The next panel of the day was titled Managing Launch Risks: A Comparative Look and included:
Moderator: Franceska Schroeder, Principal, Fish and Richardson
Panelists: Patricia Hynes, Director, New Mexico Space Grant Consortium; Laura Montgomery, Senior Attorney for Commercial Space Transportation, FAA; Clay Mowry, President Arianespace, Inc.; Tom Tshudy, Vice President and General Counsel, International Launch Services, Inc.
Key points:
- Montgomery – FAA’s role is to manage safety and financial risks; Safety: safety of the public and people on board spacecraft as of 2015; financial front: insurance, waivers of liability, and indemnification for launch providers up to a point; this is calculated by using maximum probable loss to determine the amount of insurance a launch service should buy; FAA also allows for cross waivers of liability between launch service provider, customers (these are payload operators not space flight participants), and the government; there is a reason for the distinction between space flight participants and passengers, participants are taking on risk; moratorium on regulation of SFP ends in 2015; no cross waiver between SFP and launch operators (this is different from the non-human space flight operators); state legislation does a variety of things
- Mowry: Arianespace is a French company that is a launch service provider that answers to CNES as France is the launching state; CNES was formed under French law which governs launch insurance and indemnification; safety is taken very seriously at launch site; claims up to about €60 million receive indemnification from France and that provision has no sunset provision as does the US law; insurance: responsibility for payload begins when launch system begins to leave the launch pad and lasts until payload is let go in orbit, during launch phase there is launch insurance to cover a catastrophic event; payload operators can get this insurance on the market or can wrap it into launch contract; continuation of US indemnification is important to all launch providers as it helps to stabilize the insurance market; Soyuz is being flown out of French Guiana, but the ones that are being launched out of French Guiana are not set up to launch humans and would require modification; human space flight is well in the future for Arianespace
-Tshudy: ILS sells launches on the Russian Proton rocket out of Kazakhstan; need to make launches affordable and the liability regime that governments support is key in making this work; third party liability insurance also helps to reduce risk as well as cross waivers of liability; ILS not pursuing human space flight; US system of indemnification with one year extensions makes it difficult for launch service providers to plan
- Hynes: commercial space transportation community is a growth community; industry is moving to a consumer space industry; new platforms take lots of time to develop and includes risk as well as reward; above airspace is opportunity; space is a new transportation that is evolving with a bevy of legal issues that create opportunities for lawyers; New Mexico informed consent regulation: extends down to manufacturer of vehicle, requires providers to show certificate of insurance, sunsets in 2021; informed consent law is very important in keeping anchor tenant, Virgin Galactic, at Spaceport America
The second panel of the day was titled Key Legislative Issues for the Aviation Community – Will 2013 be any Different?. This panel included:
Moderators: Paul Doerrer, Principle, the Doerer Group / Jeff Sural, Counsel, Alston and Bird
Panelists: Holly Woodruff Lyons, House Transport/Aviation Subcommittee (R); Rich Swayze, Senate Commerce/ Aviation Subcommittee (D); Bailey Edwards, Senate Commerce/ Aviation Subcommittee (R)
Key points made by the panelists included:
- Priorities: FAA reauthorization Act, Boeing 787, safety oversight, Nextgen, small community air services
- Sequestration: means cuts and cuts are hard; FAA needs to be creative and move costs so as to not effect employment costs and avoid furloughs; concerns on how it is going to affect Nextgen going forward; information has not been forthcoming from the administration on how sequestration is going to affect aviation
-Sequestration and contracts: legal ramifications of cutting costs in contracting are unclear
- last year’s reauthorization bill: FAA has made a lot of progress in meeting rule making deadlines from Reauthorization Act and other bills, but there has been lack of progress in other ares such as UAS; while there has been slow movement in some areas those are generally not in priority areas, but they were ambitious deadlines and in general the bill has been a great success.
