National Space Legislation in Europe (Studies in Space Law)

National Space Legislation in Europe

Studies in Space Law General Editor

F.G. von der Dunk, University of Nebraska-Lincoln, College of Law, Space and Telecommunications Law Program Editorial Board

E. Back Impallomeni, University of Padua S. Freeland, University of Western Sydney J. Gabrynowicz, National Remote Sensing & Space Law Center, University of Mississippi S. Hobe, University of Cologne R. Jakhu, Institute of Air and Space Law, McGill University F. Lyall, University of Aberdeen V.S. Mani, School of Law and Governance, Jaipur National University, Jaipur K.U. Schrogl, Director, European Space Policy Institute (ESPI), Vienna L.J. Smith, Leuphana University, Luneburg

VOLUME 6

National Space Legislation in Europe Issues of Authorisation of Private Space Activities in the Light of Developments in European Space Cooperation

Edited by

Frans G. von der Dunk

LEIDEN • BOSTON 2011

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data National space legislation in Europe : issues of authorisation of private space activities in the light of developments in European space cooperation / edited by Frans G. von der Dunk. p. cm. -- (Studies in space law, ISSN 1871-7659 ; v. 6) Includes index. ISBN 978-90-04-20486-7 (hardback : alk. paper) 1. Space law--European Union countries. 2. Astronautics and state--European Union countries. 3. Outer space--Exploration-Government policy--European Union countries. 4. Space law. I. Dunk, Frans G. von der. KZD1146.E97N38 2011 341.4’7--dc23 2011019524

ISSN 1871-7659 ISBN 978 90 04 20486 7 Copyright 2011 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

Contents Abbreviations����������������������������������尓������������������������������������尓������������������������ vii List of Documents����������������������������������尓������������������������������������尓������������������xi List of Contributors����������������������������������尓������������������������������������尓�������������xxv Foreword����������������������������������尓������������������������������������尓����������������������������� xxxi P. Hulsroj Introduction����������������������������������尓������������������������������������尓�����������������������������1 F.G. von der Dunk 1.╇ The Origins of Authorisation: Article VI of the Outer Space Treaty and International Space Law����������������������������������尓��������������������3 F.G. von der Dunk 2.╇ Brief Overview over National Authorization Mechanisms in Implementation of the un International Space Treaties�������������������29 I. Marboe & F. Hafner 3.╇ Granting Access to Outer Space: Rights and Responsibilities for States and their Citizens – An Alternative Approach to Article VI of the Outer Space Treaty, Notably Through the Belgian Space Legislation����������������������������������尓�����������������������������73 J.F. Mayence 4.╇ Liability and Insurance in the Context of National Authorisation����������������������������������尓������������������������������������尓������������������125 A. Kerrest de Rozavel & F.G. von der Dunk 5.╇ Insurance in the Context of National Authorisation�����������������������163 C. Gaubert

viâ•…â•…Contents ╇ 6.╇Environmental Protection and Space Debris Issues in the Context of Authorisation����������������������������������尓��������������������������������179 R. Tremayne-Smith ╇ 7.╇Safeguarding National Security and Foreign Policy Interests – Aspects of Export Control of Space Material and Technology and Remote Sensing Activities in Outer Space��������189 M. Gerhard & M. Creydt ╇ 8.╇The Issue of National Security in the Context of National Space Legislation – Comparing European and Non-European States����������������������������������尓������������������������������������尓���225 F.G. von der Dunk ╇ 9.╇Space Tourism – The Authorisation of Suborbital Space Transportation����������������������������������尓������������������������������������尓��������������263 M. Gerhard 10.╇Authorisation of Space Activities after the Entry into Force of the eu Reform Treaty����������������������������������尓�����������������������297 B. Schmidt-Tedd 11.╇EU Competition Law and Issues of National Authorisation of Private Space Activities����������������������������������尓�������������������������������323 L.J. Smith Index����������������������������������尓������������������������������������尓������������������������������������尓�359

Abbreviations AEB AECA AEMG AIG AL ASAT AWG AWV BAFA BER BER BERR BIS BIS BNSC CCL CEN CENELEC CFSP CGEA CIEEMG CJEU CNES COCOM

Brazilian Space Agency Arms Export Control Act (US) Autorisation d’Exportation de Matériels de Guerre (France) American International Group German Export List Anti-Satellite weapons Foreign Trade and Payments Act (Germany) Foreign Trade and Payments Regulation (Germany) Federal Office of Economics and Export Control (Germany) Block Exemption Regulation (EU) Body of European Regulators (EU) Department for Business, Enterprise and Regulatory Reform (UK) Bureau of Industry and Security (US) Department for Business, Innovation and Skills (UK) British National Space Centre Commerce Control List (US) European Committee for Standardization European Committee for Electrotechnical Standardization Common Foreign and Security Policy (EU) Community General Export Authorisation (EU) Commission Interministérielle pour l’Etude des Exportations de Matériels de Guerre (France) Court of Justice of the European Union Centre National d’Etudes Spatiales (France) Coordinating Committee for Multilateral Strategic Export Controls

viiiâ•…â•…Abbreviations COPUOS CSA CSG DA DDTC DESO DGTREN DLR EAA EADS EAR EASA EC ECCN ECO ECSL ECSS EEA EGNOS ERA ESA ESOA ESPI ESTEC ETSI EU EUMETSAT EUTELSAT FAA FBI FCC FCO FSTEK GATS GATT GEO

Committee on the Peaceful Uses of Outer Space (UN) Canadian Space Agency Centre Spatial Guyanais Distribution Agreement (US) Directorate of Defense Trade Controls (US) Defence Export Services Organisation (UK) Directorate General for Energy and Transport (EU) German Space Agency Export Administration Act (US) European Aeronautic Defence and Space company Export Administration Regulations (US) European Aviation Safety Agency (EU) European Commission (EU) Export Control Classification Numbers (US) Export Control Organisation (UK) European Centre for Space Law (ESA) European Cooperation for Space Standardisation European Economic Area European Geo-Stationary Overlay System European Research Area (EU) European Space Agency European Satellite Operators Association European Space Policy Institute European Space Research and Technology Centre (ESA) European Telecommunications Standards Institute European Union European Organization for the Exploitation of Meteorological Satellites European Telecommunications Satellite Organization Federal Aviation Administration (US) Federal Bureau of Investigation (US) Federal Communications Commission (US) Foreign and Commonwealth Office (UK) Federal Service for the Technical and Export Control (Russian Federation) General Agreement on Trade in Services General Agreement on Tariffs and Trade Geosynchronous Earth Orbit

Abbreviationsâ•…â•…ix

GMES GNSS GPS GTO IADC ICAO ICJ IGC IGO ILC INMARSAT INSPIRE INTELSAT IPC ISO ISS ITAR ITU LEO LSC MCTL MDE MEO MLA MTCR NASA NATO NBSA NOAA NSAU OAS OFAC OGEL OHB OIEL OMC

Global Monitoring for the Environment and Security Global Navigation Satellite Systems Global Positioning System (US) Geosynchronous Transfer Orbit Inter-Agency Space Debris Coordination Committee International Civil Aviation Organisation International Court of Justice (UN) Inter-Governmental Cooperation (EU) International intergovernmental organization International Law Commission (UN) International Maritime / Mobile Satellite Organization Infrastructure for Spatial Information in the European Community International Telecommunications Satellite Organization Industrial Policy Committee (ESA) International Standardisation Organisation International Space Station International Traffic in Arms Regulations (US) International Telecommunication Union Low Earth Orbit Legal Subcommittee (COPUOS) Military Critical Technology List (US) Major defense equipment Medium Earth Orbit Manufacturing License Agreement (US) Missile Technology Control Regime National Aeronautics and Space Administration (US) North Atlantic Treaty Organization National Board for Space Activities (Sweden) National Oceanographic and Atmospheric Administration (US) National Space Agency of Ukraine Organisation of American States Office of Foreign Asset Control (US) Open General Export License (UK) Orbital High-technology Bremen Open Individual Export License (UK) Open method of coordination (EU)

xâ•…â•…Abbreviations OOSA OPA OSCE OUFTI PAP PCIJ PECS PJCCM

Office for Outer Space Affairs (UN) Off-shore Procurement Agreement (US) Organisation for Security and Cooperation in Europe Orbital Utility For Telecommunication Innovation Preliminary authorisation to proceed (ESA) Permanent Court of International Justice Plan for European Cooperating States (ESA) Police and Judicial Cooperation in Criminal Matters (EU) Public-Private Partnership PPP Public-Regulated Service (Galileo) PRS Specially Designated Nationals (US) SDN Secrétariat Général de la Défense Nationale (France) SGDN SIEL Standard Individual Export License (UK) Space Licensing and Safety Office (Australia) SLASO Significant military equipment SME Small and Medium Enterprises SMEs Satellite Pour l’Observation de la Terre (France) SPOT STSC Scientific and Technical Subcommittee (COPUOS) Technical Assistance Agreement (US) TAA Tender Evaluation Board (ESA) TEB Tender Evaluation Manual (ESA) TEM United Kingdom UK UK Space Agency UKSA United Nations UN UNCOPUOS United Nations Committee for the Peaceful Uses of Outer Space United Nations General Assembly UNGA United States US United States Munitions List USML Warehouse Agreement (US) WA Western European Union WEU Weapon(s) of mass destruction WMD World Trade Organization WTO

List of Documents 1.╇ International Treaties 1944 Chicago Convention: Convention on International Civil AviaÂ� tion, Chicago, done 7 December 1944, entered into force 4 April 1947; 15 UNTS 295; TIAS 1591; 61 Stat. 1180; Cmd. 6614; UKTS 1953 No. 8; ATS 1957 No. 5; icao Doc. 7300. 1945 un Charter: Charter of the United Nations, San Francisco, done 26 June 1945, entered into force 24 October 1945; USTS 993; 24 UST 2225; 59 Stat. 1031; 145 UKTS 805; UKTS 1946 No. 67; Cmd. 6666 & 6711; CTS 1945 No. 7; ATS 1945 No. 1. ╇╛╛• Statute of the International Court of Justice, San Francisco, done 26 June 1945, entered into force 24 October 1945; 156 UNTS 77; USTS 993; 59 Stat. 1031; UKTS 1946 No. 67; ATS 1945 No. 1. 1947 gatt: General Agreement on Tariffs and Trade, Geneva, done 30 October 1947, entered into force 1 January 1948; 55 UNTS 194; TIAS 1700; ATS 1948 No. 23. 1949 North Atlantic Treaty, Brussels, done 4 April 1949, entered into force 24 August 1949; 34 UNTS 243; TIAS No. 1964; 63 Stat. 2241. 1954 weu Treaty: Paris Agreements amending the Brussels Treaty, Paris, done 23 October 1954, entered into force; 211 UNTS 342; UKTS 39 (1955) Cmd. 9498. 1959 Antarctic Treaty, Washington, done 1 December 1959, entered into force 23 June 1961; 402 UNTS 71; TIAS 4780; 12 UST 794; UKTS 1961 No. 97; Cmnd. 913; ATS 1961 No. 12. 1967 Outer Space Treaty: Treaty on Principles Governing the ActiviÂ� ties of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, London/Moscow/ Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967).

xiiâ•…â•…List of Documents 1968 Rescue Agreement: Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, London/Moscow/Washington, done 22 April 1968, entered into force 3 December 1968; 672 UNTS 119; TIAS 6599; 19 UST 7570; UKTS 1969 No. 56; Cmnd. 3786; ATS 1986 No. 8; 7 ILM 151 (1968). 1969 Vienna Convention on the Law of Treaties, Vienna, done 23 May 1969, entered into force 27 January 1980; 1155 UNTS 331; UKTS 1980 No. 58; Cmnd. 4818; ATS 1974 No. 2; 8 ILM 679 (1969). 1971 Agreement Relating to the International Telecommunications Satellite Organization (intelsat), Washington, done 20 August 1971, entered into force 12 February 1973; 1220 UNTS 21; TIAS 7532; 23 UST 3813; UKTS 1973 No. 80; Cmnd. 4799; ATS 1973 No. 6; 10 ILM 909 (1971). ╇╛╛• Operating Agreement Relating to the International Telecommu­ nications Satellite Organization (intelsat), Washington, done 20 August 1971, entered into force 12 February 1973; 1220 UNTS 149; TIAS 7532; 23 UST 4091; UKTS 1973 No. 80; Cmnd. 4799; ATS 1973 No. 6; 10 ILM 946 (1971). 1972 Liability Convention: Convention on International Liability for Damage Caused by Space Objects, London/Moscow/ Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971). 1975 Registration Convention: Convention on Registration of Objects Launched into Outer Space, New York, done 14 January 1975, entered into force 15 September 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975). ╇╛╛• esa Convention: Convention for the Establishment of a European Space Agency, Paris, done 30 May 1975, entered into force 30 October 1980; 14 ILM 864 (1975); Space Law – Basic Legal Documents, C.I.1. 1976 Convention on the International Maritime Satellite Organization (inmarsat), London, done 3 September 1976, entered into force 16 July 1979; 1143 UNTS 105; TIAS 9605; 31 UST 1; UKTS 1979 No. 94; Cmnd. 6822; ATS 1979 No. 10; 15 ILM 1052 (1976). ╇╛╛• Operating Agreement on the International Maritime Satellite Organization (inmarsat), London, done 3 September 1976,

List of Documentsâ•…â•…xiii

1979

1980

1982

╇╛╛•

╇╛╛•

1983

1987 1992 ╇╛╛•

entered into force 16 July 1979; 1143 UNTS 213; TIAS 9605; 31 UST 1; UKTS 1979 No. 94; Cmnd. 6822; ATS 1979 No. 10; 15 ILM 233, 1075 (1976). Moon Agreement: Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, New York, done 18 December 1979, entered into force 11 July 1984; 1363 UNTS 3; ATS 1986 No. 14; 18 ILM 1434 (1979). Arianespace Declaration: Declaration by Certain European Governments Relating to the Ariane Launcher Production Phase, done 14 January 1980, entered into force 15 October 1981; 6 AASL 723 (1981). Renewal done 4 October 1990, entered into force 21 May 1992. Convention Establishing the European Telecommunications Satellite Organization (eutelsat), Paris, done 15 July 1982, entered into force 1 September 1985; Cmnd. 9069; Space Law – Basic Legal Documents, C.II.1. Operating Agreement Relating to the European Telecommu­ nications Satellite Organization (eutelsat), Paris, done 15 July 1982, entered into force 1 September 1985; Cmnd. 9154; Space Law – Basic Legal Documents, C.II.2. un Convention on the Law of the Sea: United Nations ConvenÂ� tion on the Law of the Sea, Montego Bay, done 10 December 1982, entered into force 16 November 1994; 1833 UNTS 3 & 1835 UNTS 261; UKTS 1999 No. 81; Cmnd. 8941; ATS 1994 No. 31; 21 ILM 1261 (1982); S. Treaty Doc. No. 103-39. Convention for the Establishment of a European Organization for the Exploitation of Meteorological Satellites (eumetsat), Geneva, done 24 May 1983, entered into force 19 June 1986; as amended 14 July 1994, entered into force 27 July 1994; Cmnd. 9483; Space Law – Basic Legal Documents, C.III.1; 44 Zeitschrift für Luft- und Weltraumrecht 68 (1995). mtcr Agreement: Agreement on Guidelines for the Transfer of Equipment and Technology Related to Missiles, done 16 April 1987; 26 ILM 599 (1987). Treaty on European Union, Maastricht, done 7 February 1992, entered into force 1 November 1993; 31 ILM 247 (1992); OJ C 191/1 (1992). ec Treaty: Treaty establishing the European Economic Community, Rome, done 25 March 1957, entered into force 1

xivâ•…â•…List of Documents

╇╛╛• ╇╛╛•

╇╛╛• 1993

1994

╇╛╛• ╇╛╛• 1995

╇╛╛•

1997

January 1958; 298 UNTS 11; as amended by the Treaty on European Union, Maastricht, done 7 February 1992, entered into force 1 November 1993; 31 ILM 247 (1992); OJ C 191/1 (1992). eea Agreement: Agreement on the European Economic Area, Oporto, done 2 May 1992, entered into force 1 January 1994; OJ L 1/3 (1994). Chemical Weapons Convention: Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction, New York, done 3 September 1992, entered into force 29 April 1997; 1974 UNTS 45; S. Treaty Doc. No. 103-21. Arianespace Convention: Convention between the European Space Agency and Arianespace, done 24 September 1992. csg Agreement: Agreement between the French government and the European Space Agency with respect to the Centre Spatial Guyanais (csg), 1993–2000. Excerpts French version: 80 esa Bulletin 67 (Nov. 1994). wto Agreement: Agreement Establishing the World Trade Organization, Marrakesh, done 15 April 1994, entered into force 1 January 1995; 1867 UNTS; UKTS 1996 No. 57; ATS 1995 No. 8; 33 ILM 1125, 1144 (1994). gats: General Agreement on Trade in Services, Marrakesh, done 15 April 1994, entered into force 1 January 1995; ATS 1995 No. 8. Agreement on Government Procurement, Marrakesh, done 15 April 1994, entered into force 1 January 1996; 1915 UNTS 103; UKTS 1996 No. 53. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks; New York, done 4 December 1995; entered into force 11 December 2001; ATS 2001 No. 8. Wassenaar Arrangement: Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, Wassenaar, done 19 December 1995, effective 12 July 1996; http://www.wassenaar.org/. Agreement on Telecommunications Services, Geneva, done 15 February 1997, entered into force 5 February 1998; ATS 1998 No. 9; 36 ILM 354 (1997).

List of Documentsâ•…â•…xv

╇╛╛•

1998

1999

2001

2002 2003

2004 2007

╇╛╛•

Treaty of Amsterdam: Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Amsterdam, done 2 October 1997, entered into force 1 May 1999; OJ C 340/73 (1997). Intergovernmental Agreement: Agreement among the GovernÂ� ment of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the  Russian Federation, and the Government of the United States of America concerning Cooperation on the Civil International Space Station, Washington, done 29 January 1998, entered into force 27 March 2001; Space Law – Basic Legal Documents, D.II.4. Montreal Convention: Convention for the Unification of Certain Rules for International Carriage by Air, Montreal, done 28 May 1999, entered into force 4 November 2003; 2242 UNTS 350; icao Doc. 9740; 48 Zeitschrift für Luft- und Weltraumrecht (1999), at 326. Treaty of Nice: Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, Nice, done 26 February 2001, entered into force 1 February 2003; OJ C 80/1 (2001). ec Treaty: Treaty Establishing the European Community (Consolidated Version); OJ C 325/33 (2002). Framework Agreement: Framework Agreement Between the European Community and the European Space Agency, Brussels, done 25 November 2003, entered into force 28 May 2004; OJ L 261/64 (2004); 53 ZLW 89 (2004). Treaty establishing a Constitution for Europe, Rome, done 29 October 2004, not entered into force; OJ C 310/1 (2004). Treaty of Lisbon: Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 306/1 (2007). Consolidated version of the Treaty on European Union: Treaty on European Union as amended by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 115/1 (2009).

xviâ•…â•…List of Documents ╇╛╛•

Treaty on the Functioning of the European Union: Treaty establishing the European Community as amended by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 115/47 (2009).

2.╇ United Nations Resolutions 1963 Principles Declaration: Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, UNGA Res. 1962(XVIII), of 13 December 1963; un Doc. A/AC.105/572/Rev.1, at 37. 1982 Resolution on direct broadcasting: Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, UNGA Res. 37/92, of 10 December 1982; un Doc. A/AC.105/572/Rev.1, at 39. 1986 Resolution on remote sensing: Principles Relating to Remote Sensing of the Earth from Outer Space, UNGA Res. 41/65, of 3 December 1986; un Doc. A/AC.105/572/Rev.1, at 43; 25 ILM 1334 (1986). 1992 Resolution on nuclear power sources: Principles Relevant to the Use of Nuclear Power Sources in Outer Space, UNGA Res. 47/68, of 14 December 1992; un Doc. A/AC.105/572/Rev.1, at 47. 2004 Application of the concept of the “launching State”, UNGA Res. 59/115, of 10 December 2004; un Doc. A/RES/59/115. 2007 Recommendations on enhancing the practice of States and international intergovernmental organizations in registering space objects, UNGA Res. 62/101, of 17 December 2007; un Doc. A/RES/62/101.

3.╇ European Community / European Union Legislation 1988 Commission Directive on competition in the markets in telecommunications terminal equipment (hereafter Directive on Terminal Equipment), 88/301/EEC, of 16 May 1988; OJ L 131/73 (1988).

List of Documentsâ•…â•…xvii

1990 Commission Directive on the competition in the markets of telecommunications services (hereafter Directive on Competition in Telecommunications Services), 90/388/EEC, of 28 June 1990; OJ L 192/10 (1990). 1991 Council Regulation on the harmonization of technical requirements and administrative procedures in the field of civil aviation, (EEC) 3922/91, of 16 December 1991; OJ L 373/4 (1991). 1994 Commission Directive amending Directive 88/301/EEC and Directive 90/388/EEC in particular with regard to satellite communications, 94/46/EC, of 13 October 1994; OJ L 268/15 (1994). ╇╛╛• Council Regulation setting up a Community regime for the control of exports of dual-use goods, No. 3381/94/EC, of 19 December 1994; OJ L 367/1 (1994). ╇╛╛• Council Decision concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986–1994), No. 94/800/EC, of 22 December 1994; OJ L 336/1 (1994). Decision 1997 of the European Parliament and of the Council on a coordinated authorization approach in the field of satellite personal communications systems in the Community, No. 710/97/ ec, of 24 March 1997; OJ L 105/4 (1997). ╇╛╛• Directive of the European Parliament and of the Council on a common framework for general authorizations and individual licenses in the field of telecommunications services, 97/13/EC, of 10 April 1997; OJ L 117/15 (1997). 1998 Directive of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical standards and regulations, 98/34/EC, of 22 June 1998, OJ L 204/37 (1998). 2000 Council Regulation setting up a Community regime for the control of exports of dual-use items and technology, No. 1334/2000/ EC, of 22 June 2000; OJ L 159/1 (2000). ╇╛╛• Commission Regulation on the application of Article 81(3) of the Treaty to categories of research and development agreements, No. 2659/2000/EC, of 29 November 2000; OJ L 304/7 (2000).

xviiiâ•…â•…List of Documents 2002 Council Regulation on the Financial Regulation applicable to the general budget of the European Communities, No. 1605/2002/EC, Euratom, of 25 June 2002; OJ L 248/1 (2002). ╇╛╛• Commission Regulation laying down detailed rules for the implementation of Council Regulation (ec, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, No. 2342/2002/EC, Euratom, of 23 December 2002; OJ L 357/1 (2002). 2003 Commission Regulation laying down implementing rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organizations, No. 1702/2003/ ec, of 24 September 2003; OJ L 243/6 (2003). ╇╛╛• Commission Regulation on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these tasks, No. 2042/2003/EC, of 20 November 2003, OJ L 315/1 (2003). ╇╛╛• Commission Regulation amending Regulation (ec) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary (CPV), No. 2151/2003/ ec, of 16 December 2003; OJ L 329/1 (2003). 2006 Council Regulation amending Regulation (ec, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, No. 1995/2006/EC, Euratom, of 13 December 2006; OJ L 390/1 (2006). 2007 inspire Directive: Directive of the European Parliament and of the Council establishing an Infrastructure for Spatial Information in the European Community (inspire), 2007/2/EC, of 14 March 2007; OJ L 108/1 (2007). 2008 Regulation of the European Parliament and of the Council on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (ec) No 1592/2002 and Directive 2004/36/EC, No. 216/2008/EC, of 20 February 2008; OJ L 79/1 (2008). ╇╛╛• Regulation of the European Parliament and of the Council on common rules in the field of civil aviation security and repealing

List of Documentsâ•…â•…xix

Regulation (ec) No 2320/2002, No. 300/2008/EC, of 11 March 2008; OJ L 97/72 (2008). ╇╛╛• Decision of the European Parliament and of the Council on the selection and authorisation of systems providing mobile satellite services (MSS); No. 626/2008/EC, of 30 June 2008; OJ L 172/15 (2008). ╇╛╛• Regulation of the European Parliament and of the Council on the further implementation of the European satellite navigation programmes (egnos and Galileo), No. 683/2008/EC, of 9 July 2008;?OJ L 196/1 (2008). ╇╛╛• Regulation of the European Parliament and of the Council on common rules for the operation of air services in the Community (Recast), No. 1008/2008/EC, of 24 September 2008; OJ L 293/3 (2008). 2009 Council Regulation setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items, No. 428/2009/EC, of 5 May 2009; OJ L 134/1 (2009). ╇╛╛• Directive of the European Parliament and of the Council simplifying terms and conditions of transfers of defence-related products within the Community, 2009/43/EC, of 6 May 2009; OJ L 146/1 (2009). ╇╛╛• Directive of the European Parliament and of the Council on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC, 2009/81/EC, of 13 July 2009; OJ L 216/76 (2009). ╇╛╛• Commission Regulation amending Directives 2004/17/EC, 2004/18/EC and 2009/81/EC of the European Parliament and of the Council in respect of their application thresholds for the procedures for the award of contracts, No. 1177/2009/EC, of 30 November 2009; OJ L 314/64 (2009).

4.╇ Other key documents European Community / European Union 1987 Green Paper on Telecommunications: Towards a Dynamic European Economy – Green Paper on the Development of

xxâ•…â•…List of Documents the Common Market for Telecommunications Services and EquipÂ�ment, Communication from the Commission, COM(87) 290 final, of 30 June 1987; OJ C 257/1(1987); as per Council ResoluÂ�tion on the development of the common market for telecommunications services and equipment up to 1992, of 30 June 1988, OJ C 257/1 (1988). 1990 Green Paper on Satellite Telecommunications: Towards Europewide systems and services – Green Paper on a common approach in the field of satellite communications in the European Community, Communication from the Commission, COM(90) 490 final, of 20 November 1990.

5.╇ National Legislation (per state) Australia

Belgium

Brazil Canada

France

╇╛╛•

An act about space activities, and for related purposes, No. 123 of 1998, assented to 21 December 1998; National Space Legislation of the World, Vol. I (2001), at 197. Law on the Activities of Launching, Flight Operations or Guidance of Space Objects, 17 September 2005, adopted 28 June 2005; Nationales Weltraumrecht / National Space Law (2008), at 183. Administrative Edict No. 27, 20 June 2001; National Space Legislation of the World, Vol. II (2002), at 377. Remote Sensing Space Systems Act, assented to 25 November 2005; S.C. 2005, c. 45. Remote Sensing Space Systems Regulations, 29 March 2007; SOR/2007-66. Law on Space Operations (Loi relative aux opérations spatiales); Loi n° 2008-518 du 3 juin 2008; 34 Journal of Space Law (2008), at 453; unofficial translation 34 Journal of Space Law (2008), at 453. Decret No. 2009-640 portant application des dispositions prévues au titre VII de la loi no. 2008-518 du 3 juin 2008 relative aux opérations spatiales; Journal officiel de la République Française 10 June 2009.

List of Documentsâ•…â•…xxi

╇╛╛•

Germany

Netherlands

Norway Russian â•…Federation ╇╛╛• ╇╛╛•

South Africa

South Korea

Decree 2009-643: Decret No. 2009-643 relatif aux authorisations délivrées en application de la loi no. 2008-518 du 3 juin 2008 relative aux opérations spatiales; Journal Officiel de la République Française 10 June 2009, text 30 of 154. Act Protecting Against the Endangerment of German  Security Through the Proliferation of High Resolution Aerial Imagery of the Earth (Satellitendatensicherheitsgesetz; Act on Satellite Data Security), 23 November 2007, effective 1 December 2007; Federal Gazette (BGBl.) Year 2007 Part I No. 58, of 28 November 2007. Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry of Space Objects, 24 January 2007; 80 Staatsblad (2007), at 1; Nationales Weltraumrecht / National Space Law (2008), at 201. Act on launching objects from Norwegian territory into outer space, No. 38, 13 June 1969; National Space Legislation of the World, Vol. I (2001), at 286. Law of the Russian Federation on Space Activities, No. 5663-1, 20 August 1993, effective 6 October 1993; National Space Legislation of the World, Vol. I (2001), at 101. Statute on Licensing Space Operations, 2 February 1996. Order of the Government of the Russian Federation On Approval of the Regulation on Licensing of Space Activity, 14 June 2002; National Space Legislation of the World, Vol. II (2002), at 302. Space Affairs Act, 6 September 1993, assented to on 23 June 1993, No. 84 of 1993; Statutes of the Republic of South Africa – Trade and Industry, Issue No. 27, 21-44; National Space Legislation of the World, Vol. I (2001), at 413. Space Development Promotion Act, promulgated 31 May 2005, entered into force 1 December 2005; unofficial translation 33 Journal of Space Law (2007), at 175.

xxiiâ•…â•…List of Documents ╇╛╛•

Sweden

Ukraine United â•…Kingdom United States â•… of America ╇╛╛•

╇╛╛•

╇╛╛• ╇╛╛• ╇╛╛•

Space Liability Act, Law No. 8852, of 21 December 2007; unoosa National Space Law Database, http:// www.oosa.unvienna.org/oosaddb/showDocument .do?documentUid=402&level2=none&node=ROK197 0&level1=countries&cmd=add. Act on Space Activities, 1982: 963, 18 November 1982; National Space Legislation of the World, Vol. I (2001), at 398; Space Law – Basic Legal Documents, E.II.1; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 11. Decree on Space Activities, 1982: 1069; National Space Legislation of the World, Vol. I (2001), at 399; Space Law – Basic Legal Documents, E.II.2; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 11. Law of the Ukraine on Space Activities, No. 502/96VR, 15 November 1996; National Space Legislation of the World, Vol. I (2001), at 36. Outer Space Act, 18 July 1986, 1986 Chapter 38; National Space Legislation of the World, Vol. I (2001), at 293; Space Law – Basic Legal Documents, E.I; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 12. Communications Act, 19 June 1934; 47 U.S.C. 151 (1988); 48 Stat. 1064. National Aeronautics and Space Act, Public Law 85-568, 85th Congress, H.R. 12575, 29 July 1958; as amended through 1983; 72 Stat. 426; Space Law – Basic Legal Documents, E.III.1 (original instalment). Communications Satellite Act, Public Law 87-624, 87th Congress, H.R. 11040, 31 August 1962; 76 Stat. 419; as amended 1978; Space Law – Basic Legal Documents, E.III.2. Arms Export Control Act of 1976, 22 U.S.C. 2751. Export Administration Act of 1979; Public Law 96-72, 96th Congress; 50 U.S.C. 2401; 93 Stat. 503. Land Remote-Sensing Commercialization Act, Public Law 98-365, 98th Congress, H.R. 5155, 17 July 1984; 98 Stat. 451; Space Law – Basic Legal Documents, E.III.4.

List of Documentsâ•…â•…xxiii

â•…â•…â•…â•›• â•…â•…â•…â•›•

â•…â•…â•…â•›• â•…â•…â•…â•›• â•…â•…â•…â•›• â•…â•…â•…â•›• â•…â•…â•…â•›• â•…â•…â•…â•›• â•…â•…â•…â•›• â•…â•…â•…â•›•

Commercial Space Launch Act, Public Law 98-575, 98th Congress, H.R. 3942, 30 October 1984; 98 Stat. 3055; Space Law – Basic Legal Documents, E.III.3. Commercial Space Launch Act Amendments, Public Law 100-657, 100th Congress, H.R. 4399, 15 November 1988; 49 U.S.C. App. 2615; 102 Stat. 3900; Space Law – Basic Legal Documents, E.III.3, 13â•›ff. Land Remote Sensing Policy Act, Public Law 102-555, 102nd Congress, H.R. 6133, 28 October 1992; 15 U.S.C. 5601; 106 Stat. 4163. Commercial Space Transportation – Commercial Space Launch Activities, 49 U.S.C. 70101 (1994). Telecommunications Act, Public Law 104-104, 104th Congress, 3 January 1996, signed into law 8 February 1996; 110 Stat. 56. Strom Thurmond National Defense Authorization Act for Fiscal Year 1999; Public Law 105-261, 105th Congress, 17 October 1998; 112 Stat. 1920. Open-market Reorganization for the Betterment of International Telecommunications Act, Public Law 106-180, 106th Congress, 17 March 2000. Commercial Space Launch Amendments Act, Public Law 108-492, 108th Congress, 23 December 2004, 49 U.S.C.; 118 Stat. 3974. Commerce Control List (ccl), 15 C.F.R. 774, last revised 1 January 2008. United States Munitions List (usml), 22 C.F.R. 121, last revised 1 April 2008.

List of Contributors Matthias Creydt has studied law at the German Universities of Kiel and Cologne and the English University of Guildford (Surrey). During his time at the University of Cologne, he was a student worker at the Institute of Air and Space Law. For his PhD thesis in the area of private international law and space law, he was a visiting scholar at the Tulane University (USA). He has previously worked for the German Aerospace Agency (dlr), as an attorney at law for a law firm, and as a corporate counsel for an international company in the automotive industry. In his current position, he is the German Head of Export Control for Astrium GmbH, an Aerospace company belonging to the eads Group. As a member of the German Bar Association, he is also an Attorney at Law. Frans von der Dunk is currently Harvey and Susan Perlman Alumni / Othmer Professor of Space Law at the University of Nebraska-Lincoln (UNL), as well as Director of the space law and policy consultancy Black Holes in the Netherlands. Prior to his appointment at UNL he has served the Faculty of Law of Leiden University in various capacities in the field of public international law and space law for some 20 years. Prof. Von der Dunk obtained his Doctorate in Space Law at Leiden University in 1998, and has written over 120 articles in the field of space law and policy. He has been awarded inter alia the IISL Distinguished Service Award in Vancouver in October 2004, and the IAA Social Science Award in Valencia, in October 2006. He is amongst many other functions ecsl Board Member, Member of the IISL Board of Directors and Honorary Professor at Gujarat National Law University, Gandhinagar, India. Prof. Von der Dunk has advised many governments, international governmental and non-governmental organisations, space agencies and companies on issues of space law and policy.

xxviâ•…â•…List of Contributors Cécile Gaubert is currently Vice President and Head of Contract and Claims of the Aviation and Space Department at Marsh SA, Paris. She holds a degree (Diplôme d’Etudes Supérieures Spécialisées) in European and business Law from the University of Paris XI and a certificate from the European Centre for Space Law’s Summer Course. She was in charge of studying the draft Unidroit space objects financing protocol at the European Center for Space Law (European Space Agency), before joining Marsh in June 2000 as the contract adviser of the Space Team. Michael Gerhard is legal adviser to the European Aviation Safety Agency (easa). He joined the Agency in 2008 and is working in the field of international aviation law, eu law, European administrative law and enforcement. From 1999 to 2008 Dr. Gerhard worked at the German Aerospace Center (dlr). As a legal adviser he was mainly occupied with matters of public international law and administrative law. The main emphasis of his work was to advise the dlr and the federal ministries in matters of national space legislation, insurance and registration of space objects, liability issues, intellectual property issues, security aspects regarding the distribution of remote sensing data and budget law. Furthermore Dr. Gerhard lectures Space Law to students studying Aerospace Technologies at the Aachen University of Applied Sciences. He has also given lectures at the Technical University of Berlin as well as Summer Courses for the European Center for Space Law (ecsl). Dr. Gerhard has published a book on the topic of national space legislation and more than 40 articles on space law and policy. Florian Hafner is currently working for an Austrian civil law notary in Wiener Neustadt. He was Research Associate at the Department of European, International and Comparative Law at the Law Faculty of the University of Vienna in 2009/2010 and worked for the National Point of Contact (NPOC) Austria of the European Centre for Space Law (ecsl). He studied law and business education in Vienna and Sydney. In 2008 he finished his law degree at the University of Vienna; in 2006 he finished his degree in business education at the Vienna University of Economics and Business Administration. Furthermore, he has been working for different Austrian law firms and tax consultant

List of Contributorsâ•…â•…xxvii

offices. Currently he is writing his doctoral thesis on a new Austrian space law. Peter Hulsroj was born and raised in Denmark. He graduated in law from the University of Copenhagen and received a Master’s Degree from Harvard Law School. Returning from the United States, Mr. Hulsroj worked in a large, commercial law firm in Copenhagen, where he became a full member of the Danish Bar. After that Mr. Hulsroj was a contracts officer in esa’s estec establishment for a few years. This was followed by almost 14 years of service as the Head of Contracts & Legal Affairs of the European Organisation for the Exploitation of Meteorological Satellites (eumetsat) and 4 years as the legal adviser of the Comprehensive Nuclear-Test-Ban Treaty Organisation, an intergovernmental organisation in the un family. Mr. Hulsroj returned to esa in 2008 and is currently the Director of the Legal Affairs and External Relations Directorate. Mr. Hulsroj has written a number of articles on public international law and international governance. Armel Kerrest de Rozavel is Professor of Public Law in the French Universities. He teaches International Public Law, especially Space Law and Law of the Sea at the Universities of Western Brittany and Paris XI. He taught in other French and foreign universities on many occasions, published books and articles on European, and International Law especially Space Law and Law of the Sea. He advises for Space Law. He is the Vice Chairman of the European Center for Space Law of the European Space Agency (ecsl/esa), the President of the Association for the Development of Space Law in France, the Chairman of the Institute of Law of International Spaces and Telecommunications (Brittany); a Member of the Space Law Committee of the International Law Association (ILA) and of the International Institute of Space Law (IISL) a Member of the Board of the European Centre for Space Law (ecsl) and of the Société francaise de droit aérien et spatial (SFDAS). He is a member of the International Academy of Astronautics and a corresponding member of the Académie de l’Air et de l’Espace.

xxviiiâ•…â•…List of Contributors Irmgard Marboe is Associate Professor of International Law at the Department of European, International and Comparative Law at the Law Faculty of the University of Vienna. She studied law and languages at the University of Vienna (Austria) and at the Universidad Complutense de Madrid (Spain). Prof. Marboe is the head of the Austrian National Point of Contact for Space Law of the European Centre for Space Law. Her publications in the area of Space Law include articles on telecommunication and space, national space legislation, European Space policy and authorisation of space activities. She is the chair of the working group on “National Space Legislation” of the Legal Subcommittee of un Committee for the Peaceful Use of Outer Space which was established in 2008. Other research focuses include international investment law, international arbitration, culture and religion in international law as well as Islam and international law. Her current teaching activities include courses and seminars on general international law, international economic law, international courts and tribunals, and space law. Jean-François Mayence is in charge of the Legal Unit “International Relations” at the Belgian Federal Office for Science Policy. He is the author of the Belgian Space Law (2005) and Regulation (2007). He has served as national delegate in numerous bodies of the European Space Agency (esa), as Vice-Chair of its Administrative and Finance Committee, as Chair of the esa Council Working Group on the Security of Information and as Chair of the esa International Relations Committee. He has also been involved as national expert in the works of the European Union for the drafting of the European Space Policy, or the Code of Conduct on Space Activities. Since 2000, he is member of the Belgian Delegation to uncopuos. He is lecturer at the University of Leuven. Bernhard Schmidt-Tedd studied law in Cologne and Geneva and holds a doctorate of the University of Cologne. He joined the German Aerospace Center (dlr) in 1987 and is currently Head of the Legal Support for dlr Space Agency Affairs. In this capacity he was involved in contract negotiations of different international space programmes. As an author of a number of articles, he lectures space law at the Institute of Space Systems at the University Stuttgart. With the Institute of Air and Space Law of the University of Cologne he realized several legal

List of Contributorsâ•…â•…xxix

space projects and mentors practice-oriented doctoral theses. He is coeditor of the Cologne Commentary on Space Law (CoCoSL). Membership: IAA, Corresponding Member of the Russian Academy for Cosmonautics, IISL, ecsl and DGLR. Lesley Jane Smith is a Professor of Law at the Leuphana University of Lüneburg, Germany and Professor and former Rector at Riga Graduate School of Law, University of Latvia. She is a Member of the Law Society of Scotland, admitted to practice at the Hanseatic Bar of Bremen, and acts as legal consultant. She has published many refereed articles on various aspects of European law, and contributed to several works on commercial space law, as well as the Cologne Commentary on Space Law (CoCoSL). She is a member of the editorial board of the Space Law series by Brill Publishers, Netherlands, and has been appointed to ecsl, IISL and IAA. Richard Tremayne-Smith is the former head of international relations and the space environment at what is now the uk Space Agency. He is a Chartered Engineer and a Member of the Institution of Engineering and Technology. He has contributed to un copuos related activities to improve the implementation of the Outer Space Treaties and Principles and assisted with the drafting of Principles and Resolutions over the past twenty years. He now runs a small consultancy concentrating on the space environment (space debris and NEOs) and space authorisation activities. He remains of the opinion that more effort is required, now, to ensure the long term sustainable use of space so that humankind can continue to reap the many benefits available. He also retains a strong interest in space surveillance, space tourism and space transportation and propulsion issues.

Foreword P. Hulsroj Space law is wonderfully internationalist. When a privately owned ship on open sea causes damage it does not create international liability for the home state of the ship. When a privately owned satellite, occupying ‘the province of all mankind’, creates damage, the home state of the satellite is internationally liable. This is so because the home state must authorize the activity and must provide continuing supervision.  With this comes liability. One can, perhaps, debate whether the space law system always provides for the sufficient means for continuing  supervision and question why no international norm establishes minimum standards for authorization, but what cannot be disputed is that the system of authorization, continuing supervision and liability for damage was, and is, far ahead of many other disciplines of international law. This book concentrates on authorization in a European context. In doing so it answers many questions, but, as with most academic work, it also identifies new ones. In fact, the entry into force of the Treaty of Lisbon puts a new subtext for space in Europe, which must be analysed and discussed before the full impact of the Treaty can be assessed. The book addresses inter alia the impact of the Treaty of Lisbon for the authorization regime. Interestingly, the consequence of the Treaty of Lisbon appears to be that a pan-European authorization regime cannot be established through eu mechanisms, because of the explicit prohibition of harmonisation of the laws and regulations of member states in the space field. The maintenance of the status quo can then, of course, lead to forum shopping within the European Union, with private actors seeking the most lenient conditions for authorization. This might well have been intended and might well be healthy, but it puts the spotlight

xxxiiâ•…â•…P. Hulsroj on the subsequent continuing supervision and the practical possibilities of controlling the actions of operators and passing on the possible international liability to these private parties. The advent of space tourism will put both the international authorization regime and the domestic European ones to the test. Space tourism providers might find it in their interest to operate out of jurisdictions which are not only accommodating on authorization and supervision, but which are also ready to create a high degree of protection against possible liability claims from passengers. One can wonder, however, whether it is possible to find bliss in domestic law protections in a globalised world where providers directly or indirectly have a presence in many jurisdictions and will have marketed their product globally. The Outer Space Treaty and the Liability and Registration Conventions have been remarkably resilient, considering the great variety of activities they have come to cover. It is hardly imaginable that ‘one shoe fits all’ can work with such heterogeneous players, programmes and technologies, and yet it has. The reason, apart from far sight and foresight, would appear to be that all the three mentioned instruments maintain a careful balance between generality and specificity. When a legislator strikes a balance between generality and specificity it means in the domestic arena that the citizens are free to act within the fairly broad parameters bookended by the generality. Customary norms might arise if the citizens tend to use the flexibility provided by the generality in a homogeneous fashion and, even in the absence of hard customary norms, usages will tend to provide de facto regulation. On the international level the situation is not much different, except that states create custom not the private players. For authorization this means that customary norms might arise from the way states will choose to exercise the flexibility left by the three treaties. The question will be whether this is truly feasible and, if so, whether it will be enough, or whether subsidiary norms must be developed by states in a more deliberative form. This book is the best possible snapshot of the state-of-play in the field of authorization, particularly in Europe. The gauntlet it throws down is whether the state-of-play will serve us well enough in a rapidly changing environment or whether law, for once, must be at the vanguard, as the Outer Space Treaty and the Registration and Liability Conventions were in their day.

Introduction F.G. von der Dunk This book is, at the heart, a result of a Practitioners’ Forum of the European Centre of Space Law (ecsl), organised in Paris in December 2008. Having been established in the early 90s, ecsl Practitioners’ Fora are organised more or less annually, and have presented unique oneday occasions for academics and practitioners from all corners of the European space endeavour and space industry to discuss topical and important legal issues. Part of the format is that speakers are not required to present actual papers, or even powerpoint presentations, in order to allow for a completely free exchange of opinions and discussion. Most famously, Mr. Will Whitehorn, then-ceo of Virgin Galactic, when keynoting at the 2006 Practitioners’ Forum on ‘Space tourism: legal and institutional issues’ showed a video of the x-Prize-winning flight of SpaceShipOne whilst addressing off the cuff the various relevant aspects of the flight as well as of Virgin Galactic’s follow-up plans. Needless to say, however, at the same time speakers are not restrained from bringing well-prepared and -formatted papers with them either, and at many occasions have actually done so. Very often, moreover, participants have asked for such papers, or powerpoint presentations as relevant, to be distributed – in each of which cases the ecsl Executive Secretary has done so if the particular speaker concerned had no problem therewith. And at least once before, the subject matter of, and discussions at, a comparable ecsl-organised meeting have given rise to a book, collating the papers of those speakers who were able and willing to convert whatever they had prepared for the meeting itself into academically referenced contributions fit for publication in a book – and adding in the process a few more solicited contributions on subjects that, for whatever

2â•…â•…F.G. von der Dunk reason, had arisen only at the Forum as being of sufficient interest for the purpose.1 Thus, the ecsl Practitioners’ Forum on ‘National space legislation in Europe – Issues of authorisation in the light of developments in EuroÂ� pean space cooperation’ came to pass on 15 December 2008 at esa Headquarters, with some 50 participants in attendance. When the Practitioners’ Forum turned out to comprise a number of interesting papers and contributions of sufficiently developed format, the Chairman of ecsl, Professor Sergio Marchisio, and I quickly agreed it would be not only a good but also a feasible thing to indeed publish a book on the topic, essentially based on those papers and contributions. The result, obviously, is in your hands now. Lincoln, November 2010

╇ This concerned F.G. von der Dunk & M.M.T.A. Brus (Eds.), The International Space Station – Commercial Utilisation from a European Legal Perspective (2006), published as Volume 1 of Studies in Space Law. This book arose out of a Symposium on the Legal Aspects of Commercial Utilisation of the International Space Station (iss), held on 26 March 2004 in Leiden.

1

Chapter One The Origins of Authorisation: Article VI of the Outer Space Treaty and International Space Law F.G. von der Dunk 1.╇ Private Activity but Public Responsibility The issue of authorisation of private space activities, the key theme of the present book, ultimately goes back to the principled political disagreements in the 50s and 60s between the two (then) superpowers in space, the United States and the Soviet Union, on the proper role of other entities than states in space activities. The Soviet Union, true to its communist ideology, was squarely against any private activities in most economically-relevant areas of society, but certainly so in an area of such strategic concern as outer space.1 By contrast, the United States throughout its existence has usually presented itself as the champion of private enterprise, an approach also transpiring in its space policies.

╇ See e.g. G. Zhukov & Y. Kolosov, International Space Law (1984), esp. 4–17, 36; also P. Malanczuk, Actors: States, International Organizations, Private Entities, in G. Lafferranderie & D. Crowther (Eds.), Outlook on Space Law over the Next 30 Years (1997), 30; S. Hobe, Die rechtlichen Rahmenbedingungen der wirtschaftlichen Nutzung des Weltraums (1992), 72; in more general terms M.N. Shaw, International Law (6th ed.)(2008), 31–6; M. Akehurst, A Modern Introduction to International Law (5th ed.)(1984), 16–9; A. Cassese, International Law (2001), 40. On the fundamental  changes in this Soviet perspective due to ‘glasnost’ and ‘perestroika’, see V.S. Vereshchetin & G.V. Silvestrov, Space Commercialization in the Soviet Union: Facts, Policy and Legal Issues, in K. Tatsuzawa (Ed.), Legal Aspects of Space CommercialiÂ�zation (1992), 32–40.

1

4â•…â•…F.G. von der Dunk When, following the establishment of the Committee on the Peaceful Uses of Outer Space first as an Ad Hoc Committee2 then as a more permanent one,3 serious discussion began on drafting a coherent legal framework for activities in outer space, this dichotomy became one of the bones of contention. Whereas the Soviet Union would insist that there should be no room for private entities within that legal framework being developed, the United States principally did not wish to close the door on them legally speaking. At the same time, the realities at the dawn of the space age were quite clear. The – for the time incredibly advanced – levels of technology required to go into outer space, the costs and risks associated with that adventure, and the two areas originally considered the only possible beneficiaries of space activities and space technology (the military and politico-strategic domain in terms of the Cold War rivalry and the scientific domain) ensured that for some time to come realistically speaking states were the only potential actors in outer space – and to be more precise: only a handful of states were actually able and willing to take the relevant burdens upon themselves. As a matter of fact, also the United States itself did not envisage private entrepreneurs to actually go into outer space on short notice so readily. Even when developing a national legal framework for the use of satellites in the context of telecommunications, the first sector of space which was to draw private entrepreneurs into the field, the United States would develop a government-driven monopoly system, establishing Comsat Corporation for the purpose.4

╇See Question of the peaceful use of outer space, UNGA Res. 1348 (XIII), of 13 December 1958; Resolutions adopted on the reports of the First Committee, General Assembly – Thirteenth Session, at 5. 3 ╇ See International co-operation in the peaceful uses of outer space, UNGA Res. 1472 (XIV) A, of 12 December 1959; Resolutions adopted on the reports of the First Committee, General Assembly – Fourteenth Session, at 5. 4 ╇ See Communications Satellite Act, Public Law 87–624, 87th Congress, H.R. 11040, 31 August 1962; 76 Stat. 419; as amended 1978; Space Law – Basic Legal Documents, E.III.2. This situation lasted for a number of decades, until in the 90s the privatisation process in the satellite communications sector (capped – as far as the United States is concerned – by the Open-market Reorganization for the Betterment of International Telecommunications Act, Public Law 108–180, 106th Congress, 17 March 2000) also resulted in the privatisation of Comsat. 2

The origins of authorisation: Article VI of the Outer Space Treatyâ•…â•…5

The mutual need, even desire, to arrive at a workable solution in order not to put the whole process of arriving at a comprehensive legal regime for space activities at risk, in the end gave rise to a compromise that is best captured by: ‘private activity but public responsibility’.

2.╇ Resolution 1962(VIII) and Private Space Activities The first legal document dealing fundamentally with that compromise was Resolution 1962(VIII) of 13 December 1963.5 The Resolution captured in several paragraphs the general focus on global public interests in outer space which neither the United States nor the Soviet Union had an issue with. Thus, in drafting it the General Assembly was “inspired by the great prospects opening up before mankind as a result of man’s entry into outer space”, recognized “the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes”, and believed “that the exploration and use of outer space should be carried on for the betterment of mankind and for the benefit of States irrespective of their degree of economic or scientific development”.6 Such sentiments were also transformed into operative provisions in the actual Principles contained in the Resolution.7 Notably, Principle 2 claimed that “outer space and celestial bodies are free for exploration and use by all States on a basis of equality and in accordance with international law”, whereas Principle 4 provided that “the activities of States in the exploration and use of outer space shall be carried on in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding”.8 This focus on the participation of states and the public interests involved at the outset

╇ Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (hereafter Resolution 1962(VIII)), UNGA Res. 1962(XVIII), of 13 December 1963; un Doc. A/AC.105/572/Rev.1, at 37. 6 ╇ See Preamble, paras. 1, 2 & 3, Resolution 1962(VIII). 7 ╇ E.g. Princ. 1 provides “the exploration and use of outer space shall be carried on for the benefit and in the interests of all mankind”. 8 ╇ Emphasis added – twice. 5

6â•…â•…F.G. von der Dunk limited any potential role for private enterprise, which generally speaking becomes active in a certain area or field first and foremost for its own, usually commercial reasons. Most pertinent to the compromise, however, was Principle 5. The Soviet Union in the end was willing to mitigate its point of view to the extent that whomever would happen to be active in outer space, one state or another should be held responsible for its activities.9 The United States and its allies for their part accepted such a formal lack of absence of legal personality for private entities on the international plane since at least the principled legality of their future involvement in actual space activities was not precluded, as long as under the umbrella of a state’s responsibility. This compromise found its way into the 1963 Resolution, where it was phrased as follows: States bear international responsibility for national activities in outer space, whether carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried on in conformity with the principles set forth in the present Declaration. The activities of non-governmental entities in outer space shall require authorization and continuing supervision by the State concerned. When activities are carried on in outer space by an international organization, responsibility for compliance with the principles set forth in this Declaration shall be borne by the international organization and by the States participating in it.10

In sum: private activities in outer space, read the activities of private entities in outer space, were legal but always as subject to the responsibility on the international plane of (at least) one state, which also was under the concurrent obligation to authorize and continuously supervise such activities – ‘private activity but public responsibility’, indeed.

╇ It may be noted, that this was part of the general approach of communism to international law, fuelled no doubt by the relative feeling of isolation of the Soviet Union, that the international legal order only recognised completely sovereign entities called ‘states’, which in their sovereignty could decide upon which rules they felt would and should be applicable to them. Concepts such as ‘international organisations’ and ‘private entities’, fundamentally alien to such an understanding of international law, were thus basically to be ignored; their activities for such purposes to be somehow attributed to a state or a set of states. Cf. also supra, n. 1. 10 ╇ Princ. 5, Resolution 1962(XVIII). ╇9

The origins of authorisation: Article VI of the Outer Space Treatyâ•…â•…7

3.╇ The Outer Space Treaty and Private Space Activities When, four years after Resolution 1962(VIII), the Outer Space Treaty11 transformed most of its principles – considered binding by many as customary law anyway – into formally binding treaty obligations, Article VI was to copy Principle 5 almost word by word. In full namely, Article VI provided: States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.

