Intel., National Security Space Strategy: Unclassified Summary 1 (Jan. 2011).

Many space policy areas with national security implications, including those discussed below, have been evolving in the last ten years and will continue to do so. The main space treaties, including the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 610 U.N.T.S. 205 (Outer Space Treaty), and the Convention on International Liability for Damage Caused by Space Objects, opened for signature Mar. 29, 1972, 961 U.N.T.S. 187, contain general obligations concerning the conduct of space activities, but they do not explicitly cover specific topics such as RPO or the testing of anti-satellite weapons. Thus, lawyers are challenged not only by interpretive questions of whether and how current sources of obligation apply to evolving technologies and practices but also by whether and how new legal obligations and non-binding norms may be established.

Anti-Satellite Weapons

For the foreseeable future, military space activities will focus on using, targeting, and protecting satellites. While a concern is that one state might use an anti-satellite weapon (ASAT) against another state’s satellites, even ASAT testing can be dangerous, as certain tests can physically damage or destroy satellites, throwing debris that adversely affects the orbital environment. See, e.g., U.N. Secretary-General, Reducing Space Threats Through Norms, Rules and Principles of Responsible Behaviours, at 95-98, A/76/77 (July 13, 2021) (reply received from the United States). See also id. at 28 et seq. (reply received from China noting the United States had undertaken the first-ever ASAT test and discussing risks such as space-based ballistic missile defense and an arms race in outer space). ASAT tests have been conducted by China in 2007, the United States in 2008, India in 2019, and Russia in 2020 and 2021. See, e.g., Brian Weeden, 2007 Chinese Anti-Satellite Test Fact Sheet, Secure World Found., Nov. 23, 2010. Some of these resulted in significant debris fields; Russia’s 2021 test caused enough concern that the crew of the International Space Station had to don their spacesuits in case of impact. See Kylie Atwood, et al., US Says It ‘Won’t Tolerate’ Russia’s ‘Reckless and Dangerous’ Anti-Satellite Missile Test, CNN, Nov. 16, 2021. Consequently, there has been renewed emphasis on clarifying norms regarding ASAT tests.

Although no treaty explicitly bans ASAT tests, some commentators have interpreted the Outer Space Treaty as containing an obligation to minimize debris-causing events. See Outer Space Treaty, supra at Art. IX (setting out the obligation to conduct activities “with due regard to the corresponding interests of all other States Parties to the Treaty”). In 2014 the European Union (EU) distributed a revised proposal for a non-binding instrument, the Draft Code of Conduct for Outer Space Activities, which included a pledge to refrain from activities, except under very specific circumstances, that would directly or indirectly destroy a space object and generate debris. European Union External Actions Service, Draft International Code of Conduct for Outer Space Activities (Mar. 31, 2014). See also P.J. Blount, Space Security Law, Oxford Rsch. Encyclopedia of Planetary Sci. 12 (June 2017). Although the Draft Code “initially received mixed reactions” for a variety of substantive and procedural reasons, it provided a touchstone for further discussion. Chris Johnson, Draft International Code of Conduct for Outer Space Activities Fact Sheet, Secure World Found., Feb. 2014.

While there is clear interest in decreasing the risks posed by the development and use of ASATs, the next decade will see whether there is adequate political will to transform mutual interests into binding obligations. For now, there is norm-building and unilateral voluntary regulation. Notably, Vice President Kamala Harris, the Chair of the National Space Council, announced in April 2022 a U.S. moratorium on testing ASATs. Kamala Harris, Remarks by Vice President Harris on the Ongoing Work to Establish Norms in Space, Apr. 18, 2022. In December 2022, the U.N. General Assembly adopted a resolution — by a vote of 155 in favor (including the United States), 9 against (including Russia and China), and 9 abstentions — calling on states to end direct-ascent ASAT missile tests. See U.N. General Assembly, General Assembly Adopts over 100 Texts of First, Sixth Committees Tackling Threats from Nuclear Weapons, International Security, Global Law, Transitional Justice (Dec. 7, 2022).

