Space Law in the City of Light

This past Friday I had the good fortune to attend the ECSL[1] Practitioners’ Forum at ESA headquarters in Paris. This is the third Practitioners’ Forum I have attended and they have always proved interesting and informative. This year’s was on the ‘Legal and Regulatory Aspects of Mega-Constellations’. As the Forum is conducted under ‘Chatham House Rules’ I will mostly discuss my thoughts as a result of what was discussed rather than the discussion itself. I also attended part of the ECSL’s Young Lawyer’s Symposium but due to a travel rearrangement brought about by an Air France strike I had to leave early.

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obligatory Eiffel Tower selfie

Mega or large constellations are a rather topical subject at the moment as there are a number of proposals from the likes of Oneweb and SpaceX for the launching of constellations of several hundred or thousand satellites. Although they all mainly seem to be around providing internet access to those parts of the world that still don’t have it (which does beg the question as to whether there is any other reason for a mega constellation…)

There are a number of issues that mega constellations might give rise to, such as the potential exacerbation of the space debris issue, but there are interesting regulatory and insurance issues as well. The current regime is set up for dealing with individual space objects. For example, most regimes require each space object to be registered and insured separately. In the UK there is a requirement for up to €60 million worth of insurance per space object. This is fine for a single satellite or even a constellation of a couple of dozen but would not be viable for a constellation of more than 4000 satellites (as SpaceX are proposing.) One of the potential proposals for mega constellations is allowing them to be registered and insured as a fleet, with, say, a cap of €500 million for the entire constellation. As a space enthusiast, this sounds like a good plan, however as a taxpayer, who is aware that the government would be liable for everything over €500 million, I’m less enthusiastic…[2]

One of the things that came out of this forum for me was that despite all the talk of the need to ‘update’ the Outer Space Treaty perhaps the more urgent need is to update the Registration and Liability Conventions[3]. The regime that was established by those treaties and Articles VII and VIII of the Outer Space Treaty works very well but it is clear they were assuming that a space object would be owned and operated by one state (and again we get into the lack of adequate consideration for commercial entities.) However even without the issues brought about by the possibility of a constellation of 1000 satellites that model doesn’t reflect the reality of today. It isn’t uncommon to find say an American multinational corporation ‘headquartered’ in Luxembourg buying a British built satellite launched on a Russian rocket from France and operated out of Germany (that’s perhaps a tad hyperbolic of an example but still…) Furthermore, it also provides difficulties for intergovernmental organizations like ESA who aren’t able to be the ‘state of registry’ because they’re not a state but a collection of states, so France tends to get the responsibility of being the state of registry (it’s where ESA is headquartered and they tend to launch from French Guiana.)

Mega/large constellations are an interesting topic, they won’t break space law or even prove to be all that much of a challenge but they do raise a number of issues and at the very least it will be an interesting and productive field for many years to come.

As I said above I didn’t get to see much of the Young Lawyers’ Symposium but I did manage to stay for the first session. The theme of the first session was on ‘the Moon Village and Legal Aspects of Space Exploration’. All four of the presentations were good and raised some interesting questions. The two that stuck out for me however were on the notion of a governance regime for the ‘village’ itself [4] and legal issue of 3D printing in space.

One of the issues any type of permanent outposts or settlements is going to encounter is the non-appropriation provision in Article II of the Outer Space Treaty, however that doesn’t mean that space is a lawless vacuum. States retain jurisdiction over their space objects and their laws apply within the space object[5] Furthermore there’s nothing preventing you from building ‘structures’ on any celestial body (indeed Article VIII of the Outer Space Treaty even mentions them specifically) but as this is a topic worthy of its own post (or PhD thesis or book…) I won’t go into too much detail here.

As for 3D printing that also potentially raises issue with the registration and liability regimes as they are based on an object being ‘launched into outer space’. If you 3D print a ‘space object’[6] does it need to be registered? Or is it a component part of the space object contacting the 3D printer? What if the 3D printed object is made out of resources extracted from a celestial body instead of material brought from Earth? What if the 3D printer itself was manufactured in space from space resources? There are also potential non-appropriation related issues around using space resources but that’s better dealt with under a discussion about space mining.

I had a fun and interesting few days in Paris (although I really need to take a non-working trip there sometime soon…) and there were two (well 1 and a third) interesting conferences. I’m of next to the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS/COPUOS) in Vienna, which is always interesting.

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ESA HQ selfie

[1]European Centre for Space Law, http://www.esa.int/About_Us/ECSL_European_Centre_for_Space_Law

[2]Under space law states are responsible for the actions of their nationals in space and are liable for potentially unlimited damages as a result, hence the strict licencing and insurance requirements (see the Outer Space Treaty and Liability Conventions for more details).

[3]http://www.unoosa.org/res/oosadoc/data/documents/2013/stspace/stspace61_0_html/st_space_61E.pdf (Registration Convention starts on page 19 of document, 25 of PDF, Liability page 11/17)

[4]Which is a pet project of ESA’s Director General, if by chance you’ve managed to not hear about it, you can read about it here http://blogs.esa.int/janwoerner/2016/11/23/moon-village/ (and there’s plenty more about it if you google Moon Village)

[5]It’s kind of like ships at sea, but my PhD supervisor, Chris Newman, has written a good article on the topic here

[6]A term that actually lacks a formal definition though there are plenty of adequate informal ones and there’s not that much controversy about what it actually means (i.e. a human made object), but again a topic worthy of its own post…

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