Also in the case of the Outer Space Treaty, the aforementioned fundamental secondary role of private space entrepreneurs was embedded in more general rules and principles propounding the public interests in space and space activities, focusing (presumably at least) on scientific and strategic uses. Thus, “the exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind”12; and States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, in accordance with international law, including the Charter of the United

╇ Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967). 12 ╇ Art. I, Outer Space Treaty (emphasis added). 11

8â•…â•…F.G. von der Dunk Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.13

Also the other operative Articles throughout spoke of ‘States’ as being entitled to undertake certain activities, conversely disallowed to undertake them or obliged to abide by certain principles.14 The Outer Space Treaty entered into force rapidly, within nine months of the conclusion of the process of drafting, and as of 1 January 2008 enjoys the ratifications of 98 states plus the signatures of 27 more states.15 Since, moreover, those states comprise all of the states important from the perspective of space activities and space law,16 the Outer Space Treaty rapidly came to be recognized as the ‘Magna Charta’ for outer space, laying the groundwork for all legal rules pertaining to the conduct of space activities that were to follow. As a consequence, the drafting and acceptation of Article VI of the Outer Space Treaty as a key provision of that treaty established the concept of general state responsibility in the

╇ Art. III, Outer Space Treaty (emphasis added). ╇ Cf. e.g. Artt. IV, V, VIII–X, Outer Space Treaty. 15 ╇See http://www.unoosa.org/oosa/en/SpaceLaw/treaties.html, accessed 16 February 2009. With regard to states that have signed, but not yet ratified the Outer Space Treaty, it may further be noted that Art. 18(a), Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 (commonly recognised as customary international law also for non-party states), provides: “A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when (…) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty.” 16 ╇ Though formally speaking states are equal under international law also in terms of the ‘value’ of their partisanship to treaties, especially in the context of customary international law discussions it has been widely recognised that acceptance of international rights and obligations by certain states weighs more heavily than those by others if the former are geopolitically speaking more important and/or more representative of parts of the global community of states and/or more actively involved in the field under discussion. In other words, the fact that by and large all space-faring states are parties to the Outer Space Treaty and that, conversely, non-parties are largely to be found amongst smaller states not active as of yet in outer space certainly further enhances the validity of the treaty as a law-creating treaty. See further e.g. R.M.M. Wallace, International Law (3rd ed.)(1997), 10–2; Cassese, 119–24; Akehurst, 31–2. 13 14

The origins of authorisation: Article VI of the Outer Space Treatyâ•…â•…9

special area of outer space activities in a specific fashion as a cornerstone of international space law.17

4.╇ Interpreting Article VI of the Outer Space Treaty One main novel feature of Article VI stood out with reference to the role of private enterprise in this context. Contrary to the version of the concept applicable under general international law, where ‘direct state responsibility’ only pertained to acts somehow directly attributable to a state and states could only be addressed for acts by private actors under ‘indirect’, ‘due care’ / ‘due diligence’ responsibility18, Article VI made no difference as to whether the activities at issue were the state’s own (“whether such activities are carried on by governmental agencies” …) or those of private actors (… “or by non-governmental entities”). The interests of the Soviet Union in ensuring that, whomever would actually conduct a certain space activity, some state or other could be held responsible for its compliance with applicable rules of space law to that extent had prevailed. However, the general acceptance of Article VI as cornerstone of the Outer Space Treaty unfortunately was far from the end of the story. Partly, this was the consequence of key principles being left undefined. 4.1.╇ The Concept of “National Activities” A major example thereof concerns the concept of “national activities”, as determining the scope of state responsibility in particular in terms of categories of private activities. The concept was defined properly or authoritatively neither by the Outer Space Treaty itself, nor by follow-up ╇ Art. VI, Outer Space Treaty, inter alia reflected the general principle of state responsibility in international law in focusing on the occurrence of an international wrongful act (here referred to as anything not in “conformity with the provisions set forth in the present Treaty”). See on the general theory of state responsibility in international law e.g. Cassese, 182–211; Wallace, 173–204. Furthermore, Art. III ensured that wherever the specifics of space law would not be clear enough for application of the concept, reference could be had to general international law. 18 ╇ See e.g. Cassese, 187–91; Wallace, 176–8. 17

10â•…â•…F.G. von der Dunk legal documents of international space law, nor by general public international law.19 The only, partial, exception was the Moon Agreement, the limited acceptance of which (certainly when it comes to the major space-faring nations, also in Europe) however serves to cast further doubt on the value of its contribution to the present discourse.20 Nevertheless, the Moon Agreement does provide some interesting formulations. Firstly, it more or less repeats Article VI, when it provides that “States Parties to this Agreement shall bear international responsibility for national activities on the Moon, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in this Agreement.”21 Secondly, it immediately proceeds by stating that “States Parties shall ensure that nongovernmental entities under their jurisdiction shall engage in activities on the Moon only under the authority and continuing supervision of the appropriate State Party.”22 This phrase could be interpreted as equating “national activities” at least as far as undertaken on the moon with ‘activities undertaken under the jurisdiction’ of the state concerned, to the extent of being conducted by non-governmental entities. Further interesting clues in this respect may be glanced from two un Resolutions containing general principles applicable to major specific categories of space activities – while their status as General Assembly Resolutions causes them to be legally non-binding per se they may still

╇ Cf. once more Art. III, Outer Space Treaty, and its potential role in this context, as discussed supra, n. 17. For some discussion on what constitute “national activities” see e.g. F.G. von der Dunk, Private Enterprise and Public Interest in the European ‘Spacescape’ (1998), 18–9; H.A. Wassenbergh, Principles of Outer Space Law in Hindsight (1991), 23â•›ff. 20 ╇Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereafter Moon Agreement), New York, done 18 December 1979, entered into force 11 July 1984; 1363 UNTS 3; ATS 1986 No. 14; 18 ILM 1434 (1979). Amongst the European states, only Austria, Belgium and the Netherlands are amongst the thirteen parties to the Agreement, whereas France has signed but not ratified it. See for the details on ratification and signature of the Moon Agreement the website of the un Office for Outer Space Affairs (oosa), at http://www.unoosa.org/oosa/en/SpaceLaw/ treaties.html. 21 ╇ Art. 14(1), Moon Agreement. 22 ╇ Art. 14(1), Moon Agreement (emphasis added). 19

The origins of authorisation: Article VI of the Outer Space Treatyâ•…â•…11

be helpful in these general structural issues, as any lack of consensus largely applied to the substance of some of the principles.23 The first of those pertained to the Resolution on direct television broadcasting by means of satellites, unga Resolution 37/92.24 Principle 8 provides for state “responsibility for activities in the field of international direct television broadcasting by satellite carried out by them or under their jurisdiction”.25 Like under the Moon Agreement therefore, responsibility is directly and explicitly linked to jurisdiction, supporting the conclusion that under Article VI of the Outer Space Treaty “national activities” would likely have to be read in particular with reference to “jurisdiction” – the Resolution indeed requests states to “authorize such activities by persons and entities under its jurisdiction”.26 The second Resolution of interest here is that on remote sensing, unga Resolution 41/65.27 Here, states are to bear international responsibility “for their activities”.28 The phrase “their” is even less unequivocal than the phrase “national” used in Article VI of the Outer Space Treaty. However, as Principle XIV of the Resolution provides, the latter also includes non-governmental entities within its scope, so the legal effect of this Principle is similar to that of Article VI when it comes to defining the categories of private entities for which a specific state is internationally responsible. Still, the consequence of a lack of unequivocal guidance on the international level regarding the proper interpretation of “national activities”

╇ This applies in particular to the issue of ‘prior consent’ under UNGA Resolution 37/92; see infra, n. 24. 24 ╇ Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, UNGA Res. 37/92, of 10 December 1982; un Doc. A/ AC.105/572/Rev.1, at 39. 25 ╇ Emphasis added. 26 ╇ Princ. 5, UNGA Res. 37/92. Cf. also Princ. 1, UNGA Res. 37/92, providing for general application of the Outer Space Treaty, including of course Article VI, to the Resolution’s subject matter. 27 ╇Principles Relating to Remote Sensing of the Earth from Outer Space, UNGA Res. 41/65, of 3 December 1986; un Doc. A/AC.105/572/Rev.1, at 43; 25 ILM 1334 (1986). 28 ╇ Princ. XIV, UNGA Res. 41/65; emphasis added. See further S. Gorove, Developments in Space Law (1991), 294–7, 304–10; K. Tatsuzawa, Policy and Law in Space Commercialization, in K. Tatsuzawa (Ed.), Legal Aspects of Space Commercialization (1992), 24. 23

12â•…â•…F.G. von der Dunk was that on the one hand experts differed considerably in their respective interpretations, whereas on the other hand those states which considered it necessary to implement Article VI, consciously or unconsciously (likely the latter more often than the former) picked their own choice in determining the scope of their national space laws and acts. As to the experts themselves, whose opinions gained considerable relevance from the absence of any harmonised state practice, essentially three schools of thought could be discerned.29 The first focused on the word “national” in “national activities”. This approach took the adjective “national” to refer to the noun “national”, in other words to a person or entity with the nationality of the state concerned. Pointing furthermore to the fact that Article IX of the Outer Space Treaty in a somewhat comparable context – of acting responsibly in outer space, in this specific instance by being aware of potential detrimental effects of its activities and consequently informing other states that might be concerned thereof – juxtaposed activities of a state to those of “its nationals,”30 the experts concerned interpreted “national activities” as referring to ‘activities of nationals’. In other words: a state was to be held international responsible for space activities conducted by its nationals – obviously including private companies and other legal persons. The second group of experts tried to make up for an apparent inconsistency in the Treaty, that between dealing with international responsibility as per Article VI and international state liability per Article VII

╇ See e.g. Wassenbergh, 23; B. Cheng, The Commercial Development of Space: the Need for New Treaties, 19 Journal of Space Law (1991), 36–40; H. Qizhi, Certain Legal Aspects of Commercialization of Space Activities, 15 Annals of Air and Space Law (1990), 337; D.H. Kim, A Commentary to the Article VI of the Outer Space Treaty, Proceedings of the United Nations/Republic of Korea Workshop on Space Law (2004), 79–80; H.L. van Traa-Engelman, Commercial Utilization of Outer Space (1993), 61, 281–2. 30 ╇ Art. IX, Outer Space Treaty, provided in relevant part: “If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space (…) would cause potentially harmful interference with activities of other States Parties (…) it shall undertake appropriate international consultations before proceeding with any such activity or experiment” (emphasis added), equating a state’s activities to those of its nationals for the limited purpose of this clause. 29

The origins of authorisation: Article VI of the Outer Space Treatyâ•…â•…13

in terms of attribution.31 Since the latter had focused on the state(s) fundamentally involved in the launching of a space object that caused damage (in a fourfold fashion), the concept of “national activities” in the former should be interpreted as referring to those activities for which the state concerned qualified as the “launching State”.32 While the result would, indeed, be that liability under Article VII and responsibility under Article VI would be attributed on the same footing, this solution overlooked several complicating factors. Most importantly, responsibility focused on activities (not just on launch activities only), liability on (damage caused by) space objects where the launch served as the crucial trigger for attributing liability. For example, a satellite operator’s state would be responsible under Article VI for satellite communication activities conducted in outer space and their consequences. In case the operator would have acquired the satellite involved by means of an in-orbit sale, however, its state would not have been involved in the launch of the satellite in any sense so as to trigger its liability under Article VII and the Liability Convention – such liability for damage caused by these activities would have rested upon (an)other state(s). Also, why would two different phrases have been used for the purpose of attribution if the drafters would have aimed at making the two concepts attributable along the same lines?33 The third school of thought approaches the issue from a different angle. It does not look elsewhere in the Outer Space Treaty for guidance ╇ See further infra, section 5, for a discussion on the relationship between Art. VI, Outer Space Treaty, and Art. VII. 32 ╇ The fourfold definition of Art. VII (see infra, section 5, text at n. 45, for text of Art. VII) was later formalised through the concept of the “launching State” introduced by the Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971). Art. I(c), Liability Convention, defined the “launching State” as: “(i) A State which launches or procures the launching of a space object; (ii) A State from whose territory or facility a space object is launched”. 33 ╇ See for a broader analysis of these issues, and others pertinent to the responsibilityliability relationship, F.G. von der Dunk, Liability versus Responsibility in Space Law: Misconception or Misconstruction?, in Proceedings of the Thirty-Fourth Colloquium on the Law of Outer Space (1992), 363–71. 31

14â•…â•…F.G. von der Dunk on the true meaning of “national activities”, but views that term in relation to the obligations further provided by Article VI of “authorization and continuing supervision” of “the activities of non-governmental entities in outer space” against a background of general international law. Noting that, from a logical perspective, it would make most sense for states to be held legally responsible for those activities in respect of which they had the legal tools available to control them, and hence give substance to such responsibilities, and that such was the approach also taken by general international law towards the scope of state responsibility, this school claimed that “national activities” should be read as referring to those activities which, in one way or another, fell under the jurisdiction of the state(s) to be held responsible for them. Moreover, this focus on (applicability of) jurisdiction as the key criterion for determining the scope of “national activities” is corroborated at least by the framing of state responsibility in the context of the Moon Agreement and UNGA Resolutions 37/92 and 41/65 as discussed above. In the context of space, this reference to jurisdiction would boil down to a threefold attribution. The first and second methods of attribution would be through the traditional general public international law concepts of ‘territorial jurisdiction’34 and ‘personal jurisdiction’ (jurisdiction over those persons, natural and legal, that enjoyed the nationality of the state concerned).35 In other words, to the extent that activities in outer space were conducted from a state’s territory (elements of manned space flight operations excepted, all activities in outer space are still principally conducted from the Earth), that state should be held responsible since territorial jurisdiction gave it the legal tools to actually live up to such a responsibility. Similarly, to the extent that activities in outer space were conducted by a state’s nationals (including private companies), that state should be held responsible for them as it had the principled legal tool of ‘personal jurisdiction’ available for the purpose of controlling them. That this approach meant that, in many cases, more than one state could be held responsible with regard to one and the same activity in

╇ See e.g. I. Brownlie, Principles of Public International Law (7th ed.)(2008), 105–6, 301–3; M.N. Shaw, International Law (6th ed.)(2008), 652–8; Wallace 112–4; Cassese, 55–63. 35 ╇ See e.g. Brownlie, 303–4; Shaw, 659–66; Wallace 114–5. 34

The origins of authorisation: Article VI of the Outer Space Treatyâ•…â•…15

outer space, should not be seen as an insurmountable obstacle. In general public international law, such issues of conflicting and competing jurisdiction continue to be prevalent, and legal instruments ranging from ‘extradition’36 to forum non conveniens37 and diplomatic immunity,38 and of course general conflict of laws and private international law concepts, had been developed throughout the ages to properly deal with them. Moreover, also under the two other approaches multiple states could become involved. In particular in today’s corporate world, companies have ties with more than one state and their nationality nowadays even legally speaking may be a matter of debate – should it be only the place of incorporation that determines nationality, or also the headquarters, and/or main place of activity, and/or even the distribution of shareholders in terms of nationality?39 And the concept of the “launching State” ╇ The concept of ‘extradition’ was developed in the traditional international discourse on national criminal law, to solve cases where one state was interested in prosecuting a crime or seeking enforcement of punishment duly arrived at by its judiciary system, presumably where its courts had jurisdiction over the matter, but the persons concerned were not present on the territory of that state (read: within its territorial jurisdiction) so that actual enforcement was dependent upon the exercise of territorial jurisdiction by the states where such persons were present. See e.g. Shaw, 686–7; Brownlie, 316–8; Akehurst, 104–7; Wallace, 119–21. From the present perspective, this would include cases where the latter states were, in themselves, also entitled to exercise jurisdiction but rightly or wrongly perceived the former state to have the stronger or more appropriate basis for exercising its criminal jurisdiction. 37 ╇ Forum non conveniens is a concept entitling courts of one state to desist from exercising jurisdiction to try a case mainly because such courts perceive another jurisdiction to be the more appropriate one to do so. See e.g. Wallace, 111; P.M. North & J.J. Fawcett, Private International Law (13th ed.)(2004), 334–5; cf. also Brownlie, 300; Shaw, 646–7. 38 ╇ The traditional concept of ‘diplomatic immunity’ from this perspective may be described as a tool to invert the traditional hierarchical superiority of territorial jurisdiction of one state over the personal jurisdiction of another for the sake of diplomatic relations, and limited for that reason to diplomatic envoys and premises, whose presence on the territory of the host state would otherwise make them subject first and foremost to that state’s territorial jurisdiction as opposed to the personal jurisdiction of the sending state. See e.g. Akehurst, 111–7; Wallace, 124–33; Cassese, 90–6; Shaw, 750â•›ff. 39 ╇ In the famous Barcelona Traction Case (Case Concerning the Barcelona Traction Light and Power Company, Limited (Second Phase)(Belgium v. Spain), International Court of Justice, 5 February 1970, I.C.J. Rep. 1970, 4), the International Court of 36

16â•…â•…F.G. von der Dunk itself, under the second school to be read into Article VI, itself was allowing for more than one state to qualify in the same instance – in many cases (a) state(s) different from the state(s) launching a space object was/were procuring its launch. Effectively, the Outer Space Treaty itself had established an additional, third potential basis for states to exercise control over space activities, as a “State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body”.40 This specific and explicit application of quasi-territorial jurisdiction on the basis of registration of the spacecraft concerned should, under the third approach to “national activities”, also mean states should be held responsible for activities involving space objects registered with them, since they are indeed able to legally give substance to such responsibility. As indicated, the absence of any authoritative guidance on the proper scope of “national activities” left individual states, when considering full-fledged interpretation of Article VI of the Outer Space Treaty, on their own in determining such scope. While the issue of how the various existing national space laws have actually addressed this, is addressed more in depth in other contributions to this book,41 it can already be summarised at the outset that indeed such national implementation mechanisms widely differed regarding their respective scopes. This remaining uncertainty on how to interpret “national activities” also did not fail to affect the issue central to this book, of authorisation (and continuing supervision), since of course the extent to which states

Justice referred to the place(s) of incorporation and headquarters as the decisive criterion/criteria to allocate limited liability companies to one particular state for the purpose of exercising international diplomatic protection. Since then, however, a number of court cases and arbitral awards – such as in the context of the Iran-United States Claims Tribunal – have put the general applicability of this approach in doubt. See e.g. Brownlie, 419–21, 482–90; Shaw, 815–8; Akehurst, 99; Wallace, 192–4. 40 ╇ Art. VIII, Outer Space Treaty. See for a further discussion of this Article, as elaborated moreover by the Convention on Registration of Objects Launched into Outer Space (hereafter Registration Convention), New York, done 14 January 1975, entered into force 15 September 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975), infra, section 6. 41 ╇ See especially infra, the contributions of I. Marboe & F. Hafner; J.F. Mayence.

The origins of authorisation: Article VI of the Outer Space Treatyâ•…â•…17

would feel compelled to undertake actual authorisation would largely depend upon the extent to which they foresaw a risk of being held internationally responsible for the activities at issue. 4.2.╇ The Concept of the “Appropriate State” Unfortunately, the main difference between Resolution 1962(XVIII) and the Outer Space Treaty was to exchange the phrase of “the State concerned”, as the state upon whom the obligation to authorise and continuously supervise private space activities rested, for that of “the appropriate State”. The former phrase rather unequivocally referred back to the state responsible (or at least one of the states responsible) as the one charged to authorise. The insertion of “the appropriate State” in Article VI, however, immediately raised questions also beyond the fundamental issue of whether the explicit singular used in this context meant that, after all, a certain set of activities in outer space could only be attributed to one state at a time, or whether in cases where multiple states bore international responsibility there was just one of them to be considered “the [most] appropriate” one to be actually forced to exercise jurisdiction, to authorise and to continuously supervise.42 Many various options were proposed for determining in any particular case the state that should be labelled the most appropriate one for the purpose of authorisation, ranging from the “launching State” of the space object involved (again in an effort to reconcile Article VI’s responsibility clauses in terms of attributability with Article VII), to the state most closely involved in the activities to be authorised (which of course begged the question how to define such a criterion) or even to the state from whose territory the activities were mainly conducted (also a nod to

╇The present author made the argument that indeed the possible multiplicity of responsible states was not negated by the explicit singular of “the appropriate state”, and that at the same time the latter concept was to guarantee that whilst many states might be held responsible in applicable cases, at least one was to be singled out as obliged to actually implement such international responsibility by means of concrete procedures and rules for authorisation (and continuing supervision); see Private Enterprise and Public Interest in the European ‘Spacescape’ – Towards Harmonized National Space Legislation for Private Space Activities in Europe, 20–1.

42

18â•…â•…F.G. von der Dunk Article VII, but this time with the realisation that activities in outer space under Article VI were not limited to those concerning the launch of space objects properly speaking). From the perspective of the present book, all states that have taken up the issue of authorising national private space activities (however defined) have, explicitly or implicitly, considered themselves to be the ‘appropriate State’ for precisely doing so. To the extent, furthermore, that any coherence or uniformity of approach could be determined amongst the national space laws or other appropriate mechanisms for authorisation these national mechanisms actually may serve as a customary law-interpretation, through state practice and opinio juris sive necessitatis,43 of this key clause of Article VI. 4.3.╇ The Relationship with other Key Clauses of the Outer Space Treaty Finally, a straightforward interpretation, application and interpretation of Article VI was and is considerably complicated by its relationship with several other key clauses of the Outer Space Treaty. Whilst Article IX has been alluded to in this context, in essence it provided for a specific version of obligations to inform and consult with other states in case one’s own (planned or ongoing) space activities could represent serious threats to activities of those other states, and to conduct one’s own activities with some minimal form of regard for environmental interests.44 In other words, this clause provided one, albeit peculiar set of ╇ See on these key concepts in the context of development of customary international law e.g. Cassese, 119–23; Wallace, 14–9; Shaw, 72–89; Brownlie, 7–10. 44 ╇ Art. IX runs in relevant part: “States Parties to the Treaty shall (…) conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, 43

The origins of authorisation: Article VI of the Outer Space Treatyâ•…â•…19

substantive obligations violation of which would incur the relevant state’s responsibility under Article VI. From a more structural point of view, especially Articles VII and VIII of the Outer Space Treaty should be briefly be addressed as playing a major role in determining how states would interpret and implement their responsibility under Article VI to authorise and otherwise appropriately deal with national space activities conducted by private enterprise. Those two Articles will therefore be briefly addressed in the next two sections.

5.╇ Article VII, Liability and Authorisation under Article VI Article VII of the Outer Space Treaty provides for a close corollary to the international state responsibility addressed by Article VI, through the concept of international liability for damage, as follows: Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies.45

The effort by certain scholars to ‘insert’ the attribution of liability, as per the activity, procurement, territory or facility of launch, into the concept of “national activities” has been referred to above. Also, the complex relationship, both in abstract and general terms and in the specific context of space law, between the concepts of ‘responsibility’ and ‘liability’, has already been noted.46

including the Moon and other celestial bodies, may request consultation concerning the activity or experiment.” 45 ╇ As indicated supra, n. 32, the Liability Convention formalised this fourfold criterion for attributing liability for damage caused by space objects by introducing the concept of the “launching State”; cf. Art. I(c). 46 ╇ For those further interested in the author’s views on this, reference may be had to Liability versus Responsibility in Space Law: Misconception or Misconstruction?, see supra, n. 33.

20â•…â•…F.G. von der Dunk The key issue to be addressed is that liability in space law, as a form of general accountability intricately related to responsibility as another form of such accountability, without a doubt focuses on the potential for one state or group of states to claim compensation for damage caused by another state or group of states – and hence concerns potentially large sums of money easily to be visualised. Moreover, such liability includes private entities subsumed under those: the attribution of such liability as per Article VII of the Outer Space Treaty and Article I(c) of the Liability Convention47 takes place to one or more states regardless of any involvement of private entities in the causation of the damage or the manufacture, launch or operation of the space object concerned. In other words: one state or another (or a number of states) will carry the international liability for space activities conducted by private companies. It will be obvious therefore that for states concerned in more general terms with the obligation of Article VI to authorise national space activities undertaken by non-governmental entities, attention will immediately be directed to ensuring that the aforementioned liability is, as far as considered necessary and possible, taken care of by such authorisation. Put differently, states will wish to exercise the control inherent in the concept of authorisation amongst others over those entities which by their activities may incur the international liability of those respective states. Of course, this was one reason behind the efforts to make the criterion for attribution of private companies for purposes of Article VI match those for purposes of Article VII (and the Liability Convention), effectively equating the concept of ‘national activities’ to those sets of activities for which the state concerned would qualify (also) as “launching State”. Apart from the questions which arise following such an interpretation as pointed out before, however, this brings the issue of divergence between application of the concepts of ‘responsibility’ and ‘liability’ by the Outer Space Treaty back on the table, as it certainly also in pragmatic terms impinges on the issue of authorisation of private space activities under Article VI.

╇See supra, n. 32 and accompanying text.

47

The origins of authorisation: Article VI of the Outer Space Treatyâ•…â•…21

Summarising the consequences of the liability regime established under space law discussed before, four options for attributing liability exist. A state would be liable for damage caused by a space object manufactured, owned, launched, operated, marketed, sold and/or disposed of, as the potential target for authorisation, wherever that state qualifies as 1.╇ the state that launched, 2.╇ the state that procured the launch, 3.╇ the state whose territory was used for the launch of, and/or 4.╇ the state whose facility was used for the launch of the space object concerned.48 A complicating factor here, is whether “the state” should be read literally and narrowly as possibly referring only to a state, or whether it should more broadly be read as including cases where ‘its’ companies actually undertake the launch, procure it or offer their facilities for it.49 If the former interpretation is true, there would be no issue for ‘authorisation’ properly speaking to that extent, since either a state incurs liability under any of these headings because it undertakes the activity concerned itself, or that activity is undertaken by a non-governmental entity and hence does not possibly trigger the state’s international liability (at least not under that heading). If the latter interpretation is true, however, a private company launching a space object may trigger its state’s liability, and the same applies mutatis mutandis for private procurement and the use of private facilities, in which cases the state concerned would be interested in ensuring that the scope of its system of authorisation extends to such activities. The criterion of ‘territory’ is the odd one out here, in that it can never be referred to as being ‘of ’ a private entity, as international law

╇ By contrast, a state might be ‘responsible’ for such damage under Art. VI, Outer Space Treaty, only if it resulted from a ‘national activity’ and comprised, in itself, a violation of the Outer Space Treaty’s regime. 49 ╇The latter argument could be supported by ‘transplanting’ the fundamental legal equality between governmental and non-governmental activities as propounded by Art. VI, Outer Space Treaty (see also supra, discussion at n. 18), to Art. VII (and the Liability Convention), inferring that references to “a state” anywhere in the Outer Space Treaty always includes the private entities somehow subsumed under it. 48

22â•…â•…F.G. von der Dunk reserves the term exclusively to the context of states.50 In other words, by definition private launches conducted from a state’s territory trigger that state’s liability under international space law – and would likely cause the liable state to exercise authorisation and supervision competences for the purpose. As has been noted elsewhere, this clause has provided a kind of ‘lock’ on the system, ensuring that there could always at least one state be found liable on the international level for a completely privatelyconducted space activity causing damage.51 That is, of course, until the Sea Launch consortium started launching from the high seas, where no territorial sovereignty applies.52 This evaluation of Article VII leads to the following systematic analysis, for the purpose of determining the interest of a particular state in establishing a system of authorisation applicable to the scenario at hand. Option 1 (in the broad interpretation) would make a state liable also in scenarios where its territorial jurisdiction may not allow the tool of authorisation to be effectively applied – namely if the private entity “that launches (…) an object into outer space”, to use the phrasing of Article VII, undertakes such launching activities fundamentally from outside the state’s territory. If such activities should nevertheless be seen as leading to the state’s liability, the only realistic option here would be for the company to be of the nationality of that state – otherwise its launch activities should be allocated to a different state for the purpose of being subsumed under “the state that launches (…) an object into outer space”. In other words: if the state concerned applies its authorisation regime not (only) on a territorial basis, but (also) on a personal basis, requiring any private operator with its nationality to be authorised regardless of where the launch is to be conducted, it can still cover also the scope of its possible liability under Article VII of the Outer Space Treaty and the Liability Convention. Option 2 (again under the broad interpretation) presents even more difficulties from the present perspective, because of the additional ╇See e.g. Shaw, 487â•›ff.,; Brownlie, 105â•›ff.; Cassese, 48, 56â•›ff.; Wallace. 92–3; also K.H. Böckstiegel, The Term ‘Launching State’ in International Space Law, Proceedings of the Thirty-Seventh Colloquium on the Law of Outer Space (1995), 82. 51 ╇ So A. Kerrest de Rozavel, Launching Spacecraft from the Sea and the Outer Space Treaty: The Sea Launch Project, Proceedings of the Fortieth Colloquium on the Law of Outer Space (1998), esp. 267–8. 52 ╇ See Kerrest de Rozavel, 265–6, 268; Shaw, 609â•›ff.; Brownlie, 223â•›ff.; Cassese, 60–1; Wallace, 148–9. 50

The origins of authorisation: Article VI of the Outer Space Treatyâ•…â•…23

vagueness stemming from the use of the term “procuring”.53 In addition to the definition thereof being far from generally agreed upon, whatever ‘procurement’ might actually turn out to be in essence it does not even concern an ‘activity in outer space’ (to refer to the phrasing of Article VI); often-quoted efforts to define the concept of ‘procuring a launch’ refer to ‘making it happen’, ‘paying for it’ or even ‘licensing it’. One may indeed wonder whether a national space law would be the proper place for including a requirement of authorisation before procurement should be allowed, in particular if wider interpretations of the concept are used (or expected to be used). For example in the United Kingdom the inclusion of procurement in a rather extended interpretation as an activity requiring a license under the applicable Act resulted in criticisms that this would mean that even a bank financing a satellite operation would be required to obtain such a license, including the undertaking of possible liability- and insurance-related obligations.54 Still, one could argue that for any private party procuring a satellite launch to result in the liability of a particular state under Article VII of the Outer Space Treaty and the Liability Convention, that private party would either have to operate (‘to undertake the procurement at issue’) from the territory of that state or in its quality as being a national entity of that state – in which cases giving the authorisation regime a territorial respectively nationality-based scope would suffice for allowing that state to cover its potential liability thereby.

╇ See e.g. M. Gerhard, The State of the Art and Recent Trends in the development of National Space Law, in C. Brünner & E. Walter (Eds.), Nationales Weltraumrecht / National Space Law (2008), 67–8; M. Chatzipanagiotis, Registration of Space Objects and Transfer of Ownership in Orbit, 56 Zeitschrift für Luft- und Weltraumrecht (2007), 235; Böckstiegel, 81–2; on the various interpretations possible of ‘procurement’ in this context. 54 ╇ Sec. 1(a), Outer Space Act (hereafter uk Outer Space Act), 18 July 1986, 1986 Chapter 38; National Space Legislation of the World, Vol. I (2001), at 293; Space Law – Basic Legal Documents, E.I; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 12; provides that “This Act applies to the following activities whether carried on in the United Kingdom or elsewhere (…) procuring the launch of a space object”, whereas Sec. 13(2) provides that “For the purposes of this Act a person carries on an activity if he causes it to occur or is responsible for its continuing”. See further e.g. J.A. Ballard, The uk Outer Space Act 1986 and non-governmental activities in the United Kingdom, paper presented at the 4th Dutch NPOC/ECSL Workshop, Noordwijk, December 1995. 53

24â•…â•…F.G. von der Dunk Option 3, the odd one out, results in few problems. Since it concerns the use of a state’s territory for a launch, the resulting liability for that state can easily be subsumed under the territorial scope of any national authorisation regime developed in the context of Article VI’s obligation. Finally, once a private facility would come to be equated with a state’s facility for the purpose of triggering Article VII and the Liability Convention, Option 4 may well require extension of the scope of the relevant national authorisation regime to privately owned facilities regardless of their location if the private owner is of the nationality of that state to provide full coverage in terms of international space law liability, since territorial jurisdiction would only cover such facilities if located in the territory of that state. In conclusion, if states are interested in covering, through their authorisation regimes, also the possible liability they may incur – at least under the broad interpretation – as a consequence of private space (or adjacent: procurement!) activities, they would better establish an authorisation regime that does not only apply to such activities conducted in their territory, but also to such activities conducted by their nationals regardless of where that takes place.

6.╇ Article VIII, Registration and Authorisation under Article VI Also Article VIII of the Outer Space Treaty has an intricate relation to Article VI, and hence should be investigated with a view to properly assessing the authorisation requirement resulting from the latter. Article VIII in relevant part provides: “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.” The Registration Convention, generally considered as elaborating Article VIII of the Outer Space Treaty,55 further provides with regard to

╇ Cf. e.g. G. Lafferranderie, Jurisdiction and Control of Space Objects and the Case of an International Intergovernmental Organization (ESA), 54 Zeitschrift für Luft- und Weltraumrecht (2005), 228–9; Y. Zhao, Revisiting the 1975 Registration Convention: Time for Revision?, in Proceedings of the United Nations/Republic of Korea Workshop

55

The origins of authorisation: Article VI of the Outer Space Treatyâ•…â•…25

jurisdiction – more precisely, where more than one state could qualify as state of registration: Where there are two or more launching States in respect of any such space object, they shall jointly determine which one of them shall register the object in accordance with paragraph 1 of this article, bearing in mind the provisions of article VIII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and without prejudice to appropriate agreements concluded or to be concluded among the launching States on jurisdiction and control over the space object and over any personnel thereof.56

For the purposes of dealing with authorisation of private space activities, it is important first to note that “jurisdiction”, as essentially the sovereign right to control private persons and entities by juridical means and notably including the competence to authorise or refuse authorisation, is to be ‘retained’ under Article VIII of the Outer Space Treaty. The use of the word ‘retain’ points to jurisdiction which somehow already exists – in other words, to national jurisdiction and territorial jurisdiction, as the two traditional generic forms of national jurisdiction accepted under public international law.57 In other words, these already existing forms of jurisdiction are extended to outer space – more precisely to particular space objects present therein – by means of registration, and could therefore be exercised on board of such space objects.58 Thus, Article VIII provides essentially for a third legal instrument available to individual states, next to territorial and nationality-based jurisdiction, to exercise legal control over space activities conducted by private players in case they qualify as ‘launching States’ of a space object on Space Law (2004), 127; C.Q. Christol, The Modern International Law of Outer Space (1982), e.g. 218–23. 56 ╇ Art. II(2), Registration Convention. 57 ╇See supra, text at nn. 34 & 35, and accompanying references. 58 ╇ One could argue that either national jurisdiction is applied on a quasi-national basis to registered space objects, which by token of their registration have been given the quasi-nationality of the state claiming and/or exercising such jurisdiction, or territorial jurisdiction is applied on a quasi-territorial basis to such space objects, which by their registration have been transformed into quasi-territory of the state claiming and/or exercising such jurisdiction, but this is essentially a theoretical point. See further Private Enterprise and Public Interest in the European ‘Spacescape’ – Towards Harmonized National Space Legislation for Private Space Activities in Europe, 27–31.

26â•…â•…F.G. von der Dunk involved in such activities and use that qualification to legitimately serve as state of registration – and to thus create their own entitlement to exercise jurisdiction. To the extent that this may reinforce an interpretation of Article VI of the Outer Space Treaty in that state responsibility of a state also covers activities taking place under registration-based jurisdiction of that state,59 it would mean that any authorisation regime for private space activities would have to be extended to cover this category of activities. From the other end, the registration of space objects may also result in states better being able to exercise jurisdiction over certain categories of space activities for the purposes of international responsibility as much as international liability than they might otherwise have been. Imagine a state being used as launching territory by a satellite operator from a different state. The first state, through its territory, qualifies as a “launching State” of the satellite thus launched, under Article I(c), sub (ii) of the Liability Convention. If it conducts the launch itself, not only will it be liable under Article I(c), sub (i) of the Liability Convention, but it will also have concluded a launch contract with the satellite operator. If the actual launch has been conducted by a private launch service provider, it will have the competence, following from its territorial jurisdiction, to authorise that launch, refuse such authorisation or impose conditions on such authorisation – and it will most probably do so in order to cover its liability under the Liability Convention. Whichever of the two sub-scenarios would become reality, however, as soon as the satellite has separated from the launch vehicle and actual control of its operations has been taken over by a ground station of the operator, presumably outside of the territory of the first state, that state has no more legal control over the operator and its operations – yet, remains liable basically until eternity as launching state: once a launching state, always a launching state; once liable, always liable. Of course, that gap between continuing liability and lack of direct jurisdiction could be bridged to some extent through the aforementioned launch contract, respectively the requirement for the private launch service provider to include in the launch contract a provision, obliging the satellite operator to reimburse any international liability

╇ See on this discussion supra, at n. 40.

59

The origins of authorisation: Article VI of the Outer Space Treatyâ•…â•…27

claim for the state concerned under the Liability Convention. Such clauses, however, may be hampered by their contractual nature and by being limited to liability issues. A much more comprehensive approach therefore would be for the state concerned, as launching state, if necessary after consultation with other states qualifying as such,60 to insist on acting as state of registration under Article VIII and the Registration Convention and thereby continue to be entitled to exercise jurisdiction over the operations of the space object so registered, in order to control its international responsibilities and liabilities. In conclusion, Article VIII of the Outer Space Treaty and the Registration Convention provide for a legal tool to be taken into consideration when implementing the authorisation requirement under Article VI of the Outer Space Treaty, being so closely related even as to likely have an effect of co-determining the scope of international responsibility for national activities under Article VI – although that ultimately would be a matter of national space law as the ultimate manifestation of state practice and opinio juris on this, in the absence of clear guidance on the international level.

7.╇ Concluding Remarks Coming back to the issue of authorisation as originating in Article VI of the Outer Space Treaty, it is thus clear that beyond that basic level of positing the requirement, a number of key issues remain far from clarified at the international level. What is the exact scope of the international responsibility which any state carries under this key clause, as no doubt being that state’s main concern in terms of implementing the authorisation requirement and using it for that purpose? To what extent would such authorisation then be able to cover also all possible situations where international liability, under the Liability Convention, may be claimed? What would be the ramifications of one state authorising, through registration of the space object, the operations undertaken therewith, on a quasi-national/quasi-territorial basis, with another state

╇ See Art. II(2), Registration Convention, as quoted supra.

60

28â•…â•…F.G. von der Dunk authorising the operator of that subject to undertake such operations on the basis of national and/or territorial jurisdiction? While experts have come up with various solutions on these issues, ultimately it is up to the states concerned to create the state practice and opinio juris which could lead to authoritative interpretations thereof. States, indeed, are confronted with the need to pick and choose from such various options once they are going to draft a national space law – unless they would like the uncertainties existing on the international level to be transposed also to the national level, causing legal uncertainty with any prospective private entity interested in undertaking space activities. In view of the obvious negative consequences of the latter approach, states so interested would indeed be inclined to scope their national authorisation regimes quite precisely (a propos “national activities” of Article VI), to outline in detail what liability obligations authorised operations would entail (a propos the obligations under Article VII and the Liability Convention), and to precisely determine which space objects they wish to register nationally and internationally (a propos Article VIII and the Registration Convention). Unfortunately, as will become clear in several of the other contributions to this book, individual states take individual approaches to the matter, making their own judgement on which activities they might be held responsible and/or liable for, and which activities they consequently aim to control in what manner. This obviously raises, at least in the European context, the question to which extent a measure of harmonisation of some key aspects of national authorisation, as per the European Space Agency or European Union, would be feasible, desirable and workable.

Chapter Two Brief Overview over National Authorization Mechanisms in Implementation of the un International Space Treaties I. Marboe & F. Hafner 1.╇Introduction Technical progress and economic development have made it possible that activities in outer space are increasingly carried out by private actors. While in the past only states – or even only several states together – had the financial and institutional means to engage in space activities,  this situation has radically changed. The trend of privatisation and commercialisation has not left outer space unaffected. Many activities that traditionally have been regarded as public affairs are nowadays conducted by private operators. This includes, for example, satellite services1 and earth observation2. Today, travel agencies3 or even supermarkets4 offer ‘vacation trips’ into outer space. ╇See S. Reif, B. Schmidt-Tedd & K. Wannenmacher, Report of the ‘Project 2001’ Working Group on Privatisation, in K.H. Böckstiegel (Ed.), ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space (2002), 405–500; D. Sagar, Privatisation of International Satellite Organizations, in K.H. Böckstiegel (Ed.), ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space (2002), 501–9. 2 ╇ See W. von Kries & I. Polley, Report of the ‘Project 2001’ Working Group on Remote Sensing, in K.H. Böckstiegel (Ed.), ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space (2002), 145–4. 3 ╇See http://www.ab-in-den-urlaub.de, last accessed 1 July 2010. It offers a suborbital  flight at the price of 102,000 us$, which flights shall be conducted from 2010 onwards. 4 ╇See http://www.pennypackngo.at/index.php?act=2&code=0F0081B4, last accessed 10 December 2009. The supermarket offers a space flight in cooperation with a us based company. See http://www.rocketplane.com, last accessed 1 July 2010. 1

30â•…â•…I. Marboe & F. Hafner Nevertheless, the legal framework under which space activities are carried out still refers to states as the main players. The exploration and use of outer space is regulated by public international law, in particular by the five un international space treaties.5 These un treaties contain a number of rights and obligations of the states in relation to outer space. They contain, amongst others, the obligation of states to ensure that their international obligations are complied with by both public and private entities.6 In the following, we will provide a brief overview over national authorization mechanisms and analyse in which way they implement the un international space treaties. At the outset, we will briefly recapitulate the relevant international obligations and some legal opinions on it. Then, we will introduce some pieces of national space legislation in Europe and outside Europe which deal with the issue of authorization. On this basis, we will analyse how those different systems have solved the most important questions which arise in connection with national authorization and supervision of space activities.

╇ The five treaties are (1) Treaty on Principles governing the Activities of states in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967, 610 UNTS 205, 6 ILM 386 (1967); (2) Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (hereafter Rescue Agreement), London/Moscow/ Washington, done 22 April 1968, entered into force 3 December 1968, 672 UNTS 119, 7 ILM 151 (1968); (3) Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972, 961 UNTS 187, 10 ILM 965 (1971); (4) Convention on Registration of Objects Launched into Outer Space (hereafter Registration Convention), New York, done 14 January 1975, entered into force 15 September 1976, 1023 UNTS 15, 14 ILM 43 (1975); and (5) Agreement GovernÂ� ing  the Activities of states on the Moon and Other Celestial Bodies, New York, done 18 December 1979, entered into force 11 July 1984, 1363 UNTS 3, 18 ILM 1434 (1979). 6 ╇ S. Bhat B. & P. Ishwara Bhat, Legal Framework of State Responsibility and Liability for Private Space Activities, in: S. Bhat B. (Ed.), Space Law in the Era of Commerciali­ sation (2010), 131â•›ff.; R.L. Spencer, International Space Law: A Basis for National Regulation, in: R.S. Jakhu (Ed.), National Regulation of Space Activities (2010), 1, 2. 5

National authorisation mechanisms in implementation of the un treatiesâ•…â•…31

2.╇ Legal Basis The most important provision in respect of the obligation to authorize is Article VI of the Outer Space Treaty7 which reads: States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.

The Outer Space Treaty thus establishes that states bear international responsibility for national activities in outer space and explicitly prescribes that activities of non-governmental entities in outer space must be authorized and supervised by the state.8 This is remarkable insofar as space activities at the time of the conclusion of the treaty, in the year 1967, were primarily undertaken by states and hardly by private actors.9

╇As to the importance of Article VI for national space legislation, see S. Hobe, Harmonization of National laws as an Answer to the Phenomenon of Globalization, in K.H. Böckstiegel (Ed.), ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space (2002), 639-40; Spencer, 1, 6. 8 ╇ The authorization ensures that the state recognizes the commercial entity’s planned activity through an a priori licensing procedure, see Spencer, 1, 7. 9 ╇ Spencer underlines that Article VI of the Outer Space Treaty fails to provide specific guidelines of minimum standards for the state to satisfy the requirements of supervision. However, he emphasizes that the subsequent body of international instruments relating to the conduct of space operations, as the Liability and Registration Conventions, the un Resolution on the Application of the Concept of the Launching State, regulations in the International Telecommunication Law, and the IADC Space Debris Mitigation Guidelines, among others, have been created in furtherance of this article; see Spencer, 9–21. 7

32â•…â•…I. Marboe & F. Hafner There is some disagreement whether Article VI of the Outer Space Treaty contains an obligation of states to enact a specific national law regulating space activities or whether this is not required.10 However, there can be no doubt that states are internationally obliged to establish some system of authorization and supervision of private space activities under their national legal system but they may decide in which way they implement this obligation.11 The respective rules can be contained in one specific space act or in a number of different laws. In the following, we will analyse a few national systems of authorization which show various ways of how countries have implemented their obligation to authorize and supervise national space activities.

3.╇ Selected National Space Legislation 3.1.╇ESA Member States In Europe, six member states of the European Space Agency (esa) have enacted national space laws so far. In a chronological order this is Norway, Sweden, the United Kingdom, Belgium, the Netherlands and France.12 With the exception of Norway, all of them are also members of the European Union (eu) which has increasingly become involved in space activities and has a “shared competence” in space since the entry into force of the Treaty of Lisbon on 1 December 2009.13

╇ E.g. J. Hermida, Legal basis for a national space legislation (2004), 29–32; V. Kayser, Commercial Exploitation of Space: Developing Domestic Regulation, 17 Annals of Air and Space Law (1992), 190; M. Bourély, Quelques réfléxions au sujet des législations spatiales nationales, 16 Annals of Air and Space Law (1991), 247. 11 ╇ See M. Gerhard, Article VI, in S. Hobe, B. Schmidt-Tedd & K.U. Schrogl (Eds.), Cologne Commentary on Space Law, Vol. I (2009), 117. 12 ╇For an insightful and well-arranged overview over national space legislation in Sweden, the United Kingdom, Belgium, the Netherlands, France, Norway, the United States, South Africa, Ukraine and Australia; see M. Sánchez Aranzamendi, Economic and Policy Aspects of Space Regulations in Europe, Part I: The Case of National Space Legislation – Finding the Way between Common and Coordinated Action. espi Report 21, September 2009. 13 ╇ See Art. 189, Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (hereafter Treaty of Lisbon), Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 306/1 (2007); for 10

National authorisation mechanisms in implementation of the un treatiesâ•…â•…33

European integration and close cooperation in space activities in esa is a specificity which renders the legal situation in Europe rather complex. The competence to authorize and supervise according to Article VI of the Outer Space Treaty is not clearly allocated. In this context, the different national space acts have and will continue to have their importance. The new shared competence of the European Union only foresees cooperation and support but not harmonisation of the relevant laws. 3.1.1.╇Norway Norway has ratified the Outer Space Treaty, the Rescue Agreement, the Liability Convention and it has signed (but not ratified) the Registration Convention. Already on 13 June 1969 Norway enacted the Act on Launching Objects from Norwegian Territory into Outer Space.14 This means that the act entered into force even two weeks before Norway ratified the Outer Space Treaty. Hence, Norway was the first state to enact national space legislation dedicated primarily to dealing with private involvement in space activities, closely followed by the United States.15 The Norwegian Act on Launching is very short and consists only of three articles. In its essence it prescribes that, without permission from the Norwegian ministry concerned, it is forbidden to launch any object into outer space from Norwegian territory or Norwegian a more detailed analysis see I. Marboe, National Space Legislation: The European Perspective, in C. Brünner & E. Walter (Eds.), National Space Law: Development in Europe – Challenges for Small Countries (2008), 31–46; I. Marboe & F. Hafner, Latest trends in the national authorization and regulation of space activities in Europe, in K.U. Schrogl et al. (Eds.), Yearbook on Space Policy 2007/2008: New Trends in Space Policy (forthcoming 2010). For a more detailed information on this topic see infra, the contribution of B. Schmidt-Tedd. 14 ╇ Act on Launching Objects from Norwegian Territory into Outer Space of 13 June 1969 (No. 38. 1969) (hereafter Norwegian Act on Launching); see United Nations Office for Outer Space Affairs, National Space Law Database, http://www.oosa.unvienna.org/oosaddb/showDocument.do?documentUid=324&level2=none&node=NO R1970&level1=countries&cmd=add, last accessed 1 July 2010. 15 ╇ See F.G. von der Dunk, Current and Future Development of National Space Law and Policy, in United Nations Office for Outer Space Affairs (Ed.), Disseminating and Developing International and National Space Law: The Latin America and Caribbean Perspective (2005), 41; F.G. von der Dunk, The Legal Basis for National Space Legislation – With Special Reference to the Old/New Norwegian Act on Launching Objects from Norwegian Territory into Outer Space, in K.H. Böckstiegel (Ed.), ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space (2002), 578.

34╅╅I. Marboe & F. Hafner vessels, aircrafts and suchlike. The competent ministry is the Ministry of Trade and Industry. 3.1.2.╇Sweden Sweden was the next European state that set forth rules on the authorization of space activities. Key documents in this respect are the Act on Space Activities16 and the Decree on Space Activities.17 The Swedish Act on Space Activities is very concise and prescribes a license for nongovernmental space activities.18 The supplementing Decree lays down the conditions under which a license may be issued by the Swedish government. Furthermore, the Decree establishes the national register for space objects required by the Registration Convention and determines the duties of the Swedish National Space Board. This Board is a central governmental agency under the Ministry of Industry, Employment and Communications.19 An application for a licence shall be submitted to the Swedish National Space Board which exercises control over the space activities of licensees.20

╇Act on Space Activities 1982, SFS 1982:963 (hereafter Swedish Act on Space Activities), in: K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, 5 E.II; see also the reprinted text in C. Brünner & E. Walter (Eds.), National Space Law – Development in Europe – Challenges for Small Countries (2008), at 179–180; United Nations Office for Outer Space Affairs, National Space Law Database, http://www.oosa.unvienna.org/oosaddb/showDocument.do?documentUi d=318&level2=none&node=SWE1970&level1=countries&cmd=add, last accessed 1 July 2010.. 17 ╇Decree on Space Activities, SFS 1982:1069 (hereafter Swedish Decree on Space Activities), in: K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, 5 E.II; see also the reprinted text in C. Brünner & E. Walter (Eds.), National Space Law – Development in Europe – Challenges for Small Countries (2008), at 181–2; United Nations Office for Outer Space Affairs, National Space Law DataÂ� base, http://www.oosa.unvienna.org/oosaddb/showDocument.do?documentUid= 319&level2=none&node=SWE1970&level1=countries&cmd=add, last accessed 1 July 2010.. 18 ╇ See N. Hedman, Swedish Legislation on Space Activities, in C. Brünner & E. Walter (Eds.), National Space Law: Development in Europe – Challenges for Small Countries (2008), 74; N. Hedman, Vertices of an Administrative Procedure/Costs: The Swedish Experience, in S. Hobe, B. Schmidt-Tedd & K.U. Schrogl (Eds.), Towards a Harmonised Approach for National Space Legislation in Europe (2004), 75. 19 ╇ Hedman, Vertices, 77. 20 ╇ See Sec. 3, Swedish Act on Space Activities; Sec. 1, Swedish Decree on Space Activities. 16

National authorisation mechanisms in implementation of the un treatiesâ•…â•…35

3.1.3.╇ United Kingdom In the United Kingdom, the legal basis for the regulation of space activities carried out by organizations or individuals is the Outer Space Act of 1986.21 It entered into force on 31 July 1989.22 The uk Outer Space Act was a consequence of the commercialisation of space which led to several space activities conducted by British companies.23 Its main purpose was to secure compliance with the obligations of the United Kingdom deriving from international law in the field of space activities.24 The Act confers licensing and other powers upon the Secretary of State for Innovation, University and Skills, who carried these powers out through the British National Space Centre (bnsc).25 Following a public consultation on the funding and management of uk civil space activities and recommendations in the Space Innovation and Growth Strategy report, ╇ Outer Space Act, 1986 Chapter 38 (18 July 1986) (hereafter uk Outer Space Act), in: K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.I; United Nations Office for Outer Space Affairs, National Space Law Database, http://www.oosa.unvienna.org/oosaddb/showDocument.do?documentUid=323& level2=none&node=UK1970&level1=countries&cmd=add, last accessed 1 July 2010.; as to the applicability of the Law to the Crown dependencies and the British Oversaes territories see S. Mosteshar, Regulation of Space Activities in the United Kingdom, in: R.S. Jakhu (Ed.), National Regulation of Space Activities (2010), 357, 360. 22 ╇ See Committee on the Peaceful Uses of Outer Space, Review of existing national space legislation illustrating how states are implementing, as appropriate, their responsibilities to authorize and provide continuing supervision of non-governmental entities in outer space, un Document A/AC.105/C.2/L.224 (22 January 2001); R. Close, uk Outer Space Act 1986: Scope and Implementation, in K.H. Böckstiegel (Ed.), ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space (2002), 581. 23 ╇See Von der Dunk, Current and Future Development, 43; Close, 579; Sánchez Aranzamendi, 17. 24 ╇ See the first sentence of the uk Outer Space Act: “An Act to confer licensing and other powers on the Secretary of State to secure compliance with the international obligations of the United Kingdom with respect to the launching and operation of space objects and the carrying on of other activities in outer space by persons connected with this country”; R. Crowther & R. Tremayne-Smith, Safety Evaluation within the United Kingdom’s Outer Space Act, in S. Hobe, B. Schmidt-Tedd & K.U. Schrogl (Eds.), Towards a Harmonised Approach for National Space Legislation in Europe (2004), 79. 25 ╇ See Sec. 4, uk Outer Space Act; Hermida, 124; Crowther & Tremayne-Smith; British National Space Centre, Review of licensing regime operated under the Outer Space Act 1986, http://www.bnsc.gov.uk/6495.aspx, last accessed 1 July 2010.; Mosteshar,, 357, 360. 21

36â•…â•…I. Marboe & F. Hafner the new “uk Space Agency” was launched on 1 April 2010 to replace the bnsc with the objective of unification of all uk civil space activities under one single management.26 3.1.4.╇Belgium The first of the more recent European space acts is the Belgian Law on the Activities of Launching, Flight Operations or Guidance of Space Objects of 28 June 2005.27 It entered into force on 1 January 2006. It has been supplemented by a Royal Decree implementing certain provisions of the Law28 which was adopted on 19 March 2008 and entered into force on 11 April 2008.29 The law confers a number of competences to the Belgian King. He may, for example, determine the conditions for granting authorizations, the conditions applying to the control and supervision and the limitation of the operator’s liability.30 Other competences are conferred to the Belgian Minister competent for space research and its applications in the framework of international cooperation. He may, among others, attach to any authorisation such specific

╇ For further information see http://www.ukspaceagency.bis.gov.uk/default.aspx, last accessed 1 July 2010. 27 ╇ Law on the Activities of Launching, Flight Operations or Guidance of Space Objects of 28 June 2005 (hereafter Belgian Space Law), in K.H.Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.X; see also the reprinted text in C. Brünner & E. Walter (Eds.), National Space Law – Development in Europe – Challenges for Small Countries (2008), at 183–94; Belgian Federal Science Policy Office, http://www.belspo.be/belspo/res/rech/spatres/loispat_en.stm, last accessed 1 July 2010. 28 ╇ Royal Decree implementing certain provisions of the law of 17 September 2005 on the activities of launching, flight operations and guidance of space objects (hereafter Royal Decree); see also the reprinted text in C. Brünner & E. Walter (Eds.), National Space Law – Development in Europe – Challenges for Small Countries (2008), at 195–200; Belgian Federal Science Policy Office. 29 ╇ See J.F. Mayence, Introduction to the Belgian Law on the Activities of Launching, Flight Operations or Guidance of Space Objects, in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.X; Belgian Federal Science Policy Office. 30 ╇Belgian Space Law, Art. 4(5), (6); Art. 15(3); see also Mayence, Introduction to the Belgian Law; J.F. Mayence, The Belgian Space Law, Presentation made during the forty-eighth session of the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space, http://www.oosa.unvienna.org/pdf/pres/lsc2009/pres-08.pdf, last accessed 1 July 2010. 26

National authorisation mechanisms in implementation of the un treatiesâ•…â•…37

conditions that he deems useful, on a case-by-case basis, or may grant the authorisation for a specific period, having regard to the activities covered by the authorisation.31 The Belgian Space Law has three main targets:32 first, the authorization and supervision of space activities performed under Belgian jurisdiction, secondly, the establishment of a national registry for space objects and, thirdly, the avoidance of liability which may arise according to Article VI of the Outer Space Treaty. The main reason, at the outset, for a Belgian space law was to provide a legal basis for space activities that have been started to be undertaken in Belgium, as well as by Belgian citizens and companies.33 The new Belgian Space Law should ensure compliance with the obligations of the Belgian state deriving from international law.34 Furthermore, as an esa member state, Belgium considered itself as a (co-)launching state of space objects launched by esa.35 3.1.5.╇ The Netherlands The Dutch Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry for Space Objects36 was adopted by the Parliament on 25 January 2007 and entered into force on 1 January 2008.37 As in the case of Belgium, the Netherlands started setting forth ╇ See Art. 4(2), (3), Belgian Space Law. ╇ See Mayence, Introduction to the Belgian Law. 33 ╇ For further information about the motifs for the enactment of the Space Law see Sánchez Aranzamendi, 18. 34 ╇ See J.F. Mayence, Towards a legal framework for space activities and applications: Belgian, comparative and European perspectives, The Belgian Law on the activities of launching, operating and monitoring of space objects, http://www.belspo.be/belspo/ eisc/pdf/docu1law/mayence.pdf, last accessed 1 July 2010; M. Gerhard, Samples of National (Draft) Legislation and Harmonisation – Contributions by state representatives, in S. Hobe, B. Schmidt-Tedd & K.U. Schrogl (Eds.), Towards a Harmonised Approach for National Space Legislation in Europe (2004), 155. 35 ╇ See Mayence, Introduction to the Belgian Law. 36 ╇Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry for Space Objects of 1 January 2008 (hereafter Dutch Space Law), in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.XIV; see also the reprinted text in C. Brünner & E. Walter (Eds.), National Space Law – Development in Europe – Challenges for Small Countries (2008), at 201–10. 37 ╇ See H. de Brabander-Ypes, Introduction to the Law Incorporating Rules ConcernÂ� ing Space Activities and the Establishment of a Registry for Space Objects, in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.XIV. 31 32

38â•…â•…I. Marboe & F. Hafner national space legislation when Dutch companies had started to engage in space activities.38 The Dutch Space Law regulates registration, authorization and supervision and gives the possibility of redress in cases of the state’s liability for damages caused by spaced activities.39 The Kingdom of the Netherlands consists of its European part and six islands in the Caribbean, Aruba and the then five Netherlands Antilles. When the Kingdom ratified the five un space treaties, this included, of course, also those territories. However, it was not equally clear that the Dutch Space Law – transposing the state’s international obligations into national law – would enter into force also in the overseas territories.40 Eventually it turned out that those territories preferred to retain their autonomy in respect of the regulation of space activities. Thus, the Dutch Space Law only entered into force with effect to the European part of the Netherlands.41

╇ See F.G. von der Dunk, Implementing the United Nations Outer Space Treaties – The Case of the Netherlands, in C. Brünner & E. Walter (Eds.), National Space Law: Development in Europe – Challenges for Small Countries (2008), 92; F.G. von der Dunk, Recent Developments and Status of National Space Legislation, in S. Hobe, B. Schmidt-Tedd & K.U. Schrogl (Eds.), Towards a Harmonised Approach for National Space Legislation in Europe (2004), 67–8; H. de Brabander-Ypes, The Netherlands Space Law – An introduction to contents and dilemma’s, Presentation held at the 47th session of the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space, http://www.oosa.unvienna.org/pdf/pres/lsc2008/pres-02.pdf, last accessed 1 July 2010; for further information see Sánchez Aranzamendi, 19; for an overview of Dutch space activities and the participation in international space law see F. G. von der Dunk, Regulation of Space Activities in The Netherlands, in: R.S. Jakhu (Ed.), National Regulation of Space Activities (2010), 225–35. 39 ╇ See Von der Dunk, Implementing the United Nations Outer Space Treaties, 99; De Brabander-Ypes, The Netherlands Space Law. 40 ╇ See De Brabander-Ypes, Introduction to the Law. 41 ╇Aruba declared that it would ban space activities at all and the Netherlands Antilles will draft their own space legislation on the basis of the Dutch Space Law. See De Brabander-Ypes, Introduction to the Law. Following constitutional changes, however, the Netherlands Antilles have ceased to exist. Following a plan agreed upon in 2008, Curaçao and Sint Maarten have become independent countries within the Kingdom of the Netherlands on 10 October 2010. They thereby obtained a separate status similar to that of Aruba. On the other hand, Bonaire, Saba and Sint Eustatius have become ‘special municipalities’ of the Netherlands. For further information see http://www .minbzk.nl/english/subjects/aruba-and-the/new-status-for-the. Last accessed 1 July 2010; see also Von der Dunk, Regulation of Space Activities, 225, 237. 38

