Orbital Debris and the Law: An Overview Prof. Joanne Irene Gabrynowicz, Director Editor-in-Chief, Journal of Space Law AIAA Slidell, LA 25 September 2012

Orbital Debris and the Law:Orbital Debris and the Law:An OverviewAn Overview

Prof. Joanne Irene Gabrynowicz, DirectorProf. Joanne Irene Gabrynowicz, DirectorEditor-in-Chief, Journal of Space LawEditor-in-Chief, Journal of Space Law

AIAAAIAASlidell, LASlidell, LA

25 September 201225 September 2012

National Center for Remote Sensing, Air and Space Law

OverviewOverview

• Legal landscape: international lawLegal landscape: international law• Negligence issuesNegligence issues• Debris removal and negligenceDebris removal and negligence• Debris removal and liabilityDebris removal and liability• Some on-orbit collision issuesSome on-orbit collision issues• Unresolved issuesUnresolved issues• ““Soft lawSoft law””• Trend: national lawTrend: national law• ConclusionConclusion

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Warning!Warning!

The questions are many….The questions are many….

…….the answers are few..the answers are few.

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Legal Landscape:Legal Landscape:International Space LawInternational Space Law

• TreatiesTreaties―Liability ConventionLiability Convention

In space: negligenceIn space: negligence On Earth or aircraft in flight: absolute liabilityOn Earth or aircraft in flight: absolute liability Piece of debris is Piece of debris is ““space objectspace object””

―Outer Space TreatyOuter Space Treaty Obligation to avoid harmObligation to avoid harm―State obliged to share what it knows about State obliged to share what it knows about

space environment?space environment?

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Legal Landscape:Legal Landscape:International Space LawInternational Space Law

• Registration AgreementRegistration Agreement―States - Parties ultimately liable for damage caused by States - Parties ultimately liable for damage caused by

an object on its registryan object on its registry Can recover from commercial and/or private entityCan recover from commercial and/or private entity

―Registered?Registered? US: Kosmos 2251 not registered in UN; US: Kosmos 2251 not registered in UN; ““mentionedmentioned”” in a Soviet in a Soviet

documentdocument UN Doc: no mention of individual Iridium satellite numbers; UN Doc: no mention of individual Iridium satellite numbers;

multiple launchmultiple launch

• IADC/UN GuidelinesIADC/UN Guidelines• PCA Optional Rules for Arbitration for Disputes PCA Optional Rules for Arbitration for Disputes

Relating to Outer SpaceRelating to Outer Space• Case lawCase law

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Negligence IssuesNegligence Issues

• Legal and engineering/scientific standards Legal and engineering/scientific standards are differentare different

• LawLaw―what is reasonable under the circumstances?what is reasonable under the circumstances?

• Engineering/ScienceEngineering/Science―what is degree of probability?what is degree of probability?

• Consensus that there is a problem but lack of Consensus that there is a problem but lack of consensus on which engineering and consensus on which engineering and scientific best practices are available to scientific best practices are available to implement at lawimplement at law

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Negligence IssuesNegligence Issues

• Is tracking failure negligence or contributory Is tracking failure negligence or contributory negligence?negligence?

• Which operator has last chance under a last, clear Which operator has last chance under a last, clear chance doctrine?chance doctrine?

• Does operator assume risk with Does operator assume risk with ““controlled controlled reentryreentry””??―““controlcontrol”” implies responsibility implies responsibility

• Is Is ““higher maneuverabilityhigher maneuverability”” ““controlcontrol””? ? • Technical terms with possible legal implicationsTechnical terms with possible legal implications―““Fault monitoringFault monitoring””―““Avoidance of intentional destructionAvoidance of intentional destruction””

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Debris Removal and NegligenceDebris Removal and Negligence

• Removal implies additional standardsRemoval implies additional standards

• If danger invites rescue, does debris invite If danger invites rescue, does debris invite removal?removal?―Could shift liability schemeCould shift liability scheme

• ChallengesChallenges―Asking law to prevent rather than reactAsking law to prevent rather than react―Experimental technologyExperimental technology―Needs political willNeeds political will

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Debris Removal and NegligenceDebris Removal and Negligence

• Space faring nations with mitigation ability Space faring nations with mitigation ability will likely need to be held harmless and to will likely need to be held harmless and to implement cross-waiversimplement cross-waivers―Early launchesEarly launches―ISSISS

• Inapplicable to 3Inapplicable to 3rdrd party non-space faring party non-space faring nations that rely on spacenations that rely on space

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Debris Removal and LiabilityDebris Removal and Liability

• Is debris removal a public service, utility, or Is debris removal a public service, utility, or commercial opportunity?commercial opportunity?―Liability differsLiability differs

• What is focus of debris removal?What is focus of debris removal?―Location?Location?

