Legal aspects of small satellites Guest lecture University of Luxembourg

1. Legal aspects of small satellitesGuest lecture University of Luxembourg Tanja Masson-Zwaan, Dep. Director IIASL 28 April 2015

2. Benefits & Concerns • Benefits of small satellites (<1000 kg) • Low Cost: accessible to all, incl. developing countries • Platform for scientific research/education • Technology demonstration • Standardization allows international cooperation • Concerns • Collision risk in LEO, debris • Considerable risk: non-manoeuvrable oncein orbit • Damage upon re-entry • Very low probability, will burn up • New actors, lack of experience

3. International space law • UN Committee on the Peaceful Uses of Outer Space • 2 sub-committees • Scientific/Technical • Legal • 5 Treaties, sets of principles, resolutions • Works by consensus • Membership now 70+

4. Legal instruments • Outer Space Treaty 1967 (OST)* • Rescue Agreement 1968 • Liability Convention 1972* • Registration Convention 1975* • Moon Agreement 1979 • + UNGA resolutions (e.g. launching state*, registration*) + sets of principles & guidelines (e.g. debris mitigation*) * of main relevance for small satellite regulation

5. Relevant provisions • OST Art. VI: international responsibility for national activities in space, also covers private enterprises and individuals • Appropriate state to authorize/supervise • Do many national laws regulate small satellites? • OST Art. VII & LIAB: liability of the launching state for damage caused by its space object • Interpretation of ‘procure the launch’ • Are small satellites space objects? • If damage in space: can fault be proven?

6. Relevant provisions (2) • OST Art. VIII & REG: state of registry retains jurisdiction & control over object/personnel • Do states register small satellites? • OST Art. IX: International cooperation / due regard for interests of other states, avoid harmful interference • Do small satellites create more or less risk of debris? Can they be de-orbited at end-of-life?

7. Relevant provisions (3) • Also: UN Debris mitigation guidelines 2007 • Limit debris released during normal operations • Minimize potential for breakups during operational phase • Limit probability of accidental collision in orbit • Avoid intentional destruction /other harmful activities • Minimize potential for post-mission break-ups resulting from stored energy • Limit long-term presence in LEO after end of mission • Limit long-term interference with GEO after end of mission • Based on IADC guidelines, not legally binding • Implemented in national laws

8. Implementation: national law • Private commercial space activity growing • Must be authorized & supervised • e.g. via national legislation (not obligatory) • More and more states have national space legislation with licensing system: • In Europe: Sweden (very basic), UK, Belgium, Netherlands, France, Austria • Also in North America, Asia Pacific etc. • States without legislation must also authorize & supervise

9. UN work on national legislation • 2009-2013: Working Group on NSL • Set of recommendations for states • A/RES/68/74 of 11 Dec. 2013 • Schematic overview: • http://www.oosa.unvienna.org/pdf/limited/c2/AC105_C2_2013_CRP07E.pdf • Database of NSL: • http://www.oosa.unvienna.org/oosa/en/SpaceLaw/national/state-index.html •  Please add the Indonesian law!

10. UN recommendations 1-4 • Scope: launch/return, operation of sites, in orbit operation,… • Establish jurisdiction over activities on territory, & authorize/supervise activities elsewhere of nationals, avoid duplication • Clarity about entity, conditions & procedures for authorization • Consistent with treaty obligations • May reflect nat’l security & foreign policy interests; • Ensure safety, • Consider experience/expertise of applicant; • Take into account debris mitigation guidelines

11. UN recommendations 5-8 • Procedures for supervision • e.g. on-site inspection, penalties, revocation etc. • National registry, request info on becoming non-functional • Recourse in case of liability, insurance requirements, indemnification procedures • Require authorization for transfer of ownership in orbit, info on change of status

12. Small satellites & space treaties • The treaties make no distinction in size • They speak about ‘space objects’… • More or less risk than larger satellites? • They will mostly burn up upon re-entry • They may collide in orbit, but fault liability • Operators are not familiar with regulations • There is no affordable insurance product • Need to be authorized & supervised by appropriate state • Need to be registered, follow ITU procedures