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3.1.6.╇France France was so far the last state in Europe which adopted a national space act. The main purpose of the French Law on Space Operations (Loi rela­ tive aux opérations spatiales) of June 200842 was to set up a national regime to authorize and control space operations in conformity with the French government’s international commitments.43 France has major space launching facilities on its territory, a large and growing space industry, and hosts the headquarters of the European Space Agency. It follows that national space legislation in France is of specific interest to many different stakeholders, in particular the space industry. Furthermore, it has important practical relevance also beyond the French borders.44 Before the French Law on Space Operations had entered into force, the regulatory framework for space activities had been determined by administrative practices with no unified legal basis.45 The new act now focuses on three main topics: the installation of an authorization  regime, the distribution of liability between the state and nongovernmental entities, and the introduction of a sanction regime for non-compliance with the authorization requirements.46 The French Law on Space Operations was accompanied by several implementing

╇ LOI n° 2008-518 du 3 juin 2008 relative aux opérations spatiales (hereafter French Law on Space Operations), in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.XVI; Committee on the Peaceful Uses of Outer Space, Exchange of information on national legislation relevant to the peaceful exploration and use of outer space, U.N. Doc. A/AC.105/C.2/2009/CRP.18; Légifrance, service public de la diffusion du droit par l’internet, http://www.legifrance.gouv.fr/ affichTexte.do?cidTexte=JORFTEXT000018931380&dateTexte=, last accessed 1 July 2010. 43 ╇ See P. Clerc, The French Space Operation Act, Presentation made by the French delegation at the 48th session of the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space. http://www.oosa.unvienna.org/pdf/pres/lsc2009/pres04.pdf, last accessed 1 July 2010. 44 ╇ In this sense Sánchez Aranzamendi, 20, who points at the significance of France as the third major space faring country in the world and the main ‘launching State’ in Europe. 45 ╇ See P. Achilleas, Regulation of Space Activities in France, in: R.S. Jakhu (Ed.), National Regulation of Space Activities (2010), 111. 46 ╇ See M. Couston, Introduction to the French Space Operation Act, in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.XVI. 42

40╅╅I. Marboe & F. Hafner decrees.47 One decree is specifically dedicated to the issue of authorization.48 It regulates the procedure, a number of details regarding the licence and financial guarantees, the withdrawal of the licences, and control mechanisms. 3.2.╇Non-esa Member States Outside of esa, a number of very different countries involved in space activities has enacted national space legislation. The United States, for example, has developed a complex and sophisticated framework in order to regulate its numerous and large space activities. The Russian Federation continued the extensive space activities of the Soviet Union and enacted a number of related legal rules, too. The Ukraine inherited important space infrastructure which needed appropriate regulation as well. Other countries have more recently started to be involved in space activities. Some of them have already enacted legal regimes for the authorization and supervision of space activities. We will analyse the examples of South Africa, Australia and South Korea which are of particular interest in the present context. 3.2.1.╇ The United States of America us space law comprises a series of laws and regulations applicable to space activities. Some of them specifically address space activities, others are spread out over different acts but also have a direct impact on space activities.49

╇ Décret no 2009-640 du 9 juin 2009 portant application des disposition prévues au titre VII de la loi no 2008-518 du 3 juin 2008 relative aux operations spatiales; décret no 2009-643 du 9 juin 2009 relatif aux autorisations délivrées en application de la loi no 2008-518 du 3 juin 2008 relative aux operations spatiales; décret no 2009-644 du 9 juin 2009 modifiant le décret no 84–510 du 28 juin 1984 relatif au Centre national d’études spatiales, Journal Officiel de la République Française of 10 June 2009, décrets, arrêtés, circulaires. 48 ╇ Décret no 2009-643 du 9 juin 2009 relatif aux autorisations délivrées en application de la loi no 2008-518 du 3 juin 2008 relative aux operations spatiales, Journal Officiel de la République Française of 10 June 2009, décrets, arrêtés, circulaires. 49 ╇ Committee on the Peaceful Uses of Outer Space, General exchange of information on national legislation relevant to the peaceful exploration and use of outer space, un Document A/AC.105/C.2/2008/CRP.9 (3 April 2008). 47

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As early as 1958, the United States enacted the National AeronautÂ� ics and Space Act50 which created the National Aeronautics and Space AdÂ�minÂ�istration (nasa). Starting from that, a number of existing laws were declared applicable to space activities carried out by nongovernmental entities. For example, in 1970, the United States declared its licensing system under the 1934 Communications Act51 to be applicable to private operators undertaking space communications activities.52 On the other hand, the Commercial Space Launch Act of 198453 was an entirely new law designated exclusively for the purpose of regulating space activities, that is launching activities54. The Act deals with the issuance and transfer of launch and re-entry licenses. It is administered by the Office of Commercial Space Transportation of the Federal Aviation Administration (faa) of the us Department of Transportation.55 Furthermore, in 1992, the United States enacted the Land Remote Sensing Policy Act.56 This act prescribes a licensing procedure for private remote sensing activities. ╇ National Aeronautics and Space Act, Public Law 85-568, 85th Congress, H.R. 12575, 29 July 1958; as amended through 1983; 72 Stat. 426; see K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.III.1. 51 ╇Communications Act, 19 June 1934; 47 U.S.C. 151 (1988) (hereafter us Communications Act); 48 Stat. 1064; see Federal Communications Commission (fcc), http://www.fcc.gov/Reports/1934new.pdf, last accessed 1 July 2010. It is the purpose of the us Communications Act of 1934, among other things, to maintain the control of the United States over all the channels of radio transmission. Up to now there have been several amendments to this act. Space activities in the field of radio communications are authorized by the fcc. See K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.III.2. 52 ╇ Communications Satellite Facilities, First report and Order, 22 fcc 2d 86 (1970), Appendix C, p. 1; see also P. Meredith, Licensing of private space activities in the United States, 22 Annals of Air and Space Law (1997), 414; Von der Dunk, Current and Future Development, 32. 53 ╇ Commercial Space Launch Act, Public Law 98-575, 98th Congress, H.R. 3942, 10 December 1984 (hereafter us Commercial Space Launch Act); 98 Stat. 3055; in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.III.3. 54 ╇P.A. Vorwig, Regulation of Private Launch Services in the United States, in: R.S. Jakhu (Ed.), National Regulation of Space Activities (2010), 405. 55 ╇ See V. Kayser, Launching Space Objects: Issues of Liability and Future Prospects (2001), 79–86, 94–96; Committee on the Peaceful Uses of Outer Space, General exchange of information on national legislation relevant to the peaceful exploration and use of outer space, un Document A/AC.105/C.2/2008/CRP.9 (03 April 2008). 56 ╇ Land Remote Sensing Policy Act, Public Law 102-555, 102nd Congress, H.R. 6133, 28 October 1992; 15 U.S.C. 5601; 106 Stat. 4163; United Nations Office for Outer 50

42â•…â•…I. Marboe & F. Hafner According to the approach of the United States, the existing web of specific laws and regulations designated to regulate the different space activities in the appropriate contexts assures that private space activities are properly licensed and controlled.57 For the purpose of our analysis, we will concentrate on the us Commercial Space Launch Act of 1984 and the us Communications Act of 1934 as examples for authorization and supervision of private space activities in the United States. 3.2.2.╇ The Russian Federation The Russian Federation as a major spacefaring nation has adopted a considerable number of norms to regulate outer space activities. The most important piece of legislation is the Federal Law on Space Activity of 20 August 1993.58 It consists of seven sections and thirty articles and covers many different subject areas. It has so far been amended six times.59 It provides the basic legal framework and makes references to other laws and regulations.60 For the purpose of the present analysis, Federal Law No. 128 FZ “On Licensing of Certain Activities”, enacted on 8 August 2001,61 which prescribes that space activities need prior authorization is of particular relevance. Government Regulation No. 403 of 30 June 200662 supplements Federal law No. 128 FZ, establishing Space Affairs, National Space Law Database, http://www.unoosa.org/oosa/en/ SpaceLaw/national/united_states/15_USC_chapter_82_E.html, last accessed 1 July 2010. 57 ╇ See F. Schroeder, Overview of United States Laws Governing Space Activities, presentation made during the forty-seventh session of the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space, http://www.oosa.unvienna.org/pdf/ pres/lsc2008/pres-01.pdf, last accessed 1 July 2010. 58 ╇ Law on Space Activity of 20 August 1993, No. 5663-1 (hereafter Russian Law on Space Activity), in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.IV. 59 ╇ The last amendments took place by amendments No. 313 FZ and No. 309 FZ of 30 December 2008. 60 ╇ See e.g. Artt. 8, 9, 12, 16 & 18, Russian Law on Space Activity. 61 ╇ Federal Law No. 128 FZ “On Licensing Certain Types of Activity” (hereafter Russian Licensing Law); Russian text available at http://text.document.kremlin.ru/SESSION/ S__0sSXtLdQ/PILOT/main.html, last accessed 1 July 2010; also S. Breidenbach, Handbuch Wirtschaft und Recht in Osteuropa, RUS LizenzG 810 (EL 88). 62 ╇ Statute on Licensing of Space Activity of 30 June 2006 (Decree No. 403) (hereafter Russian Licensing Statute), in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents. For a comment on the Statute see M. Gerhard &

National authorisation mechanisms in implementation of the un treatiesâ•…â•…43

the licensing procedure for space activities carried out by legal entities. Furthermore, Government Regulation No. 314 of 26 June 2004 which prescribes the structure and powers of Roscosmos (the federal executive body for space activities)63 is also important in this context.64 It has to be pointed out that military space activities fall under the scope of a separate licensing statute, namely Government Regulation No. 889 of 20 November 2008 “On Licensing Activities in the Field of Arming and Military Engineering”.65 Moreover, telecommunication in outer space is regulated by Federal Law No. 126 FZ of 7 July 2003 “On Telecommunications”66 and administered by the Ministry of TelecomÂ� munications. The use of satellites and radio frequencies for television and broadcasting is regulated by Federal Law No. 2124-I of 27 December 1991 “On Mass Media”.67 It follows that also in the Russian Federation authorization of space activities is regulated not by one single space act but by a combination of several legal instruments. 3.2.3.╇Ukraine As Ukraine inherited almost one third of the space industry of the former Soviet Union, Ukrainian space legislation was developed already in the early days of this relatively young state.68 On 29 February 1991, the first piece of space legislation was enacted, namely Decree No. 117 on D. Marenkov, Zur Lizenzierung von Weltraumaktivitäten in Russland, 56 Zeitschrift für Luft- und Weltraumrecht (2007), 211–28. 63 ╇ The original Russian version is available at http://www.roscosmos.ru/docs/link7.doc, last accessed 1 July 2010. A German translation can be found in Zeitschrift für Luftund Weltraumrecht (2007), at 78–85. 64 ╇For further information on the regulation of space activities in the Russiand Federation see also S.P. Malkov & C. Doldirina, Regulation of Space Activities in the Russian Federation, in: R.S. Jakhu (Ed.), National Regulation of Space Activities (2010), 315–33. 65 ╇ Published in Sobranie zakonodatel’stva RF No 49, Article 5834 (8.12.2008); http:// base.garant.ru/194424.htm#doc, last accessed 1 July 2010. 66 ╇See D. Marenkov & B. Schmidt-Tedd, Russian Federation. Introduction, in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, at E.IV. 67 ╇ See Marenkov & Schmidt-Tedd, at E.IV. For a detailed overview over the history of the Russian Space Law see N.R. Malysheva, Space Activity and Space Law in the PostSoviet Area, 54 Zeitschrift für Luft- und Weltraumrecht (2005), 571–91; Marenkov & Schmidt-Tedd, at E.IV; Hermida, 101–11. 68 ╇ See N.R. Malysheva, Regulation of Space Activities in Ukraine, in: R.S. Jakhu (Ed.), National Regulation of Space Activities (2010), 335.

44â•…â•…I. Marboe & F. Hafner the “Creation of the Ukrainian National Space Agency”.69 As the Ukrainian Constitution proclaims that the principles of space development have to be determined exclusively by laws,70 several other pieces of legislation followed.71 The main legal document concerning space activities is “The Law on Space Activity of Ukraine” of 15 November 1996.72 The authorization of space activities is dealt with in Article 10. According to this article, the National Space Agency of Ukraine (nsau) – the central governmental body for the management of space activities73 – has the authority to administer licenses for the space activities of domestic and foreign private entities.74 Furthermore, a number of provisions relating to entrepreneurial activities, telecommunications, and suchlike, are important for the licensing of space activities in Ukraine.75 3.2.4.╇ South Africa In South Africa, the Space Affairs Act, No. 84 of 199376 regulates the conduct of space activities in an all-embracing way whose aim it is to

╇ See United Nations Office for Outer Space Affairs, National Space Law Database, http://www.oosa.unvienna.org/oosaddb/showDocument.do?documentUid=321&le vel2=none&node=UKR1970&level1=countries&cmd=add, last accessed 1 July 2010. 70 ╇ See Art. 92(5), Constitution. 71 ╇See Malysheva, Space Activity, 579; M. Gerhard, The Law of Ukraine on Space Activities, 51 Zeitschrift für Luft- und Weltraumrecht (2002), 57; A. Grigorow, Introduction to the Ukrainian Space Legislation, in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.VIII. 72 ╇ Ordinance Of The Supreme Soviet Of Ukraine, On Space Activity, Law of Ukraine of 15 November 1996 (VVRU, 1997, p. 2) (hereafter Law on Space Activity of Ukraine), in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.VIII; United Nations Office for Outer Space Affairs, National Space Law Database, http://www.unoosa.org/oosa/en/SpaceLaw/national/ukraine/ordinance_on_space_ activity_1996E.html, last accessed 1 July 2010; for further information on the law see M. Sánchez Aranzamendi, Regulation of Private Launch Services in the United States, in: R.S. Jakhu (Ed.), National Regulation of Space Activities (2010), 22. 73 ╇ In the Ukraine there is no specific ministry responsible for space matters. 74 ╇ See F.G. von der Dunk & S. Negoda, Ukrainian national space law from an international perspective, 18 Space Policy (2002), 19; Hermida, 137. 75 ╇ See Grigorov. 76 ╇ South African Republic Space Affairs Act, No 84 of 1993 as amended 1995 (hereafter South African Space Affairs Act), in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.V; see also United Nations Office for Outer 69

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regulate all space activities.77 It entered into force on 6 September 1993 and was amended by the Space Affairs Amendment Act, No. 64, of 6 October 1995.78 In its preamble, the Act explains its main aim and purpose, namely to “provide for the establishment of a Council to manage and control certain space affairs in the Republic; to determine its objects and functions; to prescribe the manner in which it is to be managed and controlled; and to provide for matters connected therewith.” Furthermore, the South African Space Affairs Act establishes the South African Council for Space Affairs which shall take care of the interests, responsibilities and obligations of the Republic regarding its space activities.79 3.2.5.╇Australia The legal basis for space activities in Australia is laid down in the Australian Space Activities Act80 which entered into force on 21 December 199881 as the consequence of increasing international commercial launch services.82 It has so far been amended two times, in 2001 by the Space Activities Amendment Act 2001 and in 2002 by the Space Activities Amendment Act 2002. The Australian Space Activities Space Affairs, National Space Law Database, http://www.unoosa.org/oosa/en/Space Law/national/south_africa/space_affairs_act_1993E.html, last accessed 1 July 2010. 77 ╇ See Sánchez Aranzamendi, Regulation of Private Launch Services, 25. 78 ╇ South African Republic Space Affairs Act, No 84 of 1993 as amended 1995 (hereafter South African Space Affairs Act), in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.V. 79 ╇ See Sec. 4–10, South African Space Affairs Act. 80 ╇ An act about space activities, and for related purposes, Act No. 123 of 1998 (hereafter Australian Space Activities Act), in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.VII; United Nations Office for Outer Space Affairs, National Space Law Database, http://www.unoosa.org/oosa/en/SpaceLaw/ national/australia/space_activities_act_1998E.html, last accessed 1 July 2010. 81 ╇ See Committee on the Peaceful Uses of Outer Space, Review of existing national space legislation illustrating how states are implementing, as appropriate, their responÂ� sibilities to authorize and provide continuing supervision of non-governmental entities in outer space, un Document A/AC.105/C.2/L.224 (22 January 2001). 82 ╇ See Sánchez Aranzamendi, Regulation of Private Launch Services, 22; for an overview of Australia’s involvement in Space Activities see N. Siemon & S. Freeland, Regulation of Space Activities in Australia, in: R.S. Jakhu (Ed.), National Regulation of Space Activities (2010), 38–40.

46â•…â•…I. Marboe & F. Hafner Act provides for a licensing and safety regime in order to fulfil Australia’s international obligations. It is supplemented by the Space Activities Regulations 200183 which contains further details about the licensing of space activities. 3.2.6.╇ Republic of Korea The national space legislation of the Republic of South Korea is among the most recent ones outside Europe. On 31 May 2005, the government of the Republic of Korea proclaimed the Space Development Promotions Act (Law No. 7538).84 On 21 December 2007, the Space Liability Act (Law No. 8852) followed.85 These two pieces of national space legislation set out a basic plan for the development of space activities in the Republic of Korea, establish a national space committee, allow for the registration of space objects, establish a national authorization system and contain provisions about liability.

4.╇ Scope and Contents of National Authorization Regimes In order to comply with the state’s international obligation to authorize and supervise several issues have to be decided by the national legislator. These include the territorial and personal scope of application of the ╇ Space Activities Regulations 2001, Statutory Rules 2001 No. 1861 (hereafter Australian Space Activities Regulations), in K.H. Böckstiegel, M. Benkö & S. Hobe (Eds.), Space Law – Basic Legal Documents, E.VII; United Nations Office for Outer Space Affairs, National Space Law Database, http://www.unoosa.org/oosa/en/SpaceLaw/national/ australia/space_activities_regulations_2001E.html, last accessed 1 July 2010. 84 ╇ Space Development Promotion Act of 31 May 2006; Law No. 7538 (hereafter Korean Space Development Promotion Act); see Committee on the Peaceful Uses of Outer Space, Exchange of information on national legislation relevant to the peaceful explora­ tion and use of outer space, UN Document A/AC.105/C.2/2009/CRP.14 (30 March 2009); United Nations Office for Outer Space Affairs, National Space Law DataÂ� base, http://www.oosa.unvienna.org/oosaddb/showDocument.do?documentUid=40 3&level2=none&node=ROK1970&level1=countries&cmd=add, last accessed 1 July 2010. 85 ╇ Space Liability Act of 21 December 2007, Law No. 8852 (hereafter Korean Space Liability Act); see Committee on the Peaceful Uses of Outer Space, ibid; United Nations Office for Outer Space Affairs, National Space Law Database, http://www .oosa.unvienna.org/oosaddb/showDocument.do?documentUid=402&level2= none&node=ROK1970&level1=countries&cmd=add, last accessed 1 July 2010. 83

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authorization procedure, the selection of an authority which is competent to authorize, the definition of the kind of activities falling under the authorization regime, and, to a certain detail, the conditions which have to be fulfilled before an authorization can be granted. In addition, an appropriate and transparent legal procedure and a system of supervision and control must be established. 4.1.╇ The Competent Entity One of the most important questions to decide is who should be competent to authorize a space activity carried out by a private party. First, the “appropriate state” according to Article VI of the Outer Space Treaty has to be identified. Secondly, the competent authority within the state must be selected. 4.1.1.╇ The Appropriate State According to Article VI of the Outer Space Treaty, the authorization is incumbent on the “appropriate State Party of the Treaty”. There is, however, no explicit definition in the Outer Space Treaty or in any of the subsequent un space treaties of the “appropriate State”. The meaning of the term is, therefore, subject to different interpretations. Some authors are of the opinion that it would be advisable to equate the term “appropriate State” with the term “launching State” as provided for in the Liability Convention and the Registration Convention.86 The obligation to exercise authorization and continuing supervision for non-governmental activities in outer space would then be placed upon “the State from whose territory or facility a space object is launched.”87 Other authors explain that the “appropriate State” should be the state of registry.88 This interpretation makes reference to Article V of the Outer Space Treaty according to which astronauts have to be safely and promptly returned to the state of registry of their space vehicle in the event of accidents or emergency landings. Furthermore, Article VIII of the Outer Space Treaty refers to the retaining of jurisdiction and control over objects launched into outer space by the state of registry.

╇ See H.L. van Traa-Engelman, Commercial utilization of outer space (1993), 62–3. ╇ Art. I(c)(ii), Liability Convention; see Van Traa-Engelman, 63. 88 ╇ See G.C.M. Reijnen, The United Nations space Treaties Analysed (1992), 114. 86 87

48â•…â•…I. Marboe & F. Hafner Others point out that – assuming that for most activities in outer space there may be several states which are concerned – every state party concerned should be an appropriate state.89 According to this opinion it is arguable that all these states subject those activities to their authorization. In any case, it has to be pointed out that the Outer Space Treaty is an international treaty to which the customary international law rules of treaty interpretation as codified in the Vienna Convention of the Law of Treaties should be applied.90 According to Article 31 of the Vienna Convention, a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Concerning the interpretation of the term “appropriate State”, it appears useful to refer, in particular, to the “context of the term”. The context of this term is above all the sentence preceding the obligation to authorize in Article VI of the Outer Space Treaty. This sentence makes clear that “States Parties to the Treaty shall bear international responsibility for national activities in outer space”. They are also responsible “for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty”. It follows that the appropriate state should be equal to the “responsible” state under international law. Otherwise, the state could be held responsible for an activity which it had no right to authorize or supervise.91 As Article VI establishes international responsibility for “national” activities, the nationality criterion, of course, plays an important role. We will analyse further below how the national space laws under review have interpreted and implemented this criterion.

╇See B. Cheng, Article VI of the 1967 Space Treaty Revisited: “International Responsibility”, “National Activities”, and the “Appropriate State”, 26 Journal of Space Law (1998), 26. 90 ╇See already A. Kerrest de Rozavel, Sharing the Risk of Space Activities: Three Questions, Three Solutions, in K.H. Böckstiegel (Ed.), ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space (2002), 139. 91 ╇ This is in conformity with the results of Reijnen; see also H.A. Wassenbergh, Principles of outer space law in hindsight (1991), 25; Gerhard, Article VI, 111–2; A. Kerrest de Rozavel, Remarks on the Responsibility and Liability for Damage Caused by Private Activity in Outer Space, in Proceedings of the Fortieth Colloquium on the Law of Outer Space (1998), 134, 139. 89

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4.1.2.╇ The Competent Authority The Outer Space Treaty does not deal with the question which entity within the state should carry out the obligation to authorize. It follows that the states are free to select the appropriate state organ or entity. The brief overview over some of the existing national space laws above has shown that there is a broad variety of solutions. It has been demonstrated, for example, that the Swedish government as a whole decides on the authorization. There is no specific ministry competent for space activities but the government is supported by the Swedish National Space Board.92 Some states have chosen the ministry in charge of science and research as the competent organ to authorize space activities. In the United Kingdom, the British National Space Centre (bnsc) is a body under the Secretary of State for Innovation, University and Skills.93 The solution of Australia is similar. The Space Licensing and Safety Office (slaso) is responsible – upon delegation from the Minister for Innovation, Industry, Science and Research – for the approval of licences for space activities and is competent to enforce the provisions of the Australian Space Activities Act.94 In Belgium, the competent organ for issuing licences for space operations is the Minister for Federal Scientific Policy.95 In France, authorizations are under the “administrative authority” of the Ministry of research in charge of outer space affairs96 while the technical examinations are delegated to the Centre National d’Études Spatiales (cnes).97 In the Republic of Korea, it is the Ministry of Science and Technology.98 ╇ See Sec. 3, Swedish Act on Space Activities. However, the Swedish government is supported by the Swedish National Space Board which consults the Swedish National Post and Telecom Agency and other national agencies which might be affected by the application. Subsequent the Board gives a recommendation to the government. See Hedman, 75–6. 93 ╇See supra, text at n. 25. 94 ╇The Department of Innovation, Industry, Science and Research, Space Licensing and Safety Office (slaso), Introduction, http://www.innovation.gov.au/General/ MEC-SLASO/Pages/SpaceLicensingandSafetyOfficeSLASOIntroduction.aspx, last accessed 1 July 2010. 95 ╇ Art. 9(1), Belgian Space Law; see also J.F. Mayence, The Belgian Space Law. 96 ╇ See Clerc. 97 ╇ See Clerc. 98 ╇ See Art. 11, Korean Space Development Promotion Act. 92

50â•…â•…I. Marboe & F. Hafner In other states, the competence to authorize is allocated at a ministry competent for economy, trade and industry. For example, in Norway it is the Minister for Trade and Industry.99 In the Netherlands, it is the Ministry of Economic Affairs.100 The South African Council for Space Affairs is a state organism under the authority of the Department of Trade and Industry and responsible for issuing licences for space activities.101 In some countries, the ministry or state entity responsible for transportation is competent to authorize space activities. This is the case in the United States for launching activities which fall under the Commercial Space Launch Act, where the Secretary of TransportaÂ� tion is competent.102 On the other hand, space activities in connection with radio communications have to be licensed by the Federal Communications Commission.103 In some cases, the national space agency has got the competence to authorize without a ministry above it, like in the in the Russian Federation104 or in the Ukraine.105 In most other states, national space

╇See D. Sagar, Compulsory Insurance: Basic Features of National Insurance Regulations, Towards a harmonised approach for National space Legislation in Europe, in S. Hobe, B. Schmidt-Tedd & K.U. Schrogl (Eds.), Towards a Harmonised Approach for National Space Legislation in Europe (2004), 102; M. Sánchez Aranzamendi, Economic and Policy Aspects of Space Regulations in Europe. Part 1: The Case of National Space Legislation – Finding the Way Between Common and Coordinated Action, http://www.espi.or.at/images/stories/dokumente/studies/espi %20report%2021.pdf, last accessed 1 July 2010. 100 ╇ See Sec. 1, Dutch Space Law. 101 ╇ See Secc. 6, 11, South African Space Affairs Act. 102 ╇ Committee on the Peaceful Uses of Outer Space, General exchange of information on national legislation relevant to the peaceful exploration and use of outer space, un Document A/AC.105/C.2/2008/CRP.9 (3 April 2008); Vorwig 405–6. 103 ╇ Committee on the Peaceful Uses of Outer Space, General exchange of information on national legislation relevant to the peaceful exploration and use of outer space, un Document A/AC.105/C.2/2008/CRP.9 (3 April 2008). 104 ╇ As mentioned above the federal executive body for space activities within the Russian Federation is the Federal Space Agency Roscosmos. See Sec. 2, Russian Licensing Statute. It has to be mentioned that Article 2 of the Russian Law on Space Activity states that “the President of the Russian Federation shall be in general charge of space activity”. 105 ╇In the Ukraine the National Space Agency, nsau, is solely responsibly for the authorization and supervision of private space activities. See Art. 10, Law on Space Activity of Ukraine. See also Von der Dunk, Current and Future Development, 46. ╇99

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agencies are involved in the process but the respective ministries retain the final competence and responsibility. It follows that the competent authority to grant authorization may vary from country to country. This variety reflects the internal division of competences within the different states. It is the sovereign decision of the state to decide how to implement its international obligations. Harmonisation in this respect does not appear to be necessary or desirable. 4.2.╇ Definition of Activities Requiring Authorization According to Article VI of the Outer Space Treaty, only “activities in outer space” require authorization. This could imply a limitation of authorization to only those activities that actually take place in outer space.106 Yet, none of the national laws under consideration has used this kind of definition. The national authorization regimes usually cover launching – which takes place on earth – as well as operation and guidance of space objects – which also primarily takes place on earth. Some laws also require authorization for preparatory works, research and financial operations in connection with space activities. 4.2.1.╇Launching All of the above mentioned national space laws cover the launching of a space object under their authorization regimes. The Norwegian Act on Launching, the oldest and shortest of the European acts consists of only three articles which are explicitly dedicated to the launch of any object into outer space.107 The Swedish Act on Space Activities applies generally to activities in outer space but even explicitly mentions, in its Section 1, that not only activities carried on entirely in outer space but also launches of objects into outer space fall under the regulatory framework of the Act.108 The same is true for the United Kingdom.

╇ See Hermida, 34. ╇ See Art. 1, Norwegian Act on Launching. 108 ╇ See Sec. 1, Swedish Act on Space Activities. This Act applies to activities in outer space (space activities). In addition to activities carried on entirely in outer space, also included in space activities are the launching of objects into outer space and all measures to manoeuvre or in any other way affect objects launched into outer space. 106 107

52â•…â•…I. Marboe & F. Hafner The uk Outer Space Act applies to launching activities according to Section 1 of the Act.109 The more recent European space acts have also adopted this approach. The Belgian Space Law carries the launching already in its title and consequently covers launching activities as well.110 In the Netherlands, the launching of a space objects falls under Chapter 1, Section 1 of the Dutch Space Law which defines the term “space activities”.111 The French Law on Space Operations requires authorization for space operators. Launching activities or even the attempt are covered by the term ‘space operation’ and therefore shall also obtain authorization from the administrative authority.112 In the United States, launching is covered by the Commercial Space Launch Act. Launching is generally prohibited without governmental permission.113 Also the Federal Law on Space Activity of the Russian Federation stipulates, in Article 9, that space activities are subject to licensing in compliance with the Law. The new Russian Licensing Law of 2001 which demands a licence for the performance of space activities114 and the Russian Licensing Statute of 2006115 establish a licensing procedure for space activities and determine that the launching of a space object is to be considered as a space activity.116 In South Africa, the South African Space Affairs Act, in its Section 11, explicitly  requires a licence for launching activities.117 The Korean Space Development Promotion Act requests a launch permit for the launch of space objects, too.118 ╇ See Sec. 1, uk Outer Space Act; for further information see Mosteshar, 361–2. ╇ See Art. 2, Belgian Space Law. 111 ╇ Sec. 3(1), Dutch Space Law; however, is has to be noted that according to the Dutch Law the mere organization of space activities is not automatically covered by the Act; for further information on this see Von der Dunk, Regulation of Space Activities, 237. 112 ╇ See Art. 1, 2, French Law on Space Operations; see also Achilleas, 111. 113 ╇ See Sec. 70104, us Commercial Space Launch Act. 114 ╇ See Art. 95, Russian Licensing Law. 115 ╇ See Russian Licensing Statute. 116 ╇ See Art. 3, Russian Licensing Statute; Art. 2, Russian Law on Space Activity. 117 ╇ The licensing of private satellite telecommunications operators, including satellite broadcasting is regulated by the Electronic Communications Act, see J. Limpitlaw, Regulation of Space Activities in South Africa, in: R.S. Jakhu (Ed.), National Regulation of Space Activities (2010), 281–9. 118 ╇ See Art. 11, Korean Space Development Promotion Act. 109 110

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In Australia, two separate licences are required for space launches: first, the operator has to obtain a space license for the launching facility and the launch vehicle. Secondly, each particular launch needs a separate permit.119 It is remarkable that in Ukraine, the launch of a space object is not mentioned explicitly in the Law on Space Activity of Ukraine. However, the law establishes a licensing/authorization system in relation to space activities120 and holds that “[s]pace activity shall mean scientific space research, the design and application of space technology and the use of outer space”.121 This comprehensive definition of space activity includes the launch of a space object.122 4.2.2.╇ Procuring of Launch Surprisingly, the “procurement of launch” of an object into outer space, although being important for registration and liability matters under the space treaties,123 is not mentioned in most of the space acts under review.124 A reason could be the vagueness of the notion “procurement of launch” which has triggered many interpretative efforts.125 One author noted that, in view of increasing privatisation and commercialisation of launches, “one may wonder if the notion of procurement is meant to address the buying of a launch contract, the buying of a turn key satellite on orbit, the lease of transponders, or if it extends to transactions not involving an element of sale and an exchange of funds.”126

╇ See Secc. 11, 13, 15, 18 & 26, Australian Space Activities Act; for further information on the history, objectives and as well as an overview on the relevant legislation, see Siemon & Freeland, 44–57. 120 ╇ See Art. 5, Law on Space Activity of Ukraine. 121 ╇ Art. 1, Law on Space Activity of Ukraine. 122 ╇ See Gerhard, The Law of Ukraine on Space Activities, 57. 123 ╇ See Art. 1, Registration Convention; Art. 1, Liability Convention. 124 ╇ One of the rare examples is the uk Outer Space Act. See Sec. 1. 125 ╇ See S. Gorove, Toward a clarification of the term “space object” – An international legal and policy imperative?, 21 Journal of Space Law (1993), 11; K.U. Schrogl, Is the legal concept of “launching state” still adequate?, in Proceedings of the Third ecsl Colloquium on International Organisations and Space Law (1999), 327–9; M. Gerhard, The State of the Art and Recent Development of National Space Legislation, in C. Brünner & E. Walter (Eds.), National Space Law: Development in Europe – Challenges for Small Countries (2008), 67. 126 ╇ See Kayser, 34. 119

54â•…â•…I. Marboe & F. Hafner The Legal Subcommittee of uncopuos also attempted to clarify this question in a Working Group between 2000 and 2002.127 However, the resulting un General Assembly Resolution on the Definition of the Launching State128 does not offer a final solution on the issue of interpretation of “procurement of launch”. In application of Article 31 of the Vienna Convention of the Law of Treaties we might refer to the “ordinary meaning” of the term. According to Black’s Law Dictionary, “to procure” can be explained as “to initiate” or “to cause”.129 This does not, however, address the problem of private space activities which are neither “initiated” nor “caused” by state entities but by private parties. However, a clarification of the concept of “procurement of launch” would primarily be necessary for registration purposes and the liability of launching state(s) as it is important for the definition of the concept of the launching state. By contrast, in the specific context of authorization, the “procurement of launch” does not matter. Art. VI ost refers to “national activities” by non-governmental entities. Whether this activity is actually procured by the state is not important for authorization purposes. To this extent, the absence of the term “procurement” from the scope of application in most of the space laws under review is not detrimental. 4.2.3.╇ Space Operations and Guidance of Space Objects Almost all of the pieces of national space legislation under review ask for a licence for the operation and/or guidance of objects in outer space. These operations usually take place on earth but are nevertheless regarded as space activities for the purpose of authorization. The Swedish Act on Space Activities, in its Section 1, refers to “space activities” and mentions explicitly measures to manoeuvre objects launched into outer space.130 The uk Outer Space Act explains at the outset that it applies to “operating a space object” – whether carried on ╇ See K.U. Schrogl, A New Look at the Concept of the “Launching State” – The Results of the uncopuos Legal Subcommittee Working Group 2000–2002, 51 Zeitschrift für Luft- und Weltraumrecht (2005), 359–81. 128 ╇ United Nations General Assembly, Resolution 59/115 of 10 December 2004, AppliÂ� cation of the concept of the “launching state”, un Doc. A/RES/59/115 (25 January 2005). 129 ╇ Black’s Law Dictionary, 1208 (Bryan Garner, Ed.; 1993). 130 ╇ Sec. 1, Swedish Act on Space Activities. 127

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in the United Kingdom or elsewhere.131 The Belgian Space Law makes clear that flight operations fall under its scope of application132 and defines a flight operation as an “operation relating to the flight conditions, navigation or evolution in outer space of the space object, such as the control and correction of its orbit or its trajectory”.133 The Dutch Space Law applies – in addition to launches – to “the flight operation and the guidance of space objects in outer space”.134 In the French Law on Space Operations, “space operations” is used as a general term and includes “any activity to launch or attempt to launch an object into outer space or to assure the control of a space object during its stay in outer space (…) as well as, where appropriate, on its return to Earth.”135 The United States has a special regime concerning the authorization of space operations. The us Communications Act prescribes that “[n]o person shall use or operate any apparatus for the transmission of energy or communications or signals by radio”.136 The Land Remote Sensing Policy Act of 1992 foresees the licensing of private remote sensing space systems in its Subchapter II.137 The Commercial Space Launch Act, by contrast, is silent with regard to space operations. Nevertheless, it refers to the operation of launch sites which shall require a license.138 In the Russian Federation, “activities connected with direct operations to explore and use outer space” are considered to be space activities and therefore need authorization from Roscosmos.139 FurtherÂ� more,  the Russian Licensing Statute prescribes that the operation

╇ Sec. 1, uk Outer Space Act. ╇ See Art. 2, Belgian Space Law. 133 ╇ Art. 3, Belgian Space Law. 134 ╇ Sec. 1, Dutch Space Law; see also De Brabander-Ypes, Introduction to the Law. 135 ╇ Art. 1, French Law on Space Operations. 136 ╇ us Communications Act, 47 U.S.C. 301. For further information concerning the Regulation of Satellite Communication see Vorwig, 421–42. 137 ╇ Land Remote Sensing Policy Act, 16 USC 5621 et seq; for further information on this topic see E. Sadeh, Politics and Regulation of Earth Observation Services in the United States, in: R.S. Jakhu (Ed.), National Regulation of Space Activities (2010), 443–58. 138 ╇US Commercial Space Launch Act, 49 U.S.C. 2601. 139 ╇ Art. 2, Russian Law on Space Activity. 131 132

56â•…â•…I. Marboe & F. Hafner of space facilities, space materials and space technology requires authorization.140 The Law on Space Activity of Ukraine has a very wide range of application. Although the term “space operations” is not mentioned explicitly it can be subsumed under the definition of space activity given in its Section 1, Article 1.141 Some national space laws do not explicitly mention space operations as requiring authorization. This is, for example, the case in South Africa. However, Section 11 of the South African Space Affairs Act determines that space related activities (which have not been mentioned before in the text of the law) determined by the Minister need a licence. The Australian Space Activities Act does not explicitly request a licence for space operations, either. As stated before, separate licences are needed for the launch facility, for the launch vehicle and for the launch of a particular space object. Furthermore, the authorization of the return of both national and foreign space objects is also required.142 In the Republic of Korea space operations are not mentioned in the pertinent laws.143 Under the national acts under review, it seems to be only the Norwegian Act on Launching which does not extend its application to space operations. The reason is that the scope of the Norwegian Act on Launching, by its title and purpose, is limited to the authorization of launches from Norwegian territory. The comparison of the different national regimes demonstrates that space operations in a broader sense, thus including operations from earth, are covered by any of the national space laws under review except Norway. This is done either in an explicit way (Sweden, United Kingdom, Belgium, Netherlands, France, Russian Federation) or implicitly (United States, Ukraine, Australia, Republic of Korea). For the implementation of the states’ international obligations stemming from

╇ See Art. 3, Russian Licensing Statute. ╇ See Art. 1, Law on Space Activity of Ukraine: “For the purposes of this Law the terms and concepts listed below shall have the following meanings: “Space activity” shall mean scientific space research, the design and application of space technology and the use of outer space.” 142 ╇ See Secc. 13, 14, Australian Space Activities Act. 143 ╇ See Korean Space Development Promotion Act. 140 141

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the un international space treaties, it seems advisable to keep this rather  generous scope of application and to include space operations thereunder. 4.2.4.╇ Space Applications Some states maintain a very far reaching concept of space activities. For example, in Ukraine144 and the Russian Federation,145 the authorization regime also covers the development of space technology, the application of space technology as well as ground space infrastructure. It follows that the scope of application of the authorization regime is relatively wide. This is a decision each sovereign state is free to make. However, this broad scope of application goes beyond the state’s obligation as mandated by Article VI of the Outer Space Treaty. 4.3.╇Nationality Requirement According to the first sentence of Article VI of the Outer Space Treaty, “States Parties to the Treaty shall bear international responsibility for national activities in outer space”.146 It follows that there must be a link between the regulated activity and the state. However, it is not clear what kind of link Article VI requires in order to qualify a space activity as a “national activity”. The term “national activity”, should be interpreted in accordance with Article 31 of the Vienna Convention on the Law of Treaties147 in a way that is in conformity with the context of the provision of Article VI and with the object and purpose of the Outer Space Treaty. It follows

╇ See Art. 1, Law on Space Activity of Ukraine; further regulations concerning the licensing of activities in the context of space applications are to be found in the Law “On Licensing of Certain Descriptions of Economic Activities” (2000). For further information, see Malysheva, Regulation of Space Activities 339–40. 145 ╇ See Art. 2, Russian Law on Space Activity; Art. 3, Russian Licensing Statute. 146 ╇ See already supra, text at n. 6. For an insightful discussion of this provision and its consequences, see Reif, Schmidt-Tedd & Wannenmacher, 405–500; P. Malanczuk, Nationality of Transnational Corporations and Space Law – in the Light of the Economic Globalisation Process, in K.H. Böckstiegel (Ed.), ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space (2002), 521–4. 147 ╇ As regards the applicability of the rules of treaty interpretation as codified in the Vienna Convention see already supra, text at n. 90. 144

58â•…â•…I. Marboe & F. Hafner that the first sentences of Article VI refer to both governmental and non-governmental space activities.148 This becomes particularly evident in the drafting history of the Treaty which clearly shows the interest of the drafters to establish the responsibility of states for all space activities – being carried out by governmental or non-governmental entities. Accordingly, a “national activity” is an activity that is subject to the jurisdiction of a certain state. Only a state that has jurisdiction over an activity can exercise control and supervision. Otherwise, it would be unfair to hold the state responsible. In order to establish which state has the right to exercise jurisdiction over a non-governmental space activity, the general rules of public international law can be applied.149 According to these rules, states may regulate activities that take place on their territory. The territory establishes the necessary link between the act and the state and allows for “territorial jurisdiction”. In addition, states generally subject their nationals under their jurisdiction. In this case, the citizenship of the person is the link between the act and the state and allows for “personal jurisdiction”. Furthermore, states also have jurisdiction over vessels and aircraft registered in their national registry. There are also number of other criteria recognized under public international law which are, however, not immediately relevant in the present context. These criteria applied with regard to space activities mean that states may regulate space activities which are taking place on the territory of the state, space activities which are carried out by citizens of the relevant state, and space activities which are carried out on or from vessels or aircraft registered in the national registry of a state.150 In the following, we will analyse to what extent existing national space legislation has adopted these principles.

╇ See Gerhard, Article VI, 105–7; A. Kerrest de Rozavel & L.J. Smith, Article VII, in S. Hobe, B. Schmidt-Tedd & K.U. Schrogl (Eds.), Cologne Commentary on Space Law, Vol. I (2009), 128; F.G. von der Dunk, Passing the Buck to Rogers: International Liability Issues in Private Spaceflight, 86 Nebraska Law Review (2007), 410. 149 ╇See generally I. Brownlie, Principles of Public International Law (7th ed.; 2008), 299–321; M.N. Shaw, International Law (5th ed.; 2003), 572–620. 150 ╇ See also F.G. von der Dunk, Sovereignty versus Space – Public Law and Private Launch in the Asian Context, 5 Singapore Journal of International and Comparative Law (2001), 32–4. 148

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4.3.1.╇Nationality Requirement: Territory Almost all of the national space laws under review establish that authorization is required for activities carried out in the territory of the state. This is particularly evident in respect of launching services,151 but also for other space activities.152 The United Kingdom is a remarkable exception in this respect because its Outer Space Act of 1986 applies only “to United Kingdom nationals, Scottish firms153, and bodies incorporated under the law of any part of the United Kingdom.”154 It follows that activities undertaken by non-uk nationals from British soil do not fall under the scope of the Act. This reflects the perspective of the 80s where private launch activities open for foreigners where not envisaged.155 In some countries, national space legislation is generally applicable in zones under the jurisdiction and control of the state (Norway,156 Belgium,157 Ukraine,158 and the Republic of Korea159). Some laws regulate that parts of their territory will be excluded from the national space legislation. This is the case in the Netherlands where Aruba and the Dutch Antilles had decided to promulgate their own legislation in this field.160 In some cases, activities carried out from a ship or aircraft under the state’s jurisdiction are explicitly included in the national authorization ╇ See, e.g., Sec. 70104, us Commercial Space Launch Act. This Section requires a license for a person to launch a launch vehicle or to operate a launch site or re-entry site, or to re-enter a re-entry vehicle, in the United States. 152 ╇ In the United States, the requirement of the territory is explicitly mentioned in the Communications Act of 1934. See Sec. 47301, us Communications Act. 153 ╇ This is a term used for a very specific type of company not existing in other parts of the United Kingdom. 154 ╇ Sec. 2, uk Outer Space Act. 155 ╇See Von der Dunk, Current and Future Development, 43; Hermida, 128–9. Furthermore, the Act states two cases where a licence is not required. First, if a person acts as employee or agent of another, and, second, activities in respect of which the United Kingdom and another country have made arrangements to secure compliance with the international obligations of the United Kingdom. See Sec. 3, uk Outer Space Act. 156 ╇ See Art. 1, Norwegian Act on Launching. 157 ╇ See Art. 2, Belgian Space Law. 158 ╇ See Art. 10, Law on Space Activity of Ukraine. 159 ╇ See Art. 11, Korean Space Development Promotion Act. 160 ╇ See De Brabander-Ypes, Introduction to the Law; Von der Dunk, Regulation of Space Activities, 237. 151

60â•…â•…I. Marboe & F. Hafner regime of space activities (Norway,161 Belgium,162 the Netherlands,163 and France164). 4.3.2.╇Nationality of Person Most of the national space laws under review also refer to the nationality of the operator, be it a natural or a legal person. This is the case in France165, Sweden,166 the United States,167 South Africa,168 Australia169 and the Republic of South Korea.170 As mentioned before, the United Kingdom only refers to personal jurisdiction. The broad scope of application of the Law on Space Activity of Ukraine regime includes personal jurisdiction, as well. Up to 2003 the Russian Law on Space Activity was explicitly applicable to activities from natural or juridical persons of the state. Following an amendment in 2003, Article 9 simply states that “space activity is subject to licensing in compliance with the Law of the Russian Federation”. Article 1 of the law “On Licensing of Certain Activities” states that natural and juridical persons require a licence for operations mentioned in the law, whereas Section 1 of the Russian Law on Space Activities refers only to legal entities.171 Some other states use the idea of personal jurisdiction only in a subsidiary manner, such as Belgium,172 depending on international agreements. Norway extends the application of the law only to Norwegian nationals operating in areas not subject to the sovereignty of any state.173 The Dutch Space Law holds that it can be declared applicable to activities performed by Dutch natural or juridical persons in countries not party to the Outer Space Treaty.174 ╇ See Art. 1, Norwegian Act on Launching. ╇ See Art. 2, Belgian Space Law. 163 ╇ See Sec. 1, Dutch Space Law. 164 ╇ See Art. 1, French Law on Space Operations. 165 ╇ See Art. 2, French Law on Space Operations. 166 ╇ See Sec. 2, Swedish Act on Space Activities. 167 ╇ See Sec. 70104, us Commercial Space Launch Act. 168 ╇ See Sec. 11, South African Space Affairs Act. 169 ╇ See Secc. 11, 12, Australian Space Activities Act. 170 ╇ See Art. 11, Korean Space Development Promotion Act. 171 ╇ See Art. 9, Russian Law on Space Activity; also Gerhard & Marenkov, 214. 172 ╇ See Art. 2, Belgian Space Law. 173 ╇ See Art. 1, Norwegian Act on Launching. 174 ╇ See Sec. 1, Dutch Space Law; Von der Dunk, Regulation of Space Activities, 237–8. 161 162

National authorisation mechanisms in implementation of the un treatiesâ•…â•…61

In Norway, Belgium, the Netherlands and France, the authorization procedure is explicitly extended to space activities carried out from vessels or aircrafts registered in the state’s national register.175 By contrast, the registration of the space object itself – in the national register for space objects or in the un international space register – is not determinative for the competence of the state of registry to authorize. None of the countries under consideration has made the authorization dependent on the state of registry of the space object. 4.4.╇ Conditions for Obtaining a Licence According to Article VI of the Outer Space Treaty, the state parties bear international responsibility “for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.”176 The states must ensure – by way of authorization and supervision – that the activities by non-governmental entities do not violate the norms contained in the Treaty.177 However, it has to be kept in mind that the obligations in the Outer Space Treaty and the other un space treaties are international obligations and thus directed to states and not to private entities. The norms are defined and formulated as obligations of states. They include, for example, the obligation to pursue space activities for peaceful purposes on the basis of equality and non-discrimination, for the benefit of all mankind and in accordance with the Charter of the United Nations,178 the principle of non-appropriation, the avoidance of harmful contamination, the principle of non-interference and the principle of international cooperation.179 Some of these obligations can be transferred to private actors, others can not.

╇ See Art. 1, Norwegian Act on Launching; Art. 2(1), Belgian Space Law; Sec. 2, Dutch Space Law; Art. 2, French Law on Space Operations; also Gerhard, Article VI, 114. 176 ╇ See already supra, text at n. 6. 177 ╇ See Cheng, 12–5. 178 ╇ Charter of the United Nations (hereafter un Charter), San Francisco, done 26 June 1945, entered into force 24 October 1945; USTS 993; 24 UST 2225; 59 Stat. 1031; 145 UKTS 805; UKTS 1946 No. 67; Cmd. 6666 & 6711; CTS 1945 No. 7; ATS 1945 No. 1. 179 ╇ See Artt. II-XII, Outer Space Treaty; also V. Kopal, International legal regime on outer space: Outer Space Treaty, Rescue Agreement and the Moon Agreement, in 175

62â•…â•…I. Marboe & F. Hafner There is, in particular, disagreement, if the obligation to use outer space for peaceful purposes can be binding upon private actors. Some commentators say that “war” is per definition a situation of violence between countries.180 The prohibition of the use of force under Article 2(4) of the un Charter only prohibits the threat or use of force between states. Others say that it is obvious that states must ensure that private actors also use outer space exclusively for peaceful purposes and do not place nuclear weapons and weapons of mass destruction in outer space and or test any type of weapon.181 It is interesting to note that very few national space laws contain such restrictions explicitly. The Law on Space Activity of Ukraine may serve as an example which explicitly mentions the prohibition of weapons of mass destruction.182 The national space laws usually contain some general clauses and some more specific conditions. Some conditions refer to the safety of the operation and the reliability of the operator, others relate to the interests and the international obligations of the state. The following table provides an overview of the practice of the states under review. Table 1 contains a comparison of the most common conditions. It shows, for example, that the Norwegian and Swedish space laws use general clauses which enable their competent authorities to impose further conditions to the licence, as appropriate. The other states enumerate more specific conditions. Three out of twelve conditions mentioned above have to be fulfilled in all of the ten countries which do not use general clauses. In these United Nations Office for Outer Space Affairs (Ed.), Proceedings of the United Nations/Nigeria Workshop on Space Law – Meeting international responsibilities and addressing domestic needs (2005). 180 ╇ See M. Gerhard, Nationale Weltraumgesetzgebung (2002), 81. 181 ╇See M. Bourbonnière & R.J. Lee, Legality of the Deployment of Conventional Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict, 18 European Journal of International Law (2007), 883–4; S. Gorove, Implications of International Space Law for Private Enterprise, 7 Annals of Air and Space Law (1982), 321. 182 ╇ See the Law on Space Activity of Ukraine, Art. 9. The South African Space Affairs Act refers in its Sec. 1 to “weapons of mass destruction” and defines them “as in the NonProliferation of Weapons of Mass Destruction Act 1993”. However, in the rest of the Act, there is no further reference to them. Only general considerations to “peaceful utilization of outer space” are mentioned in Art. 2 (1) with regard to the determination of space policy.

technical capability of the applicant financial capability of the applicant safety of people and property protection of public health protection of the environment protection of the public order protection of national/ international security ensuring optimal use of outer space space debris mitigation fulfilment of international obligations economic interest of the state strategic interest of the state X

X X

X

X

X

X

X

X

X

X

X

X

X

X

X X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

USA Russian South South Norway Sweden uk Belgium Netherlands France (CSLA) Federation Ukraine Africa Australia Korea

Table 1╇ Obligations in National Space Laws Transferred to Private Entities

National authorisation mechanisms in implementation of the un treatiesâ•…â•…63

64â•…â•…I. Marboe & F. Hafner countries the applicant has to prove his technical capabilities first. Moreover, the applicant must not endanger the safety of people and property. The protection of public health is a condition which is specifically mentioned in the United Kingdom, France, the United States, Ukraine and Australia. The protection of the public order is a condition appearing only in the Dutch Space Law, the optimal use of outer space is only mentioned in the Belgium Space Act. Space debris mitigation plays a major role in France, the United Kingdom and the United States. Furthermore, all those states have the possibility to deny a licence if the fulfilment of international obligations is endangered. The economic interest of the state plays an explicit role when granting a license in Belgium, the United States, the Russian Federation, Ukraine, South Africa and South Korea. It follows from the above that the conditions imposed on applicants of a licence for a space activity are not very dissimilar, although differences in the priority of certain aspects become apparent. In general, the laws provide rather general guidelines and leave considerable discretion to the authorizing body. This discretion may be narrowed down by implementing decrees and by reference to existing standards, for example in technical matters. Specific emphasis on certain aspects may be regarded as a reflection of the areas of concerns of the states resulting from the different types of space activities envisaged and from different political priorities. In order to ensure that the applicant knows what kind of obligations are actually incumbent on him and how he/she should comply with them, some states provide an application form or information sheets containing the relevant issues. For example in the United Kingdom, there is an “Outer Space Act 1986 Licence Application Form”,183 a leaflet entitled “revised guidance for applicants”184 with detailed launch licensing questions and an example of a typical licence on-line. In Belgium, there is also an application form on the internet for the authorization in

╇British National Space Centre, Outer Space Act 1986 Licence Application Form, http:// www.bnsc.gov.uk/assets/channels/industry/OSA2008App.pdf, last accessed 1 July 2010. 184 ╇British National Space Centre, Revised Guidance For Applicants Outer Space Act 1986, http://www.bnsc.gov.uk/assets/channels/industry/OSA2008Guide.pdf, last accessed 1 July 2010. 183

National authorisation mechanisms in implementation of the un treatiesâ•…â•…65

French and Dutch.185 In combination with a clearly-formulated national space act, this provides considerable help in making the particular duties of the applicant more transparent. 4.5.╇ Procedure and Time Limits As regards the applicable procedure of authorization and supervision, the Outer Space Treaty is silent. In this respect, the states enjoy considerable discretion.186 This includes the time limits to be kept in the authorization procedure. However, in the context of Article VI of the Outer Space Treaty and in light of the object and purpose of the Treaty the states must ensure that the activities of non-governmental entities conform to the Treaty. Thus, the latest possible moment of authorization according to the Treaty is before launch.187 Concerning the duration of the national authorization procedure, some laws contain certain time limits, in other countries ordinary administrative procedures apply. The uk Outer Space Act does not explicitly deal with a maximum duration for the authorization procedure but the National Space Council recommends that an application for a licence should take place at least six months in advance before carrying out the licensable activity.188 The Belgian Space Law holds that the authorization must be granted just before the space activity has been started (“before commencement”). The minister has a time limit to decide on the application which is 90 days or, if necessary, up to 120 days.189 In the Netherlands, the Minister will decide on a licence application within 6 months after having received it.190 In the United States, a license application shall be assessed within 180 days after the receipt.191 In the Russian Federation, Roscosmos

╇ See Belgian Federal Science Policy Office, Form for application to an authorization, http://www.belspo.be/belspo/res/rech/spatres/loispat_en.stm, last accessed 1 July 2010. 186 ╇ See also Gerhard, Article VI, 119. 187 ╇ See Hermida, 47. 188 ╇See British National Space Centre, Revised Guidance for Applicants Outer Space Act 1986, http://www.bnsc.gov.uk/assets/channels/industry/OSA2008Guide.pdf. 189 ╇ See Artt. 4, 9, Belgian Space Law. 190 ╇ See Sec. 5, Dutch Space Law. 191 ╇ See Sec. 70105, us Commercial Space Launch Act; also M. Gerhard & K. Moll, The Gradual Change from “Building Blocks” to a Common Shape of National Space 185

66â•…â•…I. Marboe & F. Hafner has to decide in writing upon an application within 60 days after the receipt of the application.192 The Swedish,193 the French,194 the NorweÂ� gian, the Ukrainian,195 the South African, the Australian and the South Korean space laws are silent regarding the duration of the authorization process. 4.6.╇ Supervision and Control of Compliance The implementation of the duty to continuing supervision and control as contained in Article VI of the Outer Space Treaty varies considerably in the space laws under review. The most usual sanction in case of noncompliance or of an infringement is the suspension or the withdrawal of the license. This is the case in Sweden where Section 4 of the Swedish Act on Space Activities provides for the suspension or withdrawal of the license. Also the United Kingdom,196 Belgium,197 the Netherlands,198 France,199 the United States,200 the Russian Federation,201 South Africa,202 Australia203 and the Republic of Korea204 allow for the withdrawal of the authorization by the competent authorities. The short text of the Norwegian Act on Launching does not provide for the withdrawal of Legislation in Europe – Summary of Findings and Conclusions, in S. Hobe, B. Schmidt-Tedd & K.U. Schrogl (Eds.), Towards a Harmonised Approach for National Space Legislation in Europe (2004), 15. 192 ╇See Art. 9(2), Russian Licensing Law; for further information, see Malkov & Doldirina 326–9. 193 ╇ See Gerhard & Moll, 14. 194 ╇ See Clerc. 195 ╇ In the Ukraine the regulation of the authorization procedure is left to the Law on entrepreneurial activities 1991, to the Law on licensing on certain types of commercial activities 2000 and the Cabinets Decree No. 798/98 on Measures for State Regulation on Space Activities. 196 ╇ See Sec. 6, uk Outer Space Act. 197 ╇ See Art. 11, Belgian Space Law. 198 ╇ See Sec. 7, Dutch Space Law. 199 ╇ See Art. 9, French Law on Space Operations. 200 ╇ See Sec. 70107, us Commercial Space Launch Act; Sec. 47303, us Communications Act. 201 ╇ See Art. 13, Russian Licensing Law. 202 ╇ See Sec. 13, South African Space Affairs Act. 203 ╇ See Secc. 21–25, Australian Space Activities Act (for space licenses). 204 ╇ See Art. 13, Korean Space Development Promotion Act.

