1. Discover the world at Leiden University Liability issues of Active Debris Removal and On Orbit Servicing Tanja Masson-Zwaan, IIASL LeidenMontreal, 17 March 2015

2. Discover the world at Leiden University 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) 2

3. Discover the world at Leiden University 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) 3

4. Discover the world at Leiden University Specific legal issues: ADR/OOS 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? 4

5. Discover the world at Leiden University Difference mitigation-remediation Mitigation: moderate, alleviate i.e. not create any new debris by means of standards and guidelines in materials, re- entry etc. Remediation: correcting a fault or deficiency i.e. reducing the current debris population 5

6. Discover the world at Leiden University 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…

7. Discover the world at Leiden University Purposes of OOS Refuel Repair Refurbish (upgrade) outdated parts Recycle parts from old to new satellites Relocate to new orbital slot/orbit Maintain orbit Rescue from harm/incorrect placement 7

8. Discover the world at Leiden University (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

9. Discover the world at Leiden University 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 9

10. Discover the world at Leiden University 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

11. Discover the world at Leiden University 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

12. Discover the world at Leiden University 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 12

13. Discover the world at Leiden University 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 13

14. Discover the world at Leiden University 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?) 14

15. Discover the world at Leiden University 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? 15

16. Discover the world at Leiden University 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 16

17. Discover the world at Leiden University 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! 17

18. Discover the world at Leiden University Thank you www.iiasl.aero t.l.masson@law.leidenuniv.nl www.iiasl.aero t.l.masson@law.leidenuniv.nl