Legal risk management in the NASA-Uganda satellite launch

This week, Uganda is scheduled to launch its first satellite into space on 7^th November, 2022 after the initial launch scheduled on 6^th November, 2022 was rescheduled due to a fire alarm at the mission operations control centre in Dulles, Virginia USA. 

The satellite, PearlAfricaSat-1, is a 1U CubeSat and will launch into space as part of the BIRDS-5 constellation, which also includes a 2U CubeSat from Japan. A CubeSat is a type of small satellite based around a form factor consisting of 10 cm (3.9 inch) cubes and have a mass of no more than 2 kg per unit. They commonly use commercial off-the-shelf components/parts for their electronics and structure.

Generally, the satellites will launch as beneficiary projects of the Joint Global Multi-Nations Birds Satellite project, an initiative of the Japanese Space Agency (JAXA) and the Kyushu Institute of Technology (Kyutech) at the Mid-Atlantic Regional Spaceport at NASA’s Wallops Flight Facility aboard the Northrop Grumman (NG-18 Cygnus) commercial cargo resupply services to the International Space Station (ISS) on behalf of the National Aeronautics and Space Administration (NASA), an independent agency of the US federal government responsible for the civil space program, aeronautics research, and space research.

Such space activities are regulated by both national and international law. Space law has become one of the fastest growing disciplines due increasing global interest in space research and commercialization. It is a complex body of laws comprising of international agreements, treaties, conventions, and United Nations General Assembly resolutions as well as rules and regulations of international organizations.

From an administrative perspective, there are five international treaties underpinning space law, overseen by the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS). These are;

1. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (The Outer Space Treaty) of 1967, which is the foundation or “Magna Carta” of international space law providing that pace activities are for the benefit of all nations, and any country is free to explore orbit and beyond. Uganda acceded to this treaty on 24 April, 1968.
2. The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (The Rescue Agreement) of 1968, which governs rights and obligations of states concerning the rescue of persons in space.
3. The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (The Moon Agreement) of 1979, which bans any military use of celestial bodies, including weapon testing, nuclear weapons in the orbit, or military bases. The use of military personnel for scientific research or for any other peaceful purposes is exempted. The treaty further provides a framework of laws to establish an international cooperation regime and procedures to govern the responsible exploitation of natural resources of the Moon/lunar materials. To date, this treaty has been signed and/or ratified by only 18 nations – none of which has completed a mission to the Moon. The countries which are most active in space, including the US, Russia, China, Japan, and Germany have all not signed this treaty yet.
4. The Convention on International Liability for Damage Caused by Space Objects (the Space Liability Convention) of 1972, which regulates attribution of liability for damage caused by space objects on the surface of the Earth or to aircraft, and procedures for the settlement of claims for damages.
5. The Convention on Registration of Objects Launched into Outer Space (the Registration Convention) of 1976, which empowers the UN Secretary-General to maintain a register of all space objects.

As highlighted in the above instruments, space programs and activities carry both domestic and international legal risks. The following are the salient legal considerations;

• The launching State (in this Case USA) is absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight. Under the Space Liability Convention, the definition of “launching” includes an attempted launch. The launching State is defined as the State which launches or procures the launching of a space object or the State from whose territory or facility a space object is launched.
• If damage is caused elsewhere than on the surface of the earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible. Damage means loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations. 
• Where two or more States jointly launch a space object, they shall be jointly and severally liable for any damage caused. A launching State which has paid compensation for damage shall have the right to present a claim for indemnification to other participants in the joint launching. The participants in a joint launching may conclude agreements regarding the apportioning among themselves of the financial obligation in respect of which they are jointly and severally liable. 
• The Space Liability Convention will not apply to damage caused by a space object of a launching State to nationals of that launching State and foreign nationals during such time as they are participating in the operation of that space object from the time of its launching or at any stage thereafter until its descent, or during such time as they are in the immediate vicinity of a planned launching or recovery area as the result of an invitation by that launching State. This means that unless otherwise agreed, the Ugandan participants may not obtain protection from any damage arising from the project.
• A State which suffers damage, or whose natural or juridical persons suffer damage may present to a launching State a claim for compensation for the ensuing damage. Such claims are presented through diplomatic channels. In case of non-compliance, the affected state may also present its claim through the Secretary-General of the United Nations, since both Uganda and the USA are Members of the United Nations.
• A claim for compensation for damage must be presented to the launching State not later than one year following the date of the occurrence of the damage. However, where the affected State does not know of the occurrence of the damage, it may present a claim within one year following the date on which it could reasonably be expected to have learned of the damage causing facts through the exercise of due diligence. 
• The compensation which the launching State shall be liable to pay for damage shall be determined in accordance with international law and the principles of justice and equity, in order to provide such reparation in respect of the damage as will restore the person, natural or juridical, State or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred. 
• If no settlement of a claim is arrived at through diplomatic negotiations within one year from the date on which the claimant State notifies the launching State that it has submitted the documentation of its claim, the parties concerned shall establish a Claims Commission at the request of either party. The Claims Commission shall be composed of three members: one appointed by the claimant State, one appointed by the launching State. The third member, (the Chairperson) must be chosen by both parties jointly. Each party must make its appointment within two months of the request for the establishment of the Claims Commission. If no agreement is reached on the choice of the Chairperson within four months of the request for the establishment of the Commission, either party may request the Secretary-General of the United Nations to appoint the Chairperson within a further period of two months.

In a nutshell, more partnerships between the developed and African countries are expected in this field as interest in the space economy expands in commercial, military, research and tourism potential. Proper documentation in terms of risk allocation, ownership rights, and compensation must be executed by the parties involved in joint launches. African expertise and capability is expected to grow alongside further exposure to the applicable legal and regulatory frameworks in this space.

Silver Kayondo is a Ugandan commercial lawyer, aviation and space enthusiast and civilian drones hobbyist.