Commercial Space Activities

The United States and other countries are increasingly contracting with private vendors for the provision of goods and services in support of national-security space activities. Such agreements might concern launch services, Earth imaging, space situational awareness, or telecommunication capabilities. Not only does contracting help drive the growth of the commercial space industry, but the expansion of economic activity in space in turn spurs the evolution of national policies and practices to protect key space infrastructure, be it publicly or privately owned.

The expansion of commercial activities can also lead to tensions between states. For example, Russia has stated that “the mass deployment of [small satellites] hinders the ability of other States to safely launch space launch vehicles and does not contribute to the long-term sustainability of space activities.” U.N. Secretary-General, supra at 79 (reply received from Russia). On December 6, 2021, China submitted a note verbale to the U.N. Secretary-General concerning two alleged incidents of having to maneuver its China Space Station in order to avoid a possible collision with a SpaceX Starlink satellite, to which the United States responded, “Because the activities did not meet the threshold of established emergency collision criteria, emergency notifications were not warranted in either case.” Note Verbale dated 3 December 2021 from the Permanent Mission of China to the United Nations (Vienna) Addressed to the Secretary-General, U.N. Doc. A/AC.105/1262 (2021) (notification by China furnished in conformity with the Outer Space Treaty) and Note Verbale dated 28 January 2022 from the Permanent Mission of the United States of America to the United Nations (Vienna) Addressed to the Secretary-General, U.N. Doc. A/AC.105/1265, at 3 (2022) (notification by United States concerning the notification by China).

There is also the ever-increasing risk of collision from more than 500,000 pieces of debris ranging in size from one centimeter to the size of a school bus. See generally, NASA Office of Inspector General, NASA’s Efforts to Mitigate the Risks Posed by Orbital Debris, Report No. IG-21-011, 1-3 (Jan. 27, 2021). This estimated amount of space junk refers to objects about 1 centimeter or larger. If we broaden the range to 1 millimeter (the size that could puncture a spacesuit) or larger, the amount increases to over 100 million. Id. at 3. Recent years have seen an increasing emphasis on creating norms that reduce the risk of generating space junk and on increasing the survivability of satellites and spacecraft in case they are hit by debris. See, e.g., Comm. on the Peaceful Uses of Outer Space, Rep. of the Comm. on its Sixty-Second Session, U.N. Doc A/74/20, at 50-69 (June 2019).

Knowing the location of objects (operational or not) is critical for avoiding collisions as well as preventing harmful interference. For the United States, space situational awareness (SSA) has been a military function, but much routine SSA is expected to shift in the near future to a civilian agency, likely the Department of Commerce. See Orbital Debris Interagency Working Grp., National Orbital Debris Implementation Plan 10 (July 2022). Private companies, already gatherers of SSA information, will likely increase coordination with the U.S. government and other governments in order to refine SSA data. More generally, in the next ten years, spacefaring actors will look to increase SSA through better technology, better practices, and possibly new norms of coordination and cooperation.

The International Space Station

In an effort to expand crew and cargo options for servicing the International Space Station (ISS) and to spur private companies to develop a new generation of U.S.-launched cargo and crew transport capabilities, the National Aeronautics and Space Administration (NASA) established the Commercial Orbital Transportation Services program in 2006 and awarded the first Commercial Resupply Services contracts in 2008. The final space shuttle flight was in 2011, and the first commercial un-crewed resupply mission was launched by SpaceX in 2012, followed by one from Orbital in 2014. See Release 12-355, NASA, First Contracted SpaceX Resupply Mission Launches with NASA Cargo to Space Station (Oct. 7, 2012). From 2011 until 2020, the United States was reliant on Russia for conveying crew to and from the ISS during a time of worsening diplomatic relations. The first commercially-provided crew transport was by SpaceX in 2020.