- Nextgen: committees role is to create good healthy oversights; growing frustration in Congress that funding is there but that FAA has not yet completed the task; but don’t forget that some progress has been made; IG has said that the FAA has had a hard time making the policy decisions to push the technology forward; there needs to be a person in charge of Nextgen, but that no one has been placed in that post; equipage issue – costs are supposed to be recouped by the savings, several policy solutions being looked at to encourage equipage
- Safety issues and Boeing 787: there has been a lot of mischaracterization of the certification process and FAA needs to be better at educating the public; it is not a self certification process; the 787 was new technology; the process itself is not the problem, but improvements can be made; the process is being streamlined and the 787 will be information that is used in this process
- Airports: issues with collecting the PFC; view is that it is a local fee and that burden can be shifted off the airlines
- UAS: privacy was never mentioned during the legislative process so everyone was surprised when it became an issue; because FAA has the mandate on UAS they have to deal with UAS; FAA has privacy policy for the test ranges and privacy impacts at those ranges will be important data; FAA will be looking at the technical issues of safe integration into national airspace
- US Airways and American merger: committee interest in making sure that consumers are protected in the process; ensure that competition is preserved; there is a process that the merger must go through that will give it full review; impact on local communities will be important
Res Communis is blogging from the ABA Forum on Air and Space Law’s Update Conference in Washington, D.C. today. Michael Huerta, Administrator of the Federal Aviation Administration, gave the opening keynote speech. His key points were:
- Goal is to improve safety by leveraging technology. Last year’s reauthorization was key to this.
- Sequestration is looming and creates a challenge as the FAA as it must cut $627 million under the terms of sequestration; furloughs and other cost saving measures are being considered, but this will cause delays in major cities that will ripple across the country; several smaller airports might be forced to close. No new projects.
- currently no FY13 budget as of yet
- safety is the number one goal. Boeing 787: working around the clock to review and work on the battery issues. It will not be allowed to return to service until it can be flown safely
- FAA is finalizing rules on pilot rest, hours flown, and training for flight crews.
- new technology: working to integrate UAS into domestic airspace. New test sites be used to to collect data and taking comments from public to address privacy concerns and site operators will be required to respect right to privacy.
- commercial space launches: also working to integrate these into the national airspace. Partnership with NASA: FAA public safety; NASA flight crew safety.
- Aviation is the nations largest export industry.
- legal aspects in everything that the FAA does.
- air and space lawyers need to work collaboratively and creatively to take safety to the next level.
The final panel of the Seventh Galloway Symposium was moderated by Prof. Joanne Irene Gabrynowicz and was titled Practitioners’ Roundtable: Working With and Serving the Day-to-Day Legal Needs of Regional and Global Space Organizations.
Participants included Marco Ferrazzani, ESA Legal Counsel, Head of Legal Department, European Space Agency Headquarters; Dr. Tare Brisibe, Chair LSC UNCOPUOS; E. Jason Steptoe, Associate General Counsel, International Law Practice Group, NASA Headquarters, Washington, DC; Stephen E. Smith, Sherman & Howard, Space Law Practice Group Co-Chair; and Dennis Burnett, Vice President Trade Policy and Export Control, EADS North America.
This round table discussion covered a wide range of topics in a lively conversation. The starting point for the conversation was advice for young lawyers on what it takes to become a practitioner in the area. All the panelists agreed that the paths into the field were varied but that core lawyering skills were a must. The panel then addressed a variety of issues from ITAR to how to advise clients that were engaging in new space activities. The discussion served as a great capstone to the day’s event by highlighting the variety of ways that lawyers interact with space clients and how these interactions can facilitate successful space activities.
The Third panel of the Seventh Galloway Symposium was titled Restructured Organizations: From the Cold War to the Era of Globalization and was chaired by Prof. Corinne Jorgenson, President, Advancing Space and Executive Secretary of the International Institute of Space Law.