National authorisation mechanisms in implementation of the un treatiesâ•…â•…67

a licence. Surprisingly, the text of the Law on Space Activity of Ukraine does not mention the withdrawal of the license explicitly. HowÂ� ever, Article 14 deals with the “removal of space facilities from the state register” which leads to the invalidation of the relevant registration certificate. Some national space laws provide for specific fines for infringements. This is the case in Belgium where fines between 24 and 25,000 € may be imposed.205 In the Netherlands, fines may be up to 450,000 € or 10 % of the relevant annual sales of the company, whichever is more.206 The French Law on Space Operations contains a flat-rate of 200,000 € as a sanction for non-compliance with the law.207 In South Africa, any person who performs space activities without a valid licence or who fails to comply with any condition of a licence shall be liable on conviction to a fine not exceeding 1,000,000 Rand.208 The Australian Space Activities Act establishes that a violation of a number of its sections triggers civil penalties.209 They amount up to 5,000 penalty units for legal persons and up to 500 penalty units for natural persons.210 The Republic of Korea imposes a fine of fifty million Won211 on launchers not obtaining a permit for space activities. A fine of thirty million Won212 is imposed on any person who does not comply with a suspension or modification order or who infringes upon the secrecy clause of Article 25.213 In addition, some states have regulated that infringements may lead to imprisonment. In Sweden, the infringement of the space law obligations can be punished by imprisonment up to one year.214 In the United Kingdom, the failure to obtain a licence or to comply with conditions of a licence may lead to an unlimited fine or a fine up to the statutory ╇ See Art. 19, Belgian Space Law. ╇ See Sec. 15, Dutch Space Law. It has to be noted that the Dutch Space Law deals with the enforcement-topic in a very comprehensive way. Out of a total of 28 Sections 11 deal with the question of enforcement. 207 ╇ See Art. 11, French Law on Space Operations. 208 ╇ See Sec. 23, South African Space Affairs Act. In June 2010, this sum is equivalent to approximately 106,200 €. 209 ╇ See Sec. 80, Australian Space Activities Act. 210 ╇ See Sec. 81, Australian Space Activities Act. 211 ╇ As of June 2010, this amount equates approximately with 35,000 €. 212 ╇ As of June 2010, this amount equates approximately with 21,000 €. 213 ╇ See Art. 27, Korean Space Development Promotion Act. 214 ╇ See Sec. 5, Swedish Act on Space Activities. 205 206

68â•…â•…I. Marboe & F. Hafner maximum may be imposed on summary conviction.215 The Belgian Space Law stipulates that any person carrying out space activities without authorization, shall be liable to a period of imprisonment of between eight days and one year and/or a fine of between 25 and 25,000 Euros.216 The Law on Space Activity of Ukraine states that offences under the legislation on space activity in the Ukraine shall be punishable by disciplinary, civil-law or criminal penalties in conformity with Ukrainian legislation currently in force.217 Section 23 of the South African Space Affairs Act provides for a prison sentence instead of the above mentioned fine. If a person performs space activities, fails to comply with any condition of a licence or fails to furnish the relevant information to the national authorities a prison sentence for a period not exceeding ten years may be imposed.218 Australia simply states that “the holder of a space licence must not contravene a condition of the licence”.219 The Space Development Promotion Act of the Republic of Korea allows imprisonment for up to five years in case that a person conducts space activities without a license.220

5.╇Conclusion This overview over national authorization mechanisms in implementation of the un outer space treaties has shown that the enactment of national space legislation contributes considerably to the transparency of the procedure of authorization. Even if such legislation is not mandated by the Outer Space Treaty, it is an important means of ensuring responsible and transparent implementation of the international obligations of the states concerning authorization of space activities carried out by non-governmental entities. Furthermore, the accessibility of information about the rights and duties of private actors interested in conducting space activities is increased. One of the best means of furnishing this information is to ╇ See Sec. 12, uk Outer Space Act; also Close, 581; Hermida, 133. ╇ See Art. 19, Belgian Space Law. 217 ╇ See Art. 29, Law on Space Activity of Ukraine. 218 ╇ See Sec. 23, South African Space Affairs Act. 219 ╇ Sec. 21, Australian Space Activities Act. 220 ╇ See Art. 27, Korean Space Development Promotion Act. 215 216

National authorisation mechanisms in implementation of the un treatiesâ•…â•…69

make the relevant documents publicly available, for example on the internet. In addition, some states (for example, Belgium and the United Kingdom) provide a fact sheet, questionnaire or application form which are easily accessible for potential applicants. It has to be pointed out that the enactment of national authorization regimes is also an important means for the state to be informed about space activities going on its territory or carried out by its citizens. The state might otherwise become responsible or liable for activities which it had not been even aware of. The national authorization regime ensures that the state will be informed about space activities carried out by nongovernmental entities and will be in the position to control and supervise them. This helps to ensure that appropriate safety standards are complied with and other interests of the states are respected. In addition, the analysis has shown that states have enacted more or less sophisticated control mechanisms. Sanctions include fines or even imprisonment. Without national space legislation the states would not have this possibility. They cannot impose control and sanction mechanisms without a legal basis because they must comply with the principle of due process of law also in respect of space activities. This means that the state, without a legal basis, will have difficulties to enforce the authorization of space activities. The analysis of the different national space legislations has also shown that a broad variety of authorization procedures exists. Not only the competent authorities and entities involved but also the extent of information and examination required differ. However, the actual practice of authorization cannot be understood on the basis of the laws and decrees alone. One has also to look at the practice of authorization. Here, the laws differ in the extent to which the details are laid down in the law or decree and the amount of discretion conferred to the authorizing body. The examples of national space legislation under consideration have show that generally the older laws are less detailed. The competent organs enjoy a larger margin of discretion. The more recent laws and regulations mirror the development of technology and privatisation which require more detailed regulations. However, in practice, in both cases the most important common interests of both the authorities and the operators point into the same direction, namely to ensure that the space activities are conducted safely and in conformity with technological standards. Here, we see more uniformity than diversity. This can be explained by the fact that the most

70â•…â•…I. Marboe & F. Hafner important concern of space operators is that the space object functions properly and will continue to do so for a reasonable period of time. It is this technical or technological interest that can be helpful for a more harmonised approach in national authorization procedures. Furthermore, the common interest in a safe and reliable environment for space activities is a good starting point for the development of international safety standards and the avoidance of flags of convenience. Partly, this is already realised through technical standards and guidelines. They are elaborated and applied by the actual players, such as national space agencies. The Inter-Agency Debris Coordination Committee, in 2002, agreed on the iadc Space Mitigation Guidelines which are a good example for such a coordinated effort.221 The uncopuos Scientific & Technical Subcommittee (stsc) refers to them in its own Space Debris Mitigation Guidelines of 2007.222 Those kind of Â�guidelines aim to mitigate the growth of the orbital debris population and ask space operators to limit debris released during normal space operations, minimize the potential for on-orbit break-ups, undertake post mission disposal and prevent collisions.223 There is a good chance that such standards, even though included only in soft law instruments, evolve into a generally accepted state of the art which no actual or

╇ The Inter-Agency Debris Coordination Committee is an association of the space agencies of ten countries (China, France, Germany, India, Italy, Japan, Russia, Ukraine, the United Kingdom, and the United States) and the European Space Agency, representing 17 countries of which four (France, Germany, Italy, and the United Kingdom) are also full iadc members. The iadc is an international forum of governmental bodies for the coordination of activities related to the issues of manmade and natural debris in space. Its purpose is to exchange information on space debris research activities between member space agencies, to facilitate cooperation  and identify debris mitigation options; for further information http://www .spacelaw.olemiss.edu/library/space/IntOrg/IADC/IADC-%2002-01%20-%20 IADC%20Space%20Debris%20Mitigation%20Guidelines.pdf; last accessed 1 July 2010. 222 ╇ Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, in: Report of the Committee on the Peaceful Uses of Outer Space, General Assembly Official Records, 62nd Session, Supplement No. 20 (A/62/29), Annex, pp. 47–40. 223 ╇ See M. Benkö, The Problem of Space Debris : A Valid Case Against the Use of Aggressive Military Systems in Outer Space?, in M. Benkö & K.-U. Schrogl (Eds), Space Law: Current Problems and Perspectives for Future Regulation (2005), 161–2. 221

National authorisation mechanisms in implementation of the un treatiesâ•…â•…71

Â� otential actor in space can afford to ignore. This could lead to a de facto p harmonisation of authorization practices. On the other hand, less technical conditions of authorization vary from country to country and may continue to do so. Examples are the economic, political, security or other interests of the state which must not be jeopardized by private space actors. In this respect, the practice of national authorizations will continue to be different as this merely reflects the states’ sovereign exercise of their competence to authorize. This shows that despite increased privatisation the role of the states as the main players in outer space can still be maintained by way of the authorization procedure. If a state fails to enact such a procedure, it not only fails to comply with its international obligation stemming from the un space treaties but it also fails to protect its national interests in outer space.

Chapter Three Granting Access to Outer Space: Rights and Responsibilities for States and their Citizens An Alternative Approach to Article VI of the Outer Space Treaty, Notably Through the Belgian Space Legislation J.F. Mayence … Nicholl then took up the question in its other aspects. Without touching upon its uselessness in all points of view, he regarded the experiment as fraught with extreme danger, both to the citizens, who might sanction by their presence so reprehensible a spectacle, and also to the towns in the neighborhood (…). He also observed that if the projectile did not succeed in reaching its destination (…), it must inevitably fall back upon the earth, and that the shock of such a mass, multiplied by the square of its velocity, would seriously endanger every point of the globe. Under the circumstances, therefore, and without interfering with the rights of free citizens, it was a case for the intervention of Government, which ought not to endanger the safety of all for the pleasure of one individual. Jules Verne, From the Earth to the Moon, Paris, 1864

1.╇Introduction Granting access to outer space is a rather new job: as long as states were the only ones to have access to higher skies, using them through their governmental channels, no formal authorization was required. Nowa�days, private industry is investing in the space business. And while states do not need any authorization from their peers to perform their

74â•…â•…J.F. Mayence own space activities, private companies must be granted permission to do so. Understanding, and thus implementing Article VI of the Outer Space Treaty,1 has never been an easy thing. Nevertheless, everybody seems to agree on the general idea and concerns behind that provision. Much has been said, much has been written on that Article. But the issue still keeps space lawyers arguing and the space community somehow waiting for a definitive answer. Even though some might consider this blur in the text of the treaties as a form of convenient flexibility, others fear that the development of private or commercial space activities will eventually be harmed by this legal uncertainty. We intend to present a rather uncommon vision of that issue, seeking a scientific approach to Article VI and a rationale for the interpretation of space law not as it should be, but as it actually is.

2.╇ Understanding Article VI of the Outer Space Treaty: Scientific Approach versus Opportunistic Vision Harmonising the interpretation of a treaty’s provision at the international level is, in theory, not a complex process. That is what the jurisprudence of the International Court of Justice stands for. Unfortunately for space lawyers, the activities subject to their attention have not served as a basis for the development of a substantial and significant case law. Looking at the near future of space activities might lead to the conclusion that this apparent absence of legal disputes will not last forever. Projects such as the launching of small rockets from territories or areas so far unused for that purpose might change the current situation. To this day, the number of spots from where a space object can be launched remains rather limited. Launching solutions are various (launch from the ground, from the sea, from the air), but most activities are performed through the same systems operated by a few companies in the world. Many problems linked to the implementation of Article VI of the ╇ Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967).

1

Granting access to outer space: rights and responsibilitiesâ•…â•…75

Outer Space Treaty remain therefore theoretical. For instance, the issue of the flag of convenience, as it is known in maritime law, has not yet been faced in the reality of space business. Every space operation system existing to this day can be related to a space faring nation offering the guarantees to mitigate the risk of those activities and, should the case arise, to indemnify the victim(s) of a hypothetical accident. The space law community is calling for a better and wider application and implementation of the principles of the un outer space treaties, notably through national legislative efforts. To this end, any reflection tending to clarify the scope and the meaning of Article VI is welcome. 2.1.╇ A Methodical Approach Article VI of the Outer Space Treaty reads: States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization  and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by international organization and by the States Parties to the Treaty participating in such organization.2

2.1.1.╇ The Common Understanding The drafting history of Article VI brings us back to the original concern behind it. While the United States of America were willing to include a recognition of private activities in the new emerging legal framework that was international space law, the Soviets had a strict governmentfocused approach, denying private enterprise the direct benefits of the provisions of the Outer Space Treaty. A compromise solution was to consider the possibility of non-governmental activities in outer space but performed under the imperium of their respective states. This concern ╇ Emphasis added.

2

76â•…â•…J.F. Mayence from the Soviet side might have been related to the fact that the draft Outer Space Treaty and the pre-existing unga principles were already establishing the freedom of access, exploration and use of outer space. Considering the respective political and economical systems of the United States and the Soviet Union, the recognition of private activities only conceivable in a free enterprise-based economy would have caused a misbalance between the two superpowers. It is not contested that non-governmental activities in outer space have to be performed under the authority of the ‘appropriate State’. Article VI features the word “responsibility” to define the consequences of such authority. And from that word on, opinions differ. 2.1.2.╇ Several Conceptions of one Provision 2.1.2.1.╇ International Responsibility: More than Words, an Institution Speaking of ‘international responsibility’ is not innocent: it refers to a major institution of public international law whose foundation is to be found in the un Charter.3 It is generally agreed that international responsibility is constituted of several elements: •  the violation, •  by a legal person, •  of one or several of its obligations under public international law. The demonstration of a corresponding damage is not required in order to activate the international responsibility, but only in order to claim compensation.4 ╇ Cf. Art. 36(2)(c), Statute of the International Court of Justice, San Francisco, done 26 June 1945, entered into force 24 October 1945; 156 UNTS 77; USTS 993; 59 Stat. 1031; UKTS 1946 No. 67; ATS 1945 No. 1. 4 ╇ On this point, the commentaries of the two special rapporteurs of the ilc’s work on International Responsibility provide slightly different views on the issues (see Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Â�commentaries (2001) in Report of the ilc on the work of its 53rd session in Yearbook of the International Law Commission, 2001, Volume 2, Part II, and ilc’s website: http://www.un.org/law/ ilc/). Roberto Ago adopts a quite theoretical, but logical, approach in excluding the demonstration of any damage (or ‘prejudice’) from the establishment of the state’s responsibility for an international wrongful act, while Gaetano Arangio-Ruiz seems to make the demonstration of, at least, a ‘legal prejudice’ as a requirement to the establishment of such a responsibility. 3

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Among the substantial literature which has been published on the topic,5 the work of the International Law Commission of the United Nations (ilc) is regarded as one of the most accomplished reflections on the concept of international responsibility. In its project of codification of provisions related to international responsibility,6 the ilc defines an internationally wrongful act as the positive or negative behaviour attributable to a state (or an intergovernmental organisation) and constituting a violation of an international obligation of that state (or intergovernmental organisation).7 The attribution to a state (notably through the application of the theory of the state’s organ8) of the behaviour is a key element of the international responsibility. So is the breach of an international obligation, which requires more than the violation of a norm or a provision: the obligation which has not been fulfilled by the state must be clearly identified.9 The general principle of the international responsibility as accepted in positive international law is that the act or omission of an individual person under the jurisdiction of a state cannot as such generate an ╇ See notably: G. Arangio-Ruiz, State fault and the forms and degrees of international responsibility: Questions of attribution and relevance, in Mélanges Michel Virally, Le Droit international au service de la paix, de la justice et du développement (1991); D. Bodansky & J.R. Crook, Symposium: The ilc’s State Responsibility Articles: IntroÂ� duction and Overview, in 96 American Journal of International Law, 773; I. Brownlie, System of the Law of Nations: State Responsibility, Vol. I (1983); M. Spinedi & B. Simma, un Codification of State Responsibility (1987); C. de Visscher, La ResponÂ� sabilité des Etats, Vol. II (1924); B. Stern, La Responsabilité des Etats aujourd’hui…, demain…, in Mélanges Apollis (1992); J. Piernas, dir., La Responsabilidad internarcional (1990); J. Wouters & L. Chanet, Rechten en plichten van (multinationale) ondernemingen in het internationaal recht, Working Paper nr 118, December 2007, Instituut voor Internationaal Recht, KU Leuven. 6 ╇ See Draft Articles on Responsibility of States for Internationally Wrongful Acts. 7 ╇ See in particular commentary on Article 2, as published in the previously mentioned report of the ilc. 8 ╇ This theory has been established by numerous decisions of the International Court of Justice, i.e. us Diplomatic and Consular Staff in Tehran case (as referred to Â�below), MiliÂ� tary and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) case, 1984 icj Rep. 392 June 27, 1986, Rainbow Warrior (New Zealand v. France), France – New Zealand Arbitration Tribunal, April 30, 1990. See also Art. 6, ilc’s Draft Articles on Responsibility of States for Internationally Wrongful Acts. 9 ╇ See the Report of the ilc, 36, para 13. 5

78â•…â•…J.F. Mayence Â� international responsibility for that state. This is highlighted by the late Professor Nguyen Quoc Dinh according to whom “the general principle is quite clear: the state can never be held responsible for the acts of individuals, since their acts cannot be attributed to the State”.10 The author admits some apparent exceptions to this principle, but only to better demonstrate the fact that what is eventually attributable to the state is a violation of its own obligation under international law.11 An illustration  of such an exception is given by the case of the Diplomatic and Consular Staff of the us Embassy in Tehran submitted to the icj. On the basis of the facts (attack committed by Iranian citizens against the personnel of the us Embassy in Teheran), the International Court of Justice confirmed that the international responsibility of Iran was engaged because of the inaction from its government against the attack of the us Embassy premises and not on the basis of the acts of the individuals themselves.12 That general theory is obviously known by all authors who have commented on Article VI of the Outer Space Treaty. Nevertheless, a major part of them still considers that this provision installs a specific type of international responsibility, which does not require the demonstration of an internationally wrongful act attributable to the state. One of the arguments presented in order to justify the sui generis character of the international responsibility of Article VI of the Outer Space Treaty is based on the text itself. The first part of the first sentence of Article VI seems to establish a responsibility of the state, not only for its own activities, but also for the activities of non-governmental entities which come under its jurisdiction. ╇ See e.g. Nguyen Quoc Dinh, Droit international public (6th ed.)(1999), 753, nr 476: “Le principe général applicable est très clair: l’Etat n’est jamais responsable des faits de particuliers, car leurs actes ne peuvent lui être attribués.” 11 ╇ Nguyen Quoc Dinh, 753, nr. 476: “A cette règle générale, il existe une exception apparente: l’Etat peut être tenu responsable des faits des particuliers sous sa juridiction lorsqu’il n’a pas pris des précautions suffisantes pour prévenir un incident ou pour protéger les victimes. L’exception n’est qu’apparente puisque, dans cette hypothèse, la responsabilité de l’Etat est engagée non pas du fait du particulier auteur du dommage, mais en raison du comportement de ses propres organes qui n’ont pas observé l’obligation de vigilance qui leur incombe.” 12 ╇ icj, Judgement of 24 May 1980 (Rec. 1980, p. 33). This case is also interesting to the extent that the acts of the Iranian citizens were considered by the icj as ratified by the Iranian state and could therefore be qualified as acts committed on behalf of the Iranian state. 10

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According to Article 31 of the 1969 Vienna Convention on the Law of the Treaties,13 the first element to be considered for the purpose of interpreting a treaty is the text. Article 32 of the same Convention calls for a logical link between the text and the context of the provision. To that extent, it is unlikely that the rules for interpretation of the Vienna Convention would allow isolation of one (part of) sentence from the rest of the provision. Article VI of the Outer Space Treaty is not divided in paragraphs or sections. It constitutes a whole block of text and therefore, its meaning must be considered as resulting from a coherent reading of that whole. This comprehensive reading may bring important elements for the understanding of the concept of international responsibility featured in Article VI: the statement according to which states are responsible for the activities of non-governmental entities is not an isolated provision but only one element of an entire descriptive process highlighting the causes and the consequences of the state’s responsibility. Article VI specifies the obligation on which the responsibility is based: the establishment of an authorization and continuous supervision regime. Ignoring the coherence of the whole Article leads to a dead-end interpretation and brings forward the following questions: •  How can the act or omission of non-governmental entities be constitutive of a violation of a treaty to which, by definition, they are not parties? Who could appreciate the (non-)compliance of activities performed by commercial companies with regard to commitments that only states are able to fulfil?14 •  Why would Article VI provide for an authorization and continuous supervision mechanism if in any case, states are responsible of acts and omissions which are not theirs? Actually, this requirement indicates that the first purpose of Article VI is not so much to attribute an obligation to repair the consequences of the internationally wrongful act, but is rather to prompt the state to take all effective measures in order to prevent such consequences.

╇Vienna Convention on the Law of Treaties, Vienna, done 23 May 1969, entered into force 27 January 1980; 1155 UNTS 331; UKTS 1980 No. 58; Cmnd. 4818; ATS 1974 No. 2; 8 ILM 679 (1969). 14 ╇ For instance, how could private companies’ activities be considered as peaceful or non peaceful? 13

80â•…â•…J.F. Mayence We must also consider the possibility that transboundary damages may be caused even while no violation of international law has been committed. If the interpretation of Article VI is that the state is responsible by the simple fact that damage has been caused by activities performed under its jurisdiction, this interpretation modifies not only the scope of the international responsibility of Article VI, but also its nature itself. From a responsibility for an internationally wrongful act, we move to a liability.15 Indeed, this interpretation ends up in establishing an absolute liability (meaning objective and without any limitation) of the state on the simple demonstration of the occurrence of damage.16 Such a liability would go even further than the liability of Article VII of the Outer Space Treaty, since no exoneration for the state (even in case of gross negligence by the victim) would be admissible. Nevertheless, a large number of authors and experts have moved forward with such an interpretation of Article VI and have ended up in deleting the line drawn between Article VI and Article VII. AccordÂ�ing to some of them, the lack of precision of Article VI when it comes to the damage reparation would be filled by the provisions of Article VII and those of the 1972 Liability Convention.17 This interpretation,18 however, ╇ The distinction between ‘responsibility’ and ‘liability’ is well established in international law (in the French language, the notion of ‘liability’ refers to ‘responsabilité pour dommage’). This distinction has also been used by the International Law Commission in order to elaborate a specific set of rules to be adopted on the state’s responsibility for hazardous activities which may cause transboundary harm (see Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, with commentaries in Report of the International Law Commission on the work of its 53rd session, Yearbook 2001, Volume 2, Part II). 16 ╇ Indeed, if the fulfillment of the state’s obligation under Article VI of the Outer Space Treaty (namely the authorization and the continuous supervision of the activities) is not considered in the establishment of the state’s responsibility under that Article, we must assume that such responsibility is only based on the demonstration of a ‘damage’ which suffices to claim reparation. On the other hand, it is not possible anymore with such an interpretation to act against a state failing to ensure authorization and/ or continuous supervision of ‘its’ activities if no damage has been caused (see this section in fine). 17 ╇ Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971) 18 ╇See further notably A. Kerrest de Rozavel, D’un droit inter-étatique issu de la Guerre froide à l’encadrement des activités privées, in Journées d’études : Le Droit 15

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raises issues, among which (1) the fact that Article VI deals with space activities while Article VII deals with space objects and (2) the fact that the state(s) identified under Article VI is/are not necessarily the same as the state(s) identified under Article VII.19 The supporters of a merged application of Article VI and Article VII do not bring any explanation forward for this disruption. The international responsibility of Article VI can be activated in order to claim indemnification of damage caused by space activities. Such a claim can be addressed under the general theory based on the concept of the internationally wrongful act: a state having established the international responsibility of another state may ask for compensation for the damage caused by this act or omission. But that theory excludes the damage caused by a third party. All in all, it appears difficult to give Article VI an effective interpretation without considering that the international responsibility it foresees is only a specific case of the general theory of the internationally wrongful act. Article VI actually defines the obligation (as being the establishment and the effective implementation of an appropriate regime of authorization and continuous supervision) on the basis of which the internationally wrongful act could be qualified. The violation of international law by the state might be the allowance of non-authorized and/or non-supervised non-governmental activities under its jurisdiction. This has for consequence that a state which has correctly and effectively set up and implemented a regime of authorization and continuous supervision should not be held responsible on the basis of Article VI. This might be the case when a state has denied or withdrawn an authorization for activities which, despite the state’s due diligence and care, have eventually been performed, either unlawfully or under a third state’s jurisdiction (see hereafter). Another consequence of a strict interpretation of Article VI of the Outer Space Treaty based on the internationally wrongful act doctrine would be to allow action against a state which has de l’Espace et la Privatisation des activités spatiales (2003), 6–7; A. Kerrest de Rozavel, Sharing the risk of space activities: Three questions, three solutions, in K.H. Böckstiegel (Ed.), ‘Project 2001’ – Legal Framework for the Commercialisation of Outer Space (2001); M. Couston, Droit spatial économique, Régimes applicables à l’exploitation de l’Espace (1994); B. A. Hurwitz, State Liability for Outer Space Activities (1992). 19 ╇See for instance H.A. Wassenbergh, Principles of Outer Space Law in Hindsight (1991), 24.

82â•…â•…J.F. Mayence not (yet) implemented its obligation of authorizing and supervising space activities under its jurisdiction while no damage has been caused. The simple fact that a state is allowing activities under its jurisdiction without supervising them might, in theory, be a sufficient basis for the activation of that state’s international responsibility under Article VI of the Outer Space Treaty. 2.1.2.2.╇ The “Nationality” of Space Activitiesâ•… Public international law and private law have identified several criteria to determine which state’s jurisdiction should or could apply to persons and goods in different places of the world. This question was of course among the first to be addressed by the space lawyers since outer space was proclaimed an area subject to no national sovereignty. Although the connection of a space object or of an astronaut to a particular nation is relatively easily solved through the provisions of the Outer Space Treaty and of the Rescue Agreement,20 no precise guidance was given in order to determine the nationality of space activities. Contrary to human beings and goods, activities are immaterial. Their subjection to a particular state must therefore be based on a complex legal abstraction. Historically, most of the states having implemented Article VI through their national legislation have opted for two cumulative (sometimes alternative) criteria: (1) the place where (from) the activities are performed (ratione loci criterion) and (2) the nationality of the operator in charge of performing the activities (ratione personae criterion). This approach was based on the consideration that, at the time the Outer Space Treaty was drafted, only a few nations in the world had non-governmental entities able to perform such activities. Moreover, the number of places where space objects could be launched from was – and still is – limited: only big nations were exploiting launching premises and facilities under clearly identified jurisdictional regimes. With the emerging international cooperation among space faring nations, it appeared as a sound solution to extend the national jurisdiction to the activities performed from a partner state’s territory or facilities. Such a situation was only considered in a legal framework in which the state of ╇ Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (hereafter Rescue Agreement), London/Moscow/ Washington, done 22 April 1968, entered into force 3 December 1968; 672 UNTS 119; TIAS 6599; 19 UST 7570; UKTS 1969 No. 56; Cmnd. 3786; ATS 1986 No. 8; 7 ILM 151 (1968).

20

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the nationality of the operator had actual means to control and supervise the activities performed. Another element can also explain this cumulative criteria approach. At the time of the Cold War, applicable jurisdiction was also a guarantee against adversary interests and unfriendly actions. National jurisdiction was the ultimate protection granted to the operator and the state’s interests, especially considering that the activities were, most of the time, conducted on behalf of governments. Since then, the space sector has gone through profound changes. The umbrella of national law left place to the quest for the most advantageous legislation. Globalization guarantees economical safety in a much larger part of the world than before and the concern of states has moved from ensuring full control over national private activities to limiting its involvement and potential interferences in free enterprise. Private business has broken the old boundaries between territories, ideological blocks and has followed its own logic. A company can now settle almost everywhere in the world, move its headquarters from America to Europe, from Europe to Asia, for purely financial reasons. Money can travel through hundreds of wallets in a few hours on stock exchange’s boards, shareholders invest in countries they have never visited just by typing on their computer. ‘Economical citizenship’ has become a reality subject to its own principles and interests. Hence, the need for provisions to be adapted to the growing sector of space activities is clearly demonstrated. Such adaptation requires the use of relevant criteria to ensure a full and effective application of state responsibility as provided for by Article VI of the Outer Space Treaty. Let us consider three possible situations with regard to the current features of the world space sector: 1st situation: A company operates under the territorial jurisdiction21 of its state of nationality. In such case, both types of jurisdiction (ratione loci and ratione personae) are independently sufficient to ensure an optimal covering of those activities by the state; ╇ By ‘territorial jurisdiction’, we mean the national territory as well as any extension of the state’s jurisdiction on places, ships, facilities by means of registration, or declaration, or by application of an international agreement providing for such an extension of jurisdiction. Parts of the national territory which are subject to such regimes or agreements should also be considered with regard to the applicable jurisdiction.

21

84â•…â•…J.F. Mayence 2nd situation: A company of citizenship X operates under the territorial jurisdiction of State Y. In case both states are parties to the Outer Space Treaty, there is no a priori reason why State Y would not offer the same guarantees as State X as far as its international responsibility is concerned. If State X would not be party to the Outer Space Treaty while State Y would, the ratione loci criterion allows State Y to take effective measures to prevent the activities if they do not comply with applicable norms,22 including outer space law’s principles. Such prerogative constitutes the most effective tool in order to expect activities to be performed in compliance with the Outer Space Treaty’s provisions. In the case where State Y would not be party to the Outer Space Treaty while State X would, cumulating both criteria (ratione loci plus ratione personae) would only allow to activate State X’s international responsibility under Article VI of the Outer Space Treaty. In the absence of any obligation for State Y to authorize and supervise space activities, it is questionable whether that state would be responsible by the simple fact that nongovernmental activities performed under its jurisdiction are not complying with outer space law’s principles.23 Furthermore, the question remains whether the demonstration by State X that it has correctly implemented its authorization and supervision regime considering the situation (a national company acting from a foreign jurisdiction) would constitute a valid cause of exoneration of ╇ In the case of material activities which might necessitate a physical intervention by public authorities, the effective implementation by a state of its personal jurisdiction is subject to the recognition of its enforcement prerogatives on the location of those activities, namely in this case, the place from where the space activities are remotely performed. As stated in particular in the case of the Lotus submitted to the pcij in 1927 (see pcij, Ser. A, nr. 10, 1927, Publications of the Permanent Court of InternaÂ� tional Justice, (1927)â•›), a state may adopt legislation or take decision regulating activities outside its territory, to a large extent. The question remains about their effective enforcement if the state’s authority is not recognized by the state exercising the territorial jurisdiction on the spot where the activities are taking place. 23 ╇ With the exception of (a) the demonstration of a duty of care from the state and of (b) the case where private activities are attributable to the state according to the given circumstances. 22

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its responsibility under Article VI. A negative answer to that question would result in sanctioning a state party to the Outer Space Treaty having correctly fulfilled its commitment, while comforting a non-party state in hosting space activities without bearing responsibility for them. This is certainly not an incentive for states to become party to the Outer Space Treaty. 3rd situation: A company of citizenship X is operating from an area subject to no territorial jurisdiction (high seas, international airspace, outer space, and so on). The performance of space activities requires specific facilities and equipment, especially when it takes place from remote areas, on the continent, at sea or in the air. Those movable facilities (ships, marine platforms, aircraft, space stations) are subject to a regime of quasi-territoriality based on their registration by a given state.24 An argument in favour of cumulating the geographical jurisdiction with the personal jurisdiction in order to determine the international responsibility under Article VI, is the fact that such a system would allow to identify two (or even more) states responsible. This concern follows a reaÂ�soning which considers the interests of the victim as superior to any others’. This noble attitude raises however some questions with regard to the purpose of Article VI and to the nature of the responsibility it stipulates. First of all, the victim-oriented approach of the Outer Space Treaty is to a large extent recognised but usually in connection with its Article VII. This latter provision allows the state victim of damage, or representÂ� ing the victim of damage, to act against the ‘launching State(s)’ for the purpose of getting indemnification. This mechanism guarantees the victim a claim to the most solvent counterpart. Now, in the case of Article VI, a victim-oriented approach is not relevant: the purpose of the Article

╇ We only consider registration regimes which are constitutive of a state’s jurisdiction applying on the registered object (such as for ships, aircraft, spacecraft). Other registration regimes do not have such an effect (cars, trucks, etc.). However, for activities performed on continental areas subject to international jurisdiction (Antarctica, some international airports, contiguous land strips, etc.), reference must be had to the applicable international treaty or regime in order to identify a possible national jurisdiction applicable to such specific cases.

24

86â•…â•…J.F. Mayence is not so much to allow reparation of the damage but rather to prevent it from happening. Furthermore, as far as Article VI is concerned, the victim – if any25 – can only be a state, as the only legal person entitled to seek application of the Outer Space Treaty by other states parties. Some have pointed out the text of Article VI to deduct from it the singularity of the ‘appropriate State.’26 The fact that Article VI does not consider the possibility of having several ‘appropriate States’ is indeed a significant fact, but the main argument for sticking to only one single state responsible is the effectiveness of the mechanism of authorization and supervision. Several authorizations might end up in contradictory decisions by governments involved. One application by the operator filed in its national state might face a denial from the licensing authority while a similar application, for the same activity, filed in the state of location, can be authorized. In theory, such a case could be prevented from happening by inserting a provision in every national space legislation according to which, whenever several states exercise their jurisdiction over the same activity, authorization will only be granted if all states involved are ‘showing the green light’. In practice, this would subject the effectiveness of a decision to be taken by a national authority to the decision of a foreign government. The truth is that neither states nor space operators could expect a real benefit from an interpretation of Article VI of the Outer Space Treaty making several states internationally responsible for the authorization and the supervision of the activities. Identifying clear and practicable criteria to determine which state is competent for taking the responsibility of such a mission and is actually capable, under international law, to exercise an effective control on the activities, seems the most sensible choice to be made for the interpretation of Article VI. This necessity, at least, is accepted by most of the authors.27 Our personal conviction is that, if this

╇ The activation of international responsibility does not require the demonstration of damage and, therefore the identification of a victim. Such responsibility is the direct consequence of a relation which can only be conceived between persons subjects of international law, in other words states and intergovernmental organisations. 26 ╇See F.G. von der Dunk, Private Enterprise and Public Interest in the European “Spacescape”: Towards Harmonized National Space Legislation for Private Space Activities in Europe (1988), 21. 27 ╇ See Von der Dunk, 19: “The most effective interpretation of ‘national activities’ would make states internationally responsible precisely for those private activities undertaken from within its jurisdiction”. 25

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effective implementation of Article VI is really the ultimate goal of all states parties to the Outer Space Treaty, only the ratione loci jurisdiction must be considered for the purpose of applying that provision. 2.2.╇ A Political Approach Most of the rationale for an extensive interpretation of Article VI of the Outer Space Treaty, as it has been generally accepted in the literature until the end of the 1990s, is built on the assumption that the existence and the relevance of outer space law depends on its peculiarities with regard to general international law. The relative off-norms character of space activities in comparison with others seems to motivate a necessity to derogate from the general principles of law. Accordingly, outer space would deserve a tailored set of rules and principles in recognition of its exorbitant nature and extraordinary aspects. This trend is common to all areas in sciences and knowledge. Specialists always tend to plead for a special treatment to be applied to their matter, with the view of emancipating it from the evolution and development of the general corpus juris which remain beyond their control. In certain circumstances, the ‘customisation’ of thematic sets of rules may be justified, whenever the inherent characteristics of the subject (activities, area, people and so on) render inoperative the principles enunciated at a more general level. For instance, the rise of Internet and its applications has raised concerns about the applicability of basic principles of numerous branches of law: press law (can any publication on personal blogs be treated as a press article?), trade law (do we need specific rules to determine the law applicable to sales concluded on Internet?), criminal law and so on. The risk of such a customisation is obviously to come up with new rules every time a new technology is used. Did the authors of the unga Resolution on direct TV broadcasting in 198228 imagine that, ten years later, Internet would cause a global revolution in the exchange of information worldwide, making TV broadcasting a concern of secondary importance for governments? One of the objectives of space law makers has been to ensure a legal framework benefiting the victim of damages caused by space activities. ╇ Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, UNGA Res. 37/92, of 10 December 1982; un Doc. A/AC.105/572/Rev.1, at 39.

28

88â•…â•…J.F. Mayence This has led to a level of legal protection rarely achieved in other areas of international law. For instance, environmental law or air law do not feature regimes of absolute liability allowing the victim to directly sue the most solvent of the states involved. At the same time, each single average year of aviation activities causes much more environmental damages or even human casualties than fifty years of outer space activities have to this day. In 1959, Charles Chaumont29 was already asking whether a possible option for the responsibility of space activities could be the non-responsibility of states considering the fact they were already investing huge budgets for the benefit of all mankind. Although this idea was quite sensible, it cannot be denied that the heavy liability regime imposed upon states by international space law has contributed to maintaining a level of excellence in the technical safety and security of space activities. That being said, the risk exists to see space law tailored according to the philanthropist vision of the late sixties without taking into account the current reality of space activities. The interpretation of Article VI must be done with due consideration for the second leg of the space responsibility regime of the Outer Space Treaty, namely Article VII. While it is of prime importance not to confuse the two provisions, it must be recalled that they somehow complement each other in addressing different subjects and situations.

3.╇ Article VI in its Relation with Article VII and Article VIII of the Outer Space Treaty 3.1.╇ Responsibility and Liability: Not Just a Question of Words By merging Article VI and Article VII of the Outer Space Treaty, some eminent commentators expect the creation of a ‘super liability’ for states

╇ C. Chaumont, Le Droit de l’Espace (1960), 83. This idea of a necessary solidarity in bearing the responsibility for the risk of space activities was also at the origin of a proposal to create an international fund for the indemnification of the victims of launchs (see I.H.P. de Rode-Verschoor, The Responsibility of States for the Damage Caused by Launched Space-Bodies, in Proceedings of the First Colloquium on the Law of Outer Space (1959)).

29

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involved in space activities,30 which could serve as a model to other sectors of activities. However, the fact is that Article VI and Article VII address different situations and provide for legal mechanisms of a different nature and to be activated according to different rules. The exploitation of a payload on board a satellite, the installation of facilities on the moon, and the jamming of radio frequencies in orbit are examples of activities which might fall into the scope of Article VI without concerning Article VII.31 On the other hand, it is remarkable that the same activity can be subject to both regimes of responsibility and liability with different states involved at the end. The operation of a satellite in orbit causing damage to another satellite or to properties on the ground may generate liability for the ‘launching State’ and may also serve as a legal basis for an action against the ‘appropriate State’. This action is only open to states parties to the Outer Space Treaty,32 in particular the ‘launching State’ which will have to demonstrate that the ‘appropriate State’ has not set up and/or correctly implemented the regime of authorization and supervision. This illustrates how Article VI and Article VII play two distinct roles and should remain separated. The situation where the ‘appropriate State’ is not (one of) the ‘launching State(s)’ also shows how the legal nature of the international responsibility allows the ‘launching State’ to act against the ‘appropriate State’ even in the absence of any damage. Obviously, the ‘launching State’ has a strong interest in preventing any damage from happening, since it will be the first to pay for such damage. The general theory of the internationally wrongful act ╇ See notably as previously referred to, A. Kerrest de Rozavel, D’un droit inter-étatique issu de la Guerre froide à l’encadrement des activités privées, and Sharing the risk of space activities: Three questions, three solutions. 31 ╇ Although the recent case of the Intelsat Galaxy 15 drifting away from its orbit and threatening radio emission from a TV satellite shows the possibility to qualify radio jamming as “damage” as defined under Art. II, Liability Convention. In this case, the relevant fact is that the jamming would be caused by an accidental drifting of the satellite (as opposed to an intentional action). 32 ╇ We leave aside the issue of the difference of phrasing between Art. VII, Outer Space Treaty, and the provisions of the Liability Convention (i.e. Artt. II, IV, VIII). While the former explicitly restricts the benefit of the liability (at least for the damage caused on the earth) to a state party to the Treaty, the latter does not seem to require that the state victim be party to the Liability Convention, which would induce an erga omnes obligation. 30

90â•…â•…J.F. Mayence allows such a preventive action which will not transfer the liability to the ‘appropriate State’, but might oblige the ‘appropriate State’ to take measures in order to reduce the risk of the activities. The recourse of the ‘launching State’ against the ‘appropriate State’ will be based on the general theory of international responsibility and not on the liability of Article VII. The merging of Article VI and Article VII is not only justified by the concern of protecting the victim. It also results from a broad interpretation of Article VII which appeared during the era of the privatisation of outer space activities. Contrary to Article VI, the language of Article VII of the Outer Space Treaty totally ignores the possibility of non-governmental activities. The liability of the ‘launching State’ is based on the fact that the state has launched or has procured the launch of the space object, or that it has provided its territory or its facilities to the end of launching the space object. The emergence of private activities, and of private launching capacities, has raised the question whether the launch by a private company of a state party to the Outer Space Treaty (or to the Liability Convention) ipso facto qualifies that state as a ‘launching State’ and therefore makes it liable for the damage caused by the space object. This question is far from being rhetorical considering the absolute (objective and unlimited) liability of Article VII of the Outer Space Treaty. It is true that the space liability system organises the post-Â� indemnification relations between ‘co-launching States’, allowing State A to act against State B, but this implies that both states are party to the Liability Convention. In the case of damage occurring on the ground, the texts do not foresee a by-default allocation of the indemnification charge in case no agreement is concluded between ‘co-launching States.’33 The controversy somehow made even more complex the discussion on Article VI. According to some interpretations, the notion of non-governmental activities found in Article VI could be extended to Article VII. In the case of launching activities performed by private operators, such an extension would fill the gap between responsibility and liability by allocating both to the same state.

╇ Such an allocation is only foreseen in the case of damage caused in outer space, for which each state’s contribution is related to its own fault’s part. In case the respective parts cannot be determined, the charge is divided in equal parts between all ‘launching States’.

33

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Unfortunately, this solution raises even more questions than it brings answers. First of all, the qualification of ‘launching State’ is based on two double criteria: one criterion about the act of the state to participate in the launch (to launch or to procure the launch) and the other criterion about the technical means provided by the state to allow the Â�performance of the launch (territory and/or facilities). If we transpose those criteria to a private person, we must admit, as far as the first criterion (act) is concerned, that a decision by an individual (natural or legal person) could have heavy legal consequences for the state. From the point of view of public affairs management, this is a quite exorbitant – and hazardous – mechanism. For example, the decision by a private operator of State A to launch or to procure the launch of a space object from State B would, according to such an interpretation, suffice to engage State A’s liability as a ‘launching State’, without any governmental action or ratification. We have now a situation where State A is not only held responsible for the activities of a private operator but would also be held liable for the damage caused by the space object of this operator. The second question related to this extension of the state liability (under Article VII) to the acts of non-governmental entities concerns the nature of the link between the state and the operator, as illustrated above. From a purely victim-oriented perspective, the most logical solution would be to consider that the company launching or procuring the launch engages the liability of its state of citizenship as well as of the state of location of the activities. In any case, the latter is already involved as ‘launching State’ according to the territory/facilities criterion. If we admit that such an interpretation of Article VII would create an absolute liability for states, without any possibility of exoneration and for an unlimited amount of damage, we must be sure that all governments of states parties have a clear vision of their commitments when ratifying the outer space treaties. In such a case, the state licensing the launch should, prior to it, clearly identify all states involved. In the case of a launch operated by a private company for non-governmental purposes, the involvement of the state of citizenship of the operator should be Â�confirmed by a governmental decision or ratification which would associate the state to the launch (as ‘procuring State’).34 Without such a ╇See supra, section 2.1.2.1, our comment about the ICJ decision in the case of the Diplomatic and Consular Staff of the us Embassy in Tehran. Such a mechanism of

34

92â•…â•…J.F. Mayence governmental decision, the state responsible for authorizing the launch would have the option either to proceed with the launch without involving the state of citizenship of the operator, or to deny the authorization. When it comes to the second part of the definition of ‘launching State’ considering the location and the facilities of the launch, the extension of the state to its nationals’ acts also brings questions. The notion of territory first, cannot be related to private persons. Only states have territory. ‘Territory’ is a notion different from that of ‘state property’. Parcels of the territory can be owned by the state or its sub-entities, but the territory as such is subject to the state’s sovereignty and not to the state’s ownership. Facilities can be subject to both: a facility can be owned by the state and, at the same time, can be subject to its sovereignty, either by the mechanism of registration,35 or by any other mechanism of extension of the state’s jurisdiction to a particular object or area. Nothing in the documentation related to Article VII, including the commentaries and the literature, indicates that the international lawmaker intended to create a regime of absolute liability for the state based notably on the acts of its citizens. Hence, we believe that a very careful approach should be adopted before concluding that the Outer Space

ratification of individuals’ acts by states can be considered in space activities, whether such ratification would be implicit and the result of the state’s behavior, or be the consequence of an explicit decision by the state’s organs. Such ratification must however be clearly established by the demonstration of the state’s willingness to associate itself to the acts or to the effects of the acts of its citizens. Without prejudice to any international court’s decision on the matter, the participation of governments in R&D programs aiming at the deployment of space systems might be seen as an implicit decision to launch, operate and exploit the space object. Furthermore, it can be assumed that it is the interest of a government to be ‘associated’ to the launch of a space object – as a launch procurement authority – for several reasons, among those the fact that only ‘launching States’ may register space objects and the fact that the involvement of the ‘procuring State’ could be required in order to obtain authorization from the state licensing the launch. This situation is foreseeable with regard to the development of national practices of registration of space objects where states performing the launch or providing territories or facilities to that end refuse to serve as ‘registering State’. Considering the interpretation by some states parties to the Â� or procured by their national citizens Outer Space Treaty that launch performed doesn’t suffice to qualify them as ‘launching States’, a possible solution could be a unilateral statement by the governments of those states parties according to which they consider themselves as procuring the launch. 35 ╇See infra, section 3.4.

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Treaty generates such a liability for states which has no correspondence, neither in the rest of public international law nor in any national legal system in the world, and which might have a heavy impact on the global economy of the space sector. What is and remains a real concern for states is to avoid flag of convenience situations where private or institutional activities would be privileged because of the absence of any constraint of security, insurance or reliability. By adopting an interpretation of Article VII based on common sense and on the actual meanings of the words with regard to their context, we believe that this provision encompasses all kind of situations which might arise from space activities nowadays. WherÂ� ever a launch is performed, there exists a necessary link with a state’s jurisdiction which allows an actual and effective control on the nongovernmental activities: either because the launch is performed from a national territory or because the launch is performed from ‘facilities’ (ships, aircraft, spacecraft) over which a state exercises its jurisdiction. This guarantee constitutes the ultimate goal of Article VII. Extending this liability by all legal means or interpretations to all nations more or less involved (that is by considering the citizenship of (one of) the operator(s), or of the main shareholder of the operator’s company and so on) might only lead to a drift in the application of Article VII and to legal uncertainty which no one would benefit from. Making states responsible and liable for the activities they have the real means to control is the best way to optimize their participation in and their application of the Outer Space Treaty and its principles. 3.2.╇ The Notion of ‘Launch’ What is a ‘launch of a space object’? The question is relevant since no definition exists in the international treaties. Some definitions are provided for by national legislations,36 but none really gives a legally binding description of the technical process that is called ‘launching’. We know several methods of putting an object in outer space and it is not always obvious to identify which phase actually corresponds to the launching phase. ╇ See notably Sec. 8, Australian Space Activities Act (An act about space activities, and for related purposes, No. 123 of 1998, assented to 21 December 1998; National Space Legislation of the World, Vol. I (2001), at 197), as amended in 2001.

36

94â•…â•…J.F. Mayence A first ambiguity is about the launch vehicle itself: is a space rocket launched, or is it the instrument by which the launch is performed? From a legal point of view, the ambiguity has been solved in assimilating the rocket to the space object onboard.37 Among the technical and scientific definitions which have been proposed, here is one given by cnes in 1985:38 “launch, launching: sending of a device in outer space by means of a propulsion system.”39 An interesting additional specification by the authors of the definition is that the release of a balloon must not be considered as a ‘launch’. If we consider the idea behind this definition as the concept of ‘propulsion’, namely that the launch requires the application of a sufficient amount of kinetic energy to an object in order to allow it to reach outer space, we can identify which phase actually corresponds to the launch. In the case of a vehicle lifted in the air by an aircraft and activating its rocket engine once at a certain altitude, the moment of the launch is the moment of this activation. Things are slightly more intricate in the case of an autonomous vehicle which takes off as an aircraft and then switches to a rocket mode. Should the launch be considered as taking place at the moment of the take-off from the ground, or at the moment the rocket engine is activated? Among the several systems of launching of space objects in outer space, the case of objects launched by hand seems rather anecdotic. But the fact is that, apart from some entertaining achievements (such as a

╇Cf. Art. I(d), Liability Convention, and Art. I(b), Convention on Registration of Objects Launched into Outer Space (hereafter Registration Convention), New York, done 14 January 1975, entered into force 15 September 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975). This solution is however unfortunate since it induces that a rocket per se is not a space object. In certain cases, rockets are launched in outer space without any payload onboard (i.e. for qualification flights), but this circumstance does not change their qualification as space object. On the other hand, the idea that launchers should not be considered per se as space objects is interesting since it seems to imply that objects which are not meant to remain in outer space for a certain time should not be considered space objects. This refers to another possible criterion of the definition of space object: the orbital destination. 38 ╇ In Dictionnaire de Spatiologie, Sciences et Techniques spatiales – Tome 1: Termes et Définitions, cnes – CILF (1985), 154. 39 ╇ “Lancement (launch, launching): envoi d’un engin dans l’Espace au moyen d’un dispositif de propulsion” (translation in English proposed by the author). 37

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swing performed by cosmonaut Mikhail Tyurin in November 2006 Â�putting a small golf ball into orbit from the International Space Station), the hand launch technique has been used since 1982 to take the opportunity of manned space flights for the in-orbit delivery of small satellites.40 If we stick to the definition of ‘launch’ as the propulsion of an object in outer space, it is likely that not every release of an object from a spacecraft will constitute a ‘launch’. Indeed, no propulsion is needed in order to put the object into space since it is already up there. Moreover, microgravity will allow the object to naturally drift away from the spacecraft. A hand launch should therefore not be seen as a real ‘launch’. AstroÂ�nauts performing a hand launch should not be considered as part of the launch process since the hand-launched object is considered as having been launched as a payload from the very moment it has left the surface of the earth. But the solution might be different in case where real propulsion is activated in order to acquire a controlled trajectory from the spacecraft. The idea of launching from space stations must also be considered since orbital launch might provide interesting solutions from the operation of reusable crew vehicle of larger dimension. In such a case, orbital structures (such as the International Space Station) could be seen as launching facilities. 3.3.╇Suborbital Flights With the growing of entrepreneurship and the emergence of projects in the field of so called ‘space tourism’, the question remains whether this domain of activities should be subject to space law.

╇ Soviets were the first to try this technique twice in 1982. Then Americans experimented with it in November 1985. The so-called ‘launch’ was actually a pushing hand move executed by the astronaut to help the satellite out of the Space Shuttle. From 1997 to 1999, the Mir Station was used to serve as the platform for such launches. In 1999, French spationaut Jean-Pierre Haigneré launched the small Beatnik-satellite sponsored by the Swatch brand. The satellite was designed to provide new time references in connection with the Internet. Nevertheless, the mission itself was cancelled by Swatch the day before the launch. Suitsat was another example of a hand-launched object from the International Space Station. In 2006, an old space suit was filled with scientific instruments and radio transmitters and thrown in orbit. Other nanosatellites (Universities’ projects) are foreseen to be launched by hand in the future.