13. Registration: relevant instruments • Res. 1721 B (XVI) 1961 • Res. 1962 (XVIII) 1963 • Outer Space Treaty 1967 • Registration Convention 1975 • Res. 62/101 2007 • UN registration form • UN online index • Res. 68/74 2013 • National legislation/regulations

14. Res. 1721B & Res. 1962 • Res. 1721B • States launching objects may provide information to COPUOS • UNSG to create public registry • Still used as basis for providing information! • Res. 1962 • Principle 7: state of registry retains jurisdiction & control; ownership not affected; objects to be returned when found; info to be provided upon request

15. Outer Space Treaty 1967 • 103 parties, 25 signatories (1/1/2014) • Art. VIII: • State of registry retains jurisdiction & control over object/personnel; ownership not affected; objects to be returned when found; provide info upon request • Art. XI: • States may provide info on nature, conduct, locations, result of space activities • But also Art. VI : • International responsibility for national activities in space, also covers private entities • Appropriate state to authorize/supervise • Basis for national legislation

16. Registration Convention 1975 • 60 parties; 4 signatories; 2 declarations • Defines launching state, space object, state of registry • Compulsory national registration & compulsory international registration • Additional information, end of life • States to assist in identifying object causing damage • IGO may declare acceptance

17. Issues & problems • States provide different information • States register different objects • Vague obligations • States register under different instruments • Several states register • No state registers • Only for objects that reach orbit • Re-entry • Change of ownership

18. Resolution 62/101, 2007 • States to ratify REG (or use Res.1721B); IGO to declare acceptance • Rec’s for harmonization of practices: • Uniform info; additional info; point of contact • Rec’s to achieve most complete registration: • Clarify IGO cases if no decl. of acceptance • State whose territory/facility is used to contact launching states to agree which one will register, if no prior agreement (!!) • Separate registration for each object in joint launches • States to encourage their launch providers to advise owner/operator contact appropriate state about registration (!!)

19. Cont’d • Rec’s in case of transfer of supervision • Requests OOSA to provide model form, provide a website • Recommends states and IGO’s to report on new developments

20. Notifications to OOSA • States may provide information under: • REG: ST/SG/SER.E • Res.1721B: A/AC.105/INF • Other (e.g. Art. V or XI OST): A/AC.105 • Notifications of establishment of national registries • ± 25 states + ESA + Eumetsat

21. OOSA On-line Index • OOSA On-line Index of Objects Launched into Outer Space (under REG & Res. 1721B • Uses names & international designators in the public domain • Names /designators not registered with UN are in [ ] and in green

22. UN registration form • Part A: Information under REG/ Res.1721B • Part B: additional info, Res. 62/101 • e.g. change of status: non-functional, disposal orbit… • Part C: change of supervision, Res. 62/101 • Part D: additional voluntary information • e.g. owner, launch vehicle,… • Annex: instructions, definitions

23. Resolution 68/74, 2013 • Recommends elements for national legislation: • (6) A national registry should be maintained, and operators/owners of objects for which the state is considered the launching state or the responsible state should be asked to provide information to facilitate registration with UN, and ask info on change of status (end of life)

24. Small satellites & registration • Do states register small satellites? • Case: The Netherlands • Has a register with 2 sub-registries: • UN part: objects for which NL is state of registry (Art. II REG) (=empty) • National part: objects for which NL is responsible (Art. VI), has jurisdiction & control (Art. VIII), but is not launching State

25. Cont’d • NL does not consider itself the launching state of small satellites of private entities (e.g. Isis, TU Delft) as procuring state • Only applies to state procurement • So, small satellites of Isis, TU Delft will only be registered in the national part, not the UN part of the registry (art. VI VIII) • NL does consider itself as the responsible state, jurisdiction & control (licenses!)

26. Clarification • The Netherlands is not trying to escape its obligations, but believes bilateral agreements should be concluded to determine which state should be considered the launching state for which part of a launch operation • Discussions are currently underway for the first such agreement

27. Registration: practice of launchers • Launch service providers increasingly require registration as condition for launch • Remember Res. 62/101: Launch providers to contact appropriate state about registration • Case: The Netherlands • NL will provide a letter saying the object will be registered in the national part • Will this be enough? • Who will register such objects with the UN?