If space, then global commons and environmental If space, then global commons and environmental approachapproach

―Space object?Space object? Individual property rights, individual national security Individual property rights, individual national security

impactimpact

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Some On-Orbit Collision Some On-Orbit Collision IssuesIssues

• Difficult to determine cause and proof of liabilityDifficult to determine cause and proof of liability• First party insurance can cover damaged satellite, First party insurance can cover damaged satellite,

subject to policy termssubject to policy terms• Loss of revenue, consequential loss, incidental Loss of revenue, consequential loss, incidental

damages, loss of market may be recoverable damages, loss of market may be recoverable under other partyunder other party’’s 3s 3rdrd party liability insurance party liability insurance

• To date, no litigation, no precedentTo date, no litigation, no precedent―No desire to make data publicNo desire to make data public―Operators: fear increased insurance premiumsOperators: fear increased insurance premiums―Insurers: need to asses increased riskInsurers: need to asses increased risk

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Unresolved IssuesUnresolved Issues• No salvageNo salvage―Perpetual jurisdiction and responsibilityPerpetual jurisdiction and responsibility―Cold War artifactCold War artifact

• No clear legal definitionsNo clear legal definitions―functional operational spacecraftfunctional operational spacecraft―non-functional debrisnon-functional debris

• No international agreement on which objects No international agreement on which objects should be removed should be removed ―GEO, LEOGEO, LEO―Growing political willGrowing political will

• State responsibility for on-orbit transfers that later State responsibility for on-orbit transfers that later become debrisbecome debris

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““Soft LawSoft Law””

• When do attempts to avoid or supplement When do attempts to avoid or supplement treaties become binding?treaties become binding?―Codes of conduct, principles, guidelines, Codes of conduct, principles, guidelines,

MOUs, etc.MOUs, etc.―Practice and Practice and opinio juris opinio juris is neededis needed

• Steady, increasing trend since end of WWIISteady, increasing trend since end of WWII―Approximately 72 space resolutions since 1958Approximately 72 space resolutions since 1958

• Schacter: Schacter: ““twilight existencetwilight existence””

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An Interesting Option: EquityAn Interesting Option: Equity

• Applied to maritime law, an analogy for Applied to maritime law, an analogy for space lawspace law

• Article IXArticle IX―““avoid harmavoid harm””―““due regarddue regard””

• Requires Sovereign consent at international Requires Sovereign consent at international lawlaw

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Legal Landscape:Legal Landscape:U.S. Policy and International U.S. Policy and International

LawLaw• ““All nations have the right to use and All nations have the right to use and

explore space, but with this right also explore space, but with this right also comes responsibility.comes responsibility.””

National Space Policy of the U.S., June 28, 2010National Space Policy of the U.S., June 28, 2010

• Balances OST Art. I with Art. IXBalances OST Art. I with Art. IX―Right to use and explore = Art. IRight to use and explore = Art. I―Responsibility = Art. IXResponsibility = Art. IX

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Trend: National LawTrend: National LawU.S. U.S.

• No specific law, applications-specific elementsNo specific law, applications-specific elements―Remote sensingRemote sensing

Satellite disposal in manner satisfactory to PresidentSatellite disposal in manner satisfactory to President NOAA will adopt 25 year rule in next regulatory updateNOAA will adopt 25 year rule in next regulatory update

―TelecommunicationsTelecommunications―Satellite end-of-life debris mitigation/prevention plan part of Satellite end-of-life debris mitigation/prevention plan part of

license applicationlicense application―Trade-off: revenue vs. liability mitigation Trade-off: revenue vs. liability mitigation

• FCC adopted specific rulesFCC adopted specific rules

• USG Orbital Debris Mitigation Standard PracticesUSG Orbital Debris Mitigation Standard Practices―Binding on NASA onlyBinding on NASA only―Other agencies encouraged to adoptOther agencies encouraged to adopt

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Trend: National LawTrend: National LawFranceFrance

• Authorized space operations must limit Authorized space operations must limit space debris risks space debris risks

• Insurance must cover:Insurance must cover:―Government and public bodiesGovernment and public bodies―ESA and its Member StatesESA and its Member States―Operator and persons participating in Operator and persons participating in

production or operation of space objectproduction or operation of space object

• Regulations in processRegulations in process

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Trend: National LawTrend: National LawJapanJapan

• Authorization is needed for Authorization is needed for ““Station keepingStation keeping””―includes de-orbit and re-orbit to mitigate space includes de-orbit and re-orbit to mitigate space

debrisdebris

• Debris mitigation guidelines is short term Debris mitigation guidelines is short term targettarget

• JAXA Space Debris Mitigation Guidelines JAXA Space Debris Mitigation Guidelines

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Conclusion:Conclusion:One kind wonOne kind won’’t fit allt fit all

• Mix of legal mechanisms are neededMix of legal mechanisms are needed―Contracts, MOUs, IGAs, etc.Contracts, MOUs, IGAs, etc.

• Different legal personalitiesDifferent legal personalities―SovereignsSovereigns―Commercial entities, both public and privateCommercial entities, both public and private

• Treaty unlikelyTreaty unlikely―National self-interest more prospective than National self-interest more prospective than

immediateimmediate Lack of political willLack of political will

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Questions, Comments?Questions, Comments?

Thank you.Thank you.

Documents

Orbital Debris and the Law: An Overview Prof. Joanne Irene Gabrynowicz, Director Editor-in-Chief, Journal of Space Law AIAA Slidell, LA 25 September 2012