40

96â•…â•…J.F. Mayence To this day, space tourism services offer two types of experience. For the richest customers who can afford almost everything other than waiting too long, some operators (such as the Russian Space Agency) already offer the possibility to fly to and to stay a few days onboard the InternaÂ� tional Space Station. This type of experience could be assimilated to a private space flight whose ultimate purpose rests with the space flight participant. The second type of space tourism adventure is currently in its development phase. Suborbital flights are meant to deliver the sensation of a very high altitude flight in a specially designed vehicle. Several projects are already built on the basis of different flight solutions41 and include surrounding activities (education, entertainment). Suborbital flights are often considered as hybrid activities, subject to both air law and space law. The reasoning behind this approach is based on legal elements as well as on factual elements. From a legal point of view, some consider suborbital flights as an activity which requires the application of different branches of law according to its successive operational phases. Indeed, legal voids are inevitable if we consider that, at some point in time, the suborbital vehicle doesn’t qualify as an aircraft (or part of an aircraft) anymore.42 Another legal consideration is that, even though no geophysical delimitation between air space and outer space has been commonly agreed upon so far, the 100â•›km altitude is recognised as the lower limit of outer space from a scientific standpoint (‘Kármán line’) and has been ╇ In the case of Virgin Galactic, the suborbital vehicle is dropped from a mother aircraft at a certain altitude, then activates its rocket propulsion to reach an altitude around 100â•›km above the earth’s surface. In other cases, the suborbital vehicle takes off from the ground on its own as a regular aircraft, then activates its rocket engine once having reached a certain altitude. 42 ╇ See Annex VII, Sec. 1, Chicago Convention (Convention on International Civil AviaÂ� tion, Chicago, done 7 December 1944, entered into force 4 April 1947; 15 UNTS 296; TIAS 1591; 61 Stat. 1180; Cmd. 6614; UKTS 1953 No. 8; ATS 1957 No. 5; icao Doc. 7300), which defines an “aircraft” as “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”. Even though this definition has a best practice value and can be adapted in the various national laws, it is commonly recognised by states as providing the basic criteria for the definition of the term. It implies that any object moving through the air without using the air reactions to do so, just as a rocket, cannot be considered as an ‘aircraft’. Likewise, beyond a certain altitude, the air concentration becomes too low to allow flight of aircraft. 41

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used in order to define the scope of competences of various bodies and authorities.43 From a factual point of view, it is true that some states regulate suborbital flights as space activities: this is the case of the United States where this regulation is entrusted to the Federal Aviation Administration under the chapter related to commercial space transportation.44 This is also connected to the fact that states usually cease their control of the aerial traffic above the altitude of 60,000â•›ft, thus much beneath the 100â•›km height. From those legal and factual considerations, it seems obvious that the shortcomings of air law and regulation need to be palliated by a complementary regime. But this doesn’t necessarily imply that the complementary regime should be space law. If we consider space law as the second component of the suborbital flights’ legal regime, we must first make sure that the application of the space law and air law regimes will not create paradoxical situations. For instance, what about the principle of freedom of access to outer space? Could a state deny access to its national air space to a foreign suborbital vehicle during its take-off or landing phase? Other questions arise: should space flight participants be considered as ‘astronauts’ according to the Rescue Agreement?45 Which third-party liability regime would apply during the take-off or the landing phase? That being said, the even more crucial question is the following: would the space tourism business benefit from its subjection to international space law? Such subjection would mean the application of quite heavy mechanisms and legal institutions to a young risky business sector. Principles such as ‘province of mankind’, ‘state responsibility’, ‘state liability’, ‘registration’, ‘consultation’, ‘return and rescue’ were designed to address a totally different kind of activities. Would it be justified to impose upon the state and possibly the flight operator an absolute ╇See the definition of ‘astronautics’ given by the Fédération Aéronautique InternaÂ� tionale, as well as Sec. 8 (definition of ‘launch’) of the Australian Space Activities Act of 1998, as amended in 2001. In the latter case, it must be clear that, by establishing a 100â•›km altitude limit, Australia was in no way defining its national sovereignty or imposing its own definition of outer space, but only provided for a criterion of application of its own legislation. 44 ╇ Cf. 49 U.S.C., Subtitle IX, Chapter 701. 45 ╇ See also supra, n. 20. 43

98â•…â•…J.F. Mayence Â� liability regime for the flight of a small aircraft just on the ground that it would fly at a higher altitude, while such a liability does not even exist for a Boeing-747 flying over crowded city suburbs? In the same line, would it be justified to register the suborbital vehicle for each of its flights in accordance with the Registration Convention? In fact, traditional space law doesn’t bring any value to the legal situation of suborbital flights activities – on the contrary. This is why we think that the best solution would be to design a sui generis regime, at national and international levels, in order to respond to the peculiarities of such activities. This could take the form of a specific chapter in national space legislations, which should distinguish suborbital flights from space activities.46 This would also require an international consensus that suborbital flights are not to be considered as space activities and are not subject to the un outer space treaties. 3.4.╇ Responsibility and Jurisdiction: a Necessary Reconciliation? The issue of jurisdiction goes further than Article VI since another provision of the Outer Space Treaty explicitly addresses the state’s jurisdiction on space objects. The interactions between Article VI and Article VIII of the Outer Space Treaty are somehow similar to the ones between Article VI and Article VII. Article VIII concerns the prerogative of (one of) the ‘launching State(s)’ to register the space object and, thereby, to exercise jurisdiction and control over it. The registration as considered in the light of Article VI is different from the registration considered under the provisions of the Registration Convention.47 The latter only deals with registration of the space object for the purpose of identifying (one of) the ‘launching State(s)’ and providing basic data on the mission. Such information must be considered in relation with Article VII of the Outer Space Treaty and with the provisions of the Liability Convention. ╇ An example of such a distinction can be found in the Swedish Act on Space Activities (Act on Space Activities, 1982: 963, 18 November 1982; National Space Legislation of the World, Vol. I (2001), at 398; Space Law – Basic Legal Documents, E.II.1; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 11), Sec. 1, which stipulates that the launch of sounding rockets is not to be designated as space activities under that legislation. 47 ╇See supra, n. 37. 46

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The concern of Article VIII is a little bit different: since the space object is meant to be placed and operated in an area subject to no state’s sovereignty, the national jurisdiction which will apply to and on board the space object during its course through outer space must be determined. For instance, such a provision was not foreseen in the 1959 Antarctic Treaty:48 therefore, human settlements or facilities (that is stations and ground vehicles49) in the Antarctic area are not subject to any regime of quasi-territoriality. Article VIII of the Outer Space Treaty opted for the registration system: such a registration by a state in accordance with Article VIII of the Outer Space Treaty is constitutive50 of its jurisdiction and control to and on board the object. Now, this extension of jurisdiction allows to attribute to a state the responsibility of activities performed onboard the space object, in application of Article VI of the Outer Space Treaty.51 In other words, the ‘appropriate State’ might, in certain cases, be the ‘registering State’ of the space object. That being said, only a very few activities performed in

╇Antarctic Treaty, Washington, done 1 December 1959, entered into force 23 June 1961; 402 UNTS 71; TIAS 4780; 12 UST 794; UKTS 1961 No. 97; Cmnd. 913; ATS 1961 No. 12. 49 ╇ Of course, ships and aircraft remain subject to theirs respective registration regimes as provided for by international law. 50 ╇ As opposed to the declarative effect. This induces the fact that, from the very moment they are in outer space, non-registered space objects are not subject to any state’s jurisdiction and control, at least in the meaning of Art. VIII, Outer Space Treaty (even though a technical control is exercised on the space object). The wording of that Article (according which states ‘retain’ jurisdiction and control) means that the regime of the ‘space jurisdiction’ is applicable as long as the object is in outer space as a quite specific regime that replaces any other jurisdiction applicable on the ground. This also justifies the last sentence of Art. VIII, Outer Space Treaty, as well as the provisions of the Rescue Agreement: once the object has returned to earth, the ‘space jurisdiction’ does not apply anymore and the return regime takes over. 51 ╇ An extension of the state liability has been proposed in order to cover the harm caused by the unlawful sale or distribution by its nationals of incorrect primary and processed data and analyzed information (cf. C.Q. Christol, Space Law: Past, Present and Future (1991)â•›). However, the notion of ‘space activities’ should not be extended to economical activities based on the exploitation of space-derived products. It is important that activities regulated according to space law principles keep a direct link with outer space, notably by being performed, manually, automatically or remotely, in outer space. 48

100â•…â•…J.F. Mayence outer space are performed directly by human beings since it presupposes their presence out there. What about the numerous activities which are performed remotely from the ground? This brings us back to the issue of the determination of the location of space activities. For instance, an earth observation satellite can be operated  from State X by a commercial company, while having been launched by anothÂ�er company of State Y which has registered it. Every day, the payload onboard the satellite takes hundreds of pictures of the world, transmitting the data to several ground stations and processing centres, notably one centre in State Z. This centre provides sensitive data as support for military aggression. Such a situation involves several actors, governmental or not, and is susceptible to raise international responsibilities. We believe that the most appropriate criterion to determine which state’s jurisdiction should apply is the location of the actual command52 of the activities, the place where people having the final word on the activities are acting from. In the example here above, two states do actually have the legal means to control (and, should it become necessary, to forbid) the production of data used for unlawful purposes: State X and State Z. The former is entitled to enforce the prohibition of the payload operation and the transmission of the data to an unaccredited receiver while the latter can take enforcement measures against the dissemination of sensitive data. It is of course the responsibility of State Y to take all possible measures in order to ensure a proper and lawful use of ‘its’ space object, but when it comes to the actual enforcement of such measures, everything remains in the hands of the states of location. The fact that no provision in the Outer Space Treaty allows a change of the ‘registering State’ during the course of the operation of the space object does not help with the reconciliation of Article VI and Article VIII. With respect to third parties, the liability of Article VII is ‘frozen’ from the moment of the launch of the space object. The registration should in any case allow or facilitate the identification of the ‘launching State(s)’. But, apart from the text of the Outer Space Treaty, there would be no legal incoherence if a state would take over the registration of a ╇ This criterion is the one used by the Belgian Space Law for the definition of the ‘operator’.

52

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space object in operation, and the jurisdiction and control attached thereto. The new registration could provide all relevant information required by the Registration Convention, including the identification of the ‘launching State(s)’. However, according to the current texts, the transfer of registration from one state to another is unfeasible, at least from a ‘launching State’ to a ‘non-launching State’. A retroactive qualification of the new ‘registering State’ as a ‘launching State’ would be difficult to justify. The table below illustrates the complexity of the responsibility and liability system derived from Articles VI, VII and VIII of the Outer Space Treaty.

Appropriate State (Art. VI OST) Launching State (Art. VII OST) Registering State (Art. VIII OST)

Flight operation

Payload exploitation

responsibility liability liability

responsibility none responsibility

According to Article VIII of the Outer Space Treaty, the ‘registering State’ is necessarily the ‘launching State’ or one of the ‘co-launching States’. That makes it liable for the damage directly caused by the space object. As registration implies control and jurisdiction to and on board the space object, activities performed by the space object or on board the space object might be a source of responsibility for both the ‘registering State’ and the ‘appropriate State’. In this case, a regime of coordinated authorization and supervision might be required whenever the ‘registering State’ is not the state where the actual command of the satellite and/or its payload is located. 3.5.╇ ‘Launching State’ and ‘Launching Authority’ One of the sources of complexity of the outer space treaties which may render their implementation uneasy is the relative disruption between several of their respective provisions.53 ╇ This can be illustrated by the differences of wording between Art.VII, Outer Space Treaty, and Artt. II & III, Liability Convention. First of all, according to the Outer Space Treaty, the state victim of the damage must be a state party to the Treaty in

53

102â•…â•…J.F. Mayence The 1968 Rescue Agreement was adopted in the same Cold War context as the 1967 Outer Space Treaty’s. Considering the type of activities involved, it was of prime importance for governments to ensure the safe return of their astronauts and of their spacecraft. The nature of the activities as well as of the technology involved remained quite sensitive while their finality (for the benefit of mankind) justified the application of a specific status imposing immediate restitution of crew and/or material. For the purpose of implementing this restitution obligation, the Rescue Agreement designates the ‘launching authority’ as contact point to be addressed in order to notify the rescue or the return of the spacecraft. Further cooperation and assistance are expected from the ‘launching authority’, notably in order to eliminate possible danger of harm.54 The notion of ‘launching authority’ is defined by Article 6 of the Agreement as “the state responsible for launching.”55 While a reference to Article VII of the Outer Space Treaty could have been made in order to clarify the notion and to relate it with the liability mechanism, a specific language was preferred. This can be explained by the functional role which is given to the ‘launching authority’. In any case, the concept of the state responsible for the launch bridges the gap between liability and responsibility. It also foreshadows the idea of one single state responsible and liable for the activities involving the space object, but also acting as the contact authority for all matters regarding the said activities. The notion of ‘launching State’ has also been given another legal meaning by the UNGA Resolution on Principles relevant to the Use of Nuclear Power Sources in Outer Space, adopted on December 14, 1992.56 With the exception of one Principle, the term ‘launching State’ means, for the purpose of the Resolution, the state which exercises

order to seek for compensation. This condition of participation is not required by the Liability Convention. Secondly, the fact that only the Liability Convention provides for a difference of liability regime according to the location of the damage (on earth or in outer space) raises questions with regard to Art. VII, Outer Space Treaty, which ignores it. 54 ╇ Cf. Art. 5(4), Rescue Agreement. 55 ╇ This wording seems to refer to a technical responsibility (the state in charge of performing the launch), rather than to a legal responsibility. 56 ╇ Principles Relevant to the Use of Nuclear Power Sources in Outer Space, UNGA Res. 47/68, of 14 December 1992; un Doc. A/AC.105/572/Rev.1, at 47.

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Â� jurisdiction and control over a space object carrying nuclear power sources. This obviously refers to the ‘registering State’. This definition makes the state of jurisdiction of the space object responsible for the implementation of the Principles. Since the treaties do not allow the transfer of jurisdiction and control on the space object during its orbital life, this definition does not take into account the possibility of a transfer of activity in orbit. Even though one may find this situation satisfactory from the point of view of the liability and the compensation of the damage, it may not be the case when it comes to coordinating actions and prevention measures. 3.6.╇ Articles VI, VII of the Outer Space Treaty and the Work of the International Law Commission with Respect to State Liability for Harmful Activities The previous observations raise concerns about the relevance of the outer space treaties with regard to the current space activities and their organisation. Is the responsibility system of the Outer Space Treaty still adapted to the reality of the world space sector? A long reflection has been undertaken within the International Law Commission of the United Nations and the result therefrom brings quite interesting elements with regard to a possible (though theoretical at this point) evolution of outer space law and its ‘responsibility principle’. The Commission has elaborated a set of provisions, which today remains as a draft code, on the prevention of transboundary harm from hazardous activities.57 This document, which has not (yet) been adopted as conventional law, can be considered as of great doctrinal value and constitutes an in-depth reflection by international experts on the topic of state liability. A proposed system of (international) liability is based on the socalled Théorie du risque créé (theory according to which he who generates a risk must bear the consequences of the occurrence of that risk). According to that theory, the main concern is not to impose a duty of care in order to prevent damage from happening, but to open an action

╇ Draft articles on Prevention of Transboundary Harm from Hazardous Activities, with commentaries (2001) in Report of the ilc on the work of its 53rd session in Yearbook of the International Law Commission, 2001, Volume 2, Part II: see ilc’s website (http:// www.un.org/law/ilc/).

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104â•…â•…J.F. Mayence to the victim against a designated liable entity. For some authors, the fact that the liability does not require the demonstration of a fault is not per se sufficient to qualify it as a liability for risk. It takes the evidence that the states parties actually refrained from explicitly or implicitly establishing a duty of care.58 To that extent, the liability of Article VII of the Outer Space Treaty appears as an excellent illustration of the liability for risk and an application of the Théorie du risque créé. Contrary to Article VII of the Outer Space Treaty, the draft code of the International Law Commission only addresses the prevention phase (as stated in its title), notably through mechanisms familiar to outer space law: authorisation, supervision, notification, cooperation and risk assessment. To that extent, it is closer to Article VI of the Outer Space Treaty than to Article VII and belongs to the theory of liability based on the demonstration of a wrongful behaviour. Actually, the draft code prepared by the ilc does not stipulate that states are responsible or liable for the harm caused by hazardous activities performed under their jurisdiction (though it would be a logical consequence of those principles). It simply announces which measures the state must implement and apply in order to prevent the harm or mitigate its impact. In order to determine the applicable jurisdiction to a given activity, the draft code elects a quite unambiguous criterion: the territorial jurisdiction.59 In some cases which the Commission recognises as posing problems to

╇See Nguyen Quoc Dinh, 762: “Quant aux illustrations conventionnelles (de la responsabilité pour risque), il convient d’être attentif aux fondements retenus par ces textes (…): les hypothèses où la victime bénéficie d’une réparation sans avoir à démontrer une ‘faute’ ne correspondent à une responsabilité pour risque que s’il apparaît clairement que les Etats se sont refusés à consacrer, implicitement, une nouvelle forme d’obligation de vigilance.” 59 ╇ See official commentary on Article I of the ilc draft articles: “Three concepts are used in this criterion: ‘territory’, ‘jurisdiction’ and ‘control’. Even though the expression ‘jurisdiction or control of a state’ is a more commonly used formula in some instruments, the Commission finds it useful to mention also the concept of ‘territory’ in order to emphasize the importance of the territorial link, when such a link exists, between activities under these articles and a state.” And further: “For the purposes of these articles, territorial jurisdiction is the dominant criterion. Consequently, when an activity covered by the present articles occurs within the territory of a state, that state must comply with the obligations of prevention. ‘Territory’ is, therefore, taken as conclusive evidence of jurisdiction. Consequently, in cases of competing jurisdictions over an activity covered by these articles, the territorially based jurisdiction prevails.” 58

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the application of that criterion, like foreign ships in national sea waters, the criterion of the flag state is considered as a subsidiary solution. The citizenship of the natural or legal person involved is nowhere considered as a relevant criterion. It is not sure whether the draft code elaborated by the International Law Commission will ever enter into force as a conventional set of rules. However, should this be the case, nothing in that text excludes outer space activities from its scope of application. As a matter of fact, Article 18 of the draft code addresses the relationship with other existing treaties’ provisions60 and prevents any conflict of interpretation. NeverÂ� theless, as long as the uncertainty will remain about the terms of Article VI of the Outer Space Treaty, the expertise of the International Law Commission might serve as a helpful instrument of interpretation, amongst others. 3.7.╇ Article VI and Other Regimes of Responsibility of International Law Another relevant element for the interpretation of Article VI of the Outer Space Treaty is the comparison with similar regimes of international responsibility which are organised by treaties as specifically applicable to some areas and their related activities. 3.7.1.╇ The Law of the Sea The 1982 un Convention on the Law of the Sea61 (also known as the Montego Bay Convention) provides for states’ international responsibility for activities performed in the Area.62 Article 139 of the Convention specifies that: States Parties shall have the responsibility to ensure that activities in the Area, whether carried out by States Parties, or State enterprises or natural

╇ Art. 18, ilc draft articles, reads: “The present articles are without prejudice to any obligation incurred by states under relevant treaties or rules of customary international law.” 61 ╇ United Nations Convention on the Law of the Sea, Montego Bay, done 10 December 1982, entered into force 16 November 1994; 1833 UNTS 3 & 1835 UNTS 261; UKTS 1999 No. 81; Cmnd. 8941; ATS 1994 No. 31; 21 ILM 1261 (1982). 62 ╇ As defined by the Convention as the deep seabed of the high seas with the exception of parts belonging to national continental shelves. 60

106â•…â•…J.F. Mayence or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals, shall be carried out in conformity with [Part XI of this Convention]. The same responsibility applies to international organizations for activities in the Area carried out by such organizations.

This election of a personal jurisdiction must be considered with respect to the issue of the flags of convenience. Indeed, the criterion of nationality was not the only solution that could have been adopted by the Â�parties: activities performed in the Area presuppose access to the high seas and therefore the use of ships and/or marine platforms which are registered by a state. Therefore, how can we explain the explicit election, by the United Nations Convention on the Law of the Sea, of the nationality criterion (personal jurisdiction)? One possible answer is the fact that the technical features of the activities governed by Article VI of the Outer Space Treaty are quite different from those of the activities in the deep seabed: the vast majority of outer space activities, as we have previously observed, are remotely conducted from a place on the earth subject to a specific national jurisdiction. Activities of exploitation of the deep seabed are materially performed from the high seas. The Area corresponds to a part of the deep seabed subject to an international regime eluding states’ sovereignty. And although some legal questions remain (that is how can a state control and enforce its jurisdiction vis-à-vis its national citizens acting onboard a ship flying a foreign flag in the middle of the high seas?), political reasons may justify the system of the United Nations Convention on the Law of the Sea. The exploitation of the Area’s resources has remained quite theoretical so far, but at the time Part XI of the Convention was adopted, only big companies were interested in the business of the exploitation of deep seabed resources. Those companies were nationals of big industrial nations and could easily use ships registered under loose regulations in states having no actual means or intention to abide by international conventions. What would have happened if seabed activities had developed in a similar way as outer space activities? Would the nationality criterion have remained practicable? In a certain manner, this question has been answered through the adoption of the state jurisdiction system in the framework of the AgreeÂ� ment for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and ManageÂ�ment of Straddling Fish Stocks and Highly Migratory Fish Stocks,

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done in New York on December 4, 1995,63 and the Regional Fisheries Management Organizations (rfos). This system is based on the quasiterritorial jurisdiction (related to the flag of the ship), better corresponding to the needs of law enforcement in high seas areas.64 Indeed, the enforcement provisions of the 1995 Agreement foresee that the flag state has the duty notably to authorize, control and supervise activities of its vessels in the high seas. The explicit reference to the flag state seems to indicate that, here again, the (quasi-)territorial jurisdiction is deemed the most appropriate to ensure the enforcement of international obligations of prevention. Once again, this approach must be considered with regard to the reality of fisheries activities in the high seas: interventions in that area do not allow to take into account the nationality of the persons involved (companies or natural persons). 3.7.2.╇ The Law of Antarctica Responsibility and liability of states are also featured in the international regime of Antarctica. The Antarctic Treaty, done in Washington in 1959,65 lays down the basis of a whole legal system which was �successively complemented by several instruments, notably the Madrid Protocol of 199166 on the protection of the environment in Antarctica. Antarctica is subject to a specific status taking into account its geopolitical history. The main concern of the 1959 Treaty is to suspend, without denying them, all claims of national sovereignty on parts of the Antarctic continent. With that concern in mind, it is easy to understand that parties were reluctant to establish a regime of extra-territorial jurisdiction applicable to settlements and fixed assets of states on the Antarctic soil. Moreover, the Antarctic Treaty organizes a �discriminative

╇ Agreement for the Implementation of the Provisions of the United Nations Conven� tion on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks; done New York, 4 December 1995; entered into force 11 December 2001; ATS 2001 No. 8. 64 ╇ See on that subject C. Joyner, Compliance with and Enforcement of International Fisheries Law, in Developments in International Fisheries Law (1999), 327. 65 ╇See supra, n. 48. 66 ╇Protocol on Environmental Protection to the Antarctic Treaty (hereafter Madrid Protocol), Madrid, done 4 October 1991, entered into force 14 January 1998; UKTS 1999 No. 6; Cm 1960; ATS 1998 No. 6; 30 ILM 1455 (1991). 63

108â•…â•…J.F. Mayence system between original states parties, new acceding states and observers. The result is that not all states are equal with regard to Antarctica and that the states parties to the Antarctic Treaty have a responsibility in ensuring that third states or their nationals do not cause prejudice to Antarctica. Article VIII(1) of the Antarctic Treaty establishes a jurisdictional link based on the nationality of the persons acting in Antarctica. However, this system is only applicable to commissioned activities, that is activities performed by official government’s representatives or scientists for the purpose of the implementation of the Treaty and does not fit private purpose activities. The reference to the location of the organization or preparation of the activities provided for in the same Article VIII is an additional link with an applicable national jurisdiction. However, the lack of quasi-territorial jurisdiction (notably based on the registration of ground facilities and stations) in the Antarctic legal system has led to a certain complexity in its implementation through national legislations. The Madrid Protocol has created a new form of liability for the prevention and the indemnification of damages caused to the Antarctic environment by all kinds of activities.67 To that end, the Madrid Protocol imposes upon states parties to set up a mechanism of authorization and control of the activities under their jurisdiction. Article 2 of the Protocol defines the operator (who must apply for an authorization) as any “operator that organises, in that Party’s territory, activities to be carried out in the Antarctic Treaty area”. This situation is similar to some extent to outer space activities which are prepared and organized on a national territory but are performed in an extra-territorial area. The territorial jurisdiction of the Madrid Protocol is then relocated with regard to the place where activities are prepared and is complemented by an alternative criterion for the purpose of guaranteeing the execution of the operator’s liability. Article 7(3) of the Protocol states that: [e]ach Party shall ensure that there is a mechanism in place under its domestic law for the enforcement of Article 6(2)(b) with respect to any of its non-state operators within the meaning of Article 2(d), as well as where possible with respect to any non-state operator that is incorporated or has

╇ According to the Antarctic legal system, only activities of prospection and exploitation of mineral resources are prohibited. Other activities, such as tourism, may be allowed to the extent they do not infringe the treaties’ provisions.

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Granting access to outer space: rights and responsibilitiesâ•…â•…109 its principal place of business or his or her habitual place of residence in that Party.

This constitutes an interesting element of a solution in order to guarantee the effective recourse against non-state entities, although international space law does not go that far at the moment. By transposing their obligations under the Madrid Protocol in their national law, states parties make their own application of the jurisdiction system applicable to non-governmental activities in Antarctica. Some of that legislation is based on a multi-criteria jurisdiction (see for instance the Belgian68 and the Canadian laws69) but we must not forget that the aim of such legislation is also to allow criminal or civil actions against the operators and to monitor the economical consequences of unlawful acts. In any case, the main jurisdiction criterion elected by the Madrid Protocol (and the national laws implementing it) remains the place where the activities are prepared or wherefrom they are conducted, no matter the citizenship of the operator. This latter criterion is used as a subsidiary one, notably to ensure effective recourse against the operator in case of liability. 3.8.╇ Articles VI, VII of the Outer Space Treaty Put to the Test: The Iridium – Cosmos Collision In the context of intensive discussions on the “long-term sustainability of space activities”70 taking place in several institutional arenas (eu Council, uncopuos, esa), the accident that occurred on 10 February 2009, involving an active telecommunication satellite operated by the us company Iridium and a Russian 1993 Cosmos-class satellite, formerly part of the military Strela constellation and decommissioned in 1995,

╇ Loi du 7 avril 2005 portant exécution du Protocole au Traité sur l’Antarctique relatif à la protection de l’environnement, de l’Appendice et des Annexes I, II, III et IV, faits à Madrid le 4 octobre 1991, et Annexe V, faite à Bonn le 7 à 18 octobre 1991, Moniteur Belge, 19 May 2005. 69 ╇Bill C-42, An Act respecting the protection of the Antarctic Environment, Second Session, Thirty-seventh Parliament, 51–52 Elizabeth II, 2002–2003. 70 ╇ This language belongs to the informal working group set up at the initiative of France and chaired by former cnes Director General and Chairman of uncopuos, Gérard Brachet. 68

110â•…â•…J.F. Mayence came as a shocking illustration of the emergency of the space traffic and orbital debris issues. A first consideration is that the accident was more a case for technicians and, ultimately, policy makers, than for lawyers. So far, there has been no intention expressed, neither by the us government nor by the Russian government, to act against its counterpart in order to seek indemnification for the damage caused to their property or to their citizens.’71 As we will see further, this might have important consequences on the application of the outer space treaties’ provisions. 3.8.1.╇ The Facts From the official and informal statements which were made by the us government in the aftermath of the collision, as well as during the 52nd session of the Committee of the United Nations on the Peaceful Uses of Outer Space, in June 2009, we can assume the following facts: the interruption of contact between the operator (Iridium) and its satellite was notified to the us Strategic Command. The collision was confirmed by the detection of a large number of new debris in the area of the orbit occupied by the Iridium satellite. It has been established that the collision occurred at an altitude of 790â•›km above Siberia. The relative speed of the spacecraft at the moment of the impact was about 42,000â•›km/h. The surveillance and the tracking of orbital objects of various nature and status are performed by a few national authorities in the world, in particular by the us Air Force Strategic Command. The collected data provide the basis for the calculation of collision probabilities. When such a probability reaches a certain threshold, the surveillance authority informs the operator of the risk and may assist him in the performance of the evasive manoeuvre. 3.8.2.╇ The Law 3.8.2.1.╇ The Attribution of the Faultâ•… Since we are dealing here with a damage caused by a space object in outer space, Article III of the

╇ This can be partly explained by the fact that the Iridium satellite had not been registered in accordance with the Registration Convention. Iridium 33 was launched in 1997 with a Russian Proton K rocket from Baikonur, Kazakhstan. The launch was procured by Iridium Satellite LLC (nowadays Iridium Communications Inc.), a company based in the United States of America.

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1972 Liability Convention requires the demonstration of a fault of the ‘launching State’ or of any person “for whom the ‘launching State’ is responsible”. First of all, the notion of ‘fault’ is not familiar to public international law. The Liability Convention does not help in identifying the criteria for defining and establishing the fault, as well as the applicable legal reference (international or national law? which legal system: common law or civil law?). Secondly, the attribution of that fault is not an easy task with regard to space activities as we know them today, particularly with regard to the notion of the ‘launching State’. This notion is the cornerstone of the liability (in the meaning of Article VII of the Outer Space Treaty). We know how the status of ‘launching State’ is defined at the very moment of the launch of the space object and ‘frozen’ from then on. The status of ‘launching State’ does not require any further action from the state and cannot be transferred to a third state. In the case of a damage caused on earth, the absolute liability is based on the ‘simple’ demonstration of the causality link between the space object and the damage. However, in the case of a damage caused in orbit, some circumstances existing at the time of the launch and/or of the collision may jeopardize the attribution of the fault to the ‘launching State’. For instance, in the case that the ‘launching State’ is not the state responsible for the in-orbit operation of the space object (this situation may result from a transfer of activity), it seems difficult to attribute the fault at the origin of the collision to the ‘launching State’. One could of course find the basis of such an attribution in the terms of Article III of the Liability Convention (“the fault of persons for whom it is responsible”72) but an extension of the liability of the ‘launching State’ to the ‘appropriate State’ on such basis seems difficult to justify. 3.8.2.2.╇The Consistency of the Faultâ•… The multiple debris resulting from a collision such as the Iridium-Cosmos generate a complex situation, not only at the technical level but also from a legal standpoint. The question whether the production of new debris as such is constitutive of a damage deserves consideration. This population of new

╇ A more reasonable interpretation of those terms is to consider that they refer to state’s organs or representatives, or to persons or organizations acting on behalf of the state.

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112â•…â•…J.F. Mayence debris will be detrimental to the interests of other states or operators who will need to manage the increased risk of accident. Moreover, the legal solution applicable to damage caused by those new debris will be substantially determined by the allocation of responsibility and liability applicable to the initial collision. The hypothesis of a chain of collisions starting from a primary accident is foreseen by the Liability Convention in its Article IV. But a careful analysis of that provision brings some doubt and questions about its implementation in actual practice. According to Article IV of the Liability Convention, the states involved in the primary collision are jointly and severally liable to any third state for the damage caused by debris resulting from the primary collision. An a posteriori apportionment is foreseen between the jointly liable states, either on basis of their respective fault’s shares or, by default, on the basis of an equal sharing. This system seems somehow self-contradictory to the extent that the  simple fact that debris resulting from a primary collision causes damage to a third state suffices to hold the state victim of the primary collision jointly and severally liable for the second damage. On the other hand, Article IV(1), sub (b), reiterates the need to establish a fault at the origin of this second damage. By nature, debris cannot be operated, controlled or guided. They just fly in orbit according to physics’ laws. A collision between such debris and a spacecraft would result from a casualty in the best case, a lack of care from the spacecraft’s operator in the worst case, but not directly from a fault of the debris’ ‘launching State’. It must therefore be assumed that the fault mentioned in Article IV(1), sub (b), is the fault at the origin of the primary collision. According to such an assumption, we must admit that the state victim of the second damage is required to establish the fault at the origin of a damage to which it is not party. In the case a settlement has been found between the states parties to the primary collision by allocating the fault among them, the situation of the third state victim of the second damage is made easier. But if no settlement has been reached and no information or statement allows determination of the liability of the primary collision, the situation of the third state victim is almost hopeless. This contrasts, however, with the language of Article IV(1), first paragraph, and IV(2), last sentence, which clearly aims at preserving the rights of the third state victim.

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While this uncertainty arises in the application of the liability system, another phenomenon is about to considerably change the rules of the game. By developing and strengthening their capacities of space surveillance and orbit monitoring, space faring nations offer more and more accurate data with regard to space traffic management, orbital status, debris threat and so on. Intergovernmental initiatives and cooperation are launched to make operators benefit from technical information and assistance and to help safeguarding the life of their satellites. In that context, the notion of fault is clearly evolving. The more available and accurate the information is, the easier it is for the victim to demonstrate a breach of duty of care or a careless behaviour on the part of the operator. Guidelines and codes of conduct based, notably, on the use of such data, are developed by states. And even though they are conceived as nonbinding instruments at the international level, they are due to be imposed to the operators through national space legislation and to become the reference for a normally careful behaviour expected from any space operator. The risk to see some operators bound by strong safety requirements while others are subject to less strict regulations looms large. But this evolution of the notion of ‘fault’ also concerns states as authorizing and supervising authorities. In the context of the growing problems of the occupation and use of earth orbits (space debris, space traffic management, and suchlike), we are not far from considering that a state authorizing activities without imposing their compliance with international (non-binding) guidelines or standards, could be held liable according the fault regime of the Liability Convention, while, in the absence of any international obligation, this state could not be held responsible under Article VI of the Outer Space Treaty. However, some uncertainty remains with regard to the determination of the ‘fault’ and the legal regime of reference according to which the behaviour of a state or an operator would qualify as a ‘fault’. That is why a possible solution could be to abandon the system of fault in the liability regime resulting from the Liability Convention and to replace it by an objective liability with a limited ceiling amount whenever the damage occurs in outer space. Aggravation of the liability could be foreseen in case of non-compliance of the authorization delivered with objective reference standards, such as the iadc Mitigation GuideÂ� lines or UNGA Resolutions. This would better correspond to the reality

114â•…â•…J.F. Mayence of space activities nowadays and the fact that all states are somehow responsible for the space environment and the current situation in orbit. 3.8.3.╇ Non-Operated Satellites Another consideration which pleads in favour of such an approach is the case of the non-operated satellites. Apart from the issue of decommissioned spacecraft that are no longer under the control of an operator (which may raise issue with regard to the activation of the fault-based liability), some satellites are designed for missions which do not require any in-orbit operation after their launch. The satellite as such has no operator and the only activity involving it is the exploitation of its payload. Even though such situation doesn’t prevent the application of Article VII of the Outer Space Treaty, it also raises questions with regard to Article VI. In the absence of any operator at any point of the exploitation of the satellite and thus, of any satellite operation activity, one could wonder whether a state is responsible according to Article VI for the flight of the satellite and, more particularly, for authorising and supervising it. This absence of operator may be an issue in the iÂ� mplementation of some national legislation (see further the example of the Belgian Space Law).

4.╇Harmonisation of National Authorization and Supervision Regimes 4.1.╇ The Development of National Legislations By hammering out its call for a full application of the Outer Space Treaty by all states parties, including the setting up of an appropriate authorization and supervision regime, the United Nations Committee for the Peaceful Uses of Outer Space (uncopuos) has arrived at a paradoxical situation. With new emerging national legislation in states parties, the variety of understandings and interpretations of Article VI is now showing up in positive law. States which are not at the forefront of the space business are developing implementing rules based on their own reading of the provisions of the outer space treaties, but also taking into account their own economic, infrastructural, technological and legal features. The discussion which, until then, was focused on the theoretical aspects of Article VI of the Outer Space Treaty is now moving to a pragmatic

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target: how to deal with national laws implementing the same provision but according to different criteria? This issue might look more complex than it actually is: some Â�solutions have already been identified by the doctrine, as well as by several ResoÂ� lutions of the un General Assembly.73 But the most significant clue in the handling of this issue is the willingness of states parties to avoid, beyond their sovereign prerogatives, legal gaps between their respective jurisdictions. The fact that the criteria of application and implementation of Article VI of the Outer Space Treaty are considered in a different manner by states parties is not the real problem as long as those states seek for appropriate agreements at the international level in order to fill those possible gaps. Therefore, the key-element in each national space legislation is the interface with foreign legislation and the flexibility to deal with activities featuring multinational aspects. The ultimate “political” responsibility for the conclusion of such agreements rests with the state entitled to take and to enforce the decision to authorize or to forbid the activities. That state is the only one which can effectively force all participants in the activities (governments, space operators, facilities operators and so on) to abide to the necessary regulatory or contractual provisions which will guarantee the technical and legal security of the activities. Thus, if we assume that the ultimate goal of a ‘harmonization’ of national space regimes is to prevent gaps between these, our approach should remain quite pragmatic. A heavy and formal harmonization process might not be an incentive for states not yet parties to the outer space treaties to accede to them. Moreover, a harmonization process which would end up in putting a heavy financial burden on the shoulders of the states without giving them control regarding the way they intend to fulfil their commitments might also result in a detrimental situation for the space business. We should not depart from the basic motto that he who pays, decides. If tax payer’s money should be used to guarantee or to indemnify the consequences of activities performed by the state or its citizens, it seems quite reasonable to make sure that the duties and the responsibilities, as well as their counterpart, are well understood by all parties. ╇ Notably UNGA Resolution 59/115 of December 10, 2004, on the Concept of LaunchÂ� ing State, and Resolution 62/101 of December 17, 2007, on Space Objects Registration Practices.

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116â•…â•…J.F. Mayence 4.2.╇Harmonization in the European Union A sensible reflex of any eu member state would be to consider harmonization within the framework of the European Union. Despite the doubts about the legal competence of the European institutions74 to make use of their legislative or regulatory powers in order to achieve a harmonization of the member states’ space regimes, there is room for intergovernmental actions aiming at a coherent system. Now, the main question has yet to be answered: why and what for do we need a harmonization at the European level? First of all, because it would certainly be better than nothing: a harmonized approach between eu member states would make business easier for operators and stakeholders and would allow a reinforced position of Europe with regard to its space partners and/or competitors. But it is unlikely that it would solve the problems of interpretation and implementation of Article VI of the Outer Space Treaty, especially if we consider the differences between eu member states when it comes to their respective involvements in outer space. In that respect, ‘harmonization’ should be understood with the meaning of ensuring the compatibility between national legislations rather than their uniformity or their similarity. The appropriate legislation for a space-leader nation like France, with national launch facilities and national operational programmes, would not necessarily fit R&D or corporate activities in the space sector in Belgium or Luxemburg. The principles of eu policy and law guaranteeing the freedom of establishment and the free circulation of services in the ‘territory’ of the European Union should nevertheless be respected: this supposes non-discriminatory regimes allowing any operator of eu member states to perform its activities from anywhere in the European Union.75 Some issues need to be discussed among Â�member

╇ The Treaty of Lisbon (Treaty amending the Treaty on European Union and the Treaty establishing the European Community, Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 306/1 2007) by means of Art. 2, sub no. 142, explicitly excludes any supranational legislative or regulatory intervention by the European Union in the field of the regulation of space activities. 75 ╇ However, coming back to the issue of the applicable jurisdiction, we must observe that a combination of the nationality of the operator and the location of the activity is  certainly not encouraged by the philosophy of eu law. First of all because the nationality of eu citizens is not a significant criterion for the implementation of eu 74

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states, notably the guarantee asked by the government from the space operator in case of international liability for damage caused by the space object, but do not constitute obstacles to the freedom of services delivery in the European Union.76 Now, this intergovernmental harmonization process among eu member states should not conceal another issue with regard to the development of space activities in Europe. With the adoption of several instruments entrusting the European Union, and for a large part, its executive organ, the European Commission, with the implementation of a European Space Policy and a European Space Programme, the European Union as such has become a significant space faring power in the world. Projects such as Galileo or gmes which combine efforts under the three pillars of the current eu institutional system, have already legal consequences for European states, including those which are not actively involved in operational space activities. So far, the European Space Agency has served as a legal umbrella in its capacity  of intergovernmental organisation in charge of the conduct of the European space programmes77 for the fulfilment of obligations under the outer space treaties. But now, as the European Union appears as the maître d’ouvrage of those activities, the legal implications of its

principles, secondly because it would result in situations where the same citizen would have to apply to different states’ authorities for obtaining equivalent authorizations and be subject to a heavy administrative burden which is not encouraged by eu policies. 76 ╇ As far as the issue of the guarantee imposed on the operator is concerned, it is a fact that the implementation through respective national legislation of different systems (with different applicable financial liability) transposing international obligations is not per se a violation of the eu treaties. Let us remember that the liability provided for in Art. VII, Outer Space Treaty, and the provisions of the Liability Convention is the states’ liability and not the operators’. States are not obliged, neither by international law nor by eu law, to transfer that liability, with or without applying a ceiling amount, to their national operators. To the question whether a harmonization of this operators’ limited liability system at the eu level would be a good thing, the answer is clearly yes. Furthermore, the difference of treatment which would result from the application of several ceiling thresholds applicable in eu member states must not be exaggerated. As a matter of fact, operators who would have to pay nothing or only a limited amount under the applicable national space legislation/regulation could still be prosecuted for the remaining damage under common law liability principles (see Art. XI, Liability Convention). 77 ╇ esa has made declarations of acceptance of three un treaties on outer space.

118â•…â•…J.F. Mayence participation in activities falling under the provisions of the outer space treaties cannot be ignored anymore. If the European Union wants to play a certain role in the harmonization of its member states’ space regimes, a declaration of acceptance of the Rescue Agreement, Liability Convention and Registration Convention (provided that the legal conditions are fulfilled78) would be a recommended prior step. With a status of accepting party to the outer space treaties, the European Union would gain recognition from international partners to work out the issues of interpretation and implementation of the principles governing space activities, in particular the international responsibility and liability systems.

5.╇ The Belgian Authorization and Supervision Regime The Belgian Space Law79 is built on three pillars: (1) authorization and supervision of space activities, (2) registration of space objects and (3) liability actions. The Law defines its scope of application as: the activities of launching, flight operations and guidance of space objects carried out by natural or legal persons in the zones placed under the jurisdiction or control of the Belgian State or using installations, personal or real property, owned by the Belgian State or which are under its jurisdiction or its control.80

Besides, the operator (he who must apply for the authorization) is defined as “the person that carries out or undertakes to carry out the activities referred to in this law, by ensuring, alone or jointly, the eÂ� ffective

╇ See Art. 6, Rescue Agreement; Art. XXII, Liability Convention; & Art. VII, Registra� tion Convention. The 1979 Moon Agreement (Agreement governing the Activities of States on the Moon and other Celestial Bodies, New York, done 18 December 1979, entered into force 11 July 1984; 1363 UNTS 3; ATS 1986 No. 14; 18 ILM 1434 (1979)╛) also foresees such an acceptance by intergovernmental organizations, but in this case the condition of majority of member states being parties to it is obviously not fulfilled. 79 ╇ Law on the activities of launching, flight operations or guidance of space objects (hereafter Belgian Space Law), 17 September 2005, adopted 28 June 2005; Nationales Weltraumrecht / National Space Law (2008), at 183. 80 ╇ Art. 2(1), Belgian Space Law. 78

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control of the space object”.81 ‘Effective control’ means “authority on the means of control or remote control and the related means of supervision, necessary for the implementation of the activities of launching, the flight operations and guidance of one or more space objects”.82 This set of definitions illustrates the option taken by Belgium to define a ratione loci jurisdiction encompassing any place and location subject to the Belgian sovereignty or the control of the Belgian state.83 While electing such a criterion, the Belgian lawmaker was quite aware of the diverging interpretations of Article VI of the Outer Space Treaty. Hence, the law contains its own rule of compatibility with other foreign jurisdictions which may apply: “when provided for under an international agreement, this law may apply to the activities [as defined by the Law] and carried out by natural or legal persons of Belgian nationality, irrespective of the location where such activities are carried out”84. Authorization and supervision under the Belgian Space Law may be subject to conditions imposed by the Law, by the King or by the Minister. In the latter case, the conditions may be specific to each authorization. Among the conditions imposed by the law, there is the obligation to allow access to premises, facilities and documentation relevant for the assessment of the activities. This condition applies both to the authorization procedure and to the supervision procedure. Failure to do so might result in the withdrawal of the authorization. The Belgian Space Law also provides for the conduct of environmental impact assessments at different stages of the activities. A special notification is due by the operator in case of activities involving the use of nuclear power sources. Transfer of activities from an operator to another requires an authorization to be applied for by the transferee. In case the activities are to be performed by the transferee from a location outside the Belgian jurisdiction as defined by the Law, the authorization might be subject to a prior agreement with the state having jurisdiction on this new location. Any change in the activities, any modification of technical data which had to be provided for the purpose of the authorization (that is change of orbit, of owner, of mission and so on) must be notified to the Minister.

╇ Art. 3, sub (2), Belgian Space Law. ╇ Art. 3, sub (3), Belgian Space Law. 83 ╇ See Art. 2(1), Belgian Space Law. 84 ╇ Art. 2(2), Belgian Space Law. 81 82

120â•…â•…J.F. Mayence So far, there has been no case of implementation of the Belgian Space Law. No space object has been registered by Belgium to this day. But a forthcoming mission involving a small satellite called oufti may be a first test for the new legislation. oufti is a very small satellite developed, constructed and launched in the framework of a national project led by the University of Liège. The launch is programmed on the Vega demonstration flight. For the first time, a Belgian-designed mission will be launched outside the frame of esa programmes.85 At first sight, it seems sensible to consider Belgium as the ‘appropriate State’ to authorize and supervise the operation of oufti. Nevertheless, a closer look at the details and arrangements of the mission makes that assumption less obvious. First of all, can Belgium be considered as a ‘launching State’ without any formal commitment from the Belgian government to be associated to the launch? Under the interpretation made by Belgium of Article VII of the Outer Space Treaty, a launch procured by a Belgian citizen per se does not make Belgium a ‘launching State’. In this case, the launch is procured by a public university acting under the authority of the French Community of Belgium. We see no reason why this authority should not be assimilated to the Federal State when it comes to implementing the outer space treaties. Therefore, Belgium should be considered as one of the ‘launching States’ of the oufti satellite, together with France which performs the launch from its territory and esa which provides the flight opportunity.86 Secondly, the application of the Belgian Space Law is based on the fact that the operator (he who holds the actual control on the space object) performs his activity under Belgian territorial jurisdiction. The oufti mission does not require any flight operation of the satellite. Once its placement in orbit achieved, the flight is autonomous, withÂ� out  any propulsion or guidance capacity. To that respect, there is no operator to be identified. The only activity involving the satellite will be ╇ The small PROBA satellites and missions were designed in Belgium and funded by the Belgian government but, legally speaking, are under esa jurisdiction. The question remains, though, whether Belgium could register those satellites in its capacity of ‘co-launching State’. 86 ╇ Different from Arianespace commercial flights, European launchers’ qualification flights are performed under the responsibility and liability of esa. The French government’s guarantee for the damage to third parties does not apply to such flights. 85

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the exploitation of its payload by the scientists. Article VI of the Outer Space Treaty requires authorization and continuous supervision of national space activities. This will be the case for the payload exploitation. As far as the flight operation is concerned, how can a state authorize and supervise activities which do not exist? Is the flight of a space object in orbit according to gravitational forces to be considered as an ‘activity’ under Article VI (which would suppose a human intervention)? Let us not forget that an authorization has to be delivered for the launch and that ‘launching States’ remain liable for the damage caused by this object. We are aware that such an ‘interpretation’ may raise concerns. Nonoperated space objects may cause damage and constitute potential risks for other spacecraft. They put the burden of avoiding the collision exclusively on the shoulders of satellite operators who have the technical means to execute maneuvers. They are not always able to comply with international recommendations and guidelines as far as space debris mitigation is concerned. But a large number of space objects in orbit remain beyond human control and are therefore not subject to any ‘space activity’ as far as their flight and trajectory are concerned. Responsibility and liability for the damage they may cause are actually borne by the whole space community and not only by the ‘appropriate State’ or the ‘launching State(s)’. To that extent, the principles governing outer space activities do not seem to correspond to the current reality of space activities.

6.╇Conclusion We cannot see any advantage in making states responsible for activities they do not have the legal means to control. This could not be the meaning of Article VI if we consider that the concern addressed by this provision is precisely to prevent unlawful, hazardous or uncontrolled activities. The privatization and the ‘democratization’ of space activities are not compatible with the exorbitant obligations that would result from a purely victim-oriented interpretation of Articles VI and VII of the Outer Space Treaty. More generally, we don’t see the current system set up by Articles VI and VII of the Outer Space Treaty and the provisions of the Liability Convention as being adapted to the legal, economical and eÂ� nvironmental

122â•…â•…J.F. Mayence reality of space activities in orbit. A globalization of the risks, a more rational design of the missions, an intelligent and integrated sharing of the information and technical assistance should replace the obsolete liability of the outer space treaties. In a prospective vision, authorization and supervision could be entrusted to a single international authority and could benefit a much more coherent management. For the time being, harmonization is needed but should take into account the efforts of states parties which were keen to fulfill their commitments under Article VI. As the world space community calls for a wider participation in and application of the United Nations treaties on outer space, an authoritative approach imposing obligations on states which do not correspond to their actual involvement in space activities or that they did not intend to accept at the time they joined those treaties, would have the opposite effect. We must be consistent with ourselves when advising states to take their responsibility and to ensure the effective implementation of the outer space principles in their national legal order. Let us not lose sight on the fact that, as Chaumont already observed in 1959, states investing in outer space have accepted to do so for the benefit of mankind. The fact is that any human being on this planet benefits at one time or another of the progress achieved through space technologies. If we want those who benefit from space activities to pay for the damage they might cause, it is likely that each of us will have to draw bills from the wallet. Actually, this is already the case since the risk we put on the shoulders of the state and/or the operator represents an expense, either in terms of financial charges or in terms of insurance, which is passed on in taxes or in the selling price of the services we use everyday. It is doubtful that a revision of the outer space treaties will occur in a near future. However, in this hypothetical case, we think that a radically new approach of the state’s responsibility (sensus lato) for space activities should be adopted. We see the notion of ‘licensing State’ as the core of this new philosophy. For each object to be launched in outer space, a ‘licensing State’ should be identified (according to several criteria or by  agreement of all states involved). This state would be in charge of authorizing the launch, the operation and the exploitation of the space object, if necessary after having concluded all relevant arrangements with other states involved (notably about the allocation of liability, the practical modalities of supervision and control and so on). The regime

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of Â�responsibility/liability would focus on the ‘licensing State’ but would vary according to the kind of damage and the type of activities. For instance, damage caused by the space object to persons or properties on the ground would be covered by the absolute liability of the ‘licensing State’ (objective plus no limitation of amount) while damage caused by the space object to another space object, to persons or to properties in outer space would be covered by the ‘licensing State’ on the basis of an objective liability limited to a certain amount. The ‘licensing State’ would be internationally responsible for the unlawful use of the space object or its payload subject to its supervision. It would also be up to the ‘licensing State’ to make sure that any object launched under its authority is or will actually be registered according to the Registration Convention. The transfer of the capacity of ‘licensing State’ from one state to another, together with the attached authority, responsibility and liability, would be possible at certain conditions, notably that the state to which the activities are transferred is party to the relevant treaties and conventions guaranteeing the respect of the principles of space law. At first sight, such an approach may seem detrimental to the victim of the damages caused by space activities by the fact that it limits the number of states against which a claim can be filed. However, to the extent that it would bring more coherence to the responsibility-liability system and better fit the economical reality of space business, we are convinced that it would allow a clearer, more transparent and more rational functioning of the regime of the un outer space treaties. Furthermore, we have expressed our doubt that a purely victim-oriented approach of international space responsibility/liability would be the most appropriate for the future. Before asking ‘Whom can I sue?’, space operators should first ask ‘Whom can I contact?’, before identifying who is liable, they should first know who is in charge. As anyone can acknowledge, the current responsibility-liability system has remained quite theoretical. Although this situation has been a positive consequence of the reliability of space activities until recently, things have changed with the occurrence of several events and the general deterioration of the orbital environment. We see the current responsibility-liability regime as obsolete with regard to the challenges and issues that space operators, be they private companies or intergovernmental organizations, civil or military, commercial or scientific, have to face already today.

Chapter Four Liability and Insurance in the Context of National Authorisation A. Kerrest de Rozavel & F.G. von der Dunk 1.╇ Introduction: Liability under International Space Law It is probably difficult to overstate the importance of liability and the related area of insurance when domestic legislation in the field of space activities is concerned, as such activities still constitute a relatively hazardous undertaking and the risks of something going horribly wrong are always close at hand. Moreover, though fortunately so far major accidents as a consequence of space activities – at least on earth – have not occurred, if they would occur there should be little doubt that they may cause major damage, potentially even of a catastrophic size. As a consequence, the question as regards who would be liable to pay for such damage, and as a follow-up whether and to what extent insurance might (have to) cover such liability compensation, is indeed of great importance. In the context of national authorisation specifically, the issue of liability is framed by the general framework developed at the international level by means, principally, of Article VII of the Outer Space Treaty1 and

╇ Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 ust 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967). Art. VII, Outer Space Treaty, provides for the general principle that a state is liable for damage caused by a space object if it is has launched that space object, procured its launch and/or has lent its territory or facility for the launch thereof.

1

126â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk the Liability Convention.2 The starting point in this respect is the principled allocation of liability for damage caused by a space object to the “launching State” or ‘launching States’ of that space object. Article II of the Liability Convention provides in this respect: “A  launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight”,3 whereas Article III along the same lines provides: “In the event of damage being 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”.4 The Liability Convention defines the “launching State” for the purposes of these clauses as: “(i) A State which launches or procures the launching of a space object; (ii) A State from whose territory or facility a space object is launched”.5 The fact that this definition may result in several states being liable for the same damage-causing event – a space object may be launched by one state on behalf of another, which thus has ‘procured’ the launch in question6 – does not take away any liability, but merely results in liability being joint and several.7 ╇ Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971). 3 ╇ Emphasis added. 4 ╇ Emphasis added. 5 ╇ Art. I(c), Liability Convention. 6 ╇ It should be noted that the definition of ‘procures’ as the term is used in Art. I(c), Liability Convention, is not provided by the Convention itself; hence various authors have provided different interpretations, though there seems to be general consensus on the core of the concept of ‘procurement’ as including states paying for the launch of their space object on top of some other state’s launch vehicle. See further e.g. discussion in A. Kerrest de Rozavel & L.J. Smith, Article VII, in Cologne Commentary on Space Law, Vol. I – Outer Space Treaty (2009), 137; K.H. Böckstiegel, The Terms “Appropriate State” and “Launching State” in the Space Treaties – Indicators of State Responsibility and Liability for State and Private Space Activities, in Proceedings of the Thirty-Fourth Colloquium on the Law of Outer Space (1992), 15; F.G. von der Dunk, Passing the Buck to Rogers: International Liability Issues in Private Spaceflight, 86 Nebraska Law Review (2007), 411; V. Kayser, Launching Space Objects: Issues of Liability and Future Prospects (2001), 34–5. 7 ╇ Cf. Artt. V, also IV, Liability Convention. 2

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2.╇ The Problems Resulting from the International Regime on the Domestic Level The exclusively public nature of liability for damage caused by space activities (more accurately, by the space objects involved in such activities) as it arises, at least as far as international space law is concerned, thus includes cases of fundamental or even comprehensive involvement of private actors in the launch or operation of that space object. This in turn means that national authorisation will always be connected to issues of public control over the private involvement in such activities, to ensure that such involvement takes place only with reasonable guarantees as to the capabilities of the entities involved to safely conduct them, and of risk sharing between the states and private entities concerned: the “launching State” is principally liable for activities of private operators. A further problem arises where such liability of the “launching State” on the international level is neither limited in amount nor in time. As to the first point, the Liability Convention provides that: “The Â�compensation which the launching State shall be liable to pay for damage under this Convention 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”.8 This clause has been generally interpreted to mean that regardless of cost, in principle the injured party should be fully restored to its previous situation, meaning full and complete compensation.9 As to the second point, while the Liability Convention imposes some time limits on the possibility to assert a claim under it, these refer to the time lapsed between the time of the accident alternatively the time at which the injured party could be presumed to have become aware thereof and the time of the claim.10 As to the time period between the ╇ Art. XII, Liability Convention. ╇See e.g. already F.G. von der Dunk, Private Enterprise and Public Interest in the European ‘Spacescape’ (1998), 63, and literature referred to; also Kayser, 50. 10 ╇ Cf. Art. X, Liability Convention. The latter scenario effectively also causes to project the possibility to claim into the future, if not indefinitely, at least as long as the space object or parts thereof remain in outer space and capable of doing damage. ╇8 ╇9

128â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk launch of the space object and any involvement therein as a launching State, and the actual event causing the damage, there is no limitation provided in the Convention. Once having qualified as a “launching State”, a state will always remain a “launching State”; and as such will remain liable as long as the space object has the capacity of causing damage. Specifically the definition of space object as including component parts thereof has been acknowledged to include any fragment thereof after (partial) disintegration in outer space, for example as a consequence of malfunctioning or collision with space debris.11 As a consequence, even such a fragment, if causing damage many years after the original launch of the space object of which it formed part and after being separated from the original space object, would lead to the liability of the original “launching State(s)” (assuming only that these can still be identified). At the same time, the occurrence of damage leading to such legal consequences under international space law as sketched above does not exclude claims regarding the liability of operators. Article XI of the Liability Convention namely allows for private claims to be pressed ahead regardless of any claims under the Convention, as it provides: “Nothing in this Convention shall prevent a State, or natural or juridical persons it might represent, from pursuing a claim in the courts or administrative tribunals or agencies of a launching State”.12 In other words, an injured party has the option to press for liability compensation in the national courts of the “launching State” in case he considers the chances of success and/or a more effective compensation to be better in such a context. In particular an injured party of a private nature may be interested in doing so in view of his limitations to press for claims under the Liability Convention.13 In sum, the private victim has the choice of the procedure: it may either ask its own state to enter into the ╇ See Art. I(d), Liability Convention; further e.g. Kerrest de Rozavel & Smith, 139–40; Kayser, 46. 12 ╇ Art. XI(2), Liability Convention. 13 ╇ Formally, only states can assert claims under the Liability Convention, so it depends on domestic law and custom to what extent a private party can induce or oblige his state to assert such a claim on his behalf, as well as – in case that state does invoke the Liability Convention – to what extent it remains involved in the further process of claims settlement under the Liability Convention. 11

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procedures provided by the Liability Convention, or it may use by itself the usual legal way to obtain satisfaction under domestic law before a domestic judge. From the other end, such claims can obviously also be addressed to private operators, involving national law as relevant. This results in complications as soon as both the ‘launching State’ itself is addressed under the Liability Convention with a claim under international space law possibly to be solved by means of a Claims Commission14 and the private party involved in the space object’s activities at issue is faced with a claim in a private capacity in the courts of that state applying national laws for the purpose. As a further consequence of the above, under domestic implementation mechanisms usually appropriate insurance or financial guarantees are required from the private operator, as states want to get their money back if they would be held liable as a “launching State” for damage caused by the activities of that operator. For example, the uk Outer Space Act mandates the Secretary of State to condition the grant of a license by “requiring the licensee to insure himself against liability incurred in respect of damage or loss suffered by third parties, in the United Kingdom or elsewhere, as a result of the activities authorised by the licence”.15 Equally, in Belgium the appropriate Minister may “create an obligation for insurance to be taken out in favour of third parties to cover the damage that may result from the activities authorised by him”.16 Here, a specific problem results from the aforementioned international lack of a limit to the liability resulting from damage caused by space activities, both in terms of amount and time-wise: insurers cannot manage a risk unlimited in amount and in time – alternatively, require exceptionally high premiums to establish a wide margin of safety. It is for such reasons that for example the us licensing regime not only imposes a limit to the possible reimbursement of the licensee due for ╇ See Artt. XIV–XX, Liability Convention, detailing the dispute settlement system provided by the Convention in respect of such a Claims Commission. 15 ╇ Sec. 5(2.f), Outer Space Act, 18 July 1986, 1986 Chapter 38; National Space Legislation of the World, Vol. I (2001), at 293; Space Law – Basic Legal Documents, E.I; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 12. 16 ╇ Art. 5(2), Law on the activities of launching, flight operations or guidance of space objects, 17 September 2005, adopted 28 June 2005. 14

130â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk international liability as such, but includes in the determination of any limit for a particular license the extent to which “the maximum liability insurance [for the amount under consideration as maximum would be] available on the world market at reasonable cost”.17 This solution clearly entails a willingness on the side of the us government to accept the possibility that in cases of damage of catastrophic size reimbursement by the licensee respectively his insurer will not be able to cover compensation paid under the Liability Convention. In other words, the us government acts de facto as a kind of re-insurer for international damage above the amounts quoted in the license. Such willingness, however, should not be presumed. In the European context, for example, Sweden determines the reimbursement obligation in the Act on Space Activities simply as “If the Swedish State on account of undertakings in international agreements has been liable for damage which has come about as a result of space activities carried on by persons who have carried on the space activity shall reimburse the State what has been disbursed on account of the above-mentioned undertakings, unless special reasons tell against this.”18

3.╇ National Framework Laws as a Mechanism to Deal with Liability and Insurance From a bird’s eye perspective, the mechanism most often chosen by states to deal with any international space law issues in the context of their domestic legal systems is to draft a framework law, laying down the ground rules for the licensing process whilst merely indicating the substantive obligations to be included in specific licenses, or at best outlining them. As for the liability and insurance issues, this amounts usually to insertion in the national space law or act of a principled obligation to indemnify the state comprehensively if the latter would have to pay an international liability claim under the Liability Convention, but also to allowing for case-by-case deviations from that general rule without ╇ Sec. 70112(a)(3)(B), Commercial Space Transportation – Commercial Space Launch Activities, 49 U.S.C. 70101 (1994). 18 ╇Sec. 6, Act on Space Activities, 1982: 963, 18 November 1982; National Space Legislation of the World, Vol. I (2001), at 398; Space Law – Basic Legal Documents, E.II.1; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 11. Emphasis added. 17

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much detailed guidance on when such partial exemptions should be admissible. The case of Sweden has already been referred to supra, but also other European states essentially follow this approach. The United Kingdom equally comprehensively requires that “A person to whom this Act applies shall indemnify Her Majesty’s government in the United Kingdom against any claims brought against the government in respect of damage or loss arising out of activities carried on by him to which this Act applies.”19 It does then temper the de facto effect of this provision not only by its requirement for insurance up to a limit discussed supra, but also by the sweeping competence of the Secretary of State to “except (…) persons or activities from the requirement of a license if he is sÂ� atisfied that the requirement is not necessary to secure compliance with the international obligations of the United Kingdom”, in other words inter alia as long as he considers a cap sufficient to take care of those concerns.20 The Russian Federation has a quite complex formulation to deal with the twin issues of liability reimbursement and insurance of the licensee for such events. Firstly, “[t]he types, forms, and terms of licenses, the conditions and procedures for their issue, withholding, suspension or termination, as well as other questions of licensing shall be regulated by legislation of the Russian Federation” – in other words, are deferred for the time being to further implementation.21 Secondly, however, the phrases “[t]he Russian Federation shall guarantee full compensation for direct damage inflicted as a result of accidents occurring while carrying out space activities in accordance with legislation of the Russian Federation” and “[c]ompensation for damage inflicted as a result of accidents occurring while carrying out space activities shall be paid by the organizations and citizens responsible for operation of the space technics involved” seems to suggest unlimited liability reimbursement would be the baseline rule.22 Thirdly, regarding the relationship between liability reimbursement and insurance it is provided that “the liability of organizations and ╇ Sec. 10(1), Outer Space Act. ╇ Sec. 3(3), Outer Space Act. 21 ╇ Art. 9(3), Law of the Russian Federation on Space Activities, No. 5663-1, 20 August 1993, effective 6 October 1993; National Space Legislation of the World, Vol. I (2001), at 101. 22 ╇ Art. 30(1) & (2), respectively, Law of the Russian Federation on Space Activities. 19 20

132â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk citizens participating in the creation and use of space technics for damage inflicted as a result of accidents occurring while carrying out space activities shall be limited to the amount of the insured sum or insurance indemnity provided in contracts of insurance of space technics and risks involved in space activities” – but also: “if the insured sum or insurance indemnity is insufficient for compensation of the damage inflicted as a result of accidents occurring while carrying out space activities, recourse may be taken against the property of relevant organizations and citizens in the manner specified in legislation of the Russian Federation”.23 This suggests, at least, a limitation to reimbursement in first instance whilst nevertheless allowing the Russian authorities a basis for claiming reimbursement of amounts above such limits if warranted by special circumstances. Finally, on insurance itself the Law provides “[t]he organizations and citizens which exploit space technics or on whose order the creation and use of space technics for scientific and national-economy purposes is carried out, shall take compulsory insurance coverage in the amount set by legislation of the Russian Federation”.24 Whereas it is not unequivocally clear that such insurance would cover the reimbursement obligation, that may at least be assumed.25 Throwing in the competences of the licensing authority (that is Roskosmos, the Russian Space Agency) to determine the particular contents of any license,26 the result is that the requirements regarding liability and insurance can be tailored very much to specific instances at hand – but also a concurrent lack of legal certainty and transparency, which in the case of Russia is further heightened by the complications resulting from the transition of the old communist system to a modern and balanced version of capitalism. ╇ Art. 30(4), Law of the Russian Federation on Space Activities. ╇ Art. 25(1), Law of the Russian Federation on Space Activities. 25 ╇ Cf. Art. 25(1), Law of the Russian Federation on Space Activities, which further provides “Compulsory insurance shall be affected against damage to the life and health of the cosmonauts and the personnel at ground and other objects of space infrastructure, as well as against property damage to third parties”. 26 ╇ Cf. Art. 6, in particular § 2, 5th bullet, Law of the Russian Federation on Space ActivÂ� ities, also Art. 9(3); as further elaborated by the Statute on Licensing Space Operations, 2 February 1996, and the Order of the Government of the Russian Federation On Approval of the Regulation on Licensing of Space Activity, 14 June 2002; National Space Legislation of the World, Vol. II (2002), at 302. 23 24

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Then there are the largely similar approaches taken by the two neighbouring low countries, Belgium and The Netherlands. The Belgian Space Law is the first European one making explicit reference in the operative Article both to Article VII of the Outer Space Treaty and to the Liability Convention.27 It comes as no surprise therefore that the reimbursement of the unlimited liability thus explicitly referred to is itself in principle unlimited as well, although the licensing authority is allowed to cap such reimbursement liability, as long as the licensee will “comply with the conditions attached to his authorization”.28 The Law itself does not provide for an obligation to take out insurance, but the licensing authority may “create an obligation for insurance to be taken out in favour of third parties to cover the damage that may result from the activities authorised by him” whenever granting the license.29 The Dutch Space Law, following roughly two years upon the Belgian one, equally starts from the presumption of unlimited reimbursement, then mitigates that by key references to the insurance requirements to be imposed individually per license. As for the applicable liability arrangement, “if the State is obliged to pay compensation under Article VII of the Outer Space Treaty or the Liability Convention, the State is entitled to recover this sum, in full or in part, from the party whose space activity has caused the damage.”30 Next, however, such obligatory redress to the Dutch government is effectively capped by the value of the sum insured,31 whilst as to this insurance obligation “the prospective holder shall have and maintain what Our Minister considers to be the maximum possible cover for the liability arising from the space aÂ� ctivities

╇ See Art. 15(1), Law on the activities of launching, flight operations or guidance of space objects, 17 September 2005, adopted 28 June 2005. 28 ╇ See Art. 15(1), (3) & (4), Law on the activities of launching, flight operations or guidance of space objects. 29 ╇ Art. 5(2), Law on the activities of launching, flight operations or guidance of space objects. 30 ╇ Sec. 12(1), Law Incorporating Rules Concerning Space Activities and the Establish� ment of a Registry of Space Objects, 24 January 2007; 80 Staatsblad (2007), at 1. Note that also this operative Article makes direct and explicit reference to Art. VII, Outer Space Treaty, and the Liability Convention. 31 ╇ See Sec. 12(2) & (3), Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry of Space Objects. 27

134â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk for which a licence is requested. Account is taken here of what can reasonably be covered by insurance.”32 The most recent European national space law that entered into force is the French one; as France however presents a special case in a number of respects, the French national law will be discussed in detail further below.33 In sum, in all these cases the states concerned require reimbursement by the licensee in cases where they have had to pay compensation for damage caused by the licensed private activity as a consequence of which they had to honour liable claims under the Liability Convention. States may then in individual cases accept to limit this reimbursement, for example to a certain fixed amount or to the amount of insurance available on the market.

