Professor Frans von der Dunk presents at The University of Waikato Virtual Outer Space Law Conference

Nebraska College of Law Author

09/10/2021 Added

42 Plays

Description

Professor Frans von der Dunk presents the keynote address at the University of Waikato's 2021 Virtual Outer Space Law Conference.

Searchable Transcript

Search:

[00:00:00.370]To you all.
[00:00:01.810]Professor Frans von der Dunk.
[00:00:05.410]Professor
[00:00:06.510]von der Dunk is the Harvey & Susan Perlman Alumni
[00:00:10.840]and Othmer Professor of Space Law
[00:00:13.960]at the University of Nebraska-Lincoln in the United States.
[00:00:17.880]And
[00:00:19.396]I think it's safe to say that he is the foremost researcher
[00:00:23.600]in outer space law.
[00:00:26.250]He has had a long and very, very distinguished career.
[00:00:31.200]He has published
[00:00:33.050]over
[00:00:34.220]180 articles and published papers,
[00:00:37.860]and he has given over 210 presentations worldwide
[00:00:42.780]and his work in the area of outer space law
[00:00:47.296]is seminal.
[00:00:49.860]Not only that,
[00:00:53.290]his service to the research community
[00:00:56.250]has been absolutely stellar, but
[00:00:58.700]his service to the international community
[00:01:00.840]has equally been stellar.
[00:01:03.450]He has served as an advisor to many foreign governments,
[00:01:08.230]including the Dutch government,
[00:01:10.070]and also to the European Commission,
[00:01:12.360]the European Space Agency,
[00:01:14.400]the United Nations,
[00:01:15.720]the Organization for Economic Cooperation Development
[00:01:19.499]and
[00:01:21.250]the Dutch National Aerospace Agency, and a number of other
[00:01:25.120]space agencies
[00:01:26.700]across the world as well.
[00:01:31.640]He's the currently the Director
[00:01:33.848]for Public Relations
[00:01:35.431]at the International Institute of Space Law
[00:01:38.530]and
[00:01:41.123]a member for the Netherlands
[00:01:42.933]in the International Law Association's Committee
[00:01:46.130]on Space Law.
[00:01:48.320]He
[00:01:49.980]has
[00:01:51.280]also published
[00:01:53.380]the first comprehensive research handbook on space law
[00:01:57.240]with Edward Elgar Publishing back in 2015.
[00:02:00.460]And of course, again,
[00:02:01.910]in 2018, (loud beep)
[00:02:02.743](interference drowns out speaker) research collection,
[00:02:06.090]title of "International Space Law" with the same publisher.
[00:02:09.900]Both textbooks are the key texts that my own students use
[00:02:13.880]for space law here at the University of Waikato.
[00:02:18.910]So I hand over to Professor von der Dunk.
[00:02:22.690]And just a reminder to all our attendees today,
[00:02:27.150]if you could please
[00:02:28.850]mute yourselves,
[00:02:30.740]that would be very, very much appreciated.
[00:02:34.030]So Professor von der Dunk, I'll hand over to you.
[00:02:37.940]Thank you.
[00:02:39.710]Thank you very much, Professor Brennan
[00:02:41.640]for that very kind and extended introduction.
[00:02:44.570]And of course, the first question I should ask is,
[00:02:46.700]can everybody hear me?
[00:02:49.120]I see some fingers and nods, so that should be good.
[00:02:52.920]You may think that I'm speaking to you
[00:02:54.930]from the depth of outer space,
[00:02:56.720]but it's just the other side of the globe.
[00:02:58.670]I'm currently in the Netherlands
[00:03:00.190]where it's just past midnight.
[00:03:02.290]So if the vision is a little bit granular-y,
[00:03:04.980]be that's because the light is no longer
[00:03:07.320]natural over here.
[00:03:09.020]Now the even more important step is of course,
[00:03:11.420]that I'm now going to try and share my screen.
[00:03:16.280]Let's see whether you now see...
[00:03:23.775][Professor Brennan] So...
[00:03:25.170]Do you now see my title slide?
[00:03:28.846][Professor Brennan] Yes, we can, Professor.
[00:03:30.397]Thank you. Great, great.
[00:03:32.280]Thank you very much, once again,
[00:03:34.460]all the organizers for inviting me.
[00:03:37.260]I would have loved to come to New Zealand.
[00:03:39.210]I've been there, it was more than 20 years ago.
[00:03:42.260]So it's really time for me to come back.
[00:03:45.320]I found it one of the most beautiful countries
[00:03:48.110]I've ever been to,
[00:03:49.510]and I could fully appreciate
[00:03:50.920]why the "Lord of the Rings" movies were shot there,
[00:03:54.410]but that's by the by.
[00:03:55.860]Of course today, I'm gonna talk about
[00:03:58.620]handling private space activities.
[00:04:00.370]Reference has already been made to the changing
[00:04:04.180]involvement of the private sector in space activities,
[00:04:07.920]and then in the legal context,
[00:04:10.330]where national space law comes in as a tool
[00:04:13.840]to implement the space treaties, for better or worse.
[00:04:17.220]Now,
[00:04:18.400]also in order to
[00:04:20.710]help...
[00:04:22.120]Let's see where...
[00:04:22.953]Yeah, there we go.
[00:04:24.320]In order to make everyone understand
[00:04:26.960]how peculiar space law is,
[00:04:29.880]including I'm hopeful, many of the students
[00:04:32.820]that are chiming in and for whom this may be
[00:04:34.890]still a relatively novel terrain,
[00:04:37.950]it is important to realize the peculiarity
[00:04:39.930]of space activities to start with.
[00:04:43.310]I would say in a very summary fashion, that there probably
[00:04:46.910]traditionally were three main characteristics
[00:04:48.760]of space activities,
[00:04:50.520]one was that they were very, very technological.
[00:04:53.450]You required a lot of technological know-how
[00:04:55.750]to do something of any relevance in outer space.
[00:04:59.360]That obviously costs a lot of money as well.
[00:05:01.840]And in spite of all the technology
[00:05:03.487]and the money thrown at it,
[00:05:05.370]it is still a risky business.
[00:05:08.180]Things go wrong, things will go wrong,
[00:05:10.420]and things have gone wrong in the past.
[00:05:13.600]This may even ask some people to question,
[00:05:16.490]why even spend money on space?
[00:05:18.270]Well, again, historically,
[00:05:19.720]there were three reasons for doing so.
[00:05:21.880]One was the obvious military reason,
[00:05:25.133]not accidentally is the space race took place
[00:05:27.920]in the context of a Cold War
[00:05:29.580]between then Soviet Union and the United States.
[00:05:32.660]And there is almost no space activity,
[00:05:35.920]which at least potentially doesn't have also a military
[00:05:40.100]implication, not necessarily an application,
[00:05:42.800]but at least a military implication.
[00:05:44.820]So many countries go to space
[00:05:47.040]because of their own national security,
[00:05:48.780]or at least that's how they see it.
[00:05:51.010]A second rationale is what I would call it prestige
[00:05:53.860]because the space treaties being developed in the
[00:05:57.110]context of the Cold War,
[00:05:59.490]it was essentially about the United States and Soviet Union,
[00:06:02.430]trying to show the rest of the world
[00:06:04.180]that they were the superior system,
[00:06:06.320]the superior political system,
[00:06:07.990]the superior political philosophy,
[00:06:10.290]and one way in which they could prove that
[00:06:12.620]was to be first in space.
[00:06:15.010]And the third reason, thank god, was science.
[00:06:18.230]Both countries and all the others as well
[00:06:20.640]were also very interested in what space can learn us
[00:06:23.700]about the origins of the earth, of the moon,
[00:06:26.600]and the universe, full stop.
[00:06:29.780]As a consequence of these three rationales,
[00:06:32.600]space was very much a domain of states
[00:06:34.780]because only states are interested in military
[00:06:37.280]and prestige issues at that level,
[00:06:39.120]and only they can afford to pay for it,
[00:06:41.530]including science.
[00:06:43.240]So
[00:06:44.200]that
[00:06:45.140]was actually to such an extent true
[00:06:47.320]that there were only a few states
[00:06:48.800]who could do it on their own,
[00:06:50.510]and originally it was really basically limited
[00:06:52.950]to those two superpowers.
[00:06:55.120]Only gradually other states came in.
[00:06:58.280]The consequence of this historical situation
[00:07:01.040]is still reflected in the origins of space law.
[00:07:04.700]Now, before we go a little bit into that,
[00:07:06.680]I'm going back to the very fundamental
[00:07:10.640]ground zero for law.
[00:07:12.400]We should always realize that the law we are talking about
[00:07:15.800]is not the laws of physics.
[00:07:17.580]It's the law that addresses human activities.
[00:07:20.460]Now that may seem an obvious thing,
[00:07:23.160]but in many cases, of course
[00:07:25.870]we have a lot of national law
[00:07:27.303]that basically addresses individuals.
[00:07:29.500]Only recently, relatively recently,
[00:07:32.260]we've seen international law addressing individuals.
[00:07:35.760]International humanitarian law is one example thereof,
[00:07:38.830]which brings us to the concept of legal fictions,
[00:07:41.840]which are of course used
[00:07:44.010]as the addressees of a lot of law,
[00:07:46.550]but we always have to recognize that these legal fictions
[00:07:49.340]just refer to a bunch of people.
[00:07:51.790]We have legal fictions like associations
[00:07:54.310]and societies or clubs.
[00:07:56.040]You will recognize that I'm a soccer fan.
[00:07:58.230]This is my favorite soccer team.