28. Authorization & supervision • Initially: 100% state-oriented character • With on-going privatization, link needed between private entities & states’ treaty obligations • 1967 Outer Space Treaty: authorization & continuous supervision by the appropriate state (Article VI) • Often implemented in national law

29. Authorization of whom? • Activities by ‘non-governmental entities’ • Private companies • Universities • Individuals • The state is responsible for their behavior

30. Authorization of what? • ‘National activities in outer space’ must be authorized/supervised • National activities: e.g. on their territory, by their citizens anywhere • In outer space: e.g. launching, operating and tracking (small) satellites • The state decides

31. Authorization by whom? • ‘Appropriate State’ • Nationality of the entity/person • Place of incorporation, headquarters • State that exercises jurisdiction/control • So it is possible that several licenses are needed! • Delegated to e.g. Ministry of economic affairs, science, technology, agency,… • The state decides

32. Supervision • Authorization is not all… • Continuous supervision required by treaty • Depending on whether a generic or specific license is issued, supervision will be more or less relevant • Generic license: regular supervision required • License per activity (e.g. launch): supervision less relevant

33. What will usually be checked? • Safety (tech docs to be provided) • Financial health (e.g. annual reports) • Compliance with debris mitigation /environmental standards • Effect on national security/foreign policy • Often a separate procedure for frequency filings, success may be condition for license • Not exhaustive; varies according to needs/customs/policies

34. What will be specified? • Liability conditions (insurance, cap, recourse) • Registration parameters to be provided • Audit procedures/processes • Fees, timing • Conditions for transfer, change of status, revocation, penalties • Not exhaustive; varies according to needs/customs/policies

35. How to apply? • Check which ministry/agency is in charge • Speak with them well in advance! • Some states provide clear guidance, others have less experience in implementing their duties under the treaty • Assemble documentation to be provided • N.B. export control issues! • Submit application • Go through audits • Obtain license

36. Small satellites & authorisation • Do states authorise/supervise small satellites? • Case: The Netherlands • Market study showed use will grow, risks ± same • NL: these satellites are not launched, guided, or operated from NL (not maneuverable) so: • They were not covered by NL Act • No license required, no supervision • January 2015: Administrative measure adopted to broaden scope of Act to ‘unguided’ satellites per 1/7/2015 • They will require license, must buy insurance

37. Availability of insurance? • So far no product on the market • Insurance brokers expect a product to be available if demand exists • Special prices may be needed • Sometimes launch + 1 year is covered by launch provider • If stay max 1 year, no extra insurance needed • National authorities will need insight to verify

38. Conclusions • Small satellites are space objects like any other, and must be regulated & registered • Authorize/supervise (license) • Launching states to agree who will register, State whose territory/facility is used to contact others • States to encourage launch providers to advise owner/operator to contact appropriate state • Small satellite operators should review legal issues & obligations • States should create awareness /build capacity on regulations in small satellite community

39. Capacity building examples • Owners/operators of small satellites often do not know about space law, registration, liability, licenses, insurance, etc. • There is a need to inform, educate them • Workshops, information notices, websites... • ITU Workshop March 2015, Prague Declaration • http://www.itu.int/en/ITU-R/space/workshops/2015-prague-small-sat/Pages/default.aspx • UN Guidance handout, April 2015, • http://www.unoosa.org/oosa/en/COPUOS/lsc/small-sat-handout.html

40. Thank youwww.iiasl.aerowww.iislweb.orgt.l.masson@law.leidenuniv.nl

41. Small satellites & nat. law • Do national laws regulate small satellites? • Case: The Netherlands • Was excluded, as a consequence of definition of ‘space activity’ (‘launch, flight operation or guidance of space objects in outer space’) • ‘wrong’ interpretation of ‘national activities in outer space’?

42. Situation corrected • Administrative measure adopted Jan.’15 • ‘unguided’ satellites will fall in scope of Act per 1 July 2015 • Aim: encourage innovation, interaction education-industry, boost international position of NL in this field • Risk not considered smaller, so similar conditions should apply • Insurance: mention of $20M coverage @ $20K in explanatory note