Mindful that the ISS was, for both political and technical reasons, entering a period of transition, NASA began issuing directives and reports concerning the expansion of commercial activities on the ISS as a way to boost private space ventures and a broader commercial presence in low Earth orbit (LEO). NASA, NASA Plan for Commercial LEO Development: Summary and Near-Term Implementation Plans (June 7, 2019). See also Memorandum on NASA Interim Directive (NID): Use of International Space Station (ISS) for Commercial and Marketing Activities, NID 8600.121 (June 6, 2019) and NASA, International Space Station Transition Report (Jan. 2022). Although Congress extended NASA’s authorization to operate the ISS until 2030, Roscosmos, the Russian space agency, announced in July 2022 that “[t]he decision to leave the station after 2024 had been made.” Kenneth Chang & Ivan Nechepurenko, Russia Says It Will Quit the International Space Station After 2024, N.Y. Times, July 26, 2022. NASA and Roscosmos subsequently emphasized that they will continue cooperating after 2024 and that, as a Roscosmos official explained, “‘After 2024’ could mean 2025, 2028 or 2030.” Jeff Foust, NASA and Roscosmos Officials Restate Intent to Operate ISS After 2024, SpaceNews, Aug. 4, 2022. Nonetheless, NASA has been undertaking contingency planning in case of Russia’s withdrawal of ISS support. Joey Roulette, NASA Game Planned Contingencies for Space Station as Russian Alliance Continued, Reuters, Aug. 4, 2022.

The Artemis Accords

While cooperation with Russia may be faltering and there may not be any new space treaties in the near future, since 2020 the United States has been concluding a series of bilateral agreements with states wanting to participate in the U.S. Artemis program, which will put people back on the Moon. So far, the United States has signed “Artemis Accords” with twenty-two states in Africa, Asia, Europe, and North and South America. Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes, opened for signature Oct. 13, 2020, A/75/699 (Dec. 30, 2020) (Artemis Accords). For a list of the current signatories to the Artemis Accords, see NASA, The Artemis Accords.

The United States describes the Artemis Accords not as a treaty but as a “shared vision for principles” covering topics such as peaceful exploration, de-confliction of activities, protection of heritage sites, and emergency assistance. Id. The Accords state that the signatories consider the extraction of resources from the Moon and other celestial objects as consistent with international legal obligations. In 2020, Jim Bridenstine, NASA’s then-Administrator, said, “The important thing is, countries all around the world want to be a part of this. That’s the element of national power.” He added that “participation in the Artemis programme is contingent on countries adhering to ‘norms of behaviour that we expect to see’ in space.” Joey Roulette, Exclusive: Trump Administration Drafting ‘Artemis Accords’ Pact for Moon Mining – Sources, Reuters, May 5, 2020.

Performing one of its many functions, the Artemis Accords coordinate among its signatories an interpretation of international law on the highly contested issue of resource extraction, which has been the subject of numerous efforts at resolution via international diplomacy and collaboration as well as domestic regulation. Those efforts have included debates over interpretation of the Outer Space Treaty, supra, and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 18, 1979, 1363 U.N.T.S. 3 (Moon Agreement), and work by groups such as the Hague International Space Resources Governance Working Group. See Hague Int’l Space Resources Governance Working Grp., Building Blocks for the Development of an International Framework on Space Resource Activities, Nov. 12, 2019. In addition to multilateral efforts, states have also utilized domestic law and regulation to clarify norms concerning resource extraction, such as the United States’ Space Resource Exploration and Utilization Act of 2015, H.R. 1508, 114th Cong. (2015); President Donald Trump’s Executive Order on Encouraging International Support for the Recovery and Use of Space Resources (2020), Exec. Order No. 13914, 85 Fed. Reg. 20381 (Apr. 10, 2020); and Luxembourg’s Space Resources Law (2016), see SooYun Cho, Luxembourg: Law on Use of Resources in Space Adopted, Library of Cong., Aug. 22, 2017.