[00:07:59.774](indistinct) stem from the Netherlands
[00:08:01.960]and that is a legal entity,
[00:08:03.680]which can be the subject of legal rules
[00:08:05.660]and rights and obligations.
[00:08:07.700]Another, and for my talk,
[00:08:09.080]I should say more important version is
[00:08:10.810]of course the concept...
[00:08:11.780]Oh, I should say that of course, societies
[00:08:14.720]are, again, normally speaking, the subject of national law.
[00:08:18.860]A second form is what we call companies,
[00:08:21.990]where for a commercial purpose, people have grouped together
[00:08:26.650]and
[00:08:27.910]those companies are often the subject of law as well.
[00:08:31.570]And again, it's mostly national law, which addresses this.
[00:08:34.130]I'm going too fast here.
[00:08:35.860]The third is where we are coming in,
[00:08:37.580]and that's where we are grouping
[00:08:39.840]enormous amounts of people together
[00:08:42.230]under the concept of states,
[00:08:44.160]and that's of course basically
[00:08:45.530]where international law comes in.
[00:08:47.210]Space law, being international law,
[00:08:49.040]is one primary example thereof,
[00:08:51.440]but we should never forget that, ultimately,
[00:08:53.370]when we talk about the law addressing states,
[00:08:56.400]we are telling the people who represent those states,
[00:08:59.200]the individuals who represent those states
[00:09:01.750]to do certain things
[00:09:03.200]or to abstain from doing certain things.
[00:09:05.870]And again, if we talk about people,
[00:09:08.050]there's an other peculiarity of outer space.
[00:09:11.220]If you talk about the nature of activities,
[00:09:15.210]I think again,
[00:09:16.160]I love triads, as you can now imagine,
[00:09:19.720]there are three
[00:09:21.290]principle categories of space activities.
[00:09:24.060]And the one which is most peculiar probably is
[00:09:26.290]the fact that by far, most activities
[00:09:29.140]are controlled by remote control from earth.
[00:09:33.160]In law,
[00:09:34.250]in general law, we are used
[00:09:36.400]to having the perpetrator of the act,
[00:09:38.750]the act itself,
[00:09:39.730]and any victim or object or subject
[00:09:44.228]all in the very same area,
[00:09:45.950]which means legally speaking that one country or another
[00:09:49.170]can completely dictate the legal regime.
[00:09:52.630]If I kill someone in New Zealand, I am in New Zealand,
[00:09:56.680]the shot is fired in New Zealand
[00:09:58.417]and the victim is in New Zealand.
[00:10:00.220]In space, we have in most cases, a different situation
[00:10:05.160]because we have humans on the ground
[00:10:07.870]pulling handles, pushing buttons,
[00:10:10.150]where the result of the activity
[00:10:11.830]is something in outer space,
[00:10:13.650]a satellite changes
[00:10:16.030]orbit or changes frequency,
[00:10:18.320]or a rover starts maneuvering around the moon.
[00:10:21.490]And in terms of the
[00:10:23.080]application of law to that activity,
[00:10:25.530]that is crucial to realize.
[00:10:27.420]Now, of course, in addition, we have what I would then call
[00:10:30.160]by a bit of an ugly word,
[00:10:31.920]close-controlled activities,
[00:10:33.480]that is basically human space flight,
[00:10:35.630]where the humans doing stuff in outer space
[00:10:38.510]are actually in outer space themselves,
[00:10:40.730]are in the same area.
[00:10:42.260]And as well as already noted before,
[00:10:44.560]that is not a territorial area in the legal sense.
[00:10:47.660]And the third one,
[00:10:49.930]which is also addressed by space law,
[00:10:51.750]is a set of activities, which technically speaking,
[00:10:54.550]do not even
[00:10:55.800]require to be in outer space.
[00:10:58.360]They are merely directed towards space.
[00:11:00.960]Nobody will deny that a launch
[00:11:03.580]is a space activity,
[00:11:05.220]yet a launch start at zero kilometers altitude
[00:11:08.800]or whatever the altitude is of the launch site,
[00:11:11.460]and only perhaps at hundred kilometers,
[00:11:14.290]it actually moves into outer space.
[00:11:16.570]Many launches though do not make it that far,
[00:11:19.190]and yet there may still be subject
[00:11:22.340]to the definition of space activities
[00:11:23.660]and has consequence to space law.
[00:11:27.080]Now going back to the state-oriented history of space law,
[00:11:31.350]obviously,
[00:11:34.285]the state-oriented character of space activities,
[00:11:36.810]obviously that's transpired
[00:11:39.250]in international space law as well,
[00:11:41.120]which was very much oriented to states.
[00:11:43.880]States were the makers and breakers of space law.
[00:11:47.417]The duties and the rights that were explained
[00:11:50.100]and posited in the space treaties
[00:11:52.790]were all directed at states.
[00:11:54.670]You had a couple of mentions
[00:11:56.390]of intergovernmental organizations,
[00:11:58.500]but since they are inter-governmental,
[00:12:00.460]they are still
[00:12:01.600]composed of states.
[00:12:03.550]And they were clearly seen as a kind
[00:12:05.600]of a secondary level entity in outer space,
[00:12:08.000]as platforms for sovereign states to work together.
[00:12:11.550]Private entities are only referred to once
[00:12:14.790]in Article VI as non-governmental entity.
[00:12:18.160]And that basically applies
[00:12:19.500]to the follow-up treaties as well.
[00:12:21.410]Now for many years...
[00:12:22.660]And it applies by the way, also to the ITU regime,
[00:12:25.520]the regime developed in the context
[00:12:27.500]of the International Telecommunication Union,
[00:12:29.910]to handle orbits of
[00:12:32.890]satellite operations and the frequencies they may use.
[00:12:36.060]They all apply to states, and that was all
[00:12:39.920]pretty
[00:12:41.230]par for the course,
[00:12:42.640]working relatively well,
[00:12:44.960]at least from a certain perspective
[00:12:47.310]until a major paradigm change started to occur.
[00:12:51.100]And that's had to do with the fact that first of all,
[00:12:54.770]you saw more and more states becoming involved
[00:12:58.170]as space technology got safer and cheaper.
[00:13:01.260]Others and the Soviet Union and the United States
[00:13:03.570]were able and willing to join the fray,
[00:13:06.260]including nowadays, very interesting,
[00:13:08.640]many developing ones who are developing
[00:13:11.290]space programs, sometimes,
[00:13:15.250]exactly because they realized
[00:13:17.280]that some of their specific development
[00:13:19.810]problems can be served
[00:13:21.720]by space activities.
[00:13:23.320]A good example used to be India which use
[00:13:26.220]satellite communication technology
[00:13:28.440]for telemedicine purposes.
[00:13:31.150]As a consequence of this,
[00:13:32.920]or more or less tied to it, if you will,
[00:13:35.670]there was also what I would call
[00:13:36.960]an increasing practical-ization of space activities.
[00:13:39.970]Moving away from science
[00:13:42.050]and prestige and military activities,
[00:13:44.940]we saw technology and space being used
[00:13:47.490]for communication purposes,
[00:13:50.360]for remote-sensing pictures,
[00:13:51.960]of all sorts of peaceful or less peaceful purposes.
[00:13:56.020]We saw it being used for radio navigation,
[00:13:58.570]satellite navigation.
[00:13:59.580]And because of these practical activities
[00:14:02.530]potentially generating money,
[00:14:04.670]then of course,
[00:14:05.610]automatically the private sector becomes interested,
[00:14:08.090]becomes interested
[00:14:09.450]in the possibility to earn a buck or two in space.
[00:14:13.790]So the main question then is how should,
[00:14:17.000]or would, or could
[00:14:19.090]these operators
[00:14:20.390]fit into this international regime?
[00:14:22.550]If they are only mentioned once
[00:14:25.370]and if all the rights and duties
[00:14:28.846]are pointed towards states,
[00:14:32.310]how can we make sure
[00:14:33.840]that they comply with the rule as well
[00:14:36.060]when they are not formally referenced in those treaties?
[00:14:39.520]And to the extent
[00:14:41.110]that we consider that they have legitimate interests,
[00:14:43.810]which is of course, a big
[00:14:45.230]norm-legal or meta-legal issue,
[00:14:47.320]a political question, but to the extent
[00:14:49.200]that we do believe they have legitimate interests,
[00:14:51.800]how should they then be taken into consideration?
[00:14:54.640]Probably to separate
[00:14:56.630]the good guys from the bad guys,
[00:14:58.330]the bonafide companies from the real cowboys
[00:15:01.170]who don't care about other public interests.
[00:15:04.630]Now the main answer is of course
[00:15:06.490]provided by the Outer Space Treaty,
[00:15:09.210]which basically
[00:15:11.530]creates a structure, a framework
[00:15:15.200]allowing us to address that question.
[00:15:18.440]The first point to make is
[00:15:20.020]that outer space is free for states,
[00:15:24.220]sometimes that is referenced to
[00:15:26.550]by way of the term global commons,
[00:15:29.350]as long as the states explore a use,
[00:15:32.330]outer space compliant,
[00:15:34.040]with the obligations and with the treaties
[00:15:35.870]or customary international law.
[00:15:37.840]Then
[00:15:39.168]within those limitations,
[00:15:40.410]they're basically free to do what they want.
[00:15:42.600]For private operators,
[00:15:44.370]that very much depends upon the particular national context.
[00:15:49.330]Private operators cannot naturally