Elina Morozova, Head of International and Legal Service of Intersputnik gave the first presentation. She started with a brief history of Intersputnik pointing to its socialist roots and stating that today there are 29 members. Additionally, she said that Intersputnik’s membership is open to any state and that it is a “universal” international organization. She stated that a variety of documents govern Intersputnik, and that it has a three level management structure. This structure consists of the Board, which makes decisions on long term goals and policies; the Operations Committee, which makes operational decisions; and the Directorate, which is the administrative arm of the organization. She noted that Intersputnik was the only international satellite organization that has not privatized, but that it was working to increase cooperation with business through initiatives such as its wholly owned subsidiary Intersputnik Holding, Ltd.
Chris Murphy, Senior Director, Government Affairs of Inmarsat gave the next presentation. He also started with a brief history explaining Inmarsat’s origin’s as a treaty organization in 1979. He said that it privatized in 1999 with its initial public offering in 2005. He stated though that the International Maritime Satellite Organization was created in order to oversee the corporation’s public service obligations. These include continuation of global maritime distress and safety services and support of GMDSS, non discrimination on the basis of nationality, Inmarsat shall seek to serve all areas where there is a need for mobile satellite communications, and fair competition. He stated though that Inmarsat was working on a number of emerging markets including emergency response, telemedicine, and defense.
Richard DalBello, V.P. Legal and Government Affairs of Intelsat General gave the third presentation. He started by noting that there was a common story among the various organizations on the panel that was about the move from the political context to the commercial context. According to DalBello Intelsat General’s roots were in INTELSAT, which was an IGO founded to fulfill the mandate for non-discriminatory access to satellite communications found in UN General Assembly Resolution 1721. He stated that after privatization the International Telecommunication Satellite Organization (ITSO) was formed to over see Intelsat General’s universal service commitments including lifeline services and nondiscriminatory access.
The final presentation was made by Patrick Masambu, Deputy Director General, ITSO, who presented on ITSO, IMSO, and Eutelsat. He noted that these three IGOs had shared histories in that they were all created to monitor previous satellite organizations that had privatized. He said that the challenges involved for these shifts included amending agreements for changed competencies, developing additional legal instruments, and maintaining protection of core services. He also noted there were common issues involved with flexibility in implementing changes and implementation of treaty provisions.
The second panel of the day, Legal Aspects of Organizations with a Space Component, was moderated by Prof. Joanne Irene Gabrynowicz
Barb Ryan, Director General, GEO, presented first on the Group on Earth Observations. She started by stating that GEO was created to develop GEOSS. She said that one of the goals of GEO is to fill gaps in data sets that occur for a variety of reasons. This is accomplished through a variety of mechanisms such as the Data Sharing Principles which encourage open access at minimal cost. The mechanisms, according to Ryan, are usually linked to soft law mechanisms such as Instruments with non-binding principles, informal institutions, and collaborative and coordinated work to maximize benefits. To this end she pointed that the Landsat data available online has been an example of how data can be opened up. She said that online distribution has not only allowed increased access by researchers, but that it has also pressured other countries to allow for open access to data.
The next presentation by Paul F. Ulihir, Director, Board on Research Data and Information, U.S. National Academies, was titled “From Outer Space to Cyberspace: the Evolution of the GEO Datasharing Principles and their Application.” His presentation focused on the dual nature of databases as both public goods and private goods. He stated that pure public goods are no depletable and nonexcludable and that private goods were depletable and excludable. In this respect he noted that databases are nondepletable but are also excludable. Therefore he stated that databases could be called quasi-public goods. He noted that specific legal problems involve copyright issues, but that facts in a database are not copyrightable, but that structures and organizations are copyrightable. He said this area of law is not understood well which often leaves researchers unclear with what to do with databases. He noted that there were several approaches, but endorsed using common use licenses developed by Creative Commons. These licenses, he said, allowed researchers to make data available, but also to reserve some rights in those databases.
The first panel of the day was moderated by Prof. Joanne Irene Gabrynowicz and was titled Founding Agreements of Regional and Global Space Organizations.
