LEGAL CHALLENGES FOR
THE INDUSTRY IN
ACTIVE DEBRIS REMOVAL
(ADR)
© Swiss Space Systems Holding SA
Manfred
Lachs
Conference
/ Montreal
17th
March
2015
3rd3rd
Manfred
Lachs
Conference
/ Montreal,
17th
March
2015
1
CONTENTS
I.
II.
III.
IV.
V.
Swiss Space System and its mission
CleanSpace One
Legal Framework
Challenges
Conclusions
© Swiss Space Systems Holding SA
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I. SWISS SPACE SYSTEMS AND ITS MISSION
• Swiss firm founded in November 2012 – Privatization of the Hermes
(ESA) space shuttle technical heritage
• Our objective: develop, build, certify and operate suborbital
spaceplanes, for launches of satellites up to 250 kg.
• Staff over 70. Estimated 2017: 200 employees.
• Overall budget: approx. 250 million Swiss Francs till first satellite
launch (scheduled 2018). Covered to a large extent by company
partners and private investors.
© Swiss Space Systems Holding SA
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INNOVATIVE SUB-ORBITAL AIRCRAFT REUSABLE (SOAR)
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SOAR: LAUNCH OF CLEANSPACE ONE
TEXTE EXERGUE
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III. LEGAL FRAMEWORK FOR ADR
Article IX Outer Space Treaty 1967: basic provision for all environmental
protection of outer space:
• avoid harmful contamination and adopt appropriate measures
• due regard to the corresponding interests of all other States Parties
Purpose: protection of space environment for the exploration and use of outer space
but not specific reference to space debris
Article 31(1) Vienna Convention on the Law of Treaties 1969: ‘interpretation
in light of the purpose of the Treaty’
• Use of teleological approach: fundamental purpose of Treaty
• Space debris poses hazard to the exploration and use of outer space (fundamental)
Appropriate measure to tackle space debris under Article IX: space debris
remediation (ADR)
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IV. CHALLENGES
1. SPACE DEBRIS = SPACE OBJECTS?
Hard Law (nature of the object)
Article 1(d) Liability Convention 1972 and National Space Laws (Austria, Australia,
Belgium, Spain, UK) agree that:
“space object” includes component parts of a space object
Soft Law (“non-functional” approach)
• IADC Guidelines: “space debris” are all man-made objects including fragments and
elements thereof, in Earth orbit or re-entering the atmosphere, that are non-functional
• UNCOPUOS: “space debris are all man-made objects, including their fragments and
parts, whether their owners can be identified or not, in Earth orbit or re-entering the
dense layers of the atmosphere that are non-functional with no reasonable
expectation of their being able to assume or resume their intended functions or any
other functions for which they are or can be authorized”. (Technical Report on Space
Debris, UN, 1999)
Is definition needed?
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2. IS THE ACT OF REMOVING SPACE DEBRIS LEGAL?
WHO IS ENTITLED TO REMOVE IT?
a) International Space Law (provided that space debris=space object)
Article VIII Outer Space Treaty: “[a] State Party to the Treaty on whose registry an object
launched into outer space is carried shall retain jurisdiction and control over such object […]
Ownership of objects launched into outer space […] and of their component parts, is not affected .
Hence a space object can be removed by:
a) the State on whose registry is launched
b) a private entity licensed by the State of registry
c) a third party only upon the approval of the State of registry
b) Public International Law (regardless of the definition of space debris)
Article 25 ILC Draft Articles on State responsibility: “State of necessity” precludes the
wrongfulness of an act:
In a state of necessity Active Debris Removal would be lawful without prior consent
Without state of necessity: is ADR still lawful? Could a custom be created if no
objection?
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3. RESPONSIBILITY AND LIABILITY IN CASE OF DAMAGE
CAUSED DURING ADR OPERATION
a) International Space Law (provided that space debris=space object)
States:
• Article VI Outer Space Treaty: ‘international responsibility for national activities’
• Article VII Outer Space Treaty: liability of the launching State for damage to another
State Party by space object or its component parts & Article III Liability Convention:
fault liability in space (difficult to prove fault)
Private entities: national space law needed? Incentives depend on liability insurance
b) Public International Law (regardless of the definition of space debris)
• Due diligence: take precautions that would safeguard other States from damage
resulting from the source State’s activities OR responsibility arises
• “Sic utere tuo, ut alienum non laedas”: Use your own property in such a
way that you do not injure other people's
Trail Smelter Arbitration 1941, Corfu Channel Case 1949 ICJ
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V. CONCLUSIONS
• Space debris is a threat to sustainability of outer space activities;
Active Debris Removal would be a solution to this problem
• Legal clarity is needed on the definition of space debris to facilitate
ADR operations; the industry needs a clear legal path with the right
motivations provided by States in order to be involved in risky
ventures
• This does not mean necessarily creation of new legal instrument, as
questions of responsibility and liability from ADR missions can be
resolved under principles and case law of public international law
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THANK YOU FOR
YOUR ATTENTION
WWW.S-3.CH
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