The U.S. Space Force and Armed Forces Reorganization

Recent years have seen the reorganization and re-imagining of U.S. military space units and assets. After having been disbanded in 2002, U.S. Space Command was re-established in 2019, and the U.S. Space Force (USSF) was created as a new branch of the military “responsible for organizing, training, and equipping Guardians to conduct global space operations.” U.S. Space Force, USSF Mission. But the United States is not alone or first in re-organizing. In 2019, France established its Commandement de l’Espace, see Alain Barluet, Emmanuel Macron Annonce la Création d’un Commandement Militaire de l’Espace, Le Figaro, July 13, 2019, and, even earlier in 2015, China’s People’s Liberation Army reorganized to “enhance space-based C4ISR [Command, Control, Communications, Computers, Intelligence, Surveillance and Reconnaissance].” Matthew T. King & Laurie R. Blank, International Law and Security in Outer Space: Now and Tomorrow, 113 Am. J. Int’l L. Unbound 125, 126 (2019). However, China has also stated, in an implicit critique of the United States, that “actions such as declaring outer space as a new war-fighting domain, developing military capabilities in outer space, [and] establishing an independent space force and space command” are threats to space activities. Note verbale from China, supra at 29.

In the next ten years, there will likely be further organization and evolution of the militaries of spacefaring states. A September 2020 memorandum of understanding between NASA and the USSF stated: “the reach of USSF’s sphere of interest will extend to 272,000 miles and beyond—more than a tenfold increase in range and a 1,000-fold expansion in service volume” beyond the original emphasis on activities out to geostationary orbit (22,236 miles). Memorandum of Understanding between the National Aeronautics and Space Administration and the United States Space Force 2 (Sept. 21, 2020), supra at 2. The USSF has also been given the responsibility for “coordinating and de-conflicting space requirements from [the] multiple services.” Sandra Erwin, Space Force to Take on Bigger Role Planning Future DoD Space Investments, SpaceNews, Aug. 1, 2022. In addition, the process of contracting for the research, development, and construction of U.S. space systems will be overseen by the Space Development Agency, which was also established in 2019. See generally Space Development Agency, About Us.

Australian Space Policy: A Comparative Perspective

Space activities involve more states now than ever before, and the actions of each nation can affect the security of others in space. Consequently, we turn to a comparative perspective and look at the experiences of Australia as a nation with both a longstanding connection to space and a growing commercial space sector. See de Zwart & Lisk, supra.

Australia’s Role in Space

Australia’s commitment to its space industry has been ground-breaking but inconsistent since the late 1950s, shifting over time from launch to ground services. Australia was chosen as the location for the Woomera Rocket Range in 1946 pursuant to a formal agreement between Australia and the United Kingdom. See Austl. Gov’t Dep’t of Def., History of the Woomera Prohibited Area. During the 1950s, the facilities on the range were expanded beyond rocket testing and became available to American and European weapons testing and space tracking programs. It has been claimed that, at its peak, Woomera was the world’s second most heavily used launch site (after Cape Canaveral in Florida). Australia became the only non-European member of the European Launcher Development Organisation (ELDO), which was established to develop a satellite launch vehicle. When ELDO departed Woomera for a location closer to the equator, the United States became a significant user of the site, constructing a satellite ground station, the NASA Deep Space Instrumentation Facility, and the Joint Defence Space Communications Station in the mid-1970s. A U.S.-surplus Redstone rocket took Australia’s Weapons Research Establishment Satellite into space in 1967. Austl. Gov’t Dep’t of Def., WRESAT — Weapons Research Establishment Satellite.