[00:15:52.770]join at freedom.
[00:15:53.920]They have to be authorized and supervised
[00:15:57.730]by their own state.
[00:15:59.050]And just to put this into historical perspective,
[00:16:01.870]so the Union, again, one of the two superpowers
[00:16:04.910]standing at the birth of space law,
[00:16:07.420]didn't want to have anything to do with private operators
[00:16:10.330]in its economy to start with,
[00:16:12.170]because it was adhering to a communist ideology.
[00:16:15.180]So private operators really have to look to their respective
[00:16:19.160]companies, countries, I'm sorry,
[00:16:21.940]for the possibility
[00:16:24.230]to do something in outer space
[00:16:25.960]benefiting one way or another from the treaty.
[00:16:29.030]Now there are two main concepts which
[00:16:31.510]play a role here,
[00:16:32.343]which are also already propounded by the Outer Space Treaty.
[00:16:35.200]And one is the concept of state responsibility
[00:16:38.390]and the other is the concept of liability for damage.
[00:16:42.120]State responsibility very much focuses
[00:16:44.360]on the legality of operations.
[00:16:46.290]Once there is a violation of
[00:16:49.820]international obligation,
[00:16:51.580]then the state violating that obligation
[00:16:54.000]is held responsible for that.
[00:16:56.270]And liabilities of course, basically about damage,
[00:16:59.030]damages caused by some space activity.
[00:17:00.937]And the question is, who then pays for the damage to who?
[00:17:04.580]Now these two main concepts
[00:17:06.260]have been elaborated by, I mentioned the article already,
[00:17:08.900]Article VI, on the one hand,
[00:17:10.870]which provides that there is international responsibility
[00:17:13.990]for conformity
[00:17:15.614]with international space law,
[00:17:17.520]for national activities,
[00:17:19.050]also if carried on by non-governmental entities.
[00:17:22.930]So the traditional distinction in general,
[00:17:25.510]international law between state responsibility,
[00:17:28.290]which only applies to state activities
[00:17:31.080]and state responsibility
[00:17:33.230]can only apply to private activities
[00:17:35.540]if there is some due care connection.
[00:17:38.040]That distinction is wiped out in outer space.
[00:17:41.100]Whether it's NASA or Boeing doing something,
[00:17:44.240]presumably in violation of international law,
[00:17:46.870]in both cases,
[00:17:47.830]the United States as a country is equally
[00:17:50.890]going to be held responsible.
[00:17:53.650]And Article VI, in addition,
[00:17:55.410]and this is of course already
[00:17:57.240]one bridge international space law,
[00:17:59.250]requires states to authorize
[00:18:01.840]and continuously supervise those activities
[00:18:04.020]precisely in order to be able
[00:18:06.250]to fill in,
[00:18:07.420]to take up,
[00:18:08.580]to honor their own responsibility.
[00:18:11.260]Now, the kind of twin concept is that of liability,
[00:18:14.260]which in the space treaty is reflected in Article VII
[00:18:16.960]and then elaborated in the Liability Convention,
[00:18:19.840]and here it is provided that each state that launches
[00:18:22.560]or procures the launching or whose territory
[00:18:24.730]or facility is used is internationally liable.
[00:18:27.840]And in this sense,
[00:18:29.690]again, space law is very unique
[00:18:31.880]because the word private operator is not in there.
[00:18:35.380]So regardless of whatever private involvement
[00:18:39.010]a space object or its operations
[00:18:41.660]may engender,
[00:18:43.030]it is one state or the other,
[00:18:45.330]or maybe several at the same time
[00:18:47.740]qualifying as the launching state or the launching states
[00:18:50.740]who will have to pay.
[00:18:52.080]Now and obviously that provides a great incentive
[00:18:56.040]for states
[00:18:58.216]to establish a national space law.
[00:19:00.160]So there is a need to implement the treaties.
[00:19:02.800]There is a requirement to authorize
[00:19:05.450]and
[00:19:06.800]you can use different terms like licenses, permits,
[00:19:09.470]or approvals, but it all amounts to the same,
[00:19:12.030]the government
[00:19:13.200]okays your private operation in space.
[00:19:17.770]And in the context of the authorization,
[00:19:20.370]you can ensure the compliance with international law
[00:19:23.620]by the licensee, because otherwise as a state,
[00:19:26.320]you will face the international consequences.
[00:19:29.690]And it includes also in terms of liability,
[00:19:32.710]a claim
[00:19:34.190]towards the operator that in case the
[00:19:36.840]state has to pay out an international claim
[00:19:39.460]and the international liability,
[00:19:41.110]the state can then have recourse
[00:19:43.300]to the operator to pay that claim.
[00:19:45.780]And then of course, in addition,
[00:19:47.410]these national
[00:19:49.520]regimes provide for monitoring mechanisms
[00:19:52.140]in order to make sure
[00:19:53.350]that it's not just a death letter of law,
[00:19:55.890]but that it's actually complied with.
[00:19:58.940]Now, if you
[00:20:00.570]try to envisage this transfer
[00:20:02.710]of international to national law, we should realize,
[00:20:06.070]again, I'm going to come with another triad here,
[00:20:09.100]that to start with,
[00:20:10.310]there is a hardcore core of international spacial rules
[00:20:13.310]which national law has to comply with.
[00:20:15.450]There's no two ways about it.
[00:20:17.170]And that national space law has
[00:20:19.130]to make sure that that happens.
[00:20:20.140]A good example is the clear cut prohibition in Article IV
[00:20:23.986]of the Outer Space Treaty, that
[00:20:27.470]it is prohibited to station weapons
[00:20:29.247]of mass destructions in outer space.
[00:20:31.610]There's no two ways about it.
[00:20:33.440]Around that, however, there's gray area
[00:20:36.600]of international law where national law
[00:20:39.330]has a duty to comply with,
[00:20:41.870]but it is given some leeways, several options.
[00:20:44.910]It's given certain discretion.
[00:20:46.710]So a state may authorize and supervise in Article VI,
[00:20:50.940]but it may pick its own particular level of supervision
[00:20:54.280]as long as it's within reasonable bounds.
[00:20:57.480]And then outside of that, states have complete discretion.
[00:21:00.700]There's a lot of areas where international space law
[00:21:03.160]has nothing to say simply because the space treaties
[00:21:05.860]or customary law has not yet invested.
[00:21:08.660]That means that national spatial enjoys complete discretion.
[00:21:12.740]One good example, there are obviously
[00:21:15.420]extent to which a national country
[00:21:17.700]wants to actually condone
[00:21:19.300]or even stimulate private enterprise.
[00:21:21.860]You can, on the far left side of the equation,
[00:21:24.470]take the old Soviet position
[00:21:25.970]and say basically no private activities
[00:21:28.020]under my roof,
[00:21:29.850]or the extreme other end,
[00:21:32.030]where you have very much pro private enterprise countries
[00:21:35.460]who say, well, we wanna support them as much as possible
[00:21:38.200]because we think it's a good thing.
[00:21:39.820]There's nothing wrong in principle with that,
[00:21:42.600]again, as long as that doesn't violate
[00:21:44.990]international
[00:21:46.110]space law rules.
[00:21:47.520]Now the status quo, I've tried to
[00:21:49.870]sort of summarize this in this slide.
[00:21:52.770]If we've had more time, we could play fun with flags,
[00:21:56.330]but you see here more than two dozen states around the world
[00:22:00.280]who have a national space law, basically,
[00:22:03.680]fundamentally
[00:22:04.840]picking up this requirement of authorization supervision.
[00:22:08.130]You see some of the big ones, the United States,
[00:22:10.850]Russia, after
[00:22:12.900]communism went out of the window,
[00:22:15.370]and Japan,
[00:22:16.660]you see of course the country of New Zealand,
[00:22:18.600]which I should not forget to mention,
[00:22:20.370]but you see other countries as well,
[00:22:22.090]kind of the in-between format.
[00:22:24.240]And you see countries like Brazil and Nigeria
[00:22:27.040]as representatives from the developing world.
[00:22:29.290]So a broad variety of national space law,
[00:22:32.790]which all have to deal with
[00:22:35.500]implementing
[00:22:37.090]in view of the lot of discretion
[00:22:39.460]that is still in the treaties,
[00:22:41.250]these particular
[00:22:43.120]clauses.
[00:22:43.990]And there are many policy options.
[00:22:45.690]For example, if you talk about responsibility,
[00:22:48.390]do you take a wide or a narrow interpretation?
[00:22:52.300]Activities in outer space,
[00:22:54.700]are those only the remote controlled, or even worse,
[00:22:58.970]are they only the closed controls,
[00:23:00.960]or do we include launching in there as well?
[00:23:03.850]How extensive or how narrow you want to interpret that
[00:23:07.570]is basically part of the freedom of state activities.
[00:23:10.570]So do you include satellite earth observation?
[00:23:13.200]Do you include space mining because you think
[00:23:15.830]that private operators should be allowed to do that.
[00:23:19.730]If you have a wide scope in your national law,
[00:23:23.160]it allows you to control those activities
[00:23:25.540]If you have a narrow scope,
[00:23:27.450]it may allow you to deny responsibility for those activities
[00:23:31.880]in many cases, because you could make the argument,