4.╇ National Liability and Insurance Arrangements, and Competition Law While the flexibility noted above in determining the substantive obligations regarding liability and insurance on the part of national authorities  may perhaps be reasonable, both from the perspective of likely dealing with many quite different actors, cases and scenarios, and – at least in some cases – from the lack of experience of the relevant authorities with many actual licensing requests, these ‘case-by-case’ solutions from a legal perspective raise some serious questions. They may well turn out to be disputable under competition rules, either domestic, or under the law of the European Community, or perhaps even under wto regulations. As for the latter, the World Trade Organisation (wto)34 served inter alia to underpin the General Agreement on Tariffs and Trade (gatt)35 ╇ Sec. 3(4), Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry of Space Objects. That last phrase refers to the concept already used in the us Commercial Space Launch Act; see text at n. 17, supra. 33 ╇ See section 7, infra. 34 ╇The wto was established by the Agreement Establishing the World Trade OrganizaÂ� tion, Marrakesh, done 15 April 1994, entered into force 1 January 1995; 1867 UNTS; UKTS 1996 No. 57; ATS 1995 No. 8; 33 ILM 1125, 1144 (1994). 35 ╇ General Agreement on Tariffs and Trade; Geneva, done 30 October 1947, entered into force 1 January 1948; 55 UNTS 194; TIAS 1700; ATS 1948 No. 23. 32

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and the General Agreement on Trade in Services (gats)36 with an institutional framework. The gatt is dedicated to abolishing or at least minimising all restrictions on international trade in goods, whereas the gats is attempting to do the same for international trade in services. Space activities may, obviously, both involve trans-frontier Â�movement of goods and trans-frontier provision of services, and in consequence be possibly caught by gatt and gats regulations in cases where these have been agreed to be applicable to certain space activities. So far, this would largely be the case in the context of satellite communications, where a 1997 agreement concluded in the context of the gats called for access of foreign satellite communication service providers to national markets on the basis of reciprocity, under so-called ‘individual schedules of commitment’.37 Whilst the gatt and the gats generally focus on the most clear-cut trade restrictions such as import tariffs and quota, in principle any requirement which restricts international trade if applied in a discriminatory fashion as between national and foreign entities is considered to be – at the very least – contrary to the spirit of the treaties. When therefore one space operator would be offered a set of obligations, including in particular those related to reimbursement and taking out insurance, in terms of his license being rather different from those offered to another space operator, this may well run afoul of that spirit in particular if the advantaged space operator is a national entity and the other a foreign one, presuming there is no objective, non-discriminatory justification for making such a difference. As for eu law, the new Treaty on the Functioning of the European Union38 has provided for an even more extended regime in its efforts to create a level playing field in any economic sector of concern. On the one hand, it established a regime for free movement of inter alia goods ╇ General Agreement on Trade in Services; Marrakesh, done 15 April 1994, entered into force 1 January 1995; ATS 1995 No. 8. 37 ╇ See Agreement on Telecommunications Services, Geneva, done 15 February 1997, entered into force 5 February 1998; ATS 1998 No. 9; 36 ILM 354 (1997). 38 ╇ Treaty establishing the European Community as amended by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the EuroÂ� pean  Community (hereafter Treaty on the Functioning of the European Union), Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 115/47 (2009). 36

136â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk and services between the eu member states,39 along the lines of the gatt and gats but much more elaborated – and backed up with the adjudicative powers of the Court of Justice of the European Union (cjeu).40 Imagine the likely consequence of the licensing systems being nationally implemented in the absence of any transparency and consistency (read legal certainty) at the level of the law. One company can be provided with a limit to liability and/or to its insurance obligation under a national license, because it is of the nationality of the licensing state, whilst another company being of a different eu member state cannot avail itself of such limits because it would not be eligible to such a license, or not entitled to the same conditions if it is. Once this would come to be envisaged as “restrictions” imposed upon the latter which are not applied “without distinction on grounds of nationality or residence”, in principle it would be prohibited by the Treaty on the Functioning of the European Union.41 The main legal obstacle so far standing in the way of actually applying such principles and rules to the licensing of private space operators is the absence of competence at the eu level in the space sector (with the exception of satellite communications, as will be seen): liberalisation of services along the lines of the regime of the Treaty on the Functioning of the European Union requires specific Directives.42 The first instance where a principled legislative competence of the European Union in the space sector was provided for, was the (aborted) Treaty establishing a ╇ The freedom of movement of goods is provided most fundamentally by Artt. 28–37, Treaty on the Functioning of the European Union; the freedom to provide services in an eu member state different from one’s own is essentially based on a Chapter providing for the free movement of workers (Artt. 45–48, Treaty on the FuncÂ� tioning of the European Union), a Chapter providing for the right of establishment in another eu member state (Artt. 49–55, Treaty on the Functioning of the European Union) and a Chapter dealing with the provision of services as such (Artt. 56–62, Treaty on the Functioning of the European Union). All these Chapters have been elaborated by a mass of secondary eu law, that is Regulations, Directives and Regulations. 40 ╇The cjeu has jurisdiction in principle over all disputes pertaining to the interpretation, application and implementation of EU law across the European Union; cf. esp. Artt. 258, 259, 263, 265 & 267, Treaty on the Functioning of the European Union. 41 ╇ Art. 61, Treaty on the Functioning of the European Union. 42 ╇ See Artt. 59–60, Treaty on the Functioning of the European Union. 39

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Constitution for Europe.43 Unfortunately, perhaps, it was preserved in the Treaty of Lisbon only with an added caveat that the parallel competence of the Union thus established was specifically “excluding any harmonisation of the laws and regulations of the Member States”.44 On the other hand, the Treaty on the Functioning of the European Union also established a quite encompassing competition regime, which may even present a more solid basis for tackling the lack of consistency and transparency in the provision of licenses, potentially leading to market distortions. The most important clause here concerns the comprehensive prohibition on state aid, which reads: “Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, insofar as it affects trade between Member States, be incompatible with the internal market”.45 As practice has shown, the term “any aid” is usually taken literally, and although the Treaty on the Functioning of the European Union itself already allows for certain exceptions and exemptions from the application of the state aid-regime,46 these are subject to scrutiny by the eu institutions.47 Offering private space operators limits to their thirdparty liability through a national license where otherwise unlimited liability would result in itself is a form of state aid, since the state acts as de facto reinsurer for any amount of compensation beyond the limit due under the regime of the Liability Convention, thus relieving the ╇ Treaty establishing a Constitution for Europe, Rome, done 29 October 2004, not entered into force; OJ C 310/1 (2004). See Artt. III-254, also I-14(3); also e.g. S. Hobe et al., A New Chapter for Europe in Space, 54 Zeitschrift für Luft- und Weltraumrecht (2005), 346–8. 44 ╇ Art. 189(3), Treaty establishing the European Community as amended by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, Lisbon, done 13 December 2007, entered into force 1  December 2009; OJ C 115/47 (2009). See further infra, the contribution of B. Schmidt-Tedd. 45 ╇ Art. 10 7(1), Treaty on the Functioning of the European Union. 46 ╇ See Art. 107(2), Treaty on the Functioning of the European Union, on aid which ipso facto “shall be compatible with the common market”, resp. Art. 107(3), Treaty on the Functioning of the European Union, on aid which “may be considered to be compatible with the common market”. 47 ╇ Cf. Artt. 108, 109, ec Treaty. 43

138â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk company concerned of certain risks and/or costs it would otherwise incur. Offering it to licensees, read national companies, of one eu member state only, would then indeed distort or threaten to distort competition: insurance premiums in this high-risk sector form a major part of the total cost of operations, and if one eu company is offered a certain cap on its liability, whereas another is not (or a much higher cap) there can be little doubt this is a distorting factor. Most feasibly, the possibility for an exemption from application would arise on the basis of such a form of aid constituting “aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest”.48 The argument could be that the space sector is still very much in its infancy, with as of yet not that much competition occurring within the eu Internal Market anyway, and hence deserves some protection for the time being. The “common interest” referred to could well lie in the need for Europe to build up a strong space sector in order to compete with the non-European giants, where for example the us space industry would indirectly be supported (‘aided’) by the us government buying products or services exclusively from us providers.49 As indicated, the main exception to the eu rules on free movement, free provision of services and competition so far not being applicable to the space sector, is the satellite communications sector – not accidentally the one sector of space where, also in Europe, a major commercial market has arisen. Thus, here the Commission and the Council have undertaken efforts to liberalise those markets and create one single Internal Market for satellite communication services. Part of that effort was trying to ensure that the licensing of space activities at the domestic level would not result in major distortions in the level playing field. The process took off with a first Green Paper in 1987, a political document calling for liberalisation of the environment for telecommunications, as of yet excluding satellite communications in view of the special character of that sector.50 That omission was repaired when a second ╇ Art. 107(3.c), Treaty on the Functioning of the European Union. ╇ Cf. also Art. 107(3.b), Treaty on the Functioning of the European Union, allowing for the possibility to exempt aid “to promote the execution of an important project of common European interest”. 50 ╇ Towards a Dynamic European Economy – Green Paper on the Development of the Common Market for Telecommunications Services and Equipment, Communication 48 49

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Green Paper three years later addressed satellite communications specifically along the same lines.51 The general economic and legal principles asserted by those Green Papers then led to the 1994 Satellite Directive, the first piece of eu legislation on the matter.52 As its full title indicated, the Satellite Directive essentially provided for the application of some older Directives on the introduction of the Internal Marketregime in the areas of terminal equipment and service provision to the satellite communication sector.53 As of yet, this excluded the licensing process proper, but soon the Commission in particular realised that liberalising the European satellite communication markets at some point would not be possible without proper harmonisation of the national processes of licensing the operators. A true Internal Market for satellite communications could never result if major regulatory distortions following from rather divergent – not to mention non-transparent – conditions imposed by the various relevant national licensing authorities would be allowed to exist. Thus, in the decade following the enunciation of the Satellite Directive, several further pieces of eu legislation were drafted. Thus, a 1997 Decision called for a first level of harmonisation of national authorisation processes – but only for the sub-sector of personal hand-held satellite services.54 A Directive that same year harmonised the ‘framework’ for licensing of all satellite communication operators – by listing the categories of conditions that could be imposed upon licensees, leaving wide discretion to the national licensing authorities to actually apply it, from the Commission, COM(87) 290 final, of 30 June 1987; OJ C 257/1(1987); as per Council Resolution on the development of the common market for telecommunications services and equipment up to 1992, of 30 June 1988, OJ C 257/1 (1988). 51 ╇ Towards Europe-wide systems and services – Green Paper on a common approach in the field of satellite communications in the European Community, Communication from the Commission, COM(90) 490 final, of 20 November 1990. 52 ╇ Commission Directive amending Directive 88/301/EEC and Directive 90/388/EEC in particular with regard to satellite communications (hereafter Satellite Directive), 94/46/EC, of 13 October 1994; OJ L 268/15 (1994). 53 ╇ See Commission Directive on competition in the markets in telecommunications terminal equipment 88/301/EEC, of 16 May 1988; OJ L 131/73 (1988), resp. Commission Directive on the competition in the markets of telecommunications services, 90/388/ EEC, of 28 June 1990; OJ L 192/10 (1990). 54 ╇See Decision of the European Parliament and of the Council on a coordinated authorization approach in the field of satellite personal communications systems in the Community, No. 710/97/EC, of 24 March 1997; OJ L 105/4 (1997).

140â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk even if in a discriminatory fashion.55 That the whole process in this area was fraught with difficulties and resistance of certain member states against eu-level interference with their national prerogatives became clear when eleven years later it was still necessary to draft a Decision on the authorisation of mobile satellite services.56 Clearly, by that time the original aim of an eu-wide licensing process principally conducted at the eu level had effectively disappeared behind the horizon. Not being able to harmonise the licensing of satellite communication operators at the European level, it will be clear that the Union also did not manage any harmonisation so far of any attendant liability and insurance issues in that context. This, however, in the end may not be so relevant for our present perspective to the extent international thirdparty space law liability is the principal subject of attention for national licensing authorities. Such liability, as regulated under the Liability Convention, very much attaches to the states involved in the launch of a space object through the key concept of the “launching State” – and hence is essentially triggered by the practical and legal situation at the launch. This means, that also for satellite operators – and the states supposed to license them – the issue of liability as far as the Liability Convention is concerned arises only to the extent they would be involved in that launch. In other words, any flow-down consequences of liability under the Liability Convention would principally be arranged in the launch contract and the licenses for the launch, not in the context of the licenses for operating the satellites – which is what the Union has focused on, for Internal Market-related reasons. Not accidentally, in the few pieces of eu law referred to above, no clauses deal with liability potentially arising as a consequence of the international third-party space law regime in any substantive sense. Nevertheless, once a satellite operator duly licensed causes damage covered by the Liability Convention, as it will very likely be assessed to have procured the launch of the satellite at issue, the licensing state may ╇ See Directive of the European Parliament and of the Council on a common framework for general authorizations and individual licenses in the field of telecommunications services, 97/13/EC, of 10 April 1997; OJ L 117/15 (1997) 56 ╇ See Decision of the European Parliament and of the Council on the selection and authorisation of systems providing mobile satellite services (MSS); No. 626/2008/EC, of 30 June 2008; OJ L 172/15 (2008). 55

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also be implicated by that procurement and be considered to be the “State which (…) procures the launching of a space object” for the purposes of triggering the application of the Liability Convention57 – in which case the issue of whether that state can be reimbursed for any compensation paid under the license arises again. In that context, major differences in reimbursement and insurance obligations, as a result of non-transparent and flexible – and sometimes plainly absent – national licensing systems could still be considered distortions of the satellite market in Europe.

5.╇The us Model for Dealing with Liability and Insurance in the Domestic Context No doubt partly due to its large role in space activities and its principled support for private enterprise, the United States choose to take a far more detailed approach in dealing with licensing issues in the domestic context. Tailor-made licensing systems were developed for the various sectors of space where private enterprise became a player in its own right. In 1970, the 1934 Communications Act58 was declared by the Federal Communications Commission (fcc), the licensing authority for all private us telecommunication activities, to be applicable also to telecommunications involving satellites.59 Once the remote sensing sector seemed mature enough to be (partly) privatised, the 1984 Land Remote Sensing Commercialization Act60 provided for the authority of ╇ Art. I(c) sub (i), Liability Convention. It is still not unequivocally clear whether this clause applies to the state of licensing if a licensee is the actual entity ‘procuring’ the launch in the sense of paying for it; at least state practice so far differs considerably as to the extent a private entity procuring a launch requires a license, entailing obligations to reimburse compensation paid out by the licensing state and/or to insure against such events, although most of the states having actually addressed this issue extensively on a domestic level have come to accept that they qualify as ‘launching States’ in case of private procurement of the launches by their nationals. 58 ╇ Communications Act, 19 June 1934; 47 U.S.C. 151 (1988); 48 Stat. 1064. 59 ╇ See Communications Satellite Facilities, First Report and Order, 22 FCC 2d 86 (1970), Appendix C, p. 1. 60 ╇Land Remote Sensing Commercialization Act, Public Law 98–365, 98th ConÂ� gress,  H.R. 5155, 17 July 1984; 98 Stat. 451; Space Law – Basic Legal Documents, E.III.4. 57

142â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk the National Oceanographic and Atmospheric Administration (noaa) to license private parties interested in operating satellite remote sensing systems, an authority not fundamentally changed by the 1992 Land Remote Sensing Policy Act.61 Finally, now that private spaceflight – often loosely labelled ‘space tourism’ – seems about to take off, interim legislation has already been developed by the us authorities dealing with this specific new type of private space activity.62 In view of the abovementioned focus of the international liability regime emanating from the Liability Convention on the launch of a space object and the entities crucially involved in it, neither the CommuÂ� nications Act nor the remote sensing acts provided arrangements on third-party liability and insurance for it, whereas the new act regulating private spaceflight for the time being is an extension of the general legislation applicable to launch activities. This brings analysis finally to the Commercial Space Launch Act, which not only indeed deals very fundamentally with issues of thirdparty liability, including those falling within the scope of the Liability Convention, but actually constitutes a considerably more sophisticated mechanism than those provided by the states discussed before. The original version of the Act was drafted in 1984,63 then amended fundamentally in 198864 and finally codified as part of the United States Code in 1994.65 The mechanism resulting from this legislation in terms of liability starts with the determination of the “maximum probable loss”66 for each particular launch by the licensing authority, which is the Office of the Associate Administrator for Commercial Space Transportation with ╇ Land Remote Sensing Policy Act, Public Law 102–555, 102nd Congress, H.R. 6133, 28 October 1992; 15 U.S.C. 5601; 106 Stat. 4163. 62 ╇Cf. Commercial Space Launch Amendments Act, Public Law 108–492, 108th Congress, 23 December 2004, 49 U.S.C.; 118 Stat. 3974. 63 ╇Commercial Space Launch Act, Public Law 98–575, 98th Congress, H.R. 3942, 30 October 1984; 98 Stat. 3055; Space Law – Basic Legal Documents, E.III.3. 64 ╇ By means of the Commercial Space Launch Act Amendments, Public Law 100–657, 100th Congress, H.R. 4399, 15 November 1988; 49 U.S.C. App. 2615; 102 Stat. 3900; Space Law – Basic Legal Documents, E.III.3, 13â•›ff. 65 ╇ Commercial Space Transportation – Commercial Space Launch Activities, 49 U.S.C. 70101 (1994). 66 ╇ See Sec. 70112 (a)(1), Commercial Space Transportation – Commercial Space Launch Activities. 61

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the Federal Aviation Administration (faa).67 Obviously, the maximum probable loss varies depending upon the actual risk of something going wrong and the related potential size of damage caused, taking into account factors such as the size and complexity of launch vehicle and satellite, track record versus novelty of technology, and launch trajectory. The amount arrived at under the maximum probable loss determination will be inserted as cap on the liability of the licensee, including a liability to reimburse the us government in case of claims under the Liability Convention, as well as on the insurance he is obliged to take out,68 unless either no liability insurance would be available for the amount at issue “at reasonable cost” or the maximum probable loss would go beyond us$ 500,000,000, corrected for inflation, in which case the lowest amount concerned provides the cap on liability and insurance obligation.69 If an accident would occur and damage would result so as to trigger liability under the license, the licensee will have to compensate the damage up to the ceiling thus provided. In case the compensation exceeds the cap, the us government will carry the burden of such excess compensation, up to an express limit of us$ 1,500,000,000, corrected for inflation.70 As a matter of fact, however two scenarios arise here, since this arrangement applies to any type of third-party damage the us government is concerned with, both that falling within the scope of the Liability Convention and hence giving rise to liability of the United States itself and that falling outside of its scope, hence giving rise to direct liability of the private operator under us national law and before a us court.

╇ Thus bringing the licensing authority for private launches within the faa was one of the changes resulting from the 1994 codification. 68 ╇ The licensee is offered one alternative to actually taking out insurance: if he can “demonstrate financial responsibility” up to the desired level (which basically means he can prove he could pay the maximum amount concerned from his own assets), his obligation to take out insurance is waived. Cf. e.g. Sec. 70112(a)(3), Commercial Space Transportation – Commercial Space Launch Activities. 69 ╇ See Sec. 70112(a)(3), Commercial Space Transportation – Commercial Space Launch Activities. 70 ╇See Sec. 70113(a)(1)(B), Commercial Space Transportation – Commercial Space Launch Activities. 67

144â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk In the latter case, the limit of us$ 1,500,000,000 means that, effectively, liability is capped by that amount as augmented by whatever cap was imposed upon the licensee in the licensee – which, as seen, in no case could exceed us$ 500,000,000.71 In the former case, however, regardÂ�less of us law arrangements, the liability remains principally unlimited as per the Liability Convention.72 In this case, the arrangement under the us act means that the licensee will be obliged to cover a first tier of damage up to the cap included in his license – again, under no circumstances more than us$ 500,000,000. If the damage exceeds that cap, a second tier of compensation actually is at the expense of the US government, in the sense that – up to an amount of us$ 1,500,000,000 – the government accepts not being reimbursed by the licensee for that part of the international claim. In the (unlikely) event damage would exceed even the combined total of us$ 1,500,000,000 and the cap included in the relevant license, a third tier would be at stake, where the us government under the Liability Convention would still be obliged to compensate also that part – and it would be a matter for internal us law whether and to what extent the us government can de lege call upon the licensee to reimburse him for that part, too (to the extent the licensee would of course de facto have the assets to do that). This extended and detailed mechanism is rather good as it protects the victim, who has a better chance to receive appropriate compensation and has a choice of means: he can sue the company in a domestic court and does not need to use the long state-to-state procedure of the Liability Convention,73 and even so may be rather comprehensively ╇ In practice, so far the highest cap imposed by a license was us$ 261,000,000 for a Delta 4-M launch vehicle. Sometimes, caps as low as us$ 10,000,000 have been inserted in licenses, such as for small air-launches to near-earth orbits by the Pegasus company. 72 ╇ Cf. Art. XII, Liability Convention, which provides: “The compensation which the launching State shall be liable to pay for damage under this Convention 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.” 73 ╇ It may be noted that an individual victim can not be precluded from claiming in a private capacity merely by the fact that his own state has instigated proceedings under the Liability Convention; see Art. XI(2). Once private claims are being asserted 71

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compensated – with the Liability Convention’s unlimited compensation always as a stick behind the door in case of truly catastrophic-size damage. At the same time, this system also protects the us private companies, as these are provided a cap on liability respectively reimbursement, which clarifies their risk and therefore eases financing their project, and may get insurance at a reasonable cost for whatever cap is provided. It also testifies to the feasibility of a state to enact domestic legislation on space activities by private enterprise taking into consideration not only its own liability but also the possible liability of its companies. The states discussed before may be focusing on being reimbursed; the United States has chosen a more balanced approach that also supports its private industry involvement in space activities. The us arrangements as developed from the original Commercial Space Launch Act onwards also have some downsides. A first point here follows from the extended control of the us Congress as payment of a catastrophic claim is subject to the Congressional appropriation process. The claims must be presented to the Congress by the President upon the recommendation of the Secretary of Transportation, the Congress must appropriate funds to pay the claim.74 Secondly, the mechanism is not automatic, nor is it permanent, but subject to a sunset provision. Contrary to the position of the House of Representatives, which did in addition to not proposing a cap on government indemnification not include a sunset provision, the Senate Commerce, Science and Transportation Committee refused to accept such a permanent form of support. It proposed a ten years period for the cap, later changed into a five years sunset provision. It considered that this support of private launching activity was not to be unlimited and should be deleted when the insurance market will be in a position to insure the total amount of the risk.75 During the discussion of the Act before the Congress, the Senate Commerce, Science and Transportation Committee determined that it is “necessary to ensure that the risk to the however, the other way around the state concerned shall not instigate proceedings under the Liability Convention – presumably at least until the private law proceedings have been concluded. 74 ╇ See J. A. Vedda, Study of the Liability Risk-Sharing Regime in the United States for Commercial Space Transportation Aerospace Report, N° ATR-2006(5266)-1, 1 August 2006, 2. 75 ╇ See Vedda, 5–6.

146â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk Government is restricted. This is both a protection of the public treasury and a means to foster and enhance the growth of private insurance markets over the life of the legislation”.76 The indemnification mechanism is thus only offered for a limited amount of time. This sunset provision of 1988 has been extended four times since.77 Thirdly, as we have seen there is a limit to the guarantee of the state, at least when it comes to ‘national liability’, that is private claims pursued in us courts – of the cap on the licensee’s liability plus us$ 1,500,000,000, in 1988 terms. Whilst damage between us$ 1,500,000,000 and us$ 2,000,000,000 may seem astronomical in size, and a cap of that size cannot easily be imagined to be exceeded, one should not forget that in the unlikely event that a space object would hit the earth, it might do so at enormous speeds and indeed catastrophic damages may result. Fourthly, the liability arrangements are limited to the launch phase. At the highest level, the Commercial Space Launch Act itself does not make any specific reference to this point. It simply makes a license obligatory for a ‘launch’ with all the attendant requirements to be included in the license – which do not, however, specify anything as to the definition of that launch or the coverage of third-party liability and/or indemnification clauses: the licensing authorities “shall specify the period for which the license issued or transferred under this chapter is in effect”.78 At the second level, the Code of Federal Regulations then provided to a limitation of the insurance period as follows: “Insurance coverage (…) or other form of financial responsibility, shall attach upon commencement of licensed launch activities, and remain in full force and effect as follows: (1) Until completion of licensed launch activities at the launch site; and (2) For orbital launches, until the later of — (i) Thirty days following payload separation, or attempted payload separation in the event of a payload separation anomaly; or (ii) Thirty days from ignition of the launch vehicle.”79 Thus, the problem of definition of the concept, both as to the beginning and end of the operations of ‘launch’, and thus of how extended the ╇ Senate Report 100–593 on H.R. 4399, Commercial Space Launch Act Amendments of 1988, October 7, 1988. Quoted by Vedda, 6; see also 11. 77 ╇ In 2005 it was extended until 31 December 2009. 78 ╇Sec. 70101(a), Commercial Space Transportation – Commercial Space Launch Activities. 79 ╇ Sec. 440.11, 14 C.F.R. 76

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application of the Act in fact was, was left to the third level.80 Here, the faa presents different definitions of the end of launch and “in the interest of safety” stands to its position “to define the end of a launch as the point after payload separation when the last action occurs over which a licensee has direct or indirect control over the launch vehicle”. When dealing with financial obligations, insurance coverage applies “until completion of licensed launch” and until the later of thirty days following payload separation or thirty days after ignition of the launch vehicle.81 The conclusion here should be that after the launching phase so defined, the Commercial Space Launch Act and its financial guarantee do not apply any more to damage occurring on earth or in orbit. The support of the us government concentrates on the launching activity and not on life in orbit where the risk is considerably lower. The Regulations together thus clarify the duration of obligations to thirty days alternatively – at least for suborbital launches – the time when according to “the risk analysis conducted before the launch to determine [the Maximum Probable Loss] and specified in a licence order”, the “risk to third parties and Government property (…) is sufficiently small that financial responsibility is no longer necessary”.82 The period during which the liability and indemnification system applies is only thirty days, which means that on the one hand for instance the obligation of the Act related to insurance lasts only during the launching period stricto sensu, and on the other hand that the indemnification

╇ The end of the launch is thus not considered in the regulations themselves but only in the introduction to the Final Rule; see Kayser, 133, quoting (1997) Federal Register, 13215, effective 21 June 1999: “The faa notes that the end of launch may be expressed both in terms of flight activity and ground operations. For purposes of flight, the faa will continue to define the end of a launch as the point after payload separation when the last action occurs over which a licensee has direct or indirect control over the launch vehicle. For a liquid-fueled stage, that point may be when any remaining fuel is emptied from the upper stage, the vehicle propellant and gas tanks are vented and other stored energy is released. For solid rocket motors, that point may arrive when the upper stage fuel is expended or the stage is inert, and the payload is released. For purposes of ground operations, launch no longer ends with the cessation of supporting ground operations but when the vehicle leaves the surface.” 81 ╇ 14 C.F.R. Sec. 440.11, “Duration of coverage for licensed launch, including suborbital launch, or permitted activities; modifications”. For reentry, see Sec. 440.12, “Duration of coverage for licensed reentry”. 82 ╇ 14 C.F.R. Sec. 440.11(a)(3)(ii). 80

148â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk mechanism lasts only during thirty days – and not during the whole life in orbit of the satellite. The Act was not intended to deal with satellites in orbit, but only with launches and reentry. The control over satellites in orbit is maintained, to the extent it is, by other administrations like the National Oceanographic and Atmospheric Administration (noaa) for remote sensing satellites and the Federal Communications CommisÂ�sion (fcc) for satellite telecommunications.83 So far the only example more or less following the us approach concerns Australia – accidentally or not, also a non-European state – which also has developed a rather detailed system for authorising private space activities. To begin with, it knows essentially of four types of licenses: (1) a “launch permit” for the launch of space objects from Australian territory or the return to Australia of space objects launched from Australia;84 (2) an “overseas launch certificate” for launch activities by Australian nationals conducted outside Australia;85 (3) an “authorisation” for the return to Australia of space objects launched elsewhere;86 and (4) a “space license” for the operation of a launch facility on Australian territory.87 For each of those, a separate set of requirements applies.88 As for liability, the Act specifically refers in its definitional section to the Liability Convention, as well as distinguishing between liability periods in the context of the launch respectively the return of space objects covered by the Act.89 In further scoping the application of the liability arrangements under the Act, specific reference is made to cases where “Australia is a launching State in relation to the object.”90 ╇See supra, text at nn. 58–61. ╇ See Secc. 11, 13, An act about space activities, and for related purposes, No. 123 of 1998, assented to 21 December 1998; as amended by amending legislation up to No. 100 of 2002. 85 ╇ See Sec. 12, An act about space activities, and for related purposes. 86 ╇ See Sec. 14, An act about space activities, and for related purposes. 87 ╇ See Sec. 15, An act about space activities, and for related purposes. 88 ╇ Cf. Secc. 18(a), (b) & (d), 26(3)(c) & (e), 29(a)â•›), 43(3)(a) & (c) & 44(a)â•›), An act about space activities, and for related purposes. 89 ╇ See Sec. 6, An act about space activities, and for related purposes, ref. definitions of “Liability Convention” and “liability period”. 90 ╇ Sec. 63(1) sub (ii), (2A) sub (ii), An act about space activities, and for related purposes. Also Sec. 64(2) clearly establishes the link between the part on liability and the specific scenario of third-party liability for Australia under the Liability Convention. 83 84

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The logical relationship thus established between domestic reimbursement obligations and the international liability of Australia as a consequence of qualifying as the “launching State” also means that the former are essentially limited to the launch permit and overseas launch certificate.91 The authorisation pertains to a space object launched elsewhere, so that Australia does not need to consider itself a launching state since at least one other states will qualify as such, whereas the space license concerns the operation of a launch facility, which as soon as involving a launch itself, requires a launch permit in addition. The basic requirement in case of a licensee’s activity leading to damage compensable under the Convention is full reimbursement of the Australian government: “the responsible party for the relevant launch or return is liable to pay (…) an amount equal to (…) the amount of that compensation”.92 However, the possibility for obtaining a limit to the reimbursement obligation by means of the launch permit or the overseas launch certificate is then offered;93 the limit being applicable “to the extent that the amount of the compensation would exceed the insured amount” subject to a few conditions amounting to compliance with the other conditions of the permit or certificate as well as absence of intent to cause damage or gross negligence.94 The abovementioned “insured amount” may also be replaced by an alternative ‘guarantee’: the requirement is considered fulfilled also if “the holder has, in accordance with the regulations, shown direct financial responsibility for the launch or return for an amount not less than the amount that would otherwise have been applicable”.95 As to that

╇ Interestingly, as the overseas launch certificate by definition applies to launches conducted outside Australia, the mere fact that they are conducted by Australian nationals apparently is interpreted by the Australian authorities as giving rise to potential Australian liability under the Liability Convention, either because a launch by Australian nationals is equated to a launch by the Australian state for the purpose of the Convention (cf. Art. I(c), Liability Convention, sub (i): “A State which launches (…) a space object”) or because it is equated to a launch procured by the Australian state (cf. Art. I(c), Liability Convention, sub (i): “A State which (…) procures the launching of a space object”). 92 ╇ Sec. 74(2) sub (a), An act about space activities, and for related purposes. 93 ╇ See Sec. 69(1), resp. (2), An act about space activities, and for related purposes. 94 ╇ Sec. 69(3), An act about space activities, and for related purposes, further §§ 1 & 2. 95 ╇ Sec. 47(2) sub (b), An act about space activities, and for related purposes. 91

150â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk “amount”, it is then limited by a complex procedure providing for a ‘maximum cap’ of A$ 750,000,000.96 That is not to say that an authorisation can be obtained without any liability coverage. An authorisation also requires compliance inter alia with the insurance (alternatively financial responsibility) requirements above; the main difference is that the holder of an authorisation can not avail himself of the limits to liability, only of the limits to insurance. In other words, differently from the holder of a permit or certificate, the holder of an authorisation will be held liable beyond his insurance or financial responsibility in case the damage surpasses the latter; there is no principled protection from betting the company here.97 The requirements for a space license, however, indeed are – at least as far as the Act itself is concerned – not inclusive of requirements regarding liability reimbursement or insurance.98

6.╇ The French Case Prior to 2008 France for a long time has chosen an altogether different approach to authorising and continuously supervising private space activities for which it might be held internationally responsible and/or liable: not by means of either a framework law or a detailed national legal regime, but by de facto control of the private activities arising in the French context. The most obvious example is the launch service sector, in view of the direct relationship between launch activities and issues of liability. ╇ See Sec, 48(3), An act about space activities, and for related purposes; actually the cap can be less than that amount if “(a) the amount of the maximum probable loss that may be incurred in respect of damage to third parties caused by the launch or return, as determined using the method set out in the regulations; or (b) if the regulations set out a different method of determining a minimum amount for the purposes of this subsection – the amount determined using that method”. It may be pointed out, that the us Commercial Space Launch Act, as discussed, has roughly the same method of arriving at a limit of insurance or financial responsibility, quoting a figure of us $  500,000,000 as the ‘maximum cap’. As of 2 February 2009, this equals roughly A$ 782,000,000: Australia clearly wants to be on a par with the United States here! 97 ╇ Cf. in conjunction Sec. 43(3.b), 48(1), 69 & 74, An act about space activities, and for related purposes. 98 ╇ See Secc. 18–20, An act about space activities, and for related purposes. 96

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France houses Arianespace, currently the world’s number one in the commercial space launch services market, and undoubtedly a private company.99 It is also undoubtedly a French private company from a legal perspective, established under French law and headquartered in the French city of Toulouse. Moreover, it launches exclusively (so far) from the Kourou launch site in French Guyana, a piece of South-American territory falling under French sovereignty. Nevertheless, there are also some profound reasons why France could not – and did not – simply on its own take care of Arianespace activities, easily invoking responsibility and liability of the French state under international space law, by a national licensing regime. Arianespace was using Ariane launch vehicles, which had been developed under various optional programmes of the European Space Agency (esa)100, even if France had been the leading partner. Its operations from Kourou still required substantive support by esa, including the use of key facilities there. And finally, most of the other esa member states had private companies as substantial shareholders in Arianespace – albeit that the majority of shares were in French hands, and the majority within that majority was in the hands of the French space agency cnes. Thus, the normal functions of a license vis-à-vis private companies were taken care of, on the one hand, by the de facto control of cnes, a French government body, over the activities of Arianespace, and on the other hand by a triangle of legal documents involving Arianespace, France and esa. Firstly, there is the Arianespace Declaration of 1980, which was regularly renewed since.101 Under this Declaration, the member states of the European Space Agency participating in the commercialization of Ariane by means of Arianespace amongst others undertake to support ╇See Statuts de la Société Arianespace, 26 March 1980. ╇ Cf. Artt. V(1.b), XIII(2), Convention for the Establishment of a European Space Agency, Paris, done 30 May 1975, entered into force 30 October 1980; 14 ILM 864 (1975); Space Law – Basic Legal Documents, C.I.1; ‘optional activities’ are those programmes where member states have the option to opt out of, alternatively have the possibility to determine their own level of contribution – as opposed to ‘mandatory activities’ where all member states have to contribute at predetermined levels; cf. Artt. V(1.a), XIII(1). 101 ╇ Declaration by Certain European Governments Relating to the Ariane Launcher Production Phase (hereafter Arianespace Declaration), done 14 January 1980, entered into force 15 October 1981; 6 Annals of Air and Space Law (1981), at 723. ╇99 100

152â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk Arianespace in many ways.102 Furthermore, a Convention was signed between esa and Arianespace providing for more details regarding inter alia the obligations of esa in respect of Arianespace and vice versa.103 Finally, an agreement was concluded by means of a continuing series of protocols between France and esa concerning the use of the Centre Spatial Guyanais (csg).104 Specifically on the issues of licensing and insurance, the legal framework imposed upon Arianespace with respect to its launch operations proceeded from the assumption that it is in first instance the liability of France as a launching state which needs to be taken care of, because its territory is used for all Arianespace’s launching activities.105 At the same time, however, also esa qualifies as a ‘launching State’ under the definition of Article I(c) of the Liability Convention at least as far as the substance is concerned, in view of the use of its Kourou facilities, and, in many cases, its procurement of the launch contract.106 In the csg Agreement, France then legally protects esa and its member states against claims arising from launch activities undertaken by Arianespace.107 In fact one should distinguish between two different cases. For the launches operated for esa programs, including the three first Ariane development launches (such as the first ones with Ariane 5), esa is liable and will safeguard France from any claims for damage – excluding wilful misconduct by the French government or its agencies. By contrast, in cases between Arianespace and France where commercial launches of Arianespace lead to international third-party liability claims against France, Arianespace would be required to reimburse ╇ For example, by giving it preferential treatment in respect of launches of their space objects. See Art. 1(3.b) and (3.c), Arianespace Declaration; cf. further Art. 1(7), (8) and (9). In addition, Arianespace is supported by esa in many other ways. See e.g. Art. 2, Arianespace Declaration. 103 ╇ Convention between the European Space Agency and Arianespace (Arianespace Convention), signed 24 September 1992. 104 ╇ Agreement between the French government and the European Space Agency with respect to the Centre Spatial Guyanais (csg) (hereafter csg Agreement). Also this Agreement was regularly renewed. 105 ╇ See e.g. Artt. 3(9), 4(1), Arianespace Declaration. 106 ╇ Cf. Art. XXII, Liability Convention, and esa’s Declaration of the acceptance of rights and obligations under the Liability Convention; Declaration of 23 September 1976; Space Law – Basic Legal Documents, A.III.2, p.1. 107 ╇ See Art. 11(3), csg Agreement. esa member states could in the end also qualify individually as launching states; cf. Artt. V, XXII in toto, Liability Convention. 102

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the French government up to a maximum amount of FF 400 million (now some € 61 million).108 Hence, France effectively acted as an insurance provider for Arianespace for any amount of damage occurring in a single accident which exceeds FF 400 million. Interestingly, in view of the complicated legal situation surrounding Arianespace launches, somewhat complicating also the clear distinction of third-party liability from inter-party liability, as to the latter the European Space Agency agrees to waive all claims for compensation against France, in as far as these claims result from launch operations at the Centre Spatial Guyanais.109 The exception provided here pertains to damage caused by “faute lourde, (…) acte ou (…) omission déliberés” on the French side.110 This phrase should probably be translated as ‘wilful misconduct’ or ‘gross negligence’, but it is apparently for French courts to interpret when legal disputes arise on the matter.111 The same structure – of de facto control – essentially applied to the other French private space company operating already for a number of years: Spot Image. In 1986, cnes had launched the spot-1 satellite, with involvement of both Sweden and Belgium on a minority-share basis, while Italy later also stepped in. Already in 1982, the private company Spot Image had been incorporated under French law and established in Toulouse to market and sell the remote sensing data collected by the spot satellites yet to be launched. Shareholders in Spot Image came, apart from France, from Belgium, Italy and Sweden, the other states involved in financing the spot program. Spot Image, like Arianespace, was created in 1982 as a “Société Anonyme” and subsidiary to cnes which was moreover the largest single shareholder. Spot Image is now owned for 98,9% by eads Astrium. Differently from the case of Arianespace, however, there was no discernible special need to arrange for third-party liability with a view to the Liability Convention: either Spot Image would be launched upon an ╇ See Art. 3(9), Arianespace Declaration, in conjunction with Art. 4(1), restating the undertaking by the French government to answer international third-party liability claims flowing from Arianespace’s activities. 109 ╇ See Art. 13(1), csg Agreement. 110 ╇ Art. 13(2), csg Agreement; see also Art. 11(1). 111 ╇In principle this Declaration as modified in 2001 is not published, see however http://www.admin.ch/ch/f/rs/0_425_123/index.html. The text of the decision to extend the 1980/2001 Declaration until 2008 is available in English at http://www .official-documents.gov.uk/document/cm70/7033/7033.pdf. 108

154â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk Ariane vehicle, in which case French third-party liability was already dealt with through the aforementioned construction pertaining to Arianespace, or it would be launched somewhere else, in which case France could only be argued to a “launching State” in an indirect fashion at best.112 Beyond Arianespace and Spot Image, lately with the privatisation of France Telecom as the French entity enjoying access to the interÂ� national satellite networks of the old intelsat113, inmarsat114 and eutelsat115, as well as with the privatisation of the latter so as to ╇ See also p. 142, supra. ╇The old intergovernmental organisation intelsat was established by the AgreeÂ�ment Relating to the International Telecommunications Satellite Organization (intelsat), Washington, done 20 August 1971, entered into force 12 February 1973; 1220 UNTS 21; TIAS 7532; 23 UST 3813; UKTS 1973 No. 80; Cmnd. 4799; ATS 1973 No. 6; 10 ILM 909 (1971); and the Operating Agreement Relating to the International Telecommunications Satellite Organization (intelsat), Washington, done 20 August 1971, entered into force 12 February 1973; 1220 UNTS 149; TIAS 7532; 23 UST 4091; UKTS 1973 No. 80; Cmnd. 4799; ATS 1973 No. 6; 10 ILM 946 (1971). intelsat was then privatised by means of the Agreement Relating to the International Telecommunications Organization (ITSO), Washington, done 20 August 1971, entered into force 12 February 1973, as amended 17 November 2000, amended version not yet entered into force but applied provisionally 18 July 2001; Space Law – Basic Legal Documents, C.V.1. 114 ╇The old intergovernmental organisation inmarsat was established by the Convention on the International Maritime Satellite Organization (inmarsat), London, done 3 September 1976, entered into force 16 July 1979; 1143 UNTS 105; TIAS 9605; 31 UST 1; UKTS 1979 No. 94; Cmnd. 6822; ATS 1979 No. 10; 15 ILM 1052 (1976); and the Operating Agreement on the International Maritime Satellite Organization (inmarsat), London, done 3 September 1976, entered into force 16 July 1979; 1143 UNTS 213; TIAS 9605; 31 UST 1; UKTS 1979 No. 94; Cmnd. 6822; ATS 1979 No. 10; 15 ILM 233, 1075 (1976). inmarsat was then privatised by means of the Convention on the International Mobile Satellite Organization, London, done 3 September 1976, entered into force 16 July 1979, as amended 1998, amended version entered into force 31 July 2001. 115 ╇ The old intergovernmental organisation eutelsat was established by the Convention Establishing the European Telecommunications Satellite Organization (eutelsat), Paris, done 15 July 1982, entered into force 1 September 1985; Cmnd. 9069; Space Law – Basic Legal Documents, C.II.1; and the Operating Agreement Relating to the European Telecommunications Satellite Organization (eutelsat), Paris, done 15 July 1982, entered into force 1 September 1985; Cmnd. 9154; Space Law – Basic Legal Documents, C.II.2. eutelsat was then privatised  Â� by  means  of  the Convention Establishing the European Telecommunications Satellite Organization (eutelsat), 112 113

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become a French company, Eutelsat, more private entities became fundamentally active in outer space for which France might directly be held liable, which started to threaten this system of de facto control – hence steps were taken to draft a proper French national space law.

7.╇ The 2008 French Law on Space Operations In 2004 the French Prime Minister asked the Conseil d’Etat116 to study the legal framework for space activities in France. A working group was created and proposed a draft of a law which was adopted by the government on April 2007 and passed as a law, the French Law on Space Operations, in June 2008.117 This text was elaborated by three decrees in June 2009, of which one is relevant here: Decree 2009-643.118 A control mechanism is created for every activity in outer space which may cause France to be responsible according to Article VI of the Outer Space Treaty or liable under Article VII and the Liability Convention. Space operations are defined as “any activity consisting of launching or attempting to launch an object into outer space or in assuring control of a space object throughout the duration of its sojourn in outer space, including on the Moon and other celestial bodies, and also including where relevant at the time of its return to Earth”.119 Through the notion of “control of a space object” the application of the French Law on Space Operations is much larger than the us Commercial Space Launch Act which only applies to the launch itself; the former also includes the life in orbit of satellites and other space objects. done 15 July 1982, entered into force 1 September 1985, as amended 20 May 1999, amended version not yet entered into force but applied provisionally 2 July 2001; Space Law – Basic Legal Documents, C.II.1. 116 ╇ Pour une politique juridique des activités spatiales, Conseil d’Etat, Etudes du Conseil d’Etat la documentation française, Paris, 2006. 117 ╇ Law on Space Operations (Loi relative aux opérations spatiales) (hereafter French Law on Space Operations); Loi n° 2008-518 du 3 juin 2008; 34 Journal of Space Law (2008), at 453; unofficial translation 34 Journal of Space Law (2008), at 453. 118 ╇ Decret No. 2009-643 relatif aux authorisations délivrées en application de la loi no. 2008-518 du 3 juin 2008 relative aux operations spatiales (hereafter Decree 2009643); Journal Officiel de la République Française 10 June 2004, text 30 of 154. 119 ╇ Art. 1(3), French Law on Space Operations.

156â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk There is an obligation to get an authorisation for any operator who intends to proceed to a launch from the French territory or using a facility under French jurisdiction (the criterion of the territory or facility of launch), any French operator projecting to “assure control of such an object throughout the duration of its sojourn in outer space” (the obligation to control national activities120), or to launch a space object from a foreign territory or from a territory not subject to any state sovereignty (the criterion of the state which launches and procures the launch). The transfer of an authorised space object and the transfer of a space object to a French company are subject to prior authorisation.121 In order to ease the authorisation process for operators usually involved, a “license” mechanism has also been created. The “authorisation” is given for a specific activity; a “license” may be awarded to an operator which operates in outer space on an ongoing basis. 7.1.╇ The Authorisation Process A file containing every information required by the Decree is transmitted to the Minister in charge of outer space activities, which is currently the Minister of Research. It is then transmitted to cnes which controls the conformity of the system and procedures with the technical regulations in order to ensure public security and protection of the environment. It may ask for some complementary information. The President of cnes gives his advice within two months from the date of registration of the file. If the operator has a license, the delay is reduced to fifteen days.122 The Minister has four months to decide (or one if the claimant is a licensee); he may extend the delay by two month by a motivated decision. Decree 2009-643 elaborates the requirements for authorisation. They are both administrative and technical. The administrative part deals with moral, financial and professional qualifications of the operator; the technical one provides a description of the operation, quality control mechanism, environmental impact assessment, prevention of the risks of the operation including mitigation of space debris, prevention of

╇ See Art. VI, Outer Space Treaty. ╇ See Art. 3, French Law on Space Operations. 122 ╇ See Artt. 2, 3, Decree 2009-643. 120 121

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collision, potential nuclear risks and risks related to planetary protection.123 A license may be obtained by habitual operators; its requirements mostly regard the qualification of the operator itself and his financial obligations. If the operator is licensed, his authorisation process will be eased or even waived for such habitual activities.124 The controlling authority is the Minister in charge of outer space with an important technical advising role for the French space agency cnes. An obligation of insurance or financial guarantees is set by Article 6 of the Law on Space Operations and elaborated by Articles 16 through 18 of Decree 2009-643. The financial guarantees take the form of an insurance but also of other various financial guarantees or assets. If it is impossible to obtain coverage under the current status of the insurance market, the Minister in charge of space and the Minister of Finance may exempt the operator from this obligation for a limited time.125 The Minister in charge of space may also exempt the operator of the obligation of insurance or guarantee for a geostationary satellite as long only as it maintains its position. The obligation thus applies only for change of orbit or orbital position.126 Chapter III of Decree 2009-643 deals with the difficult problem of launch from a foreign territory or from facilities under the jurisdiction of a foreign state. In that case, France is of course a ‘launching state’ at least as a state procuring the launch but is not in a position to control efficiently the operations. Article 12 decides that in that case the claimant provides for every element to appreciate the guarantees required by Article 4 of the Law on Space Operations exempting him from the conformity control. The Minister may accept this exemption or not. His refusal must be motivated. This solution is not very convincing because in practice it would be impossible to control activities conducted on the territory of a foreign state. The solution is not to require less information but to regulate and streamline the application of these requirements by passing agreements between the two launching states. These agreements should deal with the sharing of the obligation to indemnify the

╇ See Art. 1, Decree 2009-643. ╇ See Art. 4, French Law on Space Operations. 125 ╇ See Art. 17, Decree 2009-643. 126 ╇ See Art. 18, Decree 2009-643. 123 124

158â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk victims according to the phase. As far as the launching phase is concerned, the state of the launch should pay and guarantee the state procuring the launch. Reciprocally, the state procuring the launch should pay for the in-orbit phase and guarantee the state of the launch in case of an accident during this phase. Any activity involving the control of a space object is subject to authorÂ�isation. In case of a transfer of the control of a space object, an authorisation is needed. If the transferee is not subject to implementation of the French Law on Space Operations, the situation is more complex. We know the difficulty: under the Liability Convention France is going to remain a liable ‘launching State’ without having real control over the transferred space object. On this issue Decree 2009-643 is not efficient – and moreover it is not in accordance with the current international legal framework. The liability issue is not really dealt with. The text asks for a proof of a transfer of registration of the object and its notification to the un Secretary General. In fact, most of the time this may not be possible as, for the time being, the transfer of registry of a space object is not possible if the state of the transferee is not one of the original launching states, because, according to Article 1 of the Registration Convention,127 only a launching state can register a space object. Contrary to the solution in the us Commercial Space Launch Act, the control is not conducted by an independent body; the conscious choice was made to give cnes a central role in this respect. This may lead to a conflict of interests as cnes now acts both as judge and party. As a major shareholder of Arianespace and in charge of the Kourou launch port, it may have to appreciate the security of the competing launch ports when an authorisation is required for a launch from outside France. The authorisation or the license may be withdrawn in case of disrespect or if the operation could be a risk for France’s defence or respect of its international obligations.128 ╇Convention on Registration of Objects Launched into Outer Space (hereafter RegistraÂ�tion Convention), New York, done 14 January 1975, entered into force 15 September 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975). 128 ╇ See Art. 15, Decree 2009-643. 127

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7.2.╇ Responsibility, Liability and Financial Obligations France being a launching state because of its territory in French Guyana, the legal situation is rather close to the us one. Thus the rationale of the mechanism follows closely the us Commercial Space Launch Act. Like the United States, France wants to support its space activities, especially the launching industry. It wants to avoid pushing operators towards a ‘bet the company’ behaviour. Its financial obligations are limited to a certain amount in order to obtain insurance and to clarify the financial risk of the operation. As in the us Commercial Space Launch Act, this limitation applies both if the victim chooses to use the protection of the Liability Convention129 or to sue the operator before a domestic judge.130 In both cases the ceiling applies and the government is going to pay if the damage exceeds it. Article 14 of the French Law on Space Operations deals with the possibility of the state to “take recourse action against the operator who has caused the damage having pledged the international liability of France”. If the operation was not authorised under the Law or in case of a deliberate fault, the ceiling of Articles 16 and 17 do not apply. Article 15 of the Law consider “the case where an operator has been ordered to indemnify a Third Party for damage caused by a space object used within the framework of an operation authorised by implementation of this present Law and provided the operation in question was conducted from French territory or from the territory of another Member State of the European Union” except in case of a deliberate fault. A distinction is made between two phases: the launch phase itself and the in-orbit phase. The launch phase “begins at the moment when the launch operations become irreversible and (…) terminates when the object destined to be placed in outer space is separated from the launcher”. The “in orbit phase” called “control phase” begins at the separation from the launcher and ends either after a de-orbiting manoeuvre and passivation, return to earth or disintegration in the atmosphere or if the operator has lost control of the object.131 ╇ See Art. 14, French Law on Space Operations. ╇ See Art. 15, French Law on Space Operations. 131 ╇ Art. 1(5), French Law on Space Operations. 129 130

160â•…â•…A. Kerrest de Rozavel & F.G. von der Dunk For the launches from French territory, in fact currently from the Kourou Space Centre, a ceiling is set at the level of 60,000,000 € (equivalent to the former FF 400,000,000). The operator must get an insurance for this amount. In case of an accident, the insurance will cover the cost up to this level; to the extent the damage would rise above that amount, the French government will pay. This amount includes both damages to the launch pad or any installation on the ground even on the French territory132 and damage to third parties whether they are caused on the earth or in outer space and whether they are liable under the Liability Convention or not.133 Contrary to the us Commercial Space Launch Act, there is no limit here to this payment – but this supportive clause applies only to launches from France. During the in-orbit phase this mechanism also applies. A ceiling is set, in case of damage the operator has to pay up to that ceiling and the government will take over the cost above this ceiling. But for this phase, only damage on earth is taken into consideration, not damage in orbit. As there is extremely little risk of damage on earth for geostationary satellites, this constitutes an important limit for satellite telecommunication operators such as Eutelsat SA. During the discussion within the parliament, the draft has been modified in order to limit the liability of the operators. This is considered in Article 13, last paragraph, of the Law on Space Operations. For the time being the real effect of this Article is not quite clear. The first part of Article 13 copies the Liability Convention, making the operator ‘fully liable’ for damage caused on the ground or in air space but requiring that a fault is proven for damage caused elsewhere. The second paragraph is more controversial: “Except in the event of deliberate fault, the liability set out in 1 and 2 above shall cease when all obligations set by the authorisation or licence have been met, or at the latest one year after the date when these obligations should have been met. The Government replaces the operator in the event of any damage caused after this date.” This provision seems to put the burden of the obligations related to space debris on the government, whether or not the obligations for the authorised private operator under the Law are met. The question is: what about damage in orbit involving a space objet after the period of ╇ Art. 15 in fine, French Law on Space Operations. ╇ For instance if the victim is a French citizen.

