Unmanned Aerial Vehicles, their use of satellite services and (space) law

1. Unmanned Aerial Vehicles, their use of satellite services and (space) law Frans G. von der Dunk Harvey & Susan Perlman Alumni / Othmer Professor of Space Law University of Nebraska-Lincoln Director, Black Holes B.V. space law & policy consultancy 5th Workshop on Space and Satellite Communication Law Luxembourg, 1 June 2016

2. UAVs and … space law? • Space law = ‘every legal or regulatory regime having a significant impact, even if implicitly or indirectly, on at least one type of space activity or major space application’

3. From one end of the scale…

4. …to the other!

5. Determining the legal regime • ‘Functionalist’: type of operation/technology • Air law: aircraft (operations)  aviation • Space law: space objects involved in space activities • ‘Spatialist’: area of operation • Air law: airspace (national & international) • Space law: outer space – whether per lowest perigee, highest aerodynamic lift or otherwise

6. Applying air law functionally? • Chicago Convention Annexes define ‘aircraft’ • “Any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface”  Anything with wings,anything with rotors, or balloons  UAV = ‘Aircraft without human pilot board’

7. But: ‘aircraft’ in the real world… • Legal regime applicable to aircraft largely based on an (usually unspoken) assumption...

8. ‘Aircraft‘… or ‘space objects’? • Manned operations key to arrangements on safety (crew certification), traffic management (manoeuvrability) & liability arrangements (damage to passengers & cargo)  ‘Space objects’ usually unmanned  Safety, traffic management & liability regimes for them more logical for UAVs?

9. Applying space law functionally? • Liability Convention & Registration Convention define ‘space object’ • Includes component parts & launch vehicle

10. …Both‘aircraft’ and ‘space object’? Virgin Galactic WhiteKnightTwo plus SpaceShipTwo XCOR Lynx

11. But… UAV ≠ ‘space object’ • Definition of ‘space object’ following Liability Convention & Registration Convention extended by inference from Outer Space Treaty & expert opinion: ‘objects launched into outer space’(or at least aiming for outer space)

12. Applying ‘spatialism’? • UAV record altitudes • With rotors 12.5 km • With wings 30 km • Balloon 53 km

13. The Non-Karman line Thomas Gangale, JSD-candidate University of Nebraska-Lincoln

14.  Air law (& other national law)! • Sovereignty over national airspace • Entry into foreign airspace without consent illegal, unless justified as exception under international law • Air navigation/traffic management regimes apply & Laws on privacy, trespassing &interference with property rights, liability, intellectual property rights… • Nationality of state of registration • Freedom of flight only over high seas

15. Space law applicable to UAVs…? Note: red = ‘international space law’

16. In other words: • Current international space law largely relevant to use of satellites to control & guide UAVs • General use within parameters international space law • Outer Space Treaty • Specific use of satellite orbits/orbital slots & satellite frequencies within parameters international satellite communication law – but military satellites excluded • ITU Constitution, Convention & Radio Regulations

17. Outer Space Treaty • Freedom of activities = baseline (Arts. I & II)  Limits by international law only (Art. III) • Use of satellites in accordance with UN Charter, maintenance peace & security, & promotion international cooperation & understanding • UAVs in military service guided by satellites should comply with limits to threat or use of force

18. Use of force in international law • Prohibited in principle against other states • Art. 2(4), UN Charter & customary international law /jus cogens  Limited exceptions • Self-defence as per Art. 51, UN Charter • UN-sanctioned/-mandated; cf. Art. 42, UN Charter • Customary law of self-defence…? • ‘Lesser’ forms of use of force ...?

19. ITU regime • Applies only to frequency usage with international ramifications  incl. satellites & orbit(al slot)s – all else = matter of national law • Satellite frequencies to be allotted/assigned within frequency allocations ITU RR (2012) • Currently no frequency bands explicitly allocated to UAV control & guidance service

20. Space services as per ITU RR? (1) • Art. 1: • 1.23: space operation service: A radiocommunication service concerned exclusively with the operation of spacecraft, in particular space tracking, space telemetry and space telecommand. • 1.25: mobile-satellite service: A radiocommunication service:between mobile earth stations and one or more space stations, or between space stations used by this service (…). This service may also include feeder links necessary for its operation.

21. ? Space services as per ITU RR? (2) • Art. 1, ctd.: • 1.35: aeronautical mobile-satellite service: A mobile-satellite service in which mobile earth stations are located on board aircraft (…). • 1.37: aeronautical mobile-satellite (OR)** service: An aeronautical mobile-satellite service intended for communications, including those relating to flight coordination, primarily outside national and international civil air routes.

22. ? Space services as per ITU RR? (3) • Art. 1, ctd.: • 1.41: radiodetermination-satellite service: A radiocommunication service for the purpose of radiodetermination involving the use of one or more space stations. & 1.9: radiodetermination: The determination of the position, velocity and/or other characteristics of an object, or the obtaining of information relating to these parameters, by means of the propagation properties of radio waves.

23. ? Space services as per ITU RR? (4) • Art. 1, ctd.: • 1.43: radionavigation-satellite service: A radiodetermination-satellite service used for the purpose of radionavigation. & 1.46: aeronautical radionavigation service: A radionavigation service intended for the benefit and for the safe operation of aircraft. = 1.47: aeronautical radionavigation-satellite service: A radionavigation-satellite service in which earth stations are located on board aircraft.

24. ? ? Space services as per ITU RR? (5) • Art. 1, ctd.: • 1.59: safety service: Any radiocommunication service used permanently or temporarily for the safeguarding of human life and property. • 1.60: special service: A radiocommunication service, not otherwise defined in this Section, carried on exclusively for specific needs of general utility, and not open to public correspondence.  We need a lot more clarity here!

25. +: Space law as model for UAVs…? • UAVs still very much manoeuvrable • At best comparable to manned spacecraft • UAVs need (to be part of) a traffic management system • There is no traffic management system for manned spacecraft – only, marginally, for satellites (= ITU!)  Even in international airspaces, UAVs much more sensibly subjected to ATM…

26. One domestic example…? (1) • US Commercial Space Launch Act does not use the term ‘space object’ but ‘launch vehicle’ • Defined as “(A) a vehicle built to operate in, or place a payload or human beings in, outer space; and (B) a suborbital rocket”.  Authority of FAA Office for Commercial Space Transportation to license applies to all of those

27. One domestic example…? (2)  ‘Experimental permits’ apply to activities not even necessarily themselves aiming for outer space as long as the ultimate goal is to test technologies to be used in outer space  FAA in 2013 licensed high-altitude balloon flights by Paragon aiming at an altitude of ‘only’ 30 km under CSLA…  UAVs?

28. 28