1. © Swiss Space Systems Holding SA1 LEGAL CHALLENGES FOR THE INDUSTRY IN ACTIVE DEBRIS REMOVAL (ADR) 3rd Manfred Lachs Conference / Montreal 17th March 2015 3rd Manfred Lachs Conference / Montreal, 17th March 2015

2. © Swiss Space Systems Holding SA2 CONTENTS I.Swiss Space System and its mission II.CleanSpace One III.Legal Framework IV.Challenges V.Conclusions

3. © Swiss Space Systems Holding SA3 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. I. SWISS SPACE SYSTEMS AND ITS MISSION

4. © Swiss Space Systems Holding SA4 INNOVATIVE SUB-ORBITAL AIRCRAFT REUSABLE (SOAR)

5. © Swiss Space Systems Holding SA5 TEXTE EXERGUE SOAR: LAUNCH OF CLEANSPACE ONE

6. © Swiss Space Systems Holding SA6  Article IX  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 Purpose: protection of space environment for the exploration and use of outer space but not specific reference to space debris  Article 31(1)  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 exploration and use of outer spaceSpace debris poses hazard to the exploration and use of outer space (fundamental) space debris remediation  Appropriate measure to tackle space debris under Article IX: space debris remediation (ADR) III. LEGAL FRAMEWORK FOR ADR

7. © Swiss Space Systems Holding SA7  Hard Law  Hard Law (nature of the object) Article 1(d) 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  Soft Law (“non-functional” approach) IADC GuidelinesIADC 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 UNCOPUOSUNCOPUOS: “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? IV. CHALLENGES 1. SPACE DEBRIS = SPACE OBJECTS?

8. © Swiss Space Systems Holding SA8 a) International Space Law a) International Space Law ( provided that space debris=space object ) Article VIII 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 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? 2. IS THE ACT OF REMOVING SPACE DEBRIS LEGAL? WHO IS ENTITLED TO REMOVE IT?

9. © Swiss Space Systems Holding SA9 a) International Space Law a) International Space Law (provided that space debris=space object) States: Article VIArticle VI Outer Space Treaty: ‘international responsibility for national activities’ Article VII Article IIIArticle 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 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 3. RESPONSIBILITY AND LIABILITY IN CASE OF DAMAGE CAUSED DURING ADR OPERATION

10. © Swiss Space Systems Holding SA10 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 V. CONCLUSIONS

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12. © Swiss Space Systems Holding SA12