[00:23:34.390]well, we never condoned this.
[00:23:36.310]There's no license for this.
[00:23:38.190]So these
[00:23:39.190]people are doing something very criminal.
[00:23:42.710]This is
[00:23:43.920]about
[00:23:45.010]the wide or the narrow scope
[00:23:47.260]in terms of the kinds of activities.
[00:23:49.490]There is also a similar discussion possible
[00:23:51.920]when it comes to who should be licensed.
[00:23:55.160]We have here the key clause
[00:23:57.540]of national activities in outer space,
[00:24:00.120]but how should that be defined?
[00:24:02.750]Is it referencing to the nationality of the operators,
[00:24:06.200]the territory of operation?
[00:24:07.910]What about ships, or aircraft,
[00:24:10.400]or space objects themselves involved?
[00:24:13.110]And here, a wide
[00:24:15.500]interpretation allows you as a country, again,
[00:24:18.580]to control a wide range of actors
[00:24:21.270]for all the right, or maybe even the wrong purposes.
[00:24:25.250]A narrow interpretation, again,
[00:24:27.540]might allow you to argue in any given legal dispute,
[00:24:30.720]well, I don't take responsibility for that.
[00:24:32.620]That's not my business.
[00:24:34.810]If you have a problem with that, go sue somebody else,
[00:24:38.100]or go sue somewhere else.
[00:24:40.750]So far for responsibility, I wanna leave those two options.
[00:24:44.700]And then there's two options or two main options
[00:24:47.220]in terms of liability as well.
[00:24:49.200]Do you accept a liberal
[00:24:51.770]or a limited acceptance of liability?
[00:24:55.130]If you read the definition of the launching state,
[00:24:59.920]do you read the term state to refer to states only,
[00:25:05.040]or do you include in that concept
[00:25:07.960]also private entities of that state,
[00:25:10.900]which launch, procure-launch,
[00:25:13.240]or have a private facility, which is used for the launch?
[00:25:16.660]You have a liberal interpretation, which again,
[00:25:18.740]allows you to take comprehensive protective measures.
[00:25:22.687](woman faintly speaking)
[00:25:23.560]I hear some noise at the backgrounds.
[00:25:25.610]Somebody
[00:25:27.050]wanted to interfere now, okay.
[00:25:28.870]Or you have a narrow interpretation,
[00:25:30.380]which again, allows you, if push comes to shove,
[00:25:32.870]if there is an actual liability dispute to
[00:25:35.930]disclaim that you could be held liable,
[00:25:38.370]because you don't think that you are
[00:25:40.370]the launching state in that case.
[00:25:43.930]This probably will become a bit more clear
[00:25:45.920]when we start discussing how states that have actually
[00:25:50.480]chosen their options.
[00:25:52.320]The other part is, of course,
[00:25:53.970]are you generous towards the private operator
[00:25:57.110]or are you protective of your own interests as a state?
[00:26:00.540]And this goes
[00:26:02.160]to a key point that Article 12
[00:26:04.490]of the Liability Convention provides,
[00:26:06.250]that in principle, at the international level,
[00:26:08.980]that liability is without limit.
[00:26:11.780]Whatever the damage is, once you're liable,
[00:26:14.510]you have to pay for that as a state.
[00:26:16.050]And then of course, as a state,
[00:26:18.080]you are faced with the possibility to say,
[00:26:20.810]well, if I transfer this unlimited liability
[00:26:24.010]one-on-one to the private operator,
[00:26:26.820]I won't get any business.
[00:26:28.170]I won't get anyone who seeks a license because
[00:26:32.060]no company is probably willing
[00:26:33.660]to bet its existence on a single watch.
[00:26:37.140]That's basically what happened
[00:26:38.280]in the United States between 1984 and 1988.
[00:26:42.370]So what they did is to change
[00:26:44.720]namely by limiting
[00:26:46.760]the domestic recourse under the license for the operator,
[00:26:50.540]so that the operator just has
[00:26:52.620]a certain limit to its liability.
[00:26:55.260]And that means, of course,
[00:26:56.510]that then if a catastrophic accident
[00:26:58.910]causes damage above the limit,
[00:27:01.050]that the state treasurer
[00:27:02.830]will not be compensated for that
[00:27:04.760]part of the damage above the limit.
[00:27:07.590]Now, if you don't run it as a state,
[00:27:08.980]you can of course take the protective approach
[00:27:11.200]and say, well, I am gonna shift it one-on-one.
[00:27:14.630]I don't care if the private sector
[00:27:16.870]doesn't jump to the business, doesn't like
[00:27:19.150]to risk their life
[00:27:21.312]or
[00:27:22.550]their company life on a single launch because
[00:27:25.730]single launches may cause catastrophic damage
[00:27:28.250]if things really go all wrong.
[00:27:30.010]So these are just
[00:27:32.130]a set of policy options.
[00:27:34.750]And then let's look at
[00:27:36.820]how states have actually implemented that.
[00:27:39.790]Now there is a little bit of guidance
[00:27:42.510]since a couple of years by way of a resolution.
[00:27:45.540]Actually it's eight years ago that this was a resolution
[00:27:48.210]with the United Nations came out
[00:27:50.040]and it provides that national space legislation
[00:27:52.830]should address
[00:27:54.210]a broad range of activities.
[00:27:56.100]So ratione materiae: try to be as broad as possible.
[00:27:59.920]Include launches,
[00:28:01.220]return of space objects from outer space,
[00:28:04.280]operational science and any control
[00:28:07.120]of space objects in orbit and probably even beyond.
[00:28:10.690]If you're on the moon, you're no longer in earth orbit
[00:28:13.040]in the normal sense of the word,
[00:28:15.550]but that should apply that as well.
[00:28:18.800]And it may even address
[00:28:21.110]kind of
[00:28:24.820]further
[00:28:26.330]removed kind of related activities,
[00:28:28.920]such as even design and manufacturer of spacecraft
[00:28:31.735]in order to enhance the safety of the operations therewith,
[00:28:34.690]the application of space science and technology
[00:28:37.100]in order to promote the beneficial use of space
[00:28:40.030]and exploration activities and research.
[00:28:42.270]But of course this is a UN General Assembly resolution.
[00:28:45.450]It cannot impose anything on sovereign states.
[00:28:47.840]It just can advise, suggest,
[00:28:50.690]or,
[00:28:53.650]how do you say, recommend.
[00:28:56.350]Now another clause
[00:28:57.930]states that national space legislation should address both
[00:29:01.880]obligations as the launching state to cover liability,
[00:29:05.770]and it should cover responsibility.
[00:29:08.150]And in order to do so, it defines
[00:29:10.910]in an informal manner national activities
[00:29:14.160]carried out from territory,
[00:29:17.070]plus control,
[00:29:18.610]which is what I would call quasar territory.
[00:29:21.010]Ships and aircraft with the flag of that country
[00:29:24.220]are under the control of the country.
[00:29:25.890]And if they are used for space activities,
[00:29:28.540]we've seen a company like Sea Launch launch
[00:29:32.030]rockets into space
[00:29:33.650]from a ship, basically a moving oil platform,
[00:29:37.740]that is supposed to be
[00:29:39.770]covered by national space legislation,
[00:29:41.560]as well as any activities carried out
[00:29:44.320]by natural citizens or legal persons
[00:29:47.760]anywhere else.
[00:29:49.800]So you have basically this double standard, if you will,
[00:29:53.720]of territorial (indistinct) or territorial control
[00:29:56.760]and of personal control that is recommended to states.
[00:30:00.230]Now let's look at the state practice.
[00:30:03.200]In terms of the first
[00:30:05.520]thing, that wide interpretation in terms of subject matter,
[00:30:09.150]most of these flags that you saw on the slide
[00:30:12.230]in a number of slides ago
[00:30:13.810]do take a broad approach.
[00:30:15.070]If you take the Russian law,
[00:30:16.450]it talks about "any activity immediately connects
[00:30:19.170]with operations to explore use of space,"
[00:30:22.210]which is pretty much anything you can think of
[00:30:25.120]as a true space activity.
[00:30:27.200]The Swedes have chosen a slightly different
[00:30:31.400]definition, has been a little bit more precise,
[00:30:33.507]"carried on entirely in outer space,
[00:30:35.460]but also the launching of objects."
[00:30:37.160]And then all maneuvering,
[00:30:38.450]all remote control activities are in there as well.
[00:30:41.730]And just to take another example,
[00:30:43.180]the United Arab Emirates have used the phrase,
[00:30:46.007]"any activities targeting outer space,
[00:30:48.930]including its discovery,
[00:30:50.460]making an impact thereon, using or utilizing it."
[00:30:53.800]These are three examples
[00:30:55.910]of what I would call rather broad definitions.
[00:31:01.420]The Netherlands
[00:31:03.140]has more specifically mentioned "launch, flight operation,
[00:31:07.740]or guidance of space objects in outer space."
[00:31:10.920]This was not as
[00:31:12.340]broad as the others
[00:31:14.980]and immediately a problem arose,
[00:31:17.370]what to do with unguided small satellites,
[00:31:21.370]which the Netherlands originally didn't
[00:31:25.430]think needed a license
[00:31:26.980]because they were just floating
[00:31:28.600]around for a couple of months, which
[00:31:31.290]burn up in the atmosphere soon enough.
[00:31:33.160]Anyway, would be small satellites,
[00:31:34.970]wouldn't present a danger,
[00:31:36.430]but they are still space objects.
[00:31:38.030]So they still might raise the liability of the Netherlands.
[00:31:40.890]So
[00:31:42.070]an interesting cause of events happened.
[00:31:44.640]ISIS, and I must
[00:31:48.270]defend them here.
[00:31:49.103]They used that name before the bad guys
[00:31:51.400]in the Middle East started using it.
[00:31:53.580]This means Innovative Solutions In Space,
[00:31:57.379]a Dutch company, which developed
[00:31:58.900]the secondary payload cubesat program,
[00:32:01.470]very small cube sets
[00:32:02.930]which would orbit for just a couple of months
[00:32:04.870]at a reasonable price.
[00:32:06.450]And the Dutch authorities originally said,
[00:32:08.097]"well, since they are not guided,
[00:32:09.790]they're just bumped into outer space,
[00:32:13.410]they do the thing.
[00:32:14.243]You can't louver them, so they're not guided,
[00:32:16.480]so they don't need a license,
[00:32:18.270]but
[00:32:19.580]the responsibility and the liability remained.
[00:32:22.440]And actually, ISIS itself,
[00:32:24.980]this is a story I always liked to tell
[00:32:27.840]to American entrepreneurs who think that
[00:32:32.460]the less government, the better.
[00:32:34.710]Well, here you'll have a company
[00:32:36.210]who actually asks for a license
[00:32:38.430]because they realize that that means
[00:32:40.160]that the Dutch government
[00:32:42.160]should then, politically speaking, be
[00:32:44.930]in their defense and the international community as well
[00:32:48.240]and it makes them a reputable company.
[00:32:51.130]So in the end, the legislation was changed
[00:32:53.900]and now it was
[00:32:56.110]guaranteed to include also unguided satellites.
[00:33:00.800]A wide interpretation, I mentioned the United States.
[00:33:03.660]Well, they have a very wide interpretation,
[00:33:05.720]but unfortunately it's spread
[00:33:07.480]across a number of separate acts
[00:33:09.950]and that may lead to a lot of practical problems.
[00:33:13.220]So you have
[00:33:15.240]an act actually going back to the 1930s,
[00:33:17.930]dealing with telecommunications at large, which in
[00:33:22.294]1970
[00:33:23.720]was declared to apply to satellite communications as well.
[00:33:26.950]Under that act,
[00:33:28.240]any operator can get a license from the FCC,
[00:33:31.790]the U.S. authority on telecommunications
[00:33:34.390]to operate a communication for satellite purposes.
[00:33:38.500]In 1984, a Commercial Space Launch Act addressed
[00:33:41.880]the privatization of launching.
[00:33:44.290]That was the act that originally
[00:33:46.190]transformed to try support it,
[00:33:49.970]the transfer to the one-on-one absolute unlimited liability
[00:33:54.480]on the international level so they operate.
[00:33:56.210]And then in 1988, they amended it
[00:33:58.270]to include the caps.
[00:33:59.860]The same year, 1984,
[00:34:03.340]the Land Remote Sensing Act, first one,
[00:34:05.900]allowed potential private operators
[00:34:08.397]and satellite earth observation to obtain a license.
[00:34:11.450]We've seen
[00:34:12.700]more recently, a chapter in a broader act
[00:34:15.370]addressing space mining.
[00:34:16.910]And then we should not forget that NASA acts
[00:34:19.160]as a kind of de facto authority
[00:34:21.170]for allowing private operators from the U.S. perspective
[00:34:24.430]to operate on the International Space Station.
[00:34:26.970]Now, there are many problems with this,
[00:34:29.550]which I won't go into,
[00:34:31.030]but there are overlaps, gaps,
[00:34:32.680]inter-agency disputes, inconsistencies.
[00:34:35.120]And when a new type of space activity comes up, immediately,
[00:34:39.700]U.S. Congress has to scramble to regulate this.
[00:34:43.730]So there are also few countries
[00:34:45.110]who've taken narrow interpretation.
[00:34:46.800]You have, for example, Norway,
[00:34:48.190]which actually has the oldest space law
[00:34:50.570]in existence in 1969,
[00:34:52.920]which only applied to launching objects in outer space.
[00:34:56.940]And the main reason that was, that in 1969,
[00:34:59.530]the Norwegians only had the Outer Space Treaty to work with.
[00:35:02.870]Liability Convention took a few more years.
[00:35:05.400]The Outer Space Treaty simply spoke about liability for
[00:35:08.820]involvement in a launch.
[00:35:10.390]So they, in Norway, they thought,
[00:35:12.970]let's cover our back there
[00:35:14.680]and make sure that any private operator
[00:35:16.660]doesn't launch into outer space without our consent.
[00:35:20.710]A different example is Germany,
[00:35:22.300]which only has addressed satellite remote sensing
[00:35:25.330]because of the focus on specific security risks
[00:35:28.870]engaged by or entailed by the use
[00:35:32.030]of high resolution satellites,
[00:35:34.390]and then Luxembourg and P.J. Blount made reference to that,
[00:35:37.860]which originally focused on space mining.
[00:35:39.930]Although I should add that a few years later,
[00:35:42.300]they also drafted
[00:35:44.290]an act with the full
[00:35:45.950]coverage of space activities,
[00:35:47.350]but they were, back
[00:35:49.623]in 2017,
[00:35:50.960]they were very gung ho on getting this act quickly together
[00:35:54.840]in order to accommodate these ventures.
[00:35:57.820]So you see kind of different state practice.
[00:36:02.060]In terms of the interpretation ratione personae,
[00:36:05.547]you have again, countries who take a wide scope.
[00:36:09.010]Sweden very simply says territory
[00:36:11.920]and nationality,
[00:36:13.510]any activity from Swedish territory, regardless by whom,
[00:36:16.890]or an activity, regardless where undertaken
[00:36:19.653]by a Swedish entity or person
[00:36:22.310]requires a license.
[00:36:24.320]The Danish have done the same thing,
[00:36:26.730]slightly different
[00:36:29.020]defined and actually a little bit broader
[00:36:30.780]because they specifically add Danish craft and facilities,
[00:36:34.840]with Danish
[00:36:36.060]aircraft for aircraft launches in the future, ships,
[00:36:40.020]maybe even platforms and things like that.
[00:36:42.680]And then Austria also takes kind of a similar,
[00:36:46.030]very broad approach.
[00:36:47.360]You see it reflected here.
[00:36:51.280]More questionable is for example, the case of France,
[00:36:54.720]where when it comes to launch and return activities,
[00:36:58.930]you need a license under the French Act,
[00:37:01.560]both if you launch from French territory as a foreigner,
[00:37:04.570]or if you're a French entity
[00:37:06.150]and you're launching anywhere else,
[00:37:07.813]or anywhere I should say.
[00:37:10.020]But for non-launch space activities,
[00:37:11.977]the in-space activities,
[00:37:13.700]remote controlled or close controlled,
[00:37:16.970]only nationals, only French nationals require a license.
[00:37:20.440]So if a Dutch satellite communication company
[00:37:23.770]would start operating its business from French territory,
[00:37:28.550]under the French law, it doesn't need a license
[00:37:31.210]because it is not involved in a launch.
[00:37:34.200]Belgium has an even more complicated regime,
[00:37:38.800]which kind of
[00:37:41.100]says, well, we only apply to nationals
[00:37:43.600]if there is an international agreement
[00:37:45.070]specifically calling for that,
[00:37:46.800]and the Netherlands have kind of a same thing,
[00:37:49.680]but again, slightly differently phrased.
[00:37:52.770]So they are not as,
[00:37:54.300]let me say wide in casting the net
[00:37:57.060]as the countries on the previous slide.
[00:38:00.390]There are also countries
[00:38:01.223]who take a narrow approach, obviously.
[00:38:03.160]The United Kingdom, at least originally,
[00:38:05.680]only applied to activities from nationals,
[00:38:08.350]which were then defined in quite some detail
[00:38:10.450]because United Kingdom of course
[00:38:12.800]consists of England, Scotland and some other parts.
[00:38:16.520]Now,
[00:38:18.550]this was basically because no launch activities
[00:38:20.810]were foreseen at the time
[00:38:22.270]and the United Kingdom didn't consider it necessary
[00:38:26.120]in its national legislation to take that into consideration
[00:38:29.760]to address the liability concern.
[00:38:32.320]However, that then changed
[00:38:34.320]in later days.
[00:38:35.740]You do see a number of plans to conduct private,
[00:38:38.970]even human space flight,
[00:38:40.290]so not just unmanned launches,
[00:38:43.070]but launches with humans on board.
[00:38:45.160]And now in a new act, they actually also addressed
[00:38:49.040]activities undertaken from territory.
[00:38:50.580]So in the second instance,
[00:38:52.830]the UK has moved over to the group of states
[00:38:56.180]which have a wide interpretation.
[00:38:58.020]There are some problems, overlap.
[00:38:59.520]I will not address those.
[00:39:02.460]Now we come to the liability issues.
[00:39:06.570]A liberal acceptance of liability,
[00:39:10.850]what does that mean?
[00:39:11.950]Well,
[00:39:13.120]the Dutch, sorry, the Brits
[00:39:15.890]also include private procurement.
[00:39:18.750]Procurement, if you know your space law,
[00:39:22.010]you know that the Liability Convention
[00:39:23.950]in Article VII of the Outer Space Treaty allocate
[00:39:27.020]the liability also for the state which procures a launch.
[00:39:31.210]And this tells me that UK apparently consider themselves
[00:39:35.040]a state which procures a launch,
[00:39:37.100]also if it is actually a UK operator
[00:39:40.120]which procures the launch,
[00:39:42.020]because they require a license for that.
[00:39:44.340]And the French have done likewise.
[00:39:46.600]The United States have not exactly the same.
[00:39:49.680]In view of the time, I can't go into the details,
[00:39:53.190]but they do
[00:39:54.023]include launches by national operators
[00:39:58.030]in that context.
[00:39:59.890]And in that sense, they do
[00:40:02.640]cast the net pretty widely.
[00:40:05.570]Even Sea Launch, which
[00:40:07.390]technically speaking originally was a UK company
[00:40:10.620]headquartered in the Grand Cayman Islands
[00:40:12.430]before it was then relocated to the United States,
[00:40:14.600]but even originally it was
[00:40:16.830]not a U.S. company.
[00:40:19.030]It was just Boeing having a 40% share,
[00:40:21.697]not even a majority share, but a 40% share.
[00:40:24.340]And that was sufficient
[00:40:25.380]for the United States already at the time
[00:40:27.930]to tell Boeing,
[00:40:28.887]"you only can do that if you have a license
[00:40:30.940]under our national act."
[00:40:32.290]So that goes a little bit broader.
[00:40:34.580]And that actually includes launch facilities
[00:40:38.210]that otherwise are covered by national space law.
[00:40:42.010]Narrow acceptance of liability, you see in the Netherlands
[00:40:45.060]where private procurement of launches
[00:40:47.560]is not covered by national space law.
[00:40:49.870]Portugal, Finland,
[00:40:52.140]Austria,
[00:40:53.210]Belgium and Ukraine
[00:40:55.540]all do not, and some others as well,
[00:40:58.110]they do not include the private procurement of a launch.
[00:41:00.170]So the mere fact that an operator
[00:41:01.960]from these countries may buy a launch on a U.S. vehicle
[00:41:06.950]doesn't require a Portuguese/Finnish
[00:41:09.780]/Austrian, et cetera, license.
[00:41:12.750]Now the generous handling of liability,
[00:41:15.410]the fourth element
[00:41:16.810]talks about
[00:41:19.005]the unlimited liability on the international level.
[00:41:21.130]And you see countries like France,
[00:41:23.600]Austria, Finland, and the UK,
[00:41:26.250]all European countries
[00:41:28.260]and until recently all European Union countries as well,
[00:41:31.200]they all agree on a limit
[00:41:33.660]in principle of 60 million euros per launch.
[00:41:37.370]They are going to impose the requirement
[00:41:39.730]on operators getting a license,
[00:41:41.760]that they should reimburse the respective state
[00:41:43.960]up to 60 million
[00:41:46.140]for an accident that can happen
[00:41:47.760]as a consequence of the launch.
[00:41:49.480]If the damage happens to be more than 60 million,
[00:41:52.660]bad luck for the French, Austrian, Finnish, UK governments,
[00:41:56.660]they will have to pony up the rest of the money or
[00:41:59.650]conversely not be able to get that back from the operator.
[00:42:03.684]You have the country of Australia, which has much more
[00:42:07.570]fine-tuned system because they make
[00:42:10.460]a determination for every particular launch
[00:42:13.820]of what they call the maximum probable loss.
[00:42:17.170]And depending upon that,
[00:42:19.060]they put a higher or a lower cap on the derogation,
[00:42:23.150]but there is a derogation.
[00:42:24.850]And an Austrian, Australian, excuse me, Australian licensee
[00:42:28.760]doesn't have to fear unlimited liability.
[00:42:32.110]And the United States is even more complex
[00:42:34.350]because they have a very complex
[00:42:36.330]combination
[00:42:37.670]of the lesser (indistinct).
[00:42:39.950]They also calculate the maximum probable loss.
[00:42:42.016]If the maximum probable loss is more than $500 million US,
[00:42:45.770]which is of course a pretty huge sum,
[00:42:48.070]then the maximum probable loss
[00:42:50.010]does not apply.
[00:42:50.880]It is the maximum of $500 million US.
[00:42:54.110]And if the Secretary
[00:42:56.029]of
[00:42:58.100]Transport who is responsible for the application of this act
[00:43:01.690]is convinced that you can't get reasonable insurance
[00:43:05.040]against reasonable rates
[00:43:07.490]for coverage of 500 million for a single launch,
[00:43:11.160]that's a discretionary possibility for the Secretary,
[00:43:14.490]then he can
[00:43:15.700]impose as a limit,
[00:43:17.280]whatever maximum rate he thinks
[00:43:19.430]is still compliant with a reasonable insurance rate.
[00:43:22.990]To give you a bit of an idea, the highest
[00:43:25.800]cap ever quoted in a U.S. license is $261 million U.S.
[00:43:30.647]And for the first test flights
[00:43:33.770]of SpaceShipOne back in 2004, when they won the X prize,
[00:43:38.710]it was only three million because it was above a desert.
[00:43:41.720]It was a very small vehicle,
[00:43:43.870]so the chances that that will be really hot, large losses,
[00:43:47.400]large damage were relatively small.
[00:43:51.200]Generous handling of liability, well,
[00:43:54.310]in other countries you have
[00:43:56.780]things like
[00:43:59.310]an open-ended clause, such as in Portugal.
[00:44:02.660]And likewise in Belgium,
[00:44:05.280]there might be limits
[00:44:08.290]to the derogation obligations,
[00:44:09.930]liability and the same applies to Denmark.
[00:44:15.120]There are countries who are fairly protective, however.
[00:44:17.380]If you took the Swedish legislation, for example,
[00:44:19.850]they simply say, well, the baseline issue shall
[00:44:22.650]fully repay Sweden
[00:44:24.340]whatever Sweden will have to pay internationally,
[00:44:26.620]unless special reasons delegates.
[00:44:28.570]So it allows a tiny opening up for negotiation.
[00:44:32.370]The Russians are even more strict,
[00:44:34.390]although you have to read their law a couple of times
[00:44:37.620]to sort of understand that.
[00:44:39.400]The state shall guarantee full compensation
[00:44:41.700]if the damage is caused by the private licensee.
[00:44:44.630]That licensee shall pay the compensation.
[00:44:47.330]The liability shall be limited to the insurance sum.
[00:44:51.400]But if the insurance sum
[00:44:54.634]is insufficient for the compensation,
[00:44:56.890]and this sort of undercuts the previous point,
[00:45:00.220]then there are still recovery
[00:45:01.590]against the property of licensee possible.
[00:45:04.460]So big advise on my part and I give it for free,
[00:45:08.150]if you ever seek a license with the Russians,
[00:45:10.640]make sure you negotiate exactly what your liability is
[00:45:13.810]because the legal clauses are not very
[00:45:16.820]clear and transparent on that.
[00:45:19.280]Final remark, of course, the states all have to address
[00:45:23.400]which state agency shall undertake
[00:45:26.010]the authorization and supervision.
[00:45:27.980]And most of them
[00:45:29.330]aren't really very much charged with protecting
[00:45:32.210]the security, sorry, the public interest,
[00:45:34.650]and those are the safety of operations
[00:45:36.470]for the general public,
[00:45:37.970]security interest,
[00:45:39.050]national, international peace and security,
[00:45:41.390]increasingly, environments,
[00:45:43.180]or even including general national interest,
[00:45:46.360]which also plays into economic interests.
[00:45:48.770]So countries may be interested
[00:45:50.430]in allowing these activities and licensing them
[00:45:53.300]simply because they think it's a good thing
[00:45:55.360]for the economy and for society
[00:45:57.380]to have private entrepreneurship,
[00:46:00.080]private
[00:46:00.913]ingenuity
[00:46:02.390]work
[00:46:04.330]indirectly, to that extent, for society.
[00:46:08.510]Public economic interests may be part of that
[00:46:10.480]and some states actually do include various measures
[00:46:13.690]of support directly or indirectly of the private sector.
[00:46:17.870]For example, in France, in Luxembourg
[00:46:21.030]and in the United Arab Emirates,
[00:46:23.130]they have certain provisions which allow that to happen.
[00:46:26.320]France limits the liability
[00:46:28.300]of the operator to a first phase.
[00:46:31.380]So if your satellite has been operating long enough,
[00:46:33.830]you're off the hook for ever repaying France for liability.
[00:46:37.740]Luxembourg actually actively invested
[00:46:40.760]in two of the space resource companies
[00:46:43.870]and the United Arab Emirates did the same,
[00:46:46.010]with some of the space,
[00:46:47.730]commercial space flight companies.
[00:46:49.950]So that brings me to my concluding remarks.
[00:46:52.850]States are almost required
[00:46:54.940]to adopt national space legislation
[00:46:56.730]and the formal requirement is authorization, supervision,
[00:47:00.370]but the best way,
[00:47:01.440]clearly the best and most transparent and comprehensive way
[00:47:05.090]is to use in law to do that or a set of law.
[00:47:08.890]And that then also of course,
[00:47:10.280]presents a very good instrument
[00:47:12.570]if you want to support the private sector
[00:47:14.730]to do so, in many ways.
[00:47:17.610]International space law is not very
[00:47:20.870]directive in what states can do in that regard.
[00:47:23.670]It is rather broad and imprecise
[00:47:25.860]and it leaves these individual states a lot of leeway
[00:47:29.960]in terms of how to handle it.
[00:47:31.320]And I hope that my sort of
[00:47:33.410]helicopter view or satellite view of national state practice
[00:47:37.050]gave you some idea in that regard.
[00:47:40.210]They can do whatever they want,
