Toward the International Regime for Space Traffic Management -What to Fix the Current International Regulations- Yu Takeuchi *The view expressed herein are entirely those of the author in his personal capacity and do not reflect those of JAXA or Japanese government by any means.

CONTENTS 1. Realizing International STM Regime 2. Issues on Current International Space Law (1) Applicable in Outer Space or Air Space? (2) Applicable to Space Object? (3) Responsible State for STM (4) How to Remove Space Debris? (5) Regulating Suborbital Spaceflights

1. Realizing International STM Regime International space law has been maintaining the same configuration since 1960’s, despite the efforts of pursuing to maintain sustainable space activities by space law. Efforts to promote a new legislation facing to a deadlock situation in the existing negotiation organizations. Soft laws’ effects are limited to promote international cooperation for mutual understanding, address the problem, or suggest development of new regime. Creating an international regime for realizing the concept of STM will resolve the current issues of congested, contested and competing situation of outer space activities. International space law should be modified aligned with the modern space activities in order to reach international regime for STM. NASA

2. Issues on Current International Space Law (1) Applicable in Outer Space or Airspace? Most of the space-faring nations: “wait-and-see” approach No practical problems because of this ambiguity. But remains the fundamental problem in regulating space activities However, it will become crucial for suborbital spaceflight = since it flies through both air and outer space. In planning active space debris removal, demarcation of air and space may affect applicable safety standards. In controlling space activities, the regulation should identify whether the applicable law should be air law, space law, or both, and to what extent. The time has come to go forward in terms of the developing variation of space activities.

(1) Applicable in Outer Space or Airspace?- cont. Delimitation issue has been relativized: it is realistic to understand that outer space is a hybrid meaning of spatialist and functionalist approaches. Merit of spatialist approach: clear differentiation between air space and outer space. Also useful to classify military activity within the regulation of one area or the other. Spatialist approach would allow specifying the applicable law just based on the area of its activities, whatever nature the object or activity may retain.

(1) Applicable in Outer Space or Airspace?- cont. Functionalist approach: require close observation of the activity’s function = might be problematic to recognize only from the external form of the activity. However, it is impossible to gain visual images of a spacecraft during its flight in outer space since it is only tracked by data. This approach may also have the flexibility of allowing any other category of spacecraft or space activities within space regulations such as low altitude satellites or suborbital flights.

(2) Applicable to Space Object? “Space object”: the term of ‘space object’ includes component parts of a space object as well as its launch vehicle and parts thereof… (Liability Convention, Registration Convention, Outer Space Treaty §7 & 8.) Art. 6 of Outer Space Treaty : stating the general responsibility of the State for space activities. → the subject matter designated by “space object” is a dedicated description for the liability and registration systems, which are only a part of international space law.

(2) Applicable to Space Object? From the STM viewpoint, it is practical to disconnect the subject matter of STM from space objects and focus on “space traffic”. “Space traffic”: manageable traffic flow located outside of air traffic control. STM regime can exist as a parallel regime of the existing liability regime of international space law. The result of interference to a space “object” can be subject to the liability regime, interference to space “traffic” may not be subject to the liability regime unless specified to do so in the STM regime.

(3) Responsible State for STM Understanding “authorization and continuing supervision” as dynamic rights and obligations, “jurisdiction and control” as static rights and obligations. Jurisdiction retained by the State of registry (= launching States) would be questioned only in the case of relinquishment of rights over space debris. In the context of STM regime, it should be the appropriate States retaining responsibility as “authority and continuous supervision”. No need to focus on the launching State, but a need to entail certain responsibilities to the “appropriate States”.

(4) How to Remove Space Debris Crucial points : Demarcation between an operational space object and a non-operational space object; Procedure for relinquish the rights over non-operational object. Avoiding non-operational (uncontrollable) objects is given a higher priority. International STM regime should ensure that the relinquishing of jurisdiction and control by the State should be extremely confined in certain conditions.

Hybrid type activity should be regulated by both air and space law. (5) Regulating Suborbital Spaceflight Important to recognize suborbital spacecraft as “potential space traffic”. Space tourism is a hybrid type of air and space activities which should be regulated in both ways. It is, of course, more desirable to establish a new category rather than to forcibly regulate through a set of existing regulations. But the current political circumstances do not allow a new establishment of legal regulation. Hybrid type activity should be regulated by both air and space law.

Thank you JAXA Please send questions to Takeuchi.yu@jaxa.jp 12