In the late 1960s, Australian involvement in space became focused on the provision of ground stations, famously providing the images of the Moon walk of Neil Armstrong and Buzz Aldrin via the Honeysuckle Creek tracking station in 1969. See John Sarkissian, Not One But Two Aussie Dishes Were Used to Get the TV Signals Back From the Apollo 11 Moonwalk, The Conversation, July 18, 2019. Australia currently hosts some of the most advanced ground stations in the world, such as the Square Kilometre Array in Western Australia. Illustrating the advantages of Australia’s location, geography, size, and quiet skies, LeoLabs, an American space situational awareness company, is building a new radar antenna station in Western Australia that will monitor the region of space above the South Indian Ocean. Debra Werner, Japan Air Self Defense Force Awards Contract to LeoLabs, SpaceNews, May 24, 2022.

Despite being a founding member of the United Nations’ Committee on the Peaceful Uses of Outer Space (COPUOS) and the third country to launch a satellite from its own territory, see Nat’l Archives of Austl., Launch of Australia’s First Satellite – Documentary (2010), Australia appeared to lose interest in developing launch capabilities and its focus on the provision of ground stations waxed and waned. In the 1990s, the possibility that a commercial launch provider might set up operations at Woomera prompted the introduction of a new domestic space law, see Melissa de Zwart, No Launch from Australia: Something Missing from Our Plans for the New Space Race, The Conversation, June 12, 2018, but the public’s appetite for Australian space activities seemed limited. Australia’s position in the space economy appeared reactive rather than strategic. That changed in the 2010s with the creation of a space agency, id., and a revision of domestic space laws. See Austl. Space Agency, Regulating Australian Space Activities (summarizing the Space (Launches and Returns) Act 2018).

Australia as a Launching State

On June 26, 2022, NASA launched the first of three rockets from the Arnhem Space Centre (ASC), a commercial spaceport in Arnhem Land, Northern Territory, Australia. This was the first time that NASA had procured the launch services of a commercial spaceport provider outside of the United States. Media Release, Ed Husic, NASA Go for Launch in Northern Territory (June 8, 2022). The rockets launched from the ASC were designed and built by NASA in the United States and used for scientific investigations into solar physics, astrophysics, and observations that could be undertaken only from the southern hemisphere.

The ASC is owned and operated by a commercial operator, Equatorial Launch Australia (ELA). At the time of the launch, ELA’s Chief Executive Officer, Michael Jones, stated, “Having NASA as our first customer is not only a great endorsement of our spaceport, but it places us at the forefront of global commercial space and proves that through ELA and the ASC, Australia now has a Sovereign launch capability and access to space.” Isabella Richards, ELA Says NASA Will Launch Rockets from Australia on 26 June, Space Connect, June 8, 2022. Australia is negotiating a technology-safeguards agreement with the United States to facilitate more launches from Australia. The agreement would advance the space cooperation of Australia and the United States. Joseph Brookes, Australia–US in Talks on Space Technology Treaty,, July 1, 2021. Australia has now made a commitment to develop a domestic space industry and to be recognised globally as a reliable and responsible space operator. It envisages a significant role for the private sector in the provision of space services and understands the value in becoming part of the global space economy. See Austl. Gov’t, Australian Government Response to the House of Representatives Standing Committee on Industry, Innovation, Science and Resources Report: The Now Frontier: Developing Australia’s Space Industry, Dec. 2022.

While the 2022 NASA launch has been celebrated in Australia as proof of the value of the Australian Space Agency (ASA), the ASA has existed only since 2018 and required decades of lobbying by the Australian space industry for a single “front door” to bring space business to Australia. Review of Australia’s Space Industry Capability: Report from the Expert Reference Group for the Review, Austl. Space Agency (Mar. 2018). Even before the public consultation process had formally concluded, there was a surprise announcement at the 2017 International Astronautical Congress in Adelaide that Australia was to have its own space agency. See Jeff Foust, Australia to Establish National Space Agency, SpaceNews, Sept. 24, 2017.