132 133

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authorisation? Is the liability really transferred to the government? Is it the case even if the victim decides to sue the operator himself? The burden of the risk is then completely transferred to the state, which seems to be paradoxical because it would mean that during the applicability of the authorisation the government would only be partly liable (namely over the ceiling) whereas for the period after the one authorised it would be fully liable even if the obligations of the authorisation had not been fulfilled or if the launch was made outside France. This provision therefore has to be clarified. In any case this kind of provision limiting the liability applies only if the French law applies. Given the very international character of the activity, such a solution for a limitation of the liability had been avoided in the draft proposed by the Conseil d’Etat working group because it is not applicable in case of an action outside France’s jurisdiction and may open the door to forum shopping. Articles 19 and 20 deal with the question of liability between persons having participated in the activity and protect both from legal actions. It sets a reciprocal waiver of liability for the benefit of the operator and of the persons taking part. Here also the problem of the application of the French Law on Space Operations applies; strong contractual links are still needed in order to avoid action outside the French jurisdiction.134

╇ Cf. the symmetrical obligation of cross waivers of liability under the us Commercial Space Launch Act, Sec. 70112(b).

134

Chapter Five Insurance in the Context of National Authorisation C. Gaubert* 1.╇Introduction The risks of launching satellites and rockets include a degree of third party liability risk. These risks can be summarised as follows: •  Pre-launch operations risks – mainly concerned with property damage and bodily injury arising out of a pre-launch accident. Although all pre-launch operations involve hazardous materials and substantial handling risks, the majority of this exposure is limited contractually by mutual hold harmless provisions so that each party involved is responsible for damage or injury to their own property and eÂ� mployees. •  Launch operations risks – mainly concerned with the ballistic risk of the launch vehicle and satellite during the initial launch flight and up until the insertion of the satellite into orbit. These risks are managed by range safety procedures but there is a residual degree of risk to bystanders and surrounding property in the event of a launch vehicle failure or anomaly. •  Specific in-orbit operations risks – for low earth orbiting spacecraft and launch vehicle stages, these arise out of the process of re-entry. For all spacecraft, and launch vehicle stages, the risk of collisions with other satellites is also a concern once in orbit. The launch risk and the possibility of damage caused by the return to earth of the spent stages of the launch vehicle, was the emotive issue *╇ This contribution was written with the support of Nicola Greves and Jason Armitage.

164â•…â•…C. Gaubert which first caused international preoccupation with space third-party liability in the context of international law. The Liability Convention,1 the un Convention on the subject, is part of a broad spectrum of treaties agreed in the earliest days of the ‘space race’, and is now, to some extent, less than adequate given the developments and changes brought about by the multinational commercial exploitation of space. Historically, launch service providers have taken control of the Â�situation by either providing a policy to cover third-party liability arising  out of launch operations at the launch site on behalf of all parties involved, or by establishing a standard form of coverage which others are able to access on the open insurance market. Currently most launch services providers include or offer launch liability cover as part of the launch service. The policy must meet the demands of the international treaties (the Outer Space Treaty2 and the Liability Convention) as well as respond to any local statutory or licensing requirements and the applicable conventional liability regime at the location. Some aspects of the Liability Convention should be noted in particular: 1.╇It has the status of a treaty and imposes joint and several liability on the signatory governments to other governments for damage caused by a space object for which they are the “launching State”.3 As one can imagine, this has become a key issue for multi-national programs, Â� as the respective liability of participating countries can be difficult to determine.

╇ Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971). 2 ╇ Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967). 3 ╇ Art. VII, Outer Space Treaty, provides: “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to 1

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2.╇Liability for damage caused on the ground or to aircraft in flight is absolute, that is, the launching state is liable to other governments for all such damage caused by its space objects. 3.╇Fault must be established with respect to damage to other spacecraft. 4.╇A launching state’s liability survives for all time, even for derelict objects. 5.╇The remedies provided by are available solely between governments and stipulate procedures within a diplomatic context. It does not apply to damage caused in the launching state(s) and does not preclude injured parties from pursuing other judicial remedies. In consequence, many governments have developed a regime under which it is illegal to conduct space operations without a licence. The required licence is issued subject to the imposition of a hold harmless provision in favour of the government. The government may also require satisfactory evidence of adequate insurance, but the amount of insurance required should not be seen as limiting liability. The purpose of this contribution is (in paragraph 2) to draw the most accurate picture possible of the current situation in respect of the Â�liability and insurance requirements of national laws, to examine the current status of the space third-party liability insurance market (paragraph 3.1) and the structure of a third-party liability insurance policy Â�(paragraph 3.2) and finally, to consider how such policies comply with national laws (paragraph 4).

2.╇ Analysis of Some National Laws It is worth distinguishing the space law regimes of different European countries; we will focus on those of Sweden, Belgium, the Netherlands, the United Kingdom and France. All ‘laws’ relating to space provide the legal and regulatory framework relevant to individuals and entities carrying out space-related activities. its natural or juridical persons by such object or its component parts on the Earth, in air or in outer space, including the moon and other celestial bodies”. See further Artt. I(c), II, III, Liability Convention.

166â•…â•…C. Gaubert The scope of individual national liability varies from one country’s legal regime to another and is not always consistent with that set out by the Liability Convention. For example, an operator’s liability may be limited in time or to a minimum amount of insurance protection above which the state will step in and guarantee up to a specified amount, or in some cases, offer unlimited protection. All legal regimes are unanimous in excluding claims from third parties for direct and indirect damages arising out of signal defect. One should also note a major difference in us law4 under which Â�liability cover is imposed only in respect of launching activities and not for other activities such as in-orbit operations. As far as European legal systems are concerned, liability does not terminate after launch of a spacecraft. The approach taken by European governments is understandable given that the liability of the launching state continues after launch of a space object. Under French law,5 the liability of the launching agency and satellite operator extends to both the launch and in-orbit phase operations and compliance with the stipulated legal requirements is mandatory during both phases. Dutch space law and Belgian space law are applicable to ‘space activities’ defined as being the launch and the flight operation or guidance of space objects in outer space.6 The Swedish Act also applies

╇This is the Commercial Space Launch Act, codified as Commercial Space Transportation – Commercial Space Launch Activities, 49 U.S.C. 70101 (1994). 5 ╇ See Art. 1(3), Law on Space Operations (Loi relative aux opérations spatiales) (hereafter French Law on Space Operations); Loi n° 2008-518 du 3 juin 2008; 34 Journal of Space Law (2008), at 453; unofficial translation 34 Journal of Space Law (2008), at 453. “Space operation” means any activity consisting in launching or attempting to launch an object into outer space or to control a space object during its travel in outer space, including the Moon and other celestial bodies, as well as, if applicable, upon its return to Earth. 6 ╇See Sec 1(b), Law Incorporating Rules Concerning Space Activities and the EstabÂ�lishment of a Registry of Space Objects (hereafter Dutch Space Law), 24 January 2007; 80 Staatsblad (2007), at 1; Nationales Weltraumrecht / National Space Law (2008), at 201; respectively Art. 2(1), Law on the Activities of Launching, Flight Operations or Guidance of Space Objects (hereafter Belgian Space Law), 17 September 2005, adopted 28 June 2005; Nationales Weltraumrecht / National Space Law (2008), at 183. 4

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to activities in outer space.7 The uk Outer Space Act governs the space activities for the launch and in-orbit phases.8 The French legal regime on space operations is the only one which follows the framework set out by the un space treaties of absolute liability and fault liability9 as well as providing for exclusive liability on the part of the space operator. Liability is limited in terms of amount and this is the minimum amount of insurance that operators are required to purchase;10 above this amount, the French government will indemnify a third-party victim whilst retaining a right of recourse against the operator. Dutch space law remains silent on the type of liability held by the satellite operator, but includes a right of recourse if the state is obliged to indemnify a third-party victim.11 In this sense, we may assume that as far as Dutch law refers to the state liability as per the international treaties, the liability of the operator follows the regime set up by the treaties vis-à-vis the state. Under this law, the right of recourse of the state is limited to the amount of insurance subscribed to by the operator. Belgian law, whilst similar to Dutch law, legislates for the right of recourse of the state against the satellite operator up to the amount of indemnity provided.12 The Swedish Act provides for reimbursement by the state for third-party liability claims paid by any persons involved in space activities but may ╇ See Sec 1, Act on Space Activities (hereafter Swedish Act on Space Activities), 1982: 963, 18 November 1982; National Space Legislation of the World, Vol. I (2001), at 398; Space Law – Basic Legal Documents, E.II.1; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 11. This Act applies to activities in outer space (space activities). In addition to activities carried on entirely in outer space, also included in space activities are the launching of objects into outer space and all measures to manoeuvre or in any way affect object launched into outer space. ╛╛╛╛8 ╇See Art. 1, Outer Space Act (hereafter uk Outer Space Act), 18 July 1986, 1986 Chapter 38; National Space Legislation of the World, Vol. I (2001), at 293; Space Law – Basic Legal Documents, E.I; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 12. This Act applies to the following activities whether carried on in the United Kingdom or elsewhere: (a) launching or procuring the launch of a space object (b) operating a space object and (c) any activity in outer space. ╇9 ╇ See Art. 13, French Law on Space Operations. 10 ╇ This amount has been settled under a Loi de finance, and is between € 50,000,000 and € 70,000,000. 11 ╇ See Sec. 12(2) & (3), Dutch Space Law. 12 ╇ See Art. 15(1), Belgian Space Law. ╛╛╛╛7

168â•…â•…C. Gaubert not necessarily respond as the Act has a provision that specifies that ‘special reasons’ may prevent it from doing so.13 The uk Outer Space Act specifies an indemnification of the government without any limit in respect to amount.14 One requirement specific to the French Law on Space Operations is that liability of the operator is limited in time;15 once the agreed time has elapsed, the operator cannot be held liable for damage caused by its outer space activities and in this case the French government u Â� ndertakes to compensate the victim. It is worth noting that this limit of liability is not set in stone and is not applicable in the event of wilful misconduct by the satellite operator.16 Finally, the state guarantee does not apply to damage occurring in space during the in-orbit phase. Certain national laws have implemented a third-party insurance requirement as a condition of the license agreement.17 The scope of the insurance obligation varies from one regime to another in terms of the minimum amount of insurance required, which parties must be added as additional insureds, and the limits in respect of time. Regarding the amount of insurance, the Dutch Space Law states in its Section 3(4) that the amount of insurance shall be the maximum possible cover and at the same time should be in line with what is reasonably available. The uk Outer Space Act is silent on the amount of insurance required, but the  amount indicated in the licensing agreement currently stands at £ 100,000,000. The French Law on Space Operations, as elaborated by a Loi de finances,18 results in amount of insurance between € 50,000,000 and € 70,000,000. French law also gives private operators the choice to purchase insurance or alternatively demonstrate they have the financial capacity to pay a potential victim.19 ╇ See Sec 6, Swedish Act on Space Activities. ╇ See Art. 10(1), uk Outer Space Act. 15 ╇ Art. 13, French Law on Space Operations. 16 ╇ See Art. 13, French Law on Space Operations. 17 ╇ See e.g. Sec. 3(4), Dutch Space Law; Art. 6, French Law on Space Operations; Sec. 5(f), uk Outer Space Act. 18 ╇ See Art. 119, Loi n° 2008-1443 du 30 décembre 2008 de finances rectificative pour 2008. 19 ╇ See Art. 6, sub I, French Law on Space Operations: “Any operator subject to authorization in accordance with this law must, for as long as it may be held liable therefore in the conditions provided for in Article 13 and up to the amount mentioned in Articles 6 and 17, be covered by an insurance policy or have another financial guarantee approved by the competent authority”. 13 14

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As far as third-party liability insurance is concerned, we will focus on the current market and the insurance coverage available today.

3.╇ Current Space Third-Party Liability Insurance Market Status 3.1.╇ The Status of the Space Third-Party Liability Market One might assume that third-party liability insurance for space activities is underwritten by specialist ‘space insurers’; however, for historical reasons the insurers offering such insurance are found in the aviation market. The market for this class of business remains small with only a dozen or so underwriters20 offering capacity. As a consequence, the market is volatile and can be adversely affected by events elsewhere in the aerospace market. This will have an impact on the coverage available, which may be reduced in scope (for instance by the imposition of exclusions), or increased in price by a rise in premium rates. Limits of liability vary and often depend on the extent of any indemnity that may be provided by the government of the country where the launch is taking place, and that government’s view of prudent limits. Typical figures are in the range of us$ 100,000,000 to us$ 500,000,000. The premium associated with a third-party liability risk is determined by insurers through an analysis of the risk exposure based on the following elements: the launch site to be used, launch site details (including details on the surrounding area), launch trajectories (which includes the flight path of the rocket), details of the impact zone, what notices are issued in respect of air (and sea, if applicable) traffic in the drop zones, advice on property and/or population in the areas under the flight trajectory, the range safety procedures, who operates the launch – that is, who is responsible for the launch activities and what experience they have, past launch activities, which includes any third-party launch liability claims that would have occurred even on an ‘as if ’ basis and action taken for debris avoidance during launch. Space liability insurance offered terms have remained relatively unchanged for many years. However, premium levels are modest in

╇ See chart, Annex 1. The major actors are Chartis, Allianz, Amlin, XL Aerospace, Global, Inter-Hannover and Kiln.

20

170â•…â•…C. Gaubert relation to the limits insured (current figures are typically in the 0.1% – 0.25% range). Risks are placed with aviation insurers whose capacity is not guaranteed to remain available. A single major loss could affect the position significantly. Accordingly, it is important for insureds exposed to space liability risks to recognise that the long term availability of insurance against this exposure is uncertain. As far as possible, buyers should safeguard their position contractually by appropriate hold-harmless provisions to apply in the event that liability insurance is unobtainable. Risk transfer provisions should also be examined carefully with a view to transferring liability exposure to others better capable of accepting the risk. 3.2.╇Insurance Policy Structure In respect of space third-party liability risks, two types of insurance are available: third-party liability insurance and product liability insurance. The purpose of the first is to cover the financial consequences of the liability of an insured (space operator) in case of damage or injury caused to a third party due to a covered space activity, and secondly to cover financial consequences of the liability of an insured (space Â�manufacturer at whatever level) in case of damage caused to a third party due to a space product default. We will focus on the spacecraft third-party liability insurance, where coverage is governed by national space regulation. A typical space liability policy usually attaches upon arrival of the launch vehicle and/or spacecraft at the launch site and continues for up to twelve months thereafter. Subject to standard conditions and exclusions, the policy will cover liability to all third parties arising out of the pre-launch, launch and in-orbit operations during that period. Several parties will have some exposure and it has been found that the most effective way of securing the capacity required to protect all parties’ interests is for one entity to purchase a policy which offers protection to all. Typically, such a policy is bought by the launch service provider and protects among others: •  The government of the country where the launch takes place; •  The government of the party (usually the satellite operator) which procures the launch;

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•  The launch service provider’s contractors and subcontractors; and •  The satellite operator and their contractors and subcontractors. Unless all the stages of the launch vehicle return to earth during the first twelve months following a launch, it would be prudent for the launch provider to purchase an annually renewable policy covering the ongoing in-orbit liability arising out of spent stages. Similarly, the satellite owner/operator may be required to purchase ongoing coverage for spacecraft in orbit. Some governments require this as a pre-condition of granting a licence to conduct space operations (as in the United Kingdom), but others take a more benign view and impose no mandatory requirements. In the latter case, many space operators take the view that the technical risks are so minimal, and the possibility of liability arising under current national and international law so remote, that there is no need for such insurance. However, most satellite operators will choose to procure insurance if they are to perform an earth re-entry, in-orbit drift or de-orbiting manoeuvre. Usually the law governing the insurance policy is the law of the state licensing either the launch agency or the satellite operator. Space operators have the choice of the law ruling the insurance policy, if allowed to by the relevant national regulation, but to our best knowledge, can not choose a specific law to avoid the liability and insurance provision as set up by the regulation of the state they are subject to. The coverage is usually on an ‘occurrence21 basis’. This means that an accident or an incident must be at the origin of damage sustained by a third party and must occur during the period of insurance. This can be particularly problematic within a space environment where an accident (for example loss of control of a spacecraft) may occur in a particular year but the damage caused to a third party by this accident (for example a collision following a loss of control of a spacecraft) may not arise until many years thereafter. A long period of time may elapse between the two events, and it is usual to have a third-party liability policy for a period of one year only. In the specific case of French insurance law, the insurance code provides that the third-party liability insurance policies

╇The occurrence is defined by the international insurance market as an accident or incident causing damage to a third party that shall occur during the policy period.

21

172â•…â•…C. Gaubert shall be triggered either by ‘a claim’ or ‘fait dommageable’ (damageable fact).22 In the first case the insurance policy that will be triggered is the one in force when the third party claims for indemnification. In the second case the only event triggering the coverage is the damageable fact whatever the date of the damage to a third party. This has a major consequence being that a damage can always be attached to an insurance policy, even if many years have elapsed between the date of the accident and the date of the damage to a third party. Of course, we have to bear in mind that the insurers of an insurance policy may have disappeared, in which case no insurance will be available. Space third-party insurance policies include standard exclusions required by the insurers. These exclusions are mainly wordings drafted by the Lloyd’s market and commonly named AVN or LSW, and which can not be easily modified or removed. Standard exclusions include war, terrorism, interferences, wilful misconduct of the insured and noise and pollution.23 Finally, we should add something with regards to claims settlement. Arbitration24 is commonly used to settle claims; the insurance policy will also deal with the possibility of a launching state settling a claim, meaning insurers will follow any decision made by the state. It is very unusual, within the insurance market, for underwriters to agree to be bound by someone else’s decision.

4.╇ Impact of National Law Provisions on Insurance Coverage, Especially with Respect to Newly Enacted Laws Any space third-party liability insurance policy will have to comply with the provisions of the applicable space regulation and the un space treaties, as well as with any local specific laws. The scope of cover of an insurance policy is usually broader than the strict scope of application of the Liability Convention. Indeed, an insurance policy will cover the financial consequences of the liability incurred ╇ Art. L-124-5, Code des assurances: “The cover shall be, according to the choice of the parties, triggered either by the event causing liability or by their claim”. 23 ╇ See Annex 2 for a full version of the clauses. 24 ╇ Being generally the Rules of Arbitration of the International Chamber of Commerce, in force as from 1 January 1998. 22

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by an insured in the event of damages caused to third parties, and also the state’s nationals, as per liability incurred under the Liability Convention or national law. Space third-party liability insurance policies today are subscribed to for a maximum of twelve months and renewed yearly annually. Most national regulations providing insurance obligation do not state any limit in time. We understand that the insurance obligation will follow the liability of the space operator; however, we may face a situation where insurance is not in force and the liability under the relevant regulation takes over. Some national regulations, when dealing with insurance matters, require a certain amount of insurance to be implemented by the operator. As stated previously, the mandatory amount varies from € 50,000,000 under the French Law on Space Operations up to £ 100,000,000 in the case of the uk Outer Space Act. These amounts today can be insured by the third-party liability insurance market. It is current practice for third-party liability insurance policies to include a number of additional insureds. Additional insureds will have the benefit of insurance coverage without (usually) having any obligations under the insurance policy. It simply means that the additional insured, in the same way as the policyholder, will have its liability covered in case of damages to third parties. Additional insureds are entities, public or private, that participate in space operations. The additional insureds can be determined by the national space law in question, the insurance policy will follow the mandatory provision of that law, and the insurer will include the entities defined as additional insured as per the relevant contractual obligation that the insured has agreed to. Typically, the additional insureds are the government of the country in which the satellite operator’s headquarters are situated, the national space agencies (including the European Space Agency [esa] if relevant), the entities (including the sub-contractors at whatever level) which participated in the manufacture of the launch vehicle or the satellite, and the entities having participated in the space operation, that is the launch and/or in-orbit phase. With respect to space debris, almost all national regimes are silent on this subject. Risks appear to be twofold for insurers: firstly, it is impossible to assess the risk on a long-term basis and secondly, there is the risk of disappearance of either the insurer or the operator (in which case, no one will be able to pay the potential claim attached to the risk to be

174â•…â•…C. Gaubert covered). Therefore, there are only a few insurers wishing to cover space debris usually of identifiable debris and they will offer cover for twelve months only. We would like to highlight the specific case of the French Law on Space Operations which provides for a state guarantee in the event of space debris induced by a launcher.

5.╇Conclusion On the whole, the space liability insurance market follows applicable national regulations. However, it is important to state that insurance is not the only solution when looking at the liability of a private operator because all the liabilities of the insured can not be fully met by the insurance sector. In addition, the space liability insurance market due to its volatility can disappear or be reduced drastically in the event of a major loss. Finally, insurance coverage is limited in terms of amount available and operators may have to bear an unlimited liability under their respective national laws. It is for this reason that satellite operators should also seek adequate protection by implementing contractual protection within their contracts. This can be achieved by using limitation clauses such as a waiver of recourse or hold-harmless provision which are mandatory under certain legislations. Under the French Law on Space Operations, the cross-waiver of recourse between the participants (at whatever level) for launch operations is now mandatory. This is not quite the case when speaking of satellite operations. In addition, said law also provides for a sort of hold-harmless provisions between participants in the event that a victim has been indemnified by the insurance policy. To conclude: there are some substantial differences between the laws of European states, and a unified regime at the European level would have the benefit of fixed regulations applicable to every single European operator.

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Annex 1 – Market capacity

Inter-Aero; 17,5%

XL Aerospace; 20% Wurtt; 2,5%

Local (Russia, India…); 10%

La Reunion Aerienne; 10% AIG; 20%

Kiln; 15% Inter Hannover; 2,5% Allianz; 20%

Global; 17,5% Amlin; 20%

176â•…â•…C. Gaubert

Annex 2 – Standard Exclusions NOISE AND POLLUTION AND OTHER PERILS EXCLUSION CLAUSE 1.╇ This Policy does not cover claims directly or indirectly occasioned by, happening through or in consequence of:1.1.╇noise (whether audible to the human ear or not), vibration, sonic boom and any phenomena associated therewith, 1.2.╇ pollution and contamination of any kind whatsoever, 1.3.╇ electrical and electromagnetic interference, 1.4.╇ interference with the use of property; unless caused by or resulting in a crash fire explosion or collision or a recorded in-flight emergency causing abnormal Launch Vehicle or Spacecraft operation. 2.╇ With respect to any provision in the Policy concerning any duty of Insurers to investigate or defend claims, such provision shall not apply and Insurers shall not be required to defend 2.1.╇ claims excluded by Paragraph 1. or 2.2.╇ a claim or claims covered by the Policy when combined with any claims excluded by Paragraph 1. (referred to below as “Combined Claims”). 3.╇ In respect of any Combined Claims, Insurers shall (subject to proof of loss and the limits of the Policy) reimburse the Insured for that portion of the following items which may be allocated to the claims covered by the Policy: 3.1.╇ damages awarded against the Insured and 3.2.╇ defence fees and expenses incurred by the Insured. 4.╇ Nothing herein shall override any radioactive contamination or other exclusion clause attached to or forming part of this Policy. AVN 46B (amended for Space)

Insurance in the context of national authorisation ╅╅177 WAR AND OTHER PERILS EXCLUSION CLAUSE This Policy does not cover claims caused by:1.╇War, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, martial law, military or usurped power or attempts at usurpation of power. 2.╇ Any anti-spacecraft device or device employing laser or directed energy beams, any hostile detonation of any weapon of war employing atomic or nuclear fission and/or fusion or other like reaction or radioactive force or matter. 3.╇ Strikes, riots, civil commotions or labour disturbances. 4.╇ Any act of one or more persons, whether or not agents of a sovereign Power, for political or terrorist purposes and whether the loss or damage resulting therefrom is accidental or intentional. 5.╇ Any malicious act or act of sabotage. 6.╇Confiscation, nationalisation, seizure, restraint, detention, appropriation, requisition for title or use by or under the order of any government (whether civil, military or de facto) or public or local authority. 7.╇Any unlawful seizure or wrongful exercise of control of the Spacecraft (including any attempt at such seizure or control) made by any person or persons acting without the consent of the Insured. Furthermore this Policy does not cover claims arising whilst the Spacecraft is outside the control of the Insured by reason of any of the above perils. The Spacecraft shall be deemed to have been restored to the control of the Insured once the Insured can demonstrate uninterrupted telemetry, tracking and control functions. AVN 48B (amended for Space)

Chapter Six Environmental Protection and Space Debris Issues in the Context of Authorisation R. Tremayne-Smith 1.╇Introduction As we increasingly use space for commercial applications it becomes ever more important to ensure that we can continue to keep space open for business. These commercial applications now encompass remote sensing and global navigation as well as the longer term successful applications such as satellite-based communications. In the relatively near term we will have increasing levels of tourism focussed on space that require consideration now on the authorisation issues with regard to the earth and the space environment. In terms of authorisation and governance, remote sensing and satellite communications have a lot in common, while navigation ‘systems’ tend to be national or regional in ownership and operation and thus subject to different and sometimes higher level controls. Space tourism is in its early days and some would argue has not yet started; however, the United States has created a special permissive regime to encourage the industry to develop.1 All users of space need to be under similar regulation and supervision by the state launching the space object and the state of residence of the person or body procuring the launch. This is essential not only to avoid confusion but to ensure a level playing field for business at the international level.

╇ See http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=8023. Cf. also the Commercial Space Launch Amendments Act, Public Law 108-492, 108th Congress, 23 December 2004, 49 U.S.C.; 118 Stat. 3974.

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180â•…â•…R. Tremayne-Smith We will come back to these issues later after developing the more general picture. From this fairly straightforward introduction we need to look at some of the detail and exceptions that will point us towards the optimum environmental protection mechanisms that are both implementable and appropriate for authorising authorities. What we are developing and what we need are not too far apart and it should be a matter of emphasis and timing to achieve a fully useable and complimentary set of standards, guidelines, codes of conduct and other necessary information that will enable not only an understanding of the issues involved but a hierarchy of advice and guidance to policy makers, management, designers, manufacturing and operations staff involved with space systems. Authorising the use of all future space systems should thus include some measure of guidance and regulation for all those concerned with the procurement, build and operation of the systems such that not only the short term operation of the specific system to be ‘licensed’ is covered but the wider implications for others and in particular existing and future users is also considered. In addition, planning must start for the next phase in near earth orbit protection. Incidents such as the China asat test of January 2007 have lead via the Iridium-Cosmos collision of March 2009 to a significant increase in collision avoidance activity. The result is that even full application of best practise for space debris mitigation will no longer be sufficient to control the orbital population. Remediation activity will now be required and technical activity is under way to consider the best objects to remove from orbit and via simulation the number that should be removed to appropriately reduce the collision risk. Some thoughts on the authorisation aspects to meet this pressing need will be provided.

2.╇ What Are We Protecting Initially the near earth environment is our priority but we must not forget the need to manage the moon, Mars, Lagrangian points and other parts of space beyond earth orbit. The current near earth space is divided into different regions, the lower and higher areas have fairly well developed space debris mitigation plans (although more work is required to keep the guidance up to date) and the intermediate, or Medium Earth

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Orbit (meo) area is the subject of ongoing debate and detailed technical analysis. When concentrating on the near Earth space it is best considered as at least 3 regions. Low Earth Orbit (leo), containing the sun synchronous and manned space station orbits, is the most critical. The important Geosynchronous Earth Orbit (geo), which is the home of communications and some weather satellites, is where developing mitigation practices, including improved sharing of space situational awareness data, should lead to a sustainable environment. However, it is important to ensure the graveyard orbit, designed to protect the operational orbit, is better understood. Many users of space stop re-orbiting at the current lower end of the graveyard orbit instead of using all available fuel to maximise the re-orbit height. Gaining the extra height will prolong the time that the current regime is effective, that is when the collision probability in the graveyard orbit is sufficiently low. The meo or higher earth orbit, as the region between leo and geo is variously called, contains the Global Navigation Satellite Systems (gnss) as well as part of the Molniya and Geosynchronous Transfer Orbits (gto) orbits. This area currently contains the us Global Positioning System (gps) satellites and the Russian Glonass navigation satellites. These Global Navigation Satellite Systems (gnss) have already been joined by the test satellites for the European Galileo system. The Chinese Compass and others can be expected to be added to this orbital regime in due course. Individual constellation-based management of operational and disposal strategies will become increasingly less effective as more satellites are added so a general coordination set of procedures should be agreed soonest. For business, the issue has a different focus, and rather than the environment the interest is in continuing to provide services and expanding revenues, you might say protecting shareholder interests. This situation is not necessarily bad, as space enlightened self-interest is what is required to manage the environment in a sustainable way. It is why competitors are sharing data and why industry, suppliers and operators are helping to develop the standards to support the mitigation practices that have been agreed. What we need are plans for the long-term sustainable use of space that address both the mitigation and the remediation issues for leo, meo and geo. So overall we should see a balanced approach to protecting the space environment and one that involves the manufacturers and users as well

182â•…â•…R. Tremayne-Smith as the responsible governments, that is those that have the responsibility for supervision and control. Regulation coupled with enlightened selfinterest will show the way but it is extremely important that government regulators show the way forward for not only current but future authorisation by referencing future plans for regulations that will be linked to authorisation as well as providing a general background to the aims of the proposed regulations. The supporting background will range from meeting the obligations of the outer space treaties2 and principles,3 with relevant General Assembly Resolutions4 taken into account. In addition ╇ I.e., the Outer Space Treaty (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967)â•›); the Rescue Agreement (Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, London/Moscow/Washington, done 22 April 1968, entered into force 3 December 1968; 672 UNTS 119; TIAS 6599; 19 UST 7570; UKTS 1969 No. 56; Cmnd. 3786; ATS 1986 No. 8; 7 ILM 151 (1968)â•›); the Liability Convention (Convention on International Liability for Damage Caused by Space Objects, London/Moscow/ Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971)â•›); and the Registration Convention (Convention on Registration of Objects Launched into Outer Space, New York, done 14 January 1975, entered into force 15 September 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975)â•›). 3 ╇E.g., Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, UNGA Res. 1962(XVIII), of 13 December 1963; un Doc. A/AC.105/572/Rev.1, at 37; Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, UNGA Res. 37/92, of 10 December 1982; un Doc. A/AC.105/572/Rev.1, at 39; Principles Relating to Remote Sensing of the Earth from Outer Space, UNGA Res. 41/65, of 3 December 1986; un Doc. A/AC.105/572/Rev.1, at 43; 25 ILM 1334 (1986); PrinciÂ� ples Relevant to the Use of Nuclear Power Sources in Outer Space, UNGA Res. 47/68, of 14 December 1992; un Doc. A/AC.105/572/Rev.1, at 47; and Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of all States, Taking into Particular Account the Needs of Developing Countries, UNGA Res. 51/122, of 13 December 1996; un Doc. A/RES/51/122. 4 ╇ E.g. Application of the concept of the “launching State”, UNGA Resolution 59/115 of 10 December 2004; Recommendations on enhancing the practice of States and international intergovernmental organizations in registering space objects, UNGA Resolution 62/101 of 17 December 2007 and Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space (The reference version of the 2

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it is necessary to consider specific conditions related to agreed space standards and ideally a clear statement of why the conditions are applied. The sustainability of the space environment will be a key part of this argument.

3.╇ What Are the Mechanisms There are many advisory mechanisms for helping to preserve the near earth environment which appear as Codes of Conduct, Guidelines and, most importantly, implementable standards. These higher-level documents are then supported by a range of national and regional design manuals and detailed reports for the design, testing and operation of space systems. What is most important is the need for national regulations, as this is where good practice guidelines and standards can be mandated. Environment regulation including space debris issues fits with a nation’s need to comply with the space treaties and un Principles so mandating checks and monitoring compliance with the best available space debris practices can be readily included. However, authorisation practices must go further and need to involve active checks on potential users of space and the systems and launch services they will procure as well as the condition of the orbit they plan to use, that is: will it be sustainable in the longer term with new systems added or will remediation be required to allow further use. The checks of a system that is planned for use in space, whether it is commercial, scientific or military in nature should be the same. The checks should start well before launch so that any required changes can be made to the proposed system, its method of operation and potentially its active orbital position for leo and how its InternaÂ� tional  Telecommunications Union5 (itu) slot will be managed for

iadc space debris mitigation guidelines at the time of the publication of this document are contained in the annex to document A/AC.105/C.1/L.260). 5 ╇See http://www.itu.int/ITU-R/software/space/index.html; also itu Constitu�tion (Constitution of the International Telecommunication Union, Geneva, done 22 December 1992, entered into force 1 July 1994; 1825 UNTS 1; UKTS 1996 No. 24; Cm. 2539; ATS 1994 No. 28; Final Acts of the Additional Plenipotentiary Conference, Geneva, 1992 (1993), at 1); and itu Convention (Convention of the International Telecommunication Union, Geneva, done 22 December 1992, entered into force

184â•…â•…R. Tremayne-Smith geo systems. To be cost-effective the environment-related requirements  for space systems must be well understood and ideally availÂ� able  at  the design stage. To help achieve this, a database of available, draft and proposed standards should be available and maintained. With higher-level standards such as those from the International Standardisation Organisation (iso)6 taking some years to develop, after the initial proposal stage, suitable warning of developments is available. Publicly available data and earlier indications can be derived from the Inter Agency space Debris Coordination7 (iadc) group activities and those reported by regional agencies such as the European Space Agency (esa).8

4.╇ What More is Needed At this time certain leo regions should not have further satellites added to them without a commitment to remediation. For example the Sun Synchronous Orbits are a valuable resource that is utilised for the benefit of all nations and no system should be added to this region without an assessment of its benefit to the world and an assessment of the system’s value and ability to operate with other existing and planned systems in the region. While I am not aware of any system being refused a license for a particular region due to the level of risk to a further satellite entering a particular region, a number of licensing authorities carry out a through life assessment of collision risk with a limit set where discussion would take place as to the value of the mission and the need to use the selected orbit. Following recent collision and fragmentation events such checks could now fail in parts of leo. 1 July 1994; 1825 UNTS 1; UKTS 1996 No. 24; Cm. 2539; ATS 1994 No. 28; Final Acts of the Additional Plenipotentiary Conference, Geneva, 1992 (1993), at 71); both as repeatedly amended since. 6 ╇See http://www.iso.org/iso/iso_catalogue/catalogue_tc/catalogue_tc_browse.htm?co mmid=46614&published=on&development=on. 7 ╇ See http://www.iadc-online.org/index.cgi?item=docs_pub. 8 ╇See http://www.esa.int/esaMI/Space_Debris. esa was established by means of the esa Convention (Convention for the Establishment of a European Space Agency (esa Convention), Paris, done 30 May 1975, entered into force 30 October 1980; 14 ILM 864 (1975); Space Law – Basic Legal Documents, C.I.1).

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In addition to not allowing further unjustified launches we will need to start removing items from the more crowded areas of leo (remediation) if we are not to lose whole parts of that region for long periods of time (from many decades to centuries). The removal process should start now, but unfortunately we will need international agreement to decide how such a procedure is managed; for a start this will require decisions on who pays, who decides what is removed and who will carry out the necessary missions. Ideally we would see either a commercial proposal to ensure continued operation of an existing constellation at reduced risk or a proposal by China to remove some of the items necessary to offset its substantial pollution of near space following the badly planned asat test of January 2007. More realistically there could be a joint space agency proposal to reduce the risk to critical earth observation satellites with their extremely important support of environmental monitoring and weather forecasting activities.

5.╇ An Example The uk Outer Space Act,9 and the additional recommendations following the review of its implementation carried out in 2006, have led this flexible Act to encompass the majority of the advice and guidance needed to ensure compliance with best practice on dealing with and helping to preserve the space environment; for example there is a detailed database of relevant standards in support of the Outer Space Act assessments. These requirements with further detailed technical checks of the proposed space system and launcher as well as a review of the applicants’ financial position and the business case for the proposed system or systems support the overall licensing process.10 Key to the effective operation of such a system is the special conditions11 that can be added to the license to emphasis specific requirements or to indicate the nature of the specific approval; for example a system designed before

╇ Outer Space Act, 18 July 1986, 1986 Chapter 38; National Space Legislation of the World, Vol. I (2001), at 293; Space Law – Basic Legal Documents, E.I; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 12. 10 ╇ Cf. e.g. Secc. 4(2)(a), 5(2)(a), (b), (e) & (f), 11, uk Outer Space Act. 11 ╇ See http://www.bnsc.gov.uk/assets/channels/industry/OSA2008Example.pdf. ╇9

186â•…â•…R. Tremayne-Smith some new standard was agreed may be licensed on an exceptional basis, but the conditions would make it clear that future versions of the system should fully comply and the licensed system should use best endeavours to comply. Details of the checks to be carried out are available12 to any person or company likely to be covered by the uk space legislation. In many cases the emergence of new or novel applications, that could be liable to the provisions of the Act, administered by the uk Space Agency, are proactively dealt with many years before the applicant is likely to need a licence. This has been the case in dealing with possible new launchers  and a new application area such as space tourism.13 A dialogue is opened up with the potential licensee to explain the Act and its provisions and to gain information on the application or novel space system. This approach is particularly relevant for space environment issues where capability needs to be built in for the longer term and not just for the launch. Through life requirements are significant and end of operational life requirements are critical to the success of mitigation measures. A particular assessment is made for leo that uses the satellite(s) size and proposed orbital details to check the through life collision risk. Above a specified threshold the design or operational characteristics will be questioned and changes suggested that will improve the survivability of the system. Specific software was developed to assist in this part of the evaluation process. With the deteriorating leo space environment such assessments will be essential for all proposed launches in this region to try and ensure only those with a very good cost benefit analysis are allowed to go anywhere near the already overcrowded regions. The matter of not only removing the proposed system at end of life but consideration of the more general need for removal of objects should also be discussed during the licensing process. When operating a licensing system it is also possible to run specific briefing events with the manufacturing industry that needs to produce the compliant space systems. While the system designers are a focus of such activity it is essential that senior management are fully committed

╇ See http://www.bnsc.gov.uk/5974.aspx. ╇E.g., plans exist to develop a spaceport in Scotland for commercial private spaceflight.

12 13

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to the need to spend the money to ensure compliance in the longer term. While a space systems user may be very involved in operations aspects that affect the space environment, he is not usually involved in detailed satellite or launcher design features. Relevant space standards need to bring together all the relevant commercial players, users and manufacturers to ensure implementable and relevant standards are produced. While this needs to happen at the highest international level, such as the iso, it is often valuable to get initial interaction of the relevant manufacturing and user organisations under the umbrella of national standards bodies that are involved in the international standards arena. So to ensure that authorisation is effective in helping to manage the specific space debris issues and that it supports protection of the environment, a national or regional licensing process is an ideal addition to any legislation that implements the requirements of the space treaties and principles. National missions or internationally collaborative missions that do not require licensing should be no less rigorous in the application of best practice to environmental protection and space debris issues. This is typically the case for military and international science missions among others.

6.╇Conclusions Licensing space systems as part of the overall authorisation process is a critical part of the process of preserving the near earth space environment. The current range of mitigation practices and standards must continue to be developed and updated in line with the evolving environment and the level of adherence with current practices; for instance the geo disposal boundary will need to be raised if operators continue to go only just far enough to reach the current lower limit and this leads to a significant collision risk. The authorisation process must evolve in step with the evolution of the environment. It cannot be a fixed procedure. Remediation of space debris is now necessary to control the near earth space debris environment. That is, we will need to remove objects from orbit in order to control the growth of debris and make the lower near earth environment manageable. Disposal at end of life for leo systems will help but will not now be sufficient. Active removal of

188╅╅R. Tremayne-Smith � appropriate existing longer lifetime debris items is essential in order to sufficiently reduce the collision risk. Authorisation procedures should start well before the licensing process if they are to be successful. This requires open publication of the current and expected guidelines and standards that are expected to apply to current and future systems as well as the applicable procedures. The key aim should be to include environment related requirements in the design rather than adding them on later which would typically be at much greater cost. Design for the evolving space environment and keep space open for business.

Chapter Seven Safeguarding National Security and Foreign Policy Interests – Aspects of Export Control of Space Material and Technology and Remote Sensing Activities in Outer Space M. Gerhard & M. Creydt* 1.╇Introduction The technical development in the exploration and use of outer space was very much driven by military forces in the past. Only gradually, military technology was also used for civilian purposes. Until today, many technologies used in the civilian exploration and use of outer space are considered dual-use technology. That is why private outer space activities are also an issue for the safeguarding of national security and foreign policy interests. Material and technology used in the exploration and use of outer space (rockets and certain rocket components, certain satellite components, certain satellite payload such as sensors, transponders and so on) may not be exported into another state (for instance the state from where the object is intended to be launched into outer space) without prior authorisation. And a very specific use of outer space, that is remote sensing of the earth, can cause certain security concerns with regard to what is sensed by the sensors on board a satellite, depending on the resolution of such data and to whom such data are distributed. It is the purpose of the present paper to introduce these two areas where outer space activities face national security and foreign policy concerns and to identify some commonalities. *╇ The views expressed in the paper are the personal views of the authors.

190â•…â•…M. Gerhard & M. Creydt It needs to be mentioned that national security interests might also be a requirement for issuing a general authorisation for carrying out activities in outer space.1 However, as the present paper focuses on authorisation procedures that are primarily aiming at safeguarding national security and foreign policy interests, national space legislation is not assessed here.2

2.╇ Export Control 2.1.╇Introduction There is hardly any other area of business where export controls play such an important and predominant role as in the space business. Companies which export goods in this field must have in mind a variety of export control regulations, which are not restricted to purely national laws any more. In addition, the export control regulations have become more complicated and broader. The us export control regulations exert the most dominating influence. This is due to the fact that the United States also apply their national regulations to extraterritorial export procedures. This means that while national export regulations are generally only applicable to an export from a particular country to another country, the United States ╇ See for instance Sec. 4(2) of the uk Outer Space Act (18 July 1986, 1986 Chapter 38; National Space Legislation of the World, Vol. I (2001), at 293; Space Law – Basic Legal Documents, E.I; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 12); Sec. 11(2) of the South African Space Affairs Act (6 September 1993, assented to on 23 June 1993, No. 84 of 1993; Statutes of the Republic of South Africa – Trade and Industry, Issue No. 27, 21–44; National Space Legislation of the World, Vol. I (2001), at 413); Sec. 70105(a) of the us Commercial Space Launch Act (Commercial Space Transportation – Commercial Space Launch Activities, 49 U.S.C. 70101 (1994)â•›); Sec. 18(e) of the Australian Space Activities Act (An act about space activities, and for related purposes, No. 123 of 1998, assented to 21 December 1998; National Space Legislation of the World, Vol. I (2001), at 197); and Sec. 3(3) of the Dutch Space Activities Act (Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry of Space Objects, 24 January 2007; 80 Staatsblad (2007), at 1; Nationales Weltraumrecht / National Space Law (2008), at 201). 2 ╇ See further on this issue infra, the contribution of F.G. von der Dunk, The Issue of National Security in the Context of National Space Legislation – Comparing European and non-European States. 1

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expands the application of their export control law also to exports of us goods from one third country to another. Thus, the us export control regulations also apply to the re-exports of such goods. ThereÂ� fore, even non-us persons importing us goods from a us exporter need to strictly comply with the respective us provisions in cases of further export of such goods. Since any company or individual faces the possibility of becoming blacklisted or even prosecuted by the us authorities in cases of non-compliance, most exporters respect and comply with the us export control regulations, even if they are a foreign company or individual. To be covered by the us export control regulations it is also sufficient if hardware, software or technology with us origin is generally used or incorporated into a non-us product. Since in most cases it is not possible for the space industry to get by without using us components, the foreign space industry is therefore forced to deal with the us export control regulations in addition to their national laws. Also, more and more states where export control restrictions have not played an important role so far now start to adopt respective legislation in order to avoid exports of sensitive items to countries and persons not desirable. The exporter is therefore always forced to have in mind whether his or other national export control regulations are applicable to his export of hardware, software or technology, with special regard to the us export control restrictions. Generally, the sensitive items to which export control regulations apply can be divided into two categories. One is the category of the dualuse items, meaning items which can be used for both civil and military purposes. The other category covers the military items for which the export regulations are much stricter. 2.2.╇ International Regimes Any export control restrictions unfold best, when they are internationally applicable and enforceable. Therefore, in order to harmonize export control restrictions on an international level, international arrangements and regimes were established. The national export control laws have in principle derived from such international instruments and their respective lists of controlled goods. For the space industry, the most

192â•…â•…M. Gerhard & M. Creydt important international agreements are the Wassenaar Arrangement and the Missile Technology Control Regime (mtcr).3 2.2.1.╇ The Wassenaar Regime The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies4 is the first global multilateral arrangement covering both conventional weapons and sensitive dual-use goods and technologies. Founded in 1996, the Wassenaar regime now has 40 participating states.5 It has been established in order to contribute to regional and international security and stability, by promoting transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies, thus preventing destabilising accumulations. Each participating state ensures that transfers of these items do not contribute to the development or enhancement of military capabilities in contradiction of the Arrangement.6 The predecessor of the Wassenaar Arrangement was the Coordinating Committee for Multilateral Strategic Export Controls (cocom). The cocom was established during the Cold War. It had 17 member states,7 with additional cooperating countries.8 The cocom ceased to function on 31 March 1994 and was replaced by the Wassenaar regime. Since the Wassenaar regime reflects the political situation after the Cold War, the ╇ Further international agreements on export controls are the Nuclear Suppliers Group (concerning nuclear weapons) and the Australian Group (concerning chemical weapons). 4 ╇ Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, Wassenaar, done 19 December 1995, effective 12 July 1996; http://www.wassenaar.org/. 5 ╇The current participating states of the Wassenaar Arrangement are: Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland,Italy, Japan, Latvia, LithÂ� uÂ�ania, Luxembourg, Malta, the Netherlands, New Zealand, Norway, Poland, Portugal, Republic of Korea, Romania, the Russian Federation, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, the Ukraine, the United Kingdom and the United States. 6 ╇See http://www.wassenaar.org/introduction/index.html (last accessed 19 October 2009). 7 ╇Australia, Belgium, Canada, Denmark, France, Germany, Greece, Italy, Japan, LuxemÂ� bourg, the Netherlands, Norway, Portugal, Spain, Turkey, the United Kingdom and the United States. 8 ╇ Such as Austria, Finland, Ireland, New Zealand, Sweden and Switzerland. 3

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Russian Federation as an original participating state as well as most of the other states of the former Eastern Bloc, and since 1997 also China are states participating in the regime. Contrary to the cocom, the Wassenaar Arrangement is not aimed against specific states or groups of states, but rather targets the obligation of its participating states to prevent the proliferation of conventional weapons and sensitive dual-use goods and technologies for military purposes, if the situation in a region or the behaviour of individual states gives rise to serious securityrelevant concerns. Unlike the cocom, the Wassenaar Arrangement does not contain any veto right of its participating states. Instead, the responsibility is assigned to the member states, to act responsibly and to establish national export control mechanisms and to check and monitor their adherence. The multilateral character of the Wassenaar Arrangement is reflected in two ways. On the one hand, a list of controlled weapons and dual-use goods was created, which is largely reflected in the respective national lists. On the other hand, all participating states have to report to the Secretariat of the Wassenaar Arrangement located in Vienna with regard to national export licenses. These reports are provided to the participating states. Hereby transparency, as well as the facilitation of a better common risk evaluation shall be made.9 Since the Wassenaar Arrangement merely serves as a tool for the mutual exchange of information, and the implementation of actions and provisions for the control of exports solely lies within the responsibility of the participating states, the regime itself with regard to its legal nature falls in the category of soft law.10 2.2.2.╇ The Missile Technology Control Regime (mtcr) The other important agreement for the space industry is the Missile Technology Control Regime (mtcr). The mtcr was established in April 1987. It does not constitute an international treaty, but is a voluntary international organisation without an independent secretariat.11 The regime aims to limit the spread of ballistic missiles and other unmanned delivery systems that could be used for chemical, biological ╇ See P. van Fenema, International Trade in Launch Services (1999), 138â•›ff. ╇ See W. von Kries, K.U. Schrogl & B. Schmidt-Tedd, Grundzuege des Weltraumrechts (2002), 93. 11 ╇ See R. Jakhu & J. Wilson, 25 Annals of Air and Space Law (2000), 165–7. ╇9 10

194â•…â•…M. Gerhard & M. Creydt and nuclear attacks. The 34 participating states of the mtcr which include most of the world’s key missile manufacturers solely commit themselves to abide the Guidelines of the mtcr. The Guidelines themselves refer to the list of controlled goods, as an Annex of the mtcr. The national export controls for such goods and technology need to be in line with the provisions of the mtcr.12 Because the regime is voluntary and the decision to export is the sole responsibility of each member, the mtcr has no penalties for transfers of controlled items. Driven by the deeper insight that for effective restrictions in regard to non-proliferation of weapons of mass destruction (wmd) control of ballistic missiles with which nuclear war heads are carried is necessary, the mtcr was created in 1984 by seven member states.13 Meanwhile the mtcr has 34 signing states. It also provides controls for delivery systems which are capable to carry biological and chemical weapons as well as cruise missiles and unmanned air vehicles. Since 2002 the mtcr also contains provisions to prevent transfers of systems capable of delivering wmd to terrorists. The mtcr shall in particular restrict the proliferation of wmd delivery systems and related technologies with regard to rocket systems (including ballistic missile systems, space launch vehicles and sounding rockets) capable of delivering at least a 500-kilogram payload to a range of at least 300 kilometres14 or delivering any type of weapon of mass destruction. Also covered are complete unmanned aerial vehicle sÂ� ystems (including cruise missile systems, target drones and reconnaissance drones), production facilities and production equipment, respective software and technology, propulsion components and equipment, test facilities as well as propellants.15 The mtcr differentiates between two categories of items which include equipment, materials, and software or technology. Items listed in Category I are items of greatest sensitivity. In regard to exports of these Category I items, greatest restraints are to be applied by the Â�partner countries. These items include complete rocket systems and unmanned air vehicle systems production facilities for such systems and major ╇ See http://www.mtcr.info/English/ (last accessed 15 August 2009). ╇ The seven founding states were the participants to the World G7-summit: the United States, Canada, the United Kindom, France, (West-)Germany, Italy and Japan. 14 ╇ mtcr Annex 1, Category I, no. 1.A.1. 15 ╇ mtcr Annex 1, Category I, II. 12 13

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sub-systems, including rocket stages, re-entry vehicles, rocket engines, guidance systems and warhead mechanisms. Category II items are dual-use items, which are items with both, civil and military applications. They include complete rocket systems and unmanned air vehicles not covered in Category I. Although exports shall still be subject to restraint, the partner countries have a greater flexibility in the treatment of Category II transfer applications.16 When assessing and evaluating export applications, the member states consider, inter alia, the capabilities and objectives of the missile and space programs of the recipient state and whether the recipient state develops or possesses wmd. Exports will only then be authorised, when the end-use is compatible and in accordance with the Guidelines of the mtcr and after such an assurance of the respective recipient state exists.17 2.3.╇Embargoes Embargoes can be imposed either by an organisation like the United Nations or the European Union or by a single state. Therefore, embargoes apply to every person of any such state. In the case where an embargo has been imposed by an organisation, it is irrelevant whether that member state has voted for or against such embargo. Thus the embargoes are binding for the states respectively their governments and still need to be converted into national law. Therefore a distinction can be made between embargoes imposed by the United Nations with a worldwide scope, embargoes with a regional scope such as embargoes imposed by the European Union, the Organisa� tion for Security and Cooperation in Europe (osce) or the Organisation of American States (oas), and unilateral embargoes imposed by one country against another, as for example the us embargo against Cuba (Helms-Burton-Act). The embargoes can further be distinguished as being either total embargoes with which the complete foreign trade of a country shall be prevented, or partial embargoes, meaning embargoes targeting only certain economic sectors of a country or even certain persons, or 16 17

╇ See http://www.mtcr.info/english/guidelines.html (last accessed 15 August 2009). ╇ mtcr Guidelines for Sensitive Missile-Relevant Transfers no. 2 et seq.

196â•…â•…M. Gerhard & M. Creydt weapons embargoes which eventually are partial embargoes, particularly often used where weapon deliveries to a certain country shall be prevented.18 2.4.╇The us Export Control Regulations The us export regulations are rather complicated in so far as there is neither a single set of regulations nor a single authority responsible for export approvals. In fact, there are quite a few us Departments involved in export control, each of them having its own regulations, one has to consider when exporting goods, software or technology. However, there are three main areas in regard to us export control regulations. These are the exports of dual-use goods, the export of military goods and the trade with certain countries and consignees of such goods. The export of dual-use items, meaning items that can be used for civil as well as for military applications, is governed by the Export AdminÂ� istration Regulations (ear). For exports of military goods, the InterÂ� national Traffic in Arms Regulations (itar) apply. Apart from that, the Office of Foreign Asset Control (ofac) regulates the foreign trade with sensitive countries and respective consignees through its own regulations along with embargoes and blacklists. Since the us Department of Commerce has jurisdiction over the ear, while the jurisdiction over the itar lies with the us Department of State, anyone exporting goods has always to take both Regulations into account. However, only one Department can have jurisdiction over a specific export request. In cases where it is not clear which us Department has the jurisdiction, the exporting person should formally obtain such information at the us Department of State. Yet, the provisions of the ofac can apply in addition and therefore need to be considered as well. The term ‘goods’ in regard to us export controls refers to items as well as software and technology. One main characteristic of the us export controls is that the right to export goods is considered to be a privilege and therefore can be denied and taken away from every person who is not considered a responsible exporter or has failed to be compliant with the us export regulations.

╇ See N. Weith & C. Wegner & W. Ehrlich, Grundzuege der Exportkontrolle, pp. 77 et seq.