[00:47:42.250]but the benefit is then of course,
[00:47:43.970]that they face the responsibilities of making the choice.
[00:47:46.673]Because if they make the wrong choice,
[00:47:48.700]if they take too wide an approach,
[00:47:50.410]they can automatically be held responsible or liable
[00:47:53.300]for things that they didn't really anticipate.
[00:47:56.090]If they are
[00:47:57.470]taking a too narrow approach,
[00:47:59.550]they may still be held liable
[00:48:01.180]by a court or arbitral tribunal in the future
[00:48:04.060]for something that they couldn't take care of,
[00:48:06.180]because in the perspective of taking a narrow approach,
[00:48:09.820]they didn't take
[00:48:12.200]the route of a national legislative
[00:48:14.880]and licensed related measures.
[00:48:17.830]With the increasing privatization
[00:48:19.480]and commercialization of space,
[00:48:21.160]whether we like it or not,
[00:48:22.453]ever more states will draft national space law.
[00:48:25.560]And I can already mention a couple
[00:48:27.100]who are not on the list yet who are
[00:48:30.680]substantively on the road to such a national space law.
[00:48:35.200]An unfortunate result, as you may have already (indistinct),
[00:48:37.590]is that in many respects,
[00:48:40.230]these laws
[00:48:41.300]do vary
[00:48:42.640]rather largely.
[00:48:44.880]Such fundamentals as to scope of the law,
[00:48:47.900]some states have very broad scopes
[00:48:49.860]and others have very narrow scopes
[00:48:51.770]and that may lead to some problems in the end.
[00:48:55.250]But ultimately, that is all down to the fact
[00:48:59.030]that we are still recognizing
[00:49:00.810]the sovereignty of the individual states.
[00:49:03.440]Private space activities are here to stay.
[00:49:05.690]So let's make the best of it
[00:49:07.920]and try to ensure that they will be conducted
[00:49:09.910]in the most beneficial manner feasible
[00:49:12.580]and it is inevitable that national space law
[00:49:16.130]is the primary tool to do so.
[00:49:18.730]International space law may hopefully offer
[00:49:21.360]more solid guidance and more precise direction,
[00:49:24.680]but that is up for grabs.
[00:49:26.360]With that, I thank you for your kind attention
[00:49:29.290]and I hope there's still some time for questions
[00:49:32.430]if people want, so I'll stop my share as well.
[00:49:38.500]Thank you very much, Professor.
[00:49:41.020]So that was a really, really fascinating talk.
[00:49:45.120]And in particular,
[00:49:47.560]the way in which you outlined
[00:49:50.050]the varying practices between states
[00:49:52.000](indistinct) launch and return activities
[00:49:53.827]and also their liabilities was absolutely fascinating.
[00:49:58.610]Before
[00:50:00.630]I suppose I open the floor to other attendees
[00:50:04.110]to ask questions, maybe make some comments
[00:50:07.710]and maybe open up the discussion a little bit more,
[00:50:13.100]I have
[00:50:14.800]one
[00:50:16.120]question,
[00:50:17.840]if that's okay.
[00:50:20.550]I suppose, as I just mentioned,
[00:50:22.350]you really comprehensively outlined
[00:50:26.560]state practice in relation to launch and return activities,
[00:50:29.390]and you (indistinct)
[00:50:30.960]the approaches of a number of states in relation to this
[00:50:35.130]and in particular identified how
[00:50:38.120]international space law at the moment provides
[00:50:40.440]states with a lot of leeway and
[00:50:43.830]of course, with that in mind,
[00:50:45.280]have you found over the course of your research and study,
[00:50:47.880]whether there's one particular state
[00:50:49.690]that has adopted very comprehensive
[00:50:53.940]model that captures all the ambiguities and the gaps
[00:50:57.850]with regards to launch, return activities,
[00:51:00.350]or
[00:51:01.190]is a case that
[00:51:04.620]perhaps
[00:51:08.240]all states, that they have adopted these regimes
[00:51:11.750]in line with their own interests?
[00:51:13.790]So
[00:51:15.330]just in relation to that, is there any particular
[00:51:17.360]one state that you think
[00:51:19.520]has captured this issue very well within the legislation?
[00:51:23.810]It depends upon which of the particular
[00:51:27.240]elements of the analysis you focus on.
[00:51:29.350]I just focused in my analysis on four policy options.
[00:51:32.580]If you look at the scope in terms
[00:51:34.910]of persons and scope ratione personae,
[00:51:38.510]I always like the Swedish one because it's very simple,
[00:51:42.040]it's very straightforward,
[00:51:43.170]very easily to understand and very comprehensive.
[00:51:46.090]Where I am less in favor of the Swedish one
[00:51:49.180]is how they handle liability.
[00:51:51.040]Because in that sense,
[00:51:52.070]I think the U.S. approach is the most refined one
[00:51:55.560]because it does allow, each case,
[00:51:58.030]for a particular estimation of the actual risk
[00:52:01.230]and there's a rather complex mechanism
[00:52:03.760]for calculating the maximum probable loss.
[00:52:06.668]And that really reflects the extent to which the public,
[00:52:11.160]at least in the United States,
[00:52:13.320]or actually also elsewhere is at risk.
[00:52:16.420]And thereby also provides a nice incentives for companies
[00:52:20.210]to show that they are as safe as they can be
[00:52:23.000]because that lowers the premium for their insurance.
[00:52:26.150]Just to give you a ballpark view,
[00:52:29.320]the insurance premium for a launch,
[00:52:31.750]third-party liability launch premium
[00:52:34.080]for an individual launch
[00:52:36.010]of a big rocket usually runs in the millions.
[00:52:38.720]So it makes quite a difference in your business plan
[00:52:41.280]if you can half that by showing
[00:52:43.330]that you're a relatively safe operation
[00:52:45.280]or that you launch out over sea or stuff like that.
[00:52:47.630]So again, it depends very much on...
[00:52:49.510]There's not a single law I'm happy to say
[00:52:52.360]which really carries today and should be
[00:52:54.640]the model standard for everyone.
[00:52:57.440]Okay, thank you very, very much for the question.
[00:53:00.680]So I'm just scanning through
[00:53:03.170]our list of participants and attendees and
[00:53:06.700]we have a question from Ms.
[00:53:09.230]Tamby Aginaba.
[00:53:13.146]So if you could, yeah.
[00:53:16.014]Yes, hello.
[00:53:17.070]Thank you so much, Prof. Hi.
[00:53:18.670]Super interesting presentation.
[00:53:20.800]So my question is really around this issue, like you said,
[00:53:25.120]we might need to look at harmonization,
[00:53:27.380]but my question is really,
[00:53:29.890]what's wrong with state practice for new activities?
[00:53:33.280]Like
[00:53:34.763]before we can figure out how we regulate,
[00:53:38.010]we have to know what are the realm of possibility of things
[00:53:42.400]that need to happen.
[00:53:43.710]So that's why we would say state practice needs to happen
[00:53:46.430]so that we see what issues arise,
[00:53:49.480]and then we now start figuring out
[00:53:51.900]how the international law system
[00:53:54.250]can advise as to what people can do.
[00:53:56.960]But we keep having this issue where we're saying,
[00:53:59.017]"We need more international laws,
[00:54:00.210]There are a whole bunch of gaps."
[00:54:02.170]Like how do we find that balance
[00:54:03.900]between when we do let international law go first,
[00:54:07.300]because we can look at history and say,
[00:54:09.220]these are the kinds of things that have happened.
[00:54:11.410]So we can use that as a benchmark,
[00:54:13.770]but also say, but the way innovation happens,
[00:54:16.260]you really don't know how it's going to go.
[00:54:18.500]So if you put the law in there too early,
[00:54:20.930]it can completely derail everything.
[00:54:22.700]Like, what are your thoughts about that?
[00:54:24.700]But you're absolutely right.
[00:54:25.950]And I mean, if I would have one single answer to that,
[00:54:29.010]I would be a billionaire by now.
[00:54:31.320]I mean,
[00:54:34.775]it is so difficult.
[00:54:35.900]You don't want the law to be ahead of things,
[00:54:38.040]because then you may turn out to have draft a law
[00:54:40.640]or help gotten a law come about which stifles activities,
[00:54:43.480]because you are not aware
[00:54:45.330]or didn't predict properly where things were going.
[00:54:48.600]You don't wanna run too far behind either.
[00:54:50.950]So I completely agree that we should
[00:54:53.010]be careful with harmonization.
[00:54:55.220]I also should agree that we should...
[00:54:58.540]And it's realistically also not possible to fully harmonize
[00:55:02.700]because states differ in the attitudes and rightly so.
[00:55:05.493]There's a whole variety of political outlooks
[00:55:08.150]in various states
[00:55:10.170]across the world.
[00:55:11.360]And there is an inherent value
[00:55:13.680]in not
[00:55:15.280]putting them all
[00:55:18.350]in the same mold
[00:55:19.640]and make sure that they'll do the same.
[00:55:21.770]I would,
[00:55:23.750]however, try to make an argument that
[00:55:26.890]trying to harmonize some
[00:55:28.530]of the overlying theoretical approaches,
[00:55:31.233]that that would make a lot of sense.
[00:55:34.460]I'm not telling countries,
[00:55:36.260]you should be very generous in your liability regime
[00:55:39.770]or you should be very protective,
[00:55:41.830]because that's part of the way you look at society.
[00:55:44.720]How important do you think private enterprise is?
[00:55:47.300]How much do you want to stimulate this?
[00:55:48.730]So I think it's inevitable that we have
[00:55:51.120]a lot of difference there, although
[00:55:53.520]it may, at some point run out of hand
[00:55:56.110]and that's where you might get the risk
[00:55:58.340]of a race to the bottom and effects of convenience.
[00:56:01.710]I don't see that happening too soon, not yet,
[00:56:04.050]but 10 or 50 years, that maybe something serious.
[00:56:06.130]So something for the long run,
[00:56:07.460]but where I see a more profound need,
[00:56:10.550]just to make things simple,
[00:56:12.310]is if every country,
[00:56:13.930]and I'm going back to Professor Brennan's question,
[00:56:17.020]that's why I think Sweden is so, so precise,
[00:56:19.870]if every country applies this legislation
[00:56:22.100]to operations in space, in the broad sense of the word,
[00:56:25.770]from its territory,
[00:56:27.280]from its quasar territory,
[00:56:28.890]ships, and
[00:56:30.694]space ships, and aircraft,
[00:56:32.020]and oil platforms, stuff like that,
[00:56:34.130]and by its nationals,
[00:56:35.780]then you always know that you can't escape,
[00:56:39.740]that now you have to first start looking,
[00:56:41.560]which laws may or may not apply to me?
[00:56:43.760]I mean, if you look at the way the Dutch
[00:56:44.883]and the Belgian laws are phrased,
[00:56:46.610]that makes things so unnecessary complicated.
[00:56:49.710]And it doesn't take away the possibility for countries to,
[00:56:53.170]in a more substantial sense, still (indistinct).
[00:56:55.870]But I agree,
[00:56:58.490]everyone can pick their own balance to a certain extent.
[00:57:03.040]Thank you.
[00:57:04.680]Thank you, thank you very much Tamby
[00:57:07.070]for your very, very interesting question, thank you.
[00:57:09.700]So we have another question from Henry Strong.
[00:57:15.280]Thank you, Dr. Brennan,
[00:57:17.500]and thank you, Professor von der Dunk for the talk.
[00:57:19.560]That was really informative.
[00:57:20.930]And as someone that studies
[00:57:22.510]the licensing regimes that are in place,
[00:57:25.060]I really found that very helpful.
[00:57:26.900]So I'll probably be referring back
[00:57:28.680]to some of the things you mentioned in my talk later on.
[00:57:31.430]Just wanted to ask you very briefly
[00:57:33.090]if you can pinpoint any area of,
[00:57:36.150]or any aspect of our engagement with space that is
[00:57:40.520]commonly overlooked.
[00:57:43.790]Is there anything that's being
[00:57:46.510]left
[00:57:47.690]sort of to the side
[00:57:48.680]when it comes to these licensing regimes?
[00:57:50.410]From our perspective, it's sustainability concerns,
[00:57:53.120]although we do sometimes see
[00:57:54.200]orbital debris mitigation included in those regimes.
[00:57:57.020]Is there anything else,
[00:57:58.030]perhaps other than sustainability,
[00:57:59.290]that you think could be worked into these regimes
[00:58:02.820]to have to have effect in the way that we engage with space?
[00:58:07.440]Well, before you started your last couple of sentences,
[00:58:11.480]I would have said indeed, the space debris thing,
[00:58:13.660]because there, we are still lagging behind.
[00:58:15.600]I mean, it's probably,
[00:58:16.807]in terms of operations- Yeah.
[00:58:18.930]the single most immediately risky development.
[00:58:22.360]Everyone's aware of the Kessler syndrome.
[00:58:24.820]That's right.
[00:58:25.852]Diverge of opinions, whether it's already too late,
[00:58:28.390]whether it's 5 minutes past 12 or 5 minutes before 12,
[00:58:31.620]but it's clear that we start needing
[00:58:32.970]to do something about it.
[00:58:33.890]And luckily we do see some movement,
[00:58:35.710]but on the international level, it's not yet sufficient.
[00:58:38.130]And we just saw a couple of years ago, India lost its way
[00:58:42.420]in outer space.
[00:58:43.860]And now that was obviously not a private operator,
[00:58:47.590]that was a military operation.
[00:58:49.470]That was India showing we can do the same stuff
[00:58:52.100]that you Americans, you Russians, you Chinese did before.
[00:58:55.640]So we are up there with you, big guys,
[00:58:58.260]but it's still is very worrisome
[00:59:00.320]and it would be great if here we could have,
[00:59:05.270]just like general environment concerns,
[00:59:08.220]a kind of uniform level of standards
[00:59:11.350]and it maybe may take another 10 years before we get there.
[00:59:15.610]We're certainly not there yet.
[00:59:16.640]That would be my largest priority,
[00:59:18.620]even though to answer your question as it was really put,
[00:59:22.180]and it's not something that is totally not been forgotten.
[00:59:24.580]I mean, as you are aware,
[00:59:25.980]there's increasing attention is being paid,
[00:59:27.960]but that's still the most important thing I would say.
[00:59:30.260]Okay, thank you.
[00:59:31.093]Thank you very much.
[00:59:35.570]My apologies, I was on mute.
[00:59:37.640]Thank you Henry, for that really great question.
[00:59:40.090]On the chat function, we have
[00:59:43.770]a written question from a member of our audience
[00:59:46.390]from Sanjeet Anan,
[00:59:48.880]and they ask,
[00:59:50.137]"How do you think liability works in cases
[00:59:54.060]where certain countries launched from other countries,
[00:59:57.070]for example, the United Arab Emirates
[01:00:00.327]launching its Mars mission from Japan?"
[01:00:05.430]Yeah, well, if to the extent that the UAE
[01:00:08.980]actually pushed the launch button,
[01:00:11.180]which I don't think it did,
[01:00:12.880]that will be an easy one to answer.
[01:00:14.600]Because if you look at the Liability Convention,
[01:00:16.910]it includes the country of territory,
[01:00:19.500]which in this case would be Japan,
[01:00:20.950]the country of facility, which again, would be Japan.
[01:00:23.740]And if the UAE launched,
[01:00:25.810]it would be the UEA on the country of the launch.
[01:00:27.930]But even if
[01:00:29.521]UAE only procured the launch,
[01:00:32.350]basically saying, Japan, can you launch it for us,
[01:00:35.880]here's a bunch of money and we have to sign a contract,
[01:00:39.620]then it does mean that the UAE is on the hook
[01:00:42.410]as the country which procured the launch.
[01:00:44.690]Where problems may start rising in terms of the UAE
[01:00:48.110]is if it would not be the government,
[01:00:50.090]but if it would be a private UAE company.
[01:00:52.970]Because then you get into this discretion,
[01:00:55.370]do we interpret the state which procures
[01:00:58.240]in a narrow sense or in a broad sense?
[01:01:00.720]The UAE, as far as I recollect, but I have to go back to
[01:01:05.786]to the details of that act,
[01:01:09.130]procurement is not included in there.
[01:01:11.630]But since it's launched from Japan,
[01:01:16.050]Japan will always be liable.
[01:01:17.800]So if Japan has a suspicion
[01:01:19.970]that UAE might be too easily off the hook
[01:01:22.510]in the launch contract with the UAE,
[01:01:24.830]they will somehow make sure that that is arranged.
[01:01:27.900]My country, the Netherlands, was one of the first
[01:01:31.730]to run scientific satellites in the '60s
[01:01:33.770]And obviously we didn't have a launch capability
[01:01:35.980]and still don't have.
[01:01:37.320]So we went to NASA and said,
[01:01:38.990]can you launch a satellite for us?
[01:01:40.440]And they were happy to do so.
[01:01:41.840]And in the contract,
[01:01:43.920]it was arranged
[01:01:45.760]that
[01:01:47.120]whenever
[01:01:48.830]that mission would go horribly wrong,
[01:01:51.160]which luckily it didn't,
[01:01:53.140]under international law, both the United States
[01:01:55.530]and the Netherlands would be launching states,
[01:01:57.450]would be liable.
[01:01:59.140]And under the bilateral contract,
[01:02:01.680]they would agree on how to handle that liability.
[01:02:04.750]In both cases,
[01:02:05.583]the Dutch would then reimburse the United States
[01:02:08.110]or vice versa
[01:02:09.450]if the United States will be the first
[01:02:11.150]to be accosted by a third-party victim.
[01:02:13.820]I hope I'm clear, but that's kind of the construction.
[01:02:18.678]Thank you very, very much for answering that question.
[01:02:22.850]We do not appear to have any more questions
[01:02:25.750]from our audience members.
[01:02:27.910]So perhaps we bring your keynote address
[01:02:30.020]to an end there, Professor.
[01:02:32.040]Thank you very, very much
[01:02:33.270]for your very, very interesting talk.
[01:02:35.660]I have found it fascinating,
[01:02:37.610]and I've been getting direct messages from members
[01:02:39.980]of our audience, as well during your talk, all saying,
[01:02:42.907]"what a fascinating talk it is."
[01:02:45.410]Also thank you for sharing your thoughts
[01:02:47.960]in this very, very important area of law,
[01:02:49.800]but also thank you for joining us
[01:02:51.430]in the middle of the night in your time zone.
[01:02:54.300]I really, really appreciate it
[01:02:57.080]and it's been an absolute pleasure working with you
[01:02:59.660]in the run up to the organization of the conference.

The screen size you are trying to search captions on is too small!

You can always jump over to MediaHub and check it out there.

Comments

0 Comments

Professor Frans von der Dunk presents at The University of Waikato Virtual Outer Space Law Conference

Description

Searchable Transcript

Comments icon comment

Related Channels

Comments