The first presenter was Marco Ferranzzani, ESA Legal Counsel, Head of Legal Department, European Space Agency Headquarters who presented on the European Space Agency. He started with a brief history of ESA stating that its genesis was when European States realized that independent space programs would be counterproductive. As a result the ESA Convention was developed in the 1970s and entered into force in 1975. He stated that the convention was innovative in that it allowed the member states to decide how they would participate through a variety of mechanisms. Noting that one of the key purposes of the convention was cooperation and integration, he said the the Convention set out a framework for two types of activities. He stated tha there were mandatory activities. These activities are those in which all member states must participate, and decisions about these are made on a one state, one vote process. On the other hand he said that voluntary activities are those in which member states may choose to participate in. Decisions on these activities are made based on weighted votes taking into account a state’s contribution to a given activity. These decisions are made at the ministerial Council which is the governing body of ESA and then carried out via the auspices of the ESA Secretary General. Ferranzzani concluded by saying that is “fundamental for space activities in Europe and worldwide” and that to this end ESA has developed a number of tools to accomplish international cooperation.
Tare Brisibe, Chair, Legal Subcommittee UNCOPUOs was the second presenter and presented on the United Nations Committee on the Peaceful Uses of Outer Space. He started with a brief history of UNCOPUOS, stating that it began as an ad hoc UN committee in 1958 and was made permanent in 1961. He said that there are currently 71 members. He also noted that there was a historical precedent within the committee for taking its decisions using consensus. Birisibe then stated that space law must be placed in its proper context which is as a branch of international law. He then enumerated several merging principles of space law including the duty of states to ensure sustainable development of natural resources, public participation and access to information and justice, good governance, and integration and legal participation. He stated that these principles were rooted in the traditional sources of international law. Brisibe then gave brief remarks on the agenda items of the Legal Subcommittee including The Status of treaties; Cape Town Convention protocol on space assets; capacity building in space law; the use of nuclear power sources in outer space; definition and delimitation of space; the use of the geostationary orbit; international mechanisms for cooperation; national space law legislation; debris mitigation; and the activities of intergovernmental organizations and nongovernmental organizations.
The Seventh Galloway Symposium opened with welcoming statements from Prof. Joanne Irene Gabrynowicz, Director, National Center for Remote Sensing, Air, and Space Law at the University of Mississippi School of Law; Corinne Jorgenson, Executive Secretary of the International Institute of Space Law; and Dr. Jonathan F. Galloway, Professor of Politics, Emeritus, Lake Forest College.
The welcoming statements were immediately followed by a keynote speech by William H. Gerstenmaier, Associate Administrator for Human Exploration and Operations, NASA. Gerstenmaier’s comments covered the lessons that he as an engineer had learned about the legal aspects of space exploration. He first discussed the International Space Station. He noted that the ISS would not be possible without a great deal of international cooperation which facilitated by the Intergovernmental Agreement, which he characterized as a “tremendous agreement.” He noted that this agreement had many benefits which allowed the partners to work together. He noted that the framework allowed for the development of MOUs among the member states which allows for lower levels of interaction to be negotiated. He said that the agreement avoids the challenge of over specificity, which has allowed it to become an enduring framework by giving partner states the ability to adapt.
He concluded by discussing the Name the Node contest that NASA had to name a node on the ISS. He noted that the contest included a legal disclaimer that gave NASA the ability to name the node regardless of the outcome. However, he stated that as the contest became more popular as a result of the Colbert Report encouraging people to vote to name the node Colbert. In this case he noted that public opinion overtook the law, which was a valuable lesson. He also noted that Stephen Colbert and the Colbert Report were very supportive of the program which allowed for the resolution of the matter by naming the treadmill COLBERT.
Today the National Center on Remote Sensing, Air, and Space Law in conjunction with the International Institute of Space Law is hosting the The Seventh Eilene Galloway Symposium on Critical Issues in Space Law at the Cosmos Club in Washington, D.C. This year’s topic is Global and Regional Space Organizations and the Law. Res Communis will be blogging the event all day, so stay tuned.
It has was a busy week in Naples Italy at the IISL Colloquium on the Law of Outer Space. Res Communis, could barely find time to post amidst all the fantastic papers and events. Here are some of the highlights:
Nandisiri Jasentuliyana Keynote Lecture and 4th Young Scholars Session
The Nandasirir Jesentuliyana Keynote Lecture was delivered by Sergio Marchisio of the Italian National Research Council. The fascinating lecture was on the European Draft Code of Conduct. Marchisio’s talk considered the draft code in context of efforts for “safe, secure, and sustainable” uses of outer space. He stated that the concept of sustainability must be considered in light of Article 3 of the Outer Space Treaty, which requires investigation into general international law. As a result he defined sustainability as use in such a way that allows for both present and future needs. He then went on to explain that there had been several efforts to secure sustainability and that the EU Draft Code of Conduct was one of these efforts.
Marchisio went on to discuss that the code was currently a draft for nonbinding principles, but that the hope was that it would lead to “normative conduct” by states. It is a “self sustained initiative” that is not meant for negotiation at the international forums (UNCOPUOS and the Conference on Disarmament), but that other states have been and will be consulted with. He also noted that the EU doesn’t note see the draft as an alternative to the PPWT which was introduced by China and Russia to the CD. Instead the draft is being viewed as a stepping stone to a future treaty.
Marchisio finished with a discussion of the soft law nature of the draft code. He said that the voluntary nature of the code represented a “joint political commitment” by states that may adopt it in the future. He stated though that his opinion was that once it was adopted it would form something more that a “voluntary” code and achieve what he described as “heightened legality.” He also stated that the code could represent moments of “effective legality.” According to Marchisio, while the draft code cannot derogate legal obligations found elsewhere in international law, an action consistent with the draft code could be presumed to be legal. An action inconsistent with the code, however, would shift the burden of proof of legality to the state committing that action.
Marchisio’ keynote was followed by a variety of papers presented by young scholars as well as a poster paper section for young scholars.
Technical Sessions
The technical sessions this year covered a wide range of material. There were sessions on the intersections of space law with both private international law and public international law. While the public international law session had a wide variety of topics, the session on private international law had a strong focus on the Cape Town Convention’s Space Asset Protocol. There was also a session on Legal evidence from outer space which surveyed a great deal of law involved with this practical topic. The final session was Recent Developments in Space Law, which had a number of presentations investigating the development of national space laws around the globe.
IISL/IAA Scientific-Legal Round Table
This year’s round table was on the topic of Optical Communications. These presentations focused in on the science and technology behind optical communications and how that technology would affect the legal regime. The various speakers disagreed on the amount of law that applies to this emerging technology, which made for a very lively discussion.
Manfred Lachs Space Law Moot Court Competition World Finals
This year the Moot Court Competition saw, for the first time, four regions compete with the addition of the African Region. The final round was between the National & Kapodistrian University of Athens, Greece representing the European Region and the National Law School of India University, Bangalore India representing the Asia-Pacific Region. The world finals were presided over by H.E. Judge Leonid Skotonikov, H.E. Judge Xue Hanqin, and H.E. Judge Joan Donoghue all of the International Court of Justice. The National Law School of India University prevailed in the final round to take home the championship. The team also won the awards for best brief and best oralist. Team members include Vinodini Srinivasan, Viraj Parikh, and Prem Ayyathurai. The team was coached by Dr. Sarasu E. Thomas.
IISl Awards Dinner
The dinner this year was held seaside at the restaurant Zi Teresa. Two awards were given out. The Diederiks-Verschoor award for the best paper by a young scholar was awarded to Olavo de Oliveira Bittencourt Neto for his paper “The Elusive Frontier: Revisiting the Delimitation of Outer Space.”
The Distinguished Service award was given to one of the hardest working women in space law: Corinne Jorgenson. Corinne is the Executive Secretary of the IISL and has been editing the proceedings of the IISL for the past ten years. She works very hard to ensure that the IISL runs smoothly and can complete its mission. She was very deserving of this recognition.
