NEO CONFERENCE - International/domestic law and NEOs

The morning sessions of the second day of the NEO Conference being held at the University of Nebraska Lincoln focused on legal issues related to NEOs.

Dr. Maureen Williams (Professor of International Law at the University of Buenos Aires), Dr. Frans von der Dunk (Professor of Space Law at the University of Nebraska Lincoln) and Leslie Tennen (Attorney at Law for Sterns & Tennen) each described legal concerns from the international perspective. Among the more interesting subjects discussed was the international legal considerations of private-public interaction of dealing with NEOs. For example, how might private entities dedicated to mining asteroid resources work with governmental agencies or the UN when it comes to NEO detection and deflection requirements.

Joanne Gabrynowicz (Director of the National Center for Remote Sensing, Air and Space Law at the University of Mississippi) followed with a talk on US domestic law and regulation relevant to exploiting NEOs, especially focusing on the current state of the law. Areas within the space industry that serve as important inputs to NEO legal considerations include launch, remote sensing and tourism markets, which all require some sort of licensing regime (FAA for commercial launch and suborbital vehicles, and NOAA for commercial remote sensing). NEO regulation, which does not exist currently, will be informed by these other industries, at least at the beginning.

Gabrynowicz also pointed out the importance of looking to international law to inform how the US might deal with NEO regulation. She also discussed liability, a major issue related to insurance, for example. There is much that already exists in terms of US tort law that can be used as a basis for figuring out how liability might be applied to NEO regulation, which applies especially if a NEO deflection effort fails. In her discussion, she pointed out that in the legal community, "commercial" and "private" are not interchangeable, and that contracts will need to be very precise in terms of apportionment, joint and several liability, and indemnification, among other things. Definitions on nature of the risk will also need to be clearly defined; is NEO deflection an "ultra-hazardous" activity, for example? Informing the answer to this question is the fact that NEO deflection is an "uncommon activity."

Government contractor defense was also discussed as an issue of importance in NEO regulation; that is, if a contractor follows the letter of a contract and something goes wrong, they are not liable, the government is. Malfeasance, misconduct, or any criminal act are exceptions, of course. Gabrynowicz pointed out that there is no defined minimum care owed under "best efforts" standards when it comes to NEO detection and deflection. Other issues highlighted: Can government space operations using nuclear material be enjoined? The US is not liable for on-duty injury of military negligence of others in the armed forces - will this be an issue in NEO regulation? The US Government is also strictly liable for harm caused by defective raw data - something definitely an issue when it comes to NEO detection. Can individuals or companies claim celestial bodies (the US State Department says no, according to at least one official statement)? Does the "Good Samaritan" doctrine apply? Is US mining law relevant when it comes to NEO regulation? What of environmental law, military-civilian cooperation, humanitarian legal obligations, US Government responsibility regarding public health and safety, and national jurisdiction relative to legal commons? Much work clearly remains beyond the significant technical challenges.