During the years of build-up to the NASA launch, the Australian Commonwealth House of Representatives undertook an inquiry into the space industry and released its report, The Now Frontier: Developing Australia’s Space Industry, in November 2021. House of Representatives Standing Comm. on Industry, Innovation, Sci. and Resources, The Now Frontier: Developing Australia’s Space Industry, Nov. 2021. The report identified issues hampering further growth of the Australian commercial space industry, particularly with respect to launch. The issues included regulatory complexity and delay, lack of guidance on regulatory mechanisms, and the need for a national launch plan or strategy.

Meanwhile, Australia has long been active in the creation of international treaties and organizations involved in the international law affecting outer space. Australia became a Member State of the United Nations’ COPUOS when it was established as a permanent body by the General Assembly of the United Nations in 1959. Further, Australia is one of the few nations to have signed and ratified all five of the chief international space conventions, including the Moon Agreement, supra. As part of the commitment to international space partnerships, Australia was a foundational signatory of the Artemis Accords and is committed to its AU$150 million “Moon to Mars” project with NASA. As part of this project, Australia is to build and send a rover to the Moon to assist in collection of lunar samples. NASA, NASA, Australia Sign Agreement to Add Rover to Future Moon Mission, Oct. 12, 2021.

Australia’s Next Steps

The Australia–United Kingdom–United States (AUKUS) security pact announced in September 2021 opens up new opportunities for space activities from Australia. Malcolm Davis, Boosting Space Capabilities Through AUKUS, The Strategist, Oct. 6, 2021. Additionally, Australia announced in March 2022 the stand-up of Defence Space Command as a single point of coordination for defense endeavours in space, which will also involve working with the Australian commercial space industry as a key partner. Ruth Harrison, ADF Establishes New Defence Space Command Branch, Space Australia, Mar. 29, 2022.

The Australian Government has set ambitious targets for the domestic space industry, including to grow the space sector by $12 billion and create an additional 20,000 jobs within the next decade. A new integrated civil and defence space strategy is under development, to be released in 2023. The Now Frontier report made a range of recommendations to support the growth of the Australian space industry and, notably, to encourage the Australian Government to continue to participate in international forums to “clarify how international law impacts commercial activities in space” and “lead the development of enforceable and internationally agreed norms of behaviour in outer space.” The Now Frontier, supra, at xix-xxvii. The success of the 2022 NASA launch and other ventures provide impetus for further government support of such initiatives, but there is still work to be done. In particular, it is hoped that AUKUS will pave the way for resolution of export control and classification issues that have the potential to hamper further collaboration.


The rapid growth of the commercial space industry has created new opportunities and challenges for the space sector globally. The ability to build and deploy novel and comparatively low-cost technologies has created the prospect of congested orbits and conflicting activities. But some longstanding supply chain challenges and roadblocks, such as the rapid development of commercial crew systems, have been overcome, opening up the exciting possibility for the return of humanity to the Moon in the next decade. The growth of the private space industry also broadens the horizon for international collaboration in projects ranging from new ISS modules to space traffic management. However, it also raises concerns of national and international security by introducing a far greater number and variety of space operators with diverse means and goals. Meanwhile, international and domestic space law will continue to be put to the test over the next decade as actors and activities proliferate in the challenging domain of space. International cooperation in space activities and in their regulation, such as that between the United States and Australia throughout their shared space history from the earliest days of launch to the Artemis Accords, will be increasingly important for all nations to maximize the opportunities, share in the benefits, and address the risks of this new space age.

Melissa de Zwart

Professor (Digital Technology, Security & Governance)

Melissa de Zwart is Professor (Digital Technology, Security & Governance) and Director, Jeff Bleich Centre for the US Alliance in Digital Technology, Security & Governance, Flinders University, Adelaide, South Australia.

Christopher J. Borgen

Professor of Law, St John’s University School of Law

Christopher J. Borgen is Professor of Law and Co-Director, Center for International and Comparative Law, at St John’s University School of Law, Queens, New York. 

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