Liability issues of Active Debris Removal
and On Orbit Servicing
Tanja Masson-Zwaan, IIASL Leiden
Montreal, 17 March 2015
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The problem: sustainability
• Kessler syndrome: cascade effect of
colliding objects in space, in a cycle that
will eventually become self-sustaining
• Collisions may occur even without launch
of new space objects
• Need to remove objects to halt/revert
cascade effect (ADR)
• Technology could also be used to increase
lifetime of objects in space (OOS)
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Some legal issues of debris
• No definition of space object
• Dead satellite? Malfunctioning?
• Liability: Collision: fault/ Crash: absolute
• Should state remain liable if it can’t control?
• Responsibility, Registration: jurisdiction, control
• What if a satellite in space is sold to a foreign
company?
• No explicit rules on debris in treaties, term not
mentioned
• Mainly art. IX OST but more directed at
contamination of space
• IADC & UN Space Debris Mitigation Guidelines
• Not legally binding,‘guidelines’
• Do not really address remediation (ADR)
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Specific legal issues: ADR/OOS
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Is it illegal to create debris?
Is there an obligation to clean up debris?
What if wrong satellite is picked up?
What if removal causes damage to other
objects/persons in space, on earth, in air?
Is consent/permission of owner needed for
removal by third party?
Is initial launching state liable, even if it had
nothing to do with removal?
Who pays? (fund? polluter pays?)
Who owns recovered parts?
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Difference mitigation-remediation
• Mitigation: moderate, alleviate
• i.e. not create any new debris by means of
standards and guidelines in materials, reentry etc.
• Remediation: correcting a fault or
deficiency
• i.e. reducing the current debris population
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Purposes of ADR
• Remove non-functional objects from
space
• In GSO: by moving them up to a graveyard
orbit
• In LEO: by bringing them down for a
controlled re-entry into earth’s atmosphere
• Various means such as nets, harpoons,
‘janitor’ satellites, balloons, tethers…
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Purposes of OOS
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Refuel
Repair
Refurbish (upgrade) outdated parts
Recycle parts from old to new satellites
Relocate to new orbital slot/orbit
Maintain orbit
Rescue from harm/incorrect placement
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(Dis-)Advantages of OOS
• Advantages of OOS
• Extend mission life
• Maximize asset value
• Remove potentially dangerous objects in
orbit
• Disadvantages of OOS
• Technological advances outpace usefulness
• One size does not fit all
• Cost of liability may outweigh benefits
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Possible show stoppers ADR/OOS
• Cost
• Technology
• Security
• Many technologies could be considered as
weapons, aggression (lasers, etc.)
• Satellite technology if salvaged can fall in hands
of a foreign state or company
• An object that can bring back a dead satellite
could also catch a functional one
• Political will
• Not yet an acute problem, it may have to get
worse before it gets better
• Legal issues
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Risks for entrepreneurs
• Damage to satellite and/or service vehicle
• Loss of contractual partner’s property &
capital
• Loss of third-party property
• Interference with third-party rights
• Creation of additional debris
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Risk management
• Beforehand
• Insurance
• Contractual risk allocation
• Adherence to pre-launch licensing
regulations of launching state
• Adherence to pre-launch or pre-servicing
licensing regulations of registration state
• Afterward
• Claims under international treaties
• Claims to international tribunals
• Claims under national law
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Analogy: maritime salvage
• In the past, abandoned ships on high seas
became res nullius, salvagers obtained
ownership
• Now, ownership remains but remuneration
• Owner can be charged to remove; e.g. oil spills
• 1989 Int. Convention on Salvage (IMO, in
force ’96), not applicable on high seas, so
analogy with space is limited
• 2007 Nairobi Int. Convention on the Removal
of Wrecks (IMO, not in force)  compulsory
insurance to cover salvage cost
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Analogy: Environmental law
• Trail smelter arbitration
1939
• Obligation to prevent
reduce and control
environmental harm
• Corfu Channel case
1940
• Not knowingly allow
territory to be used for
acts contrary to rights of
other states
• Cosmos 954, 1978
• Ad hoc settlement
• Stockholm, Rio
Declarations
• Advisory opinion on
nuclear weapons 1996
• General obligation to
respect int. environment
• Pulpmill case, 2010
• “EIAs”
• Gradually emerging:
• Legal obligation to
protect environment and
to remediate damage
caused
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Developing custom, law?
• Activities may become rule of customary law:
• ‘A state may remove a space object it registered
by means of another of its space objects without
objection by other states’ ?
• States could include in their national
licensing requirements rules to assure ADR
• New international instrument?
• Soft law?
• Compliance verification needed? (how?)
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National/international solution?
• Cost & technology suggest international
solution
• But military & security issues may prevent that
• International authority to collect funds and
decide about mission targets to be removed
by licensed entities?
• Depends on political will
• Could also be a national company, operating
like a bounty hunter, catching satellites of
that state only, for the government, and
perhaps later for objects of allies?
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Conclusion
• Remediation is the next step, after mitigation; not yet
crucial, no catastrophic event yet
• Technologically possible
• Can lead to reversing the process (Kessler)
• Financial, security, military, cost implications, + legal

• Need for clarification of legal issues such as
ownership, liability, permission, duty, payment etc.
• Through int. cooperation, management, clean up
fund, licensed salvage, or start with national projects,
developing custom
• Consider analogies & lessons learned: salvage,
DeepwaterHorizon
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Conclusion
• Remediation is the next step, after
mitigation; not yet crucial, no catastrophic
event yet
• Technologically possible
• Financial, security implications
• Many legal issues such as ownership,
liability, need for permission, payment etc.
• Solve via int. cooperation, clean up fund,
licensed salvagers; or start with national
projects, develop custom
• Consider analogies, to some extent
• Eventually need to ensure sustainability!
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Thank you
www.iiasl.aero
t.l.masson@law.leidenuniv.nl
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