18

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Unlike in most other countries, in the United States there does not exist a general right for the export of goods. In fact, the right to export is rather a privilege. However, generally, an export license is only required if the respective regulations say so. Although the us export regulations are solely national law, the us export control regulations are applied extraterritorially, meaning globally. Thus, contrary to all other national export control regulations, they are applied also to re-exports with regard to goods of us origin or with regard to any foreign produced direct product. The latter means any product which has derived from us technology or software. In this manner, the us export regulations impact all other states and persons in the world, when exporting goods of us origin. This extraterritorial application of its own regulations characterizes the us export controls and thus makes them important not just for us exporters. In case of violations, the us government threatens with putting persons in breach of the us regulations on blacklists, with the impact that no us person may be having a business relationship with such person on the blacklist. Therefore, in most cases, foreign persons who, according to the us regulations, illegally re-exported us items, and are prosecuted for that, are accepting financial penalties by the us government rather than becoming blacklisted. 2.4.1.╇ The Export Administration Regulations (ear) The Export Administration Act (eaa) is giving the Department of Commerce the primary responsibility for administering and enforcing export controls on dual-use items,19 while the ear are the implementing regulations. As part of the Department of Commerce, the Bureau of Industry and Security (bis)20 is the licensing Agency for the ear.21 The ear contain controls on exports from the United States as well as on re-exports from us-origin items from non-us destinations. These controls apply worldwide in regard to certain strategic commodities, software and technical data. A ‘re-export’ as defined by the ear means ╇ Export Administration Act of 1979, as amended (Public Law 96–72, 96th Congress; 50 U.S.C. app. §§ 2401–2420; 93 Stat. 503). It was amended several times and lapsed in August 1994. Thereafter, it was maintained by the International Emergency Economic Powers Act, as amended (Public Law 95–223; 50 U.S.C. §§ 1701–1706; 91 Stat. 1628) and by several Executive Orders. 20 ╇ See http://www.bis.doc.gov/ (last accessed 15 August 2009). 21 ╇The ear are part of the U.S. Code of Federal Regulations, Sec. 15, Parts 730–774. 19

198â•…â•…M. Gerhard & M. Creydt an actual shipment or transmission of an item subject to the ear from one foreign country to another or release of technology or software subject to the ear to a foreign national outside the United States.22 Concerning any satellites controlled by the ear, the term ‘re-export’ also includes the transfer of registration of a satellite or operational control over a satellite from a party resident in one country to a party resident in another country.23 2.4.1.1.╇ Scope of the earâ•…The ear apply in regard to all exports from the United States as well as for all re-exports as described above, if the good concerned: 1.╇ was produced or originated in the United States; 2.╇ is a foreign-made product that contains more than a specified percentage of us-controlled content;24 3.╇ is a foreign-made product based on certain us-origin technology or software and is intended for shipment to specified destinations; or was 4.╇ made by a plant or major component of a plant located outside the United States, if that plant or major component of a plant is the direct product of certain us technology or software, and the product is intended for shipment to specified destinations. However, just because an item or activity is subject to the ear does not mean that a license is required. License requirements in fact depend on the technical characteristics, the destination as well as the end-use and the end-user. In order to determine if a license needs to be obtained, one first needs to find out if and where the item to be (re-)exported is listed in the Commerce Control List (ccl).25 The ccl is maintained by the Bureau of Industry and Security (bis) within the Export Administration ReguÂ� lations (ear) and includes items subject to the export licensing authority of the bis.26 The ccl consists of ten categories, where commodities, software and respective technology are listed under Export Control

╇ Part 734.2(b) of the ear. ╇ Part 772.1 of the ear. In this Part of the ear other definitions related to space items can also be found. 24 ╇ See below 2.4.1.4, de minimis-rule. 25 ╇ Commerce Control List (ccl), 15 C.F.R. 774, i.e. Part 774 of the ear. 26 ╇ Part 738.1(a)(1) of the ear. 22 23

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Classification Numbers (eccn).27 Part of each eccn is the ‘Controls’ header, identifying the reason for control.28 For any item which relates to some eccn, one has to take a further look in the Country Chart of the ear.29 Together with the Country Chart and the information of reason for control of the respective eccn,30 the countries to which specific items can only be exported with a license can generally be identified. Hence, for such (re-)exports, a license needs to be obtained from the bis. Any item which cannot be found in the ccl and is further not subject to the itar is considered as ‘ear 99’ which practically means that except for cases of an export to embargoed countries or to persons on blacklists, an export license from the bis is not required. 2.4.1.2.╇ The General Prohibitions of the earâ•… However, for any export or re-export, one also has to consider the existing ‘General Prohibitions’ of the ear.31 Thus, even if an export license is not necessary in accordance with the ccl and the Country Chart, a license still might need to be obtained, if a General Prohibition is applicable. The ten General Prohibitions of the ear are:32 •  General Prohibition One — “Export and re-export of controlled items to listed countries (Exports and Re-exports).” •  General Prohibition Two – “Re-export and export from abroad of foreign-made items incorporating more than a de minimis amount of controlled us content (us Content Re-exports).” •  General Prohibition Three — “Re-export and export from abroad of the foreign-produced direct product of us technology and software (Foreign-Produced Direct Product Re-exports).” ╇ Part 774 of the ear. Category 9 is dealing with Propulsion Systems, Space Vehicles and Related Equipment. 28 ╇ The following reasons for control exist: AT (Anti-Terrorism); CB (Chemical & BioÂ� logÂ�ical Weapons); CC (Crime Control); CW (Chemical Weapons Convention); EI (EncrypÂ�tion Items); FC (Firearms Convention); MT (Missile   Technology);  NS  (National Security); NP (Nuclear Non-proliferation); RS (Regional Stability);  SS  (Short Supply); UN (United Nations Embargo); SI (Significant Items); SL (Surreptitious Listening). 29 ╇ Part 738Spir – Supplement No. 1 to Part 738 of the ear. 30 ╇Some eccn, however, impose license requirements either without reference to a reason for control code that is listed on the Commerce Country Chart, or in addition to such a reference. 31 ╇ Part 736 of the ear. 32 ╇ See Part 736.2(b)(1)–(10) of the ear. 27

200â•…â•…M. Gerhard & M. Creydt •  General Prohibition Four (Denial Orders) — “Engaging in actions prohibited by a denial order.” •  General Prohibition Five — “Export or re-export to prohibited enduses or end-users (End-Use End-User).” •  General Prohibition Six — “Export or re-export to embargoed destination (Embargo).” •  General Prohibition Seven — “Support of Proliferation Activities (us Person Proliferation Activity).” •  General Prohibition Eight — “In transit shipments and items to be unladen from vessels or aircraft (In transit).” •  General Prohibition Nine — “Violation of any order, terms, and conditions (Orders, Terms, and Conditions).” •  General Prohibition Ten — “Proceeding with transactions with knowlÂ� edge that a violation has occurred or is about to occur (Knowledge Violation to Occur).” 2.4.1.3.╇ The License Exceptions of the earâ•… In addition, the ear also contain certain ‘License Exceptions’.33 These License Exceptions allow the export or re-export under stated conditions for items subject to the ear that would otherwise require a license.34 The conclusive License Exceptions are:35 •  “Shipments of limited value (lvs)”; •  “Shipments to Country Group B countries (gbs)”; •  “Civil end-users (civ)”; •  “Technology and software under restriction (tsr)”; •  “Computers (app)”; •  “Temporary imports, exports, and re-exports (tmp)”; •  “Servicing and replacement of parts and equipment (rpl)”; •  “Governments, international organizations, and international inspecÂ� tions under the Chemical Weapons Convention (gov)”; •  “Gift parcels and humanitarian donations (gft)”; •  “Technology and software – unrestricted (tsu)”; •  “Baggage (bag)”; •  “Aircraft and vessels (avs)”; ╇ Part 740 of the ear. ╇ Also in regard to the License Exceptions see the Country Groups in Part 740Spir – Supplement No. 1 to Part 740 of the ear. 35 ╇ See Part 740.3–740.18 of the ear. 33 34

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•  “Additional permissive re-exports (apr)”; •  “Encryption commodities and software (enc)”; •  “Agricultural commodities (agr)”. However, no License Exception may be used generally for items controlled for Missile Technology reasons36 and certain ‘space qualified items’.37 2.4.1.4.╇ The De Minimis Ruleâ•… In all cases of exports from a foreign country, where no us-origin controlled items are incorporated or if the percentage of incorporated us-origin controlled items are equal to or below a de minimis level,38 then the foreign-made items are generally not subject to the ear by reason of the de minimis rule.39 For (re)-exports of a foreign-made commodity incorporating controlled us-origin commodities or ‘bundled’ with us-origin software, or foreign-made software incorporating controlled us-origin software, or foreign technology commingled with or drawn from controlled usorigin technology, the de minimis value is at 25% or less of the total value of the foreign-made commodity, foreign-made software or foreign technology. In cases of (re-)exports to embargoed countries or countries which are regarded as terrorist-supporting countries, the de minimis value is reduced to 10%.40 The calculation of the value of controlled us-origin content in foreign-made items in order to determine whether the percentage of usorigin content is de minimis is to be performed by the person (re-) exporting such items.41 ╇ Part 740.2(a)5(i) of the ear (only MT controlled commodities described in eccn 2A001 may be exported or re-exported under §740.9(a)(2)(ii) (License Exception TMP) or §740.10 (License Exception RPL) as one-for-one replacement for equipment previously legally (re-)exported. 37 ╇ Part 740.2(a)7 of the ear. 38 ╇ Part 734.4 of the ear. 39 ╇ Part 734.4 (a) of the ear lists the items for which there is no de minimis level. 40 ╇ Part 734.4 (c) of the ear. 41 ╇The value of the US-origin controlled content shall reflect the fair market price of such content in the market where the foreign product is being produced. In most cases, this value will be the same as the actual cost to the foreign manufacturer of the US-origin commodity, technology, or software. See Supplement No. 2 to Part 734 of the ear. 36

202â•…â•…M. Gerhard & M. Creydt 2.4.1.5.╇ Violations of the ear and sanctionsâ•… For any violation adminÂ� isÂ� trative sanctions, including civil monetary penalty, denial of export privileges or exclusion from practice, may be imposed by the bis.42 Furthermore, also criminal sanctions may be imposed by a us court43 as well as other sanctions that are neither administrative nor criminal.44 2.4.2.╇ The International Traffic in Arms Regulations (itar) The International Traffic in Arms Regulations (itar) contain the provisions in regard to the export and import of defence articles and defence services.45 These articles, services, and related technical data so designated are listed in the United States Munitions List (usml) which is a part of the itar.46 Authorized by the Arms Export Control Act of 1976 (aeca)47, the us President has the power to control the exports and imports of such defence articles and defence services. The President delegated his authority to the Department of State, which issues the itar and administers them through the Directorate of Defense Trade Controls (ddtc). With regard to space items on the Missile Technology Control Regime Annex, the itar clearly state that such items may be controlled either by the Department of Commerce on the ccl or by the Department of State on the usml. However, to the extent an article is on the usml, a reference appears in parentheses listing the usml category in which it appears.48 Taking effect as of 15 March 1999 the us Congress decided to shift commercial satellites to the usml as subject to the export licensing controls of the Department of State.49 The reasons behind this concerned several incidents regarding satellite exports to China and accompanying transfers of related sensitive technology. It was said that this transfer had ╇ Part 764.3 (a) of the ear. ╇ Part 764.3 (b) of the ear. 44 ╇ Part 764.3 (c) of the ear. 45 ╇ § 120.10, itar. These articles and services are also traditionally referred to as ‘munitions’; see also Van Fenema, 110. 46 ╇ United States Munitions List (usml), 22 C.F.R. 121, i.e. § 121, itar. 47 ╇ Arms Export Control Act of 1976, 22 U.S.C. 2751. 48 ╇ § 121.16, itar. 49 ╇ See Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (H.R. 3616), also known as the Strom Thurmond Act. 42 43

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significantly enhanced the reliability of Chinese ballistic missiles and that us national security was harmed.50 The shift on the one hand did not only have an impact on the us space industry which suffered a decline in exports due to strict and long licensing procedures by the Department of State, but also led to a strengthened European space industry, because the latter started to become more independent with respect to us space components.51 However, even today the space industry still depends a great deal on us space components and related technology, which is the reason why, for everyone active in the space sector, knowledge about how to deal with the itar is absolute necessary. 2.4.2.1.╇ The United States Munitions List (usml)â•…The usml is based on the Military Critical Technology List (mctl) of the Department of State,52 while at the same time the categories of the Wassenaar Arrangement are covered by the usml.53 Covered by the usml are end-items as well as components, accessories, attachments, parts, software and systems.54 Further covered are technical data55 and defence services.56 All of these are listed in 21 different categories (I–XXI)57 which are the core part of the usml. The most important category on the usml for the space business is category XV containing ‘Spacecraft Systems and Associated Equipment’. 2.4.2.2.╇ Exports subject to licensingâ•… Different conditions must be fulfilled in order to obtain an export approval, depending on what kind of export will be done. Items on the usml can be exported or re-Â�exported, defence services or technical data can be provided and brokering activities can be performed. All of these cases require the prior approval of the ddtc. ╇ This was the outcome of the so called Cox Report from the Select Committee on the U.S. National Security and Military/Commercial Concerns with the People’s Republic of China, chaired by Rep. R. Cox. See also Van Fenema, 332â•›ff. 51 ╇See M. Creydt, us-Exportrecht und Satellitenindustrie, Zeitschrift für AussenÂ� wirtschaft in Recht und Praxis AW-Prax (2002), 453â•›ff. 52 ╇ See M. Bamberger, U.S.-Exportbestimmungen 9/2002, 4. 53 ╇ See J. Boer, A. Groba & H. Hohmann, Praxis der U.S.(Re-)Exportkontrolle (2008), 99. 54 ╇ § 121.8, itar. 55 ╇ § 120.10, itar. 56 ╇ § 120.9, itar. 57 ╇ § 121.1, itar. 50

204â•…â•…M. Gerhard & M. Creydt Any person, either manufacturing or exporting defence articles58 or engaged in the business of brokering activities with regard to such items,59 needs to register with the ddtc. Generally, for each export of a defence article, an export license is necessary. For the permanent export of a defence item a DSP-5 license will be necessary. For a temporary export, the DSP-73 license will be the right one. If articles which are considered to be significant military equipment (sme) are to be exported, a non-transfer and use certificate (DSP-83)60 will need to be provided to the ddtc in addition with the license application. For the re-export of any defence item, the prior approval of the ddtc also needs to be obtained.61 This is done through a so called General Correspondence Case (GC). Although this shall be done by the respective us exporting person, such applications from non-us persons are also accepted by the ddtc. If defence services are furnished, the approval of the ddtc must be obtained before any transfer of technology or the exchange of technical in this regard. In order to obtain such approval, the us person to perform such defense services must submit a proposed agreement to the ddtc. Such agreements are generally characterized as Manufacturing License Agreements (mla), Technical Assistance Agreements (taa), Distribution or Warehouse Agreements (da, wa) or Off-shore ProcureÂ� ment Agreements (opa).62 Only after approval of the ddtc and after signature of all parties to an agreement, the respective agreement may enter into force. In case of changes to the scope of an approved agreement, an amendment can be submitted to the ddtc for approval of the changes.63 ╇ § 122.1 et seq., itar. ╇ § 129.3, itar. 60 ╇ Significant Military Equipment means articles for which special export controls are warranted because of their capacity for substantial military utility or capability. These items are preceded by an asterisk in the usml; see § 120.7 itar. Also, any sme having a nonrecurring research and development cost of more than us$ 50,000 or a total production cost of more than us$ 200,000,000 is considered to be “major defense equipment” (MDE) according to § 120.8 itar and will need additional approval of the us Congress for any export; see § 123.15, itar. 61 ╇ § 123.15, itar. 62 ╇ § 124.1(a), itar. 63 ╇ § 124.1(c), itar. In case of a minor amendment, such amendment does not need to be approved by the ddtc; see § 124.1(d), itar. 58 59

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In regard to taas or mlas, no access to defence articles and/or retransfer of technical data/defence services to individuals with a nationality or dual nationality different from the countries of the parties or sub-licensees64 is approved. Therefore such third-country nationals need to be approved separately by the ddtc and sign a non-disclosure agreement, before any technical data may be transferred to them.65 Since this regulation is an obstacle for any international organisation, for instance the European Space Agency (esa), to sign a taa or mla, Section 124.16 of the itar provides a wording to be included in the agreement text, whereby all nationals from member states of nato and the European Union, Australia, Japan, New Zealand, and Switzerland are also authorized at the same time. A broker is any person who acts as an agent for others in negotiating or arranging contracts, purchases, sales or transfers of defence articles or defence services in return for a fee, commission or other consideration.66 For any brokering activity, the person engaged shall register with the ddtc.67 Also a brokering license from the ddtc is generally required.68 2.4.2.3.╇ Violations of the itar and sanctions╅ Any person who wilfully violates any provision of the aeca or of the itar, or makes any untrue statement of a material fact or omits a material fact required to be stated therein or necessary to make the statements therein not misleading, can upon conviction be subject to a fine or imprisonment or both.69 Further, in cases of violations, any person may be prohibited from participating directly or indirectly in the export of us defence articles, including technical data (debarment) by the Assistant Secretary of State for Political-Military Affairs.70 Either of the above mentioned sanctions can be of drastic consequences for any company.

╇ Sub-licensees are approved to receive technical data only by the foreign parties, but not from the us person itself. 65 ╇ § 124.8(5), itar. 66 ╇ § 129.2(a), itar. 67 ╇ § 129.1, itar, Sec. 38(b)(1)(A)(ii) of the aeca. 68 ╇ § 129.6(a), itar, except for the cases listed in § 129.6(b), itar. 69 ╇ § 127.3, itar, 22 U.S.C. 2778(c). 70 ╇ § 127.7, itar. 64

206â•…â•…M. Gerhard & M. Creydt 2.4.2.4.╇ The itar reformâ•… There are plans by the current President Obama for a reform of the itar. The reason for this is to update the regulations and to adjust them to the threats and dangers the United States is faced with today. The most important plans are to only have one single license authority instead of having different jurisdictions of different Departments. Furthermore, the ccl and the usml shall be combined into one single control list. In addition, the proposed reform plan calls for a single IT system with a single point of entry for applicants, instead of different systems of various administrations which are not able to communicate with each other, as well as it is aimed for a single enforcement agency, instead of the current loose coordination among the Department of State, the Department of Commerce, Department of Justice, the fbi and so on. However, as expected, the plans are not without controversy. It is therefore not clear, what the outcome of the reform plans will be and when, and if they will be enacted. 2.4.3.╇ The Office of Foreign Assets Control (ofac) Regulations In addition to the ear and itar, the Office of Foreign Assets Control (ofac) plays an important role in regard to (re-)exports. While the ear and itar are focused on goods and services, the focus of the ofac is on countries and receivers. The ofac is part of the Department of Treasury and administers and enforces economic and trade sanctions based on us foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States. The ofac acts under the Presidential national emergency powers, as well as under authority granted by specific legislation,  to impose controls on transactions and freeze assets under us jurisdiction. However, most of the sanctions are based on United Nations and other international mandates.71 ofac also maintains the Lists of Sanctions Countries and the Specially Designated Nationals (sdn) List.

╇See http://www.treas.gov/offices/enforcement/ofac/mission.shtml (September 7, 2009).

71

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2.5.╇ eu Export Control Regulations To ensure the compliance with international commitments and responsibilities of its member states, the European Community realized the necessity for a common control system for exports of dual-use items from the European Community to third countries. With Council RegulaÂ� tion 428/200972 a uniform and consistent application of control throughout the European Union (eu) in order to promote eu and international security and to provide a level playing field for eu exporters shall be achieved. For the export of arms, the European Union Code of Conduct on Arms Exports and the Common Military List of the European Union as well as Directive 2009/4373 in regard to transfers of defence-related products within the European Community need to be considered.74 Finally, embargoes by means of Council Regulations against certain countries are existing, as for example the so called ‘Iran Embargo’.75 2.5.1.╇Council Regulation 428/2009 for Dual-Use Items Council Regulation 428/2009 (the ‘Dual-Use Regulation’) sets up a ComÂ�munity regime for the control of exports, transfers, brokering and transit of dual-use items.76 The export control regime was originally  established by Council Regulation 3381/9477 and subsequently expanded by Council Regulation 1334/2000 of June 2000.78 However, since Regulation 1334/2000 had been significantly amended on several ╇Council Regulation setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items (hereafter Dual-Use Regulation), No. 428/2009/EC, of 5 May 2009; OJ L 134/1 (2009). 73 ╇ Directive of the European Parliament and of the Council simplifying terms and conditions of transfers of defence-related products within the Community, 2009/43/EC, of 6 May 2009; OJ L 146/1 (2009). 74 ╇ Since the role of these Regulations is not of great importance for the space industry, there will only be a closer look to Directive 2009/43, due to its recentness. 75 ╇Council Regulation concerning restrictive measures against Iran, No. 423/2007/EC, of 19 April 2007; OJ L 103/1 (2007). 76 ╇ See Art. 1, Dual-Use Regulation. 77 ╇Council Regulation setting up a Community regime for the control of exports of dual-use goods, No. 3381/94/EC, of 19 December 1994; OJ L 367/1 (1994). 78 ╇Council Regulation setting up a Community regime for the control of exports of dual-Â� use items and technology, No. 1334/2000/EC, of 22 June 2000; OJ L 159/1 (2000). 72

208╅╅M. Gerhard & M. Creydt occasions and further amendments were necessary, it was decided to have a complete recast in order to maintain clarity. This was done through Council Regulation 428/2009 of May 2009, which entered into force on 27 August 2009. The intention however, to help complete the Internal Market and to coordinate a common European export control system, remains the same. Merely, by means of the new Regulation gaps were closed, so that among smaller changes provisions concerning the brokering and transit of dual-use items are now part of the regime. In addition, Annex I of the regime has been amended by the Dual-Use Regulation. The Dual-Use Regulation establishes a common eu applicable export authorisation. The scope of the Dual-Use Regulation applies to all dualuse items, contained in the list of dual-use items of Annex I of the Regulation. The list of Annex I is based on the Wassenaar Arrangement. For all export, brokering and transit activities in regard to such items, an authorisation shall be required.79 Any intra-Community transfer of items listed of Annex I on the other hand, can be done without an export authorisation. Only for items which are listed in Annex IV of the DualUse Regulation and which are considered as especially sensitive, an intra-Community license is still necessary.80 The term dual-use items includes goods as well as software and technology which can be used for both civil and military purposes.81 In addition, in cases of existing embargoes or an intended end-use concerning wmd, an end-user/ end-use orientated authorisation is required.82 The responsibility for deciding on such export authorisations lies with the national authorities. National provisions and decisions affecting exports of dual-use items, however, are to be taken in the framework of common commercial policy.83 Further, the eu member states may adopt additional export license requirements for dual-use items not listed in Annex I for reasons of public security or human rights considerations.84 For all exports for which an authorisation is required, generally, such export authorisation shall be granted by the competent authorities ╇ See Art. 3(1), Dual-Use Regulation. ╇ See Art. 22(1), Dual-Use Regulation. 81 ╇ See Art. 2(1), Dual-Use Regulation. 82 ╇ See Artt. 4, 8, Dual-Use Regulation. 83 ╇ See Preamble (5), Dual-Use Regulation. 84 ╇ See Art. 8, Dual-Use Regulation. 79 80

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of each member state where the exporter is established.85 Different types of export authorisations exist. Exports may be authorised through an individual86, global87 or general authorisation.88 For decisions to grant or deny an export authorisation, the Dual-Use Regulation lists relevant considerations which the eu member states shall take into account:89 (a)╇“obligations and commitments deriving from international treaties”, (b)╇“obligations under sanctions imposed by a common position, a joint action adopted by the Council, an osce decision or by the Security Council of the United Nations”, (c)╇“considerations of national and foreign security policy”, and (d)╇ “considerations about intended end-use and the risk of diversion.” The Dual-Use Regulation further provides for a co-operation mechanism with the Commission and the exchange of information between competent authorities with a view to decisions in regard to export authorisations.90 In addition, as newly introduced in the Dual-Use Regulation, the approval of a global authorisation may depend on the existence of an ‘Internal Compliance Program’ of the applicant.91 Sanctions in cases of non-compliance are subject to national legislation. Any provisions in this regard are therefore not part of the DualUse Regulation. 2.5.2.╇ Directive 2009/43 in Regard to Transfers of Defence-Related Products within the ec With Directive 2009/43 of the European Parliament and of the Council of 6 May 2009 terms and conditions of transfers of defence-related products within the Community shall be simplified. It applies to the ╇ See Art. 9(2), Dual-Use Regulation. ╇ See Art. 2(8), Dual-Use Regulation. 87 ╇ See Artt. 2(10), 14(1) Dual-Use Regulation; Annex IIIa, Dual-Use Regulation. 88 ╇See Artt. 2(9), (11), 9, Dual-Use Regulation; Annex II, Dual-Use Regulation, Community General Export Authorisation No EU001. 89 ╇ See Art. 12(1), Dual-Use Regulation. 90 ╇ See Art. 19, Dual-Use Regulation. 91 ╇ See Art. 12, Dual-Use Regulation. 85 86

210â•…â•…M. Gerhard & M. Creydt defence-related products set out in its Annex92 and aims at the establishment of a European domestic market for defence-related products, in order to enhance the competitiveness of the European defence iÂ� ndustry.93 This shall be done through simplified rules and procedures applicable to the intra-Community transfer of defence-related products. In order to simplify the current licensing systems, provisions with regard to general transfer licenses, global transfer licenses as well as individual transfer licenses are contained in the Directive. The list of defence-related products set out in the Annex shall be updated by the European Commission when necessary so that it strictly corresponds with the Common Military List of the European Union.94 The penalties for infringements of the provisions of the Directive, however, shall be laid down by the member states.95 In contrast to a Council Regulation which immediately becomes effective as part of the national law of the member states, a Directive does not become part of the national law of the member states directly, it still needs to be converted into national law by each member state. Therefore, with regard to the Directive, respective procedures need to be followed by the member states to convert it into their national laws. 2.6.╇German Export Control Regulations The main German export control regulations are the Foreign Trade and Payments Act (Aussenwirtschaftsgesetz, awg) and the Foreign Trade and Payments Regulation (Aussenwirtschaftsverordnung, awv), togethÂ�er with the Germany Export list (Ausfuhrliste, al). While the awg contains the principles of German export control law, in the awv specific prohibitions and license requirements are laid down. For exports, the bafa (Federal Office of Economics and Export ConÂ� trol) is the central licensing authority. It is responsible for the adminÂ� istrative implementation of the Federal Government’s export control policy. In a number of cases, and depending upon how critical or sensitive a case may be, the bafa decides on granting or refusing an export ╇ Cf. Art. 2, Directive 2009/43. ╇ A.K. Richter, Intra-eu-Ruestungsgueterrichtlinie, Zeitschrift für Außenwirtschaft in Recht und Praxis AW-Prax (2009), 294. 94 ╇ See Art. 13(1), Directive 2009/43. 95 ╇ See Art. 16, Directive 2009/43. 92 93

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authorisation only after political consultations with the Federal Ministry of Economics and Technology and the Federal Foreign Office.96 A unique German requirement for export transactions is the nomination of a person responsible for exports. This person must be a member of the board of directors or executive management and is personally responsible for the compliance with the German export control regulations.97 The following four types of export authorisations exist: •  Individual Licenses; •  Maximum Amount Licenses; •  Collective Export Licenses (for an export of a group of items to several consignees); and •  General Licenses (the General Licenses of the bafa are published in the Federal Gazette and exclude the issuance of individual licenses). All licenses may be provided with collateral clauses containing certain limitations, conditions, provisos or requirements which are issued to adapt the license to the requirements to the individual case. 2.7.╇French Export Control Regulations The export control system of France is different from, for example, the German or the us systems. The main differences are that no license agency exists, but rather the Ministry directly is assigning the licenses, and that a French exporter needs to have a formal approval even to sign a contract with regard to an export of goods. The French Ministry responsible for the licensing process of export licenses is the Ministry of Defence. Satellites and other space industry products are generally classified as Warfare Products and Assimilated Products (wpa). The export approval process for such items can be divided into two stages. In a first step, before sending the proposal and signing a contract, the Preliminary Approval known as Agrément Préalable (Preliminary Approval), needs to be applied for. If approved, the Preliminary Approval ╇ A brief outline of German Export Controls can be found on the bafa homepage: http://www.ausfuhrkontrolle.info/bafa/en/export_control/publications/export _control_brief_outline.pdf (last accessed 10 October 2009). 97 ╇ The legal basis for the export responsible are the ‘Principles of the Federal Government on checking the reliability of exporters’ of 10 August 2001. 96

212â•…â•…M. Gerhard & M. Creydt is signed by the DGA and the restrictions are written by the Secrétariat Général de la Défense Nationale (sgdn) on behalf of the French Prime Minister after a positive recommendation from the cieemg (CommisÂ� sion Interministérielle pour l’Etude des Exportations de Matériels de Guerre). The grant of the Preliminary Approval is notified to the applicant by the Ministry of Defence. There are different scopes or levels which can be authorized by a PreÂ� limÂ�inary Approval which the exporting company has to consider. A conÂ� tract can only be negotiated once the Preliminary Approval-level ‘Sales or Negotiation’ has been notified. Then the contract can only be signed once the next Preliminary Approval level ‘Sales’ has been obtained. Next, a contract has to be compliant with the Preliminary Approval level ‘Sales’ and must be signed within the validity period of the Preliminary Approval. Finally, of course, the exporting firm has to respect the clauses and restrictions enclosed in the Preliminary Approval. In a second step, the actual export authorization for warfare products known as aemg (Autorisation d’Exportation des Materiels de Guerre) then needs to be obtained. The application for an aemg also has to be submitted to the Ministry of Defence once the exporting company has produced the proof that all restrictions have been respected. The export authorization however, is issued by French Customs, after approval of Ministry of Defence, Ministry of Foreign Affairs and sgdn on behalf of the French Prime Minister. There are two different types of aemg licenses: the aemg ‘temporary export’ license (which is valid for one year and authorizes the temporary export of goods mentioned in the Preliminary Approval) and the aemg ‘permanent export’ license (which is valid for two years and authorizes the permanent export of goods mentioned). Items not classified as Warfare Products or Assimilated Products can still be considered as dual-use goods. 2.8.╇ uk Export Control Regulations For the United Kingdom, the important export control regulations are contained in the Control Act 2002 together with the implementing legislation in form of various orders. However, as of 6 April 2009, the Export Control Order 2008 consolidated and updated the Export Control Act 2002 together with the implementing legislation, the Export of Goods, Transfer of Technology and Provision of Technical Assistance

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(Control) Order 2003 (Amd 1863/2007), the Trade in Goods (Control) Order 2003 as well as the Trade in Controlled Goods (Embargoed destinations) Order 2004 into one new single order. The uk licensing authority for strategic export controls is the Export Control Organisation (eco) of the Department for Business, Innovation and Skills (bis).98 The eco processes all military, nuclear and dual-use export licence applications. Licenses are issued or refused after receiving advice from other Government departments, such as the Ministry of Defence, the Defence Export Services Organisation (deso) or the Foreign and Commonwealth Office (fco). Under uk law, the following types of export authorisations exist: a Standard Individual Export Licence (siel); an Open Individual Export Licence (oiel), which is specific to an individual exporter, covering multiple shipments of specified goods to specified destinations and/or in some cases specified consignees; and an Open General Export Licence (ogel), which allows the export of specified controlled goods by any exporter provided that the conditions are met and the shipment and destination are eligible. 2.9.╇Russian Export Control Regulations The export control system of the Russian Federation has a lot in common with the German system. The reason for this is that the German system was to a great extent taken as a role model by the Russian government. The export control regulations and the licensing process are administered by the Federal Service for the Technical and Export Control (fstek) which belongs to the Ministry of Defence. The main export control provisions are contained in Governmental Regulation No. 691 of 15 September 2008. Depending on how sensitive an export is, the fstek will also involve the Inter Ministry Council. Two types of licenses can be applied for: the One-time License (which allows the export of a set amount of items) and the General License (which allows the export of a set amount of items to specified countries, without the need for a specified end-user). ╇Formerly known as berr (Department for Business Enterprise and Regulatory Reform).

98

214╅╅M. Gerhard & M. Creydt 2.10.╇ Comparison of National Export Control Laws Due to the fact that most of the existing national export control laws are based on the international export control regimes, they somehow show the same features. The common regulations all differentiate between dualuse goods and military goods. Differences occur where some national regimes only have one license authorisation (for example Germany, the United Kingdom and Russia) while others have more than one, with different jurisdictions (for example the United States and France). A unique characteristic is the extraterritorial application of the us export control regulations which is not found in other national laws. Also the French regulations have the special feature that even for the signature of a contract with respect to an export, a license in form of a Preliminary Approval needs to be obtained before. Due to European Council Regulation 428/2009 for exports of dualuse goods within the European Union generally no licenses are required. National regulations for dual-use goods still exist, but have to reflect the Council Regulation which will prevail in cases of conflict.

3.╇ Remote Sensing Activities 3.1.╇Introduction Many states are operating remote sensing satellites. However, only few states have the technology necessary to operate high-resolution satellites. Most of this technology is still restricted to military operations. Only – for the time being – in three states high-resolution satellites are operated and its data are being made available for civilian use: the United States, Canada and Germany. The sectors that stand to benefit from this are many and varied, including scientific as well as institutional and commercial users in agriculture, forestry and the timber industry as well as in traffic planning and cartography. Some of these data, however, may be capable of occasionally threatening security or foreign policy interests: satellite images of areas where armed forces are deployed on a foreign mission, for example, or of areas where large masses of refugees congregate. How to ensure that such data never get into the wrong hands?

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To assess threat potentials, those three states99 needed to establish transparent and reliable procedures. It is a legislative challenge to ensure that such procedure does not critically hamper the distribution of data for scientific or commercial purposes – because, after all, it is obvious that the vast majority of these data will not threaten security or foreign policy interests. 3.2.╇Security and Foreign Policy Interests in Remote Sensing Activities The technical expertise in remote sensing sensors and satellite design has increased dramatically in the last years.100 In consequence, satellite remote sensing data and data products improved more and more. At the same time, information management systems further evolved. Thus, data and data products today make available geographical information much more substantive than just visual images.101 Some of this information might be detrimental to national security or foreign policy interests of states. Therefore, states made such data for a long time subject to a security scheme. Only few high-resolution data were distributed beyond defence agencies. Nowadays the divide between the accessibility of some data for civilian use and the restriction for some high-resolution data for defence purposes vanishes.102 A secrecy scheme is disadvantageous to a commercialisation of remote sensing. All the more, as it is not mainly the data alone which endangers national security and foreign policy interests; it is rather the information about a certain area in combination with the person who obtains these information and the timeliness the information are distributed. For instance nothing within Google Earth is detrimental to national security interests, even though the database is ╇ In addition, France covers remote sensing activities within its general legislation authorising national space activities, although there are at the moment no highresolution satellite data available for commercial distribution. 100 ╇ Some examples are given by R. Jakhu, International law governing the acquisition and dissemination of satellite imagery, 29 Journal of Space Law (2003), 71â•›ff. 101 ╇ See M. Rao & S. Murthi, Keeping up with remote sensing and GI advances – policy and legal perspectives, 22 Space Policy (2006), 262â•›ff., who label that fact as ‘global transparency’. 102 ╇ See Rao & Murthi, 262–3. ╇99

216â•…â•…M. Gerhard & M. Creydt accessible for everybody and some (airborne) data are of very high resolution: the information in this database have been gathered months and years ago. As it is neither possible nor desired to apply a secrecy scheme to highresolution satellite data, states have to prepare other (legal) instruments in order to efficiently safeguard their security interests without establishing obstacles for the commercial and scientific distribution of such data.103 3.3.╇ The Existing Legal Framework on Safeguarding Security and Foreign Policy Interests 3.3.1.╇ United States In the United States two firms are licensed to operate remote sensing space systems: Digital Globe and Orbview. On the basis of that licence, the Department of Commerce (through the National Oceanographic and Atmospheric Administration, noaa) can restrict generation and distribution of data which might be harmful to national security. Legal basis for the operations licence and any restrictions in data access is the Land Remote Sensing Policy Act of 1992,104 the Memorandum of UnderÂ� standing among the Department of State, the Department of Defense, the Department of Commerce and the Intelligence Community concerning the Licensing of Private Remote Sensing Satellite Systems of December 1999105 and two Presidential Directives on Space: PDD 49 of 19 September 1996106 and NSDP 27 of 25 April 2003.107 The Regulations on Licensing of Private Land Remote Sensing Space Systems108 implement the provisions of the Act, the Memorandum of Understanding and the policy directives. ╇ See J. Herrmann, 5 Fragen – 5 Antworten; Satellitendatensicherheitsgesetz, GeoBIT (3/2007), 6. 104 ╇ Land Remote Sensing Policy Act, Public Law 102–555, 102nd Congress, H.R. 6133, 28 October 1992; 15 U.S.C. 5601; 106 Stat. 4163. 105 ╇ Appendix 2 to Part 960, see http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid =7ac07f60ba06addd9bbf 20e5c23dd79e&rgn=div9&view=text&node=15:3.1.2.4.17. 4.17.3.37&idno=15. 106 ╇Federation of American Scientists at http://www.fas.org/spp/military/docops/national/nstc-8.htm. 107 ╇ Federation of American Scientists at http://www.fas.org/irp/offdocs/nspd/remsens .html. 108 ╇ 15 C.F.R. Part 960, as of 31 July 2000. 103

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These rules recognise commercial remote sensing satellite systems in the governmental remote sensing architecture and aim at maintaining the nation’s leadership in remote sensing space activities as well as sustaining and enhancing the us remote sensing industry.109 A minimum requirement for the licensing, monitoring and compliance of the operator is given, especially by the Regulations. 3.3.2.╇Canada In Canada, the launch of Radarsat-2 gave rise to a regulatory implementation of the 1999 Access Control Policy for the regulation of commercial remote sensing satellite systems. Radarsat-2 is owned by the private sector, albeit with upstream financial support of the Canadian Space Agency (csa). The Canadian Access Control Policy110 aims at maintaining Canada’s industrial base, advancing its technology, creating economic opportunities and safeguarding the lives of Canadians and their allies.111 On 16 June 2000 Canada und the United States entered into a bilateral agreement concerning the operation of commercial remote sensing satellite systems.112 The agreement specifically covers the operation of Radarsat-2 as well as all future Canadian commercial remote sensing satellite systems owned, operated or registered in Canada. Based on the policy and implementing the government-to-government agreement, the Canadian legislator passed a regulatory regime for commercial remote sensing satellite systems in December 2004: Bill C-25, Act governing the operation of remote sensing space systems.113 The regime resulting from this Act has been further elaborated by a set of regulations in 2007.114 ╇ W. von Kries, The U.S. Commercial Remote Sensing Policy of April 28, 2003: Some Comments, 52 Zeitschrift für Luft- und Weltraumrecht (2003), 554â•›ff. 110 ╇ Unless otherwise indicated, information in this part is based on M.L. Stojak, ReguÂ� latory Framework for Commercial Remote Sensing Satellite Systems: The Canadian Story, in Proceedings of the Forty-Seventh Colloquium on the Law of Outer Space (2005), 12â•›ff. 111 ╇ Government of Canada, News Release No. 136 (of 23 November 2004) at http://w01. international.gc.ca/minpub/Publication.asp?publication_id=381804&Mode=print. 112 ╇Government of Canada, News Release No. 153 (of 16 June 2000), at http://w01 .international.gc.ca/minpub/Publication.asp?publication_id=377855&Language=E. 113 ╇ Remote Sensing Space Systems Act, assented to 25 November 2005; S.C. 2005, c. 45; also http://www2.parl.gc.ca/Sites/LOP/LegislativeSummaries/Bills_ls.asp?Parl=38 &Ses=1&ls=C25. 114 ╇ Remote Sensing Space Systems Regulations, 29 March 2007; SOR/2007-66. 109

218â•…â•…M. Gerhard & M. Creydt 3.3.3.╇Germany On 15 June 2007 the German remote sensing satellite TerraSAR-X was launched into orbit. Data generated by this satellite are of high spatial resolution. Depending on its operating mode, the sensor of TerraSAR-X is able to generate data up to one meter spatial resolution. According to a public private partnership agreement with Astrium GmbH, the German Aerospace Center (dlr) is entitled to distribute TerraSAR-X data only for scientific use, while Astrium GmbH is exclusively entitled to the commercial distribution through its subsidiary Infoterra GmbH (Ltd.). More technical backgrounds on TerraSAR-X and on the public-private partnership as well as on further German remote sensing satellite systems to which the Act might apply can be found elsewhere.115 The possibility is given that the distribution of these data endangers Germany’s national security or foreign policy interests. Therefore, the German parliament decided to enact legislation with the aim to safeguard those interests. In 2004/05 the German government established a policy how to safeguard national security and foreign policy interests in the distribution of high-resolution satellite data. Based hereon, the Federal Ministry of Education and Research presented a first draft legislation in mid-2005. While the consultation of the other ministries was under way, the German government was reorganised. In that context, the lead management for this legislation shifted to the Ministry of Economics and Technology, which introduced a final draft in the cabinet of ministers in January 2007. The Government concluded on that legislation on 24 January 2007. The German Bundesrat commented on that legislation on 9 March 2007.116 The first hearing in German Bundestag took place on 29 March 2007;117 a public hearing was held on 10 September.118 The second and ╇ M. Gerhard & B. Schmidt-Tedd, Regulatory Framework for the distribution of remote sensing satellite data: Germanys draft legislation on safeguarding security interests, in Proceedings of the Forty-Eighth Colloquium on the Law of Outer Space (2006), 45â•›ff. 116 ╇ Drucksache des Bundesrates, BR-Drs. 65/07 (http://www.bundesrat.de/cln_051/ nn_6906/sid_62D02B1EDE32DFCE065EE87F03262C38/Share dD o cs/ Beratungsvorgaenge/2007/0001-0100/65-07.ht ml?__nnn=true). 117 ╇ Drucksache des Bundestages, BT-Drs. 16/4763 (dip.bundestag.de/btd/16/047/ 1604763.pdf). 118 ╇ Ausschussdrucksachen 16(9)770, 16(9)763, 16(9)767, 16(9)768, 16(9)769 and 16(9)771 (http://www.bundestag.de/ ausschuesse/a09/anhoerungen/8_Anhoerung/ index.html). 115

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final third hearings took place on 20 September.119 After the execution and promulgation by the Federal President, the Act on safeguarding security interests in distribution of high resolution satellite data entered into force on 1 December 2007.120 3.3.4.╇France In June Bill Nr. 2008-518 relating to spatial operations entered into force.121 This act also cursorily deals with the distribution of remote sensing data in its Articles 23 to 25.122 The operator of certain remote sensing satellites needs to hold an authorisation and is subject to any restrictions the competent authorities deem necessary in the interest of national security or foreign policy. Article 23 has been implemented by a decree of the Conseil d’Etat.123 3.3.5.╇ Other States The lack of regulation elsewhere might be attributed to either the lack of technical ability to operate advanced remote sensing satellite systems or to the fact that high-resolution data are used only for governmental or reconnaissance purposes. Further some bilateral agreements exist (for instance between the government of India and Space Imaging124) as well as some national policy declarations.125

╇ Drucksache des Bundestages, BT-Drs. 16/6438 (http://www.bundestag.de/bic/a_prot/ 2007/ap16115.html). 120 ╇ Act Protecting Against the Endangerment of German Security Through the ProliferaÂ� tion of High Resolution Aerial Imagery of the Earth (Satellitendatensicherheitsgesetz; Act on Satellite Data Security), 23 November 2007, effective 1 December 2007; Federal Gazette (BGBl.) Year 2007 Part I No. 58, of 28 November 2007. 121 ╇ Law on space operations (Loi relative aux opérations spatiales); Loi n° 2008-518 du 3 juin 2008; 34 Journal of Space Law (2008), at 453; unofficial translation 34 Journal of Space Law (2008), at 453. 122 ╇ See also Conseil d’État, Pour une politique juridique des activités spatiales (2006), 121â•›ff. and Annex 5. 123 ╇ Decret en Conseil d’Etat no. 2009-640 du 09/06/2009 portant application des dispositions prévues au titre VII de la loi no. 2008-518 du 3 juin 2008 relative aux opérations spatiales; Journal Officiel de la Républigue Française 10 June 2009. 124 ╇ As quoted by Jakhu, 83. 125 ╇ For instance Remote Sensing Data Policy of the Indian National Remote Sensing Agency, cf. http://www.nrsa.gov.in/ policy.html. 119

220╅╅M. Gerhard & M. Creydt 3.3.6.╇ The Main Differences Between Existing Legislation For the purpose of the present paper, only those three cases of national legislation are taken into consideration that contain a mature and comprehensive regulation of remote sensing activities within a parliamentary act: the United States, Canada and Germany. Some significant differences between the us regulations and the Canadian legislation on the one hand and the German legislation on the other hand should be mentioned here. The us regulations and the Canadian act are limited to a license to operate a remote sensing satellite system. Access control to data generated by such satellite system and any other rights reserved to the respective government is linked to that license. In contrast, the German concept clearly distinguishes between the role of the satellite operator and the distributor. This allows for better distinguishing the different obligations and responsibilities assigned to parties involved. This differentiation was necessary for the German legislator, as the German act needed to be applied to the TerraSAR-X public-private partnership agreement, where the ownership of the satellite belongs to dlr on behalf of the German government. dlr is the operator of the satellite system. But two entities are going to distribute TerraSAR-X data: dlr is entitled to use data generated by that satellite for scientific purposes only. The commercial right of use is granted to Infoterra GmbH, a private commercial entity. 3.4.╇ The General Concept to Safeguard Security and Foreign Policy Interests in Remote Sensing Activities Considering the above mentioned differences, the purpose of this chapter is to generally describe the contents of remote sensing legislation. To this end, the authors distinguish between the obligations and responsibilities that need to be assigned to the operator of high-value remote sensing satellites and the obligations and responsibilities of the distributor of data generated by such high-value remote sensing satellites. 3.4.1.╇ The Aim of Remote Sensing Legislation The main aim of remote sensing legislation is to protect national security and foreign policy interests of the legislating state. However, at the same time the state should ensure that the legislation does not critically hamper the distribution of data for scientific or commercial

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purposes – because after all, it is obvious that the vast majority of these data will not threaten security or foreign policy interests. Therefore the control typically is restricted to the distribution of satellite remote sensing data by the operator of the satellite system or by a primary distributor. The primary distributor in this sense is understood as the operator of the system or a person, who has a right of use which derives directly from this very operator. Any further distribution (by the customers of the operator or distributor) should not be restricted. Furthermore, the legislator aims at minimising administrative burdens for the operator and distributor. There is an enormous amount of transactions (distribution of data) per week. A claim for an authoritative clearance of all of them would inflict more disadvantages to the geoindustry than it would bring advantages from the national security perspective. In order to ensure a closed-loop system, it is required from the operator and the distributor to establish a management system ensuring that no unauthorised persons can gain access to the remote sensing satellite or the data, before it is assessed whether the data might infringe security or foreign policy interests. In consideration of the above, the legislator (especially in Germany) established a three-tiered system: authorisation of the operator, authorisation of the distributor and authorisation of individual transactions (distribution of data). 3.4.2.╇ Authorisation of the Operation of Remote Sensing Satellites The operator of a remote sensing satellite system should be authorised. As not all remote sending satellite systems will be able to generate highresolution data, the legislation is restricted to ‘advanced’ remote sensing satellite systems. ‘Advanced’ remote sensing systems are systems which have the potential to generate data, which might be detrimental to the national security or foreign policy interests. The criteria therefore are for instance spatial resolution, spectral coverage, number of spectral channels and suchlike. The legislator established precise limits of these criteria, within a governmental decree, as these limits might need to be adapted to changing security interests. The authorisation can be considered as a kind of approval of a proper management system. To be issued such authorisation, the operator has to be reliable; he has to ensure, that the satellite system cannot be commanded by unauthorised persons and that data cannot be accessed by

222╅╅M. Gerhard & M. Creydt unauthorised persons (amongst others through appropriate �encryption). Furthermore, he has to ensure that no unauthorised person has admission to the rooms relevant to operate the satellite system and to the storage and handling of the data as well as that no unauthorised person has access to relevant facilities therein. Persons having such access have to be cleared. The operator has to report adequately to the competent authority, to grant access to officials of that authority at any time and to document commands and encryption procedures. 3.4.3.╇ Authorisation of the Distribution of Remote Sensing Data The distributor of data of an advanced remote sensing satellite system is to be authorised by the competent authority, too. The requirements of that authorisation are similar to the authorisation of the operator of an advanced remote sensing satellite system. It has to be ensured that no unauthorised person can get access to the data processed or stored by the distributor. Distribution channels need to be protected against unauthorised access, too. 3.4.4.╇ Authorisation for the Distribution of Sensitive Data A main feature of a remote sensing act is to ensure that the distribution of satellite data does not cause harm to the national security or foreign policy interests. As elaborated above, there is no possibility for the competent authority to assess each and every transaction (data distribution). An adequate allocation of pre-assessment to the distributor therefore needs to take place. This is why a two-stage procedure is established (especially by the German legislator): every transaction has to be assessed with regard to its relevance for the national security and foreign policy interests; when such relevance is given, an in-depth assessment has to take place whether such interests will be harmed. The first stage is a sensitivity check that can be administrated by the distributor himself. Based on given criteria by the competent authority, the distributor has to check, whether or not a transaction might endanger national security and foreign policy interests. The criteria are for instance the technical parameters of the data, the sensed territory, the time of generation of the data, the time of delivery and the person to be delivered to. The precise details of these criteria are given in a decree. In case this check does not show any sensitivity of the transaction, the distributor is free to process the transaction without any official procedure.

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Not until the check does show sensitivity, the distributor has to decide whether he will decline the transaction or apply to the competent author�ity for an authorisation. Just here an administrative procedure starts. Within this second stage the competent authority assesses whether the transaction might indeed endanger national security or foreign policy interests.

4.╇Conclusions Export control regulations and remote sensing legislation as described above aim at the same purpose: safeguarding security and foreign policy interests. The explanatory memorandum to the German Act on safeguarding security interests in distribution of high resolution satellite data explicitly refers to this commonality.126 This is due to the fact that export control regulations – when establishing authorisation requirements for remote sensing sensors – aims at restricting the distribution of the technology as such, but also at restricting the availability of data generated by such technology. As a matter of course the requirements and conditions for distributing remote sensing satellite data has to follow similar restrictions. Remote sensing legislation – even if it (unlike the German Act) does not explicitly refer to this commonality – can be better understood and interpreted when keeping this commonality in mind. In addition, the existence of remote sensing satellite legislation in a country into which a remote sensor is supposed to be imported in order to be integrated into a satellite can facilitate – or even render possible at all – the issuance of an export license of such a sensor. This is because the export control authority can assess that (or whether) the use of this sensor subject to the remote sensing legislation sufficiently protects also the security interests of the exporting state. In conclusion, both areas have certain commonalities and interrelations that should be kept in mind when dealing with the export of remote sensing satellite sensors and the distribution of remote sensing satellite data.

╇ Bundestagsdrucksache 16/4763, 28.

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Chapter Eight The Issue of National Security in the Context of National Space Legislation – Comparing European and Non-European States F.G. von der Dunk 1.╇Introduction The inherent dual-use character of most, if not all space activities cannot fail to exercise a considerable impact also on the involvement of private actors in space. Much technology used for and/or developed by private space activities may potentially be put at the use of those wishing to change a particular political status quo, and likewise the material results of some private space activities may, consciously or inadvertently, come to be used against the national security interests of one state or another. Hence, issues of national security will likely also have an effect on the issue of authorisation of such actors on the national level. In some cases, that has led to quite general comprehensive regimes being developed for all international trade and trade-related activities concerning sensitive dual-use items, alternatively very specific regimes dealing with the security-related aspects of high resolution remote sensing operations involving private actors.1 ╇ See, in particular, supra, M. Gerhard & M. Creydt, Safeguarding National Security and Foreign Policy Interests – Aspects of Export Control of Space Material and Technology and Remote Sensing Activities in Outer Space, discussing as to the first, inter alia the us itar and the eu Dual-Use Regulation (Council Regulation setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items, No. 428/2009/EC, of 5 May 2009; OJ L 134/1 (2009)â•›), and as to the second, in particular the German Act on Satellite Data Security (Act Protecting Against the Endangerment of German Security Through the Proliferation of High Resolution Aerial Imagery of

1

226â•…â•…F.G. von der Dunk In addition, however, the increasing implementation of a general approach to the licensing of private space operators with a view to (amongst others) safety and liability-related aspects also raises the issue as to what extent implementation measures address, more or less specifically, the national security- and defence-related aspects of the licensed operations concerned. Thus, the present contribution will provide a survey of existing national space legislation – defined for the purpose as national statutes addressing in a general and comprehensive fashion private space activities falling within the jurisdiction of the state concerned – as to how reference has been made to such concerns. ‘Europe’ being defined for the moment as the member states of the European Union and/or the European Space Agency (esa),2 this would mean addressing on the one hand the European states Norway, Sweden, the United Kingdom, Belgium, the Netherlands and France, and – in order to provide some larger comparative perspective – on the other hand the United States, the Russian Federation, South Africa, the Ukraine, Australia, Brazil, South Korea and Canada.3

2.╇ National Space Law in Europe and the National Security Issue 2.1.╇Norway Norway, not an eu member yet member state of esa very much from the beginning, was the first state drafting a national law to deal with the prospect of private parties undertaking space activities, notably launch the Earth; Satellitendatensicherheitsgesetz; 23 November 2007, effective 1 December 2007; Federal Gazette (BGBl.) Year 2007 Part I No. 58, of 28 November 2007). 2 ╇ Cf. e.g. S. Hobe et al., Ten Years of Cooperation between esa and eu: Current Issues, 58 Zeitschrift für Luft- und Weltraumrecht (2009), 49–73. 3 ╇ Geographically speaking, the Russian Federation and the Ukraine would also qualify as European states. Yet, in spite of the absence so far of any regulatory competences of esa and of more than a first general competence in the case of the European Union (see further on this the contribution infra by B. Schmidt-Tedd, Authorisation of Space Activities after the Entry into Force of the eu Reform Treaty), it is considered opportune to take the membership of these two organisations as point of departure for defining ‘Europe’, in view of their long-standing joint history in space. See also the contribution infra by L.J. Smith, EU Competition Law and Issues of National Authorisation of Private Space Activities.

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activities, by means of the Act on launching objects from Norwegian territory into outer space.4 Indeed the Norwegian Act provided for a requirement to obtain permission from the Norwegian government for anyone launching an object into outer space from Norwegian territory, ships or aircraft, or “[a]reas that are not subject to the sovereignty of any state, when the launching is undertaken by a Norwegian citizen or person with habitual residence in Norway.”5 Launching, of course, is the category of space activities most directly associated with security issues in view of the near-impossibility to distinguish between launch vehicles and missiles. Predating the entry into force of the Liability Convention6 by some three years and with only the Outer Space Treaty7 and Rescue Agreement8 in force, the Norwegian draftsmen were unable to provide much detail on the requirements to be fulfilled in order to acquire a license, including apparently requirements regarding security: “[c]ertain terms can be set for such permission as described” in the paragraph cited above, and the authorities “can issue regulations on control etc. of activities as described” in that same paragraph.9 Whilst such “terms” could obviously include security- and defence-related interests of the Norwegian government, to be inserted in the implementing regulations referred to, the Act itself did not provide any further clue as to the extent that would, or should, actually happen in any given case. ╇Act on launching objects from Norwegian territory into outer space (hereafter Norwegian Act on Launching), No. 38, 13 June 1969; National Space Legislation of the World, Vol. I (2001), at 286. 5 ╇ Sec. 1(c), Norwegian Act on Launching. 6 ╇ Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971). 7 ╇ Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967). 8 ╇ Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, London/Moscow/Washington, done 22 April 1968, entered into force 3 December 1968; 672 UNTS 119; TIAS 6599; 19 UST 7570; UKTS 1969 No. 56; Cmnd. 3786; ATS 1986 No. 8; 7 ILM 151 (1968). 9 ╇ Secc. 1, resp. 2, Norwegian Act on Launching. 4

228â•…â•…F.G. von der Dunk 2.2.╇Sweden Norwegian’s Scandinavian neighbour Sweden followed suit with national space legislation in 1982.10 All activities in outer space conducted from Sweden or by Swedish natural or legal persons require a license under the Swedish Act.11 In terms of conditions attached to such a license, the Act is not much more specific than the Norwegian Act was: “A licence may be restricted in the way deemed appropriate with regard to the circumstances. It may also be subject to required conditions with regard to control of the activity or for other reasons.”12 Disregarding the fundamental requirement to obtain a license in undertaking space activities covered by the Act carries with it a fine or a maximum penalty of imprisonment of one year.13 The Act, however, does not use the terms “security” or “defence”, or indeed any other term relevant from the current perspective. The ensuing Decree, providing the National Board for Space Activities (nbsa) with the licensing authority under the Act on behalf of the Swedish government, