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

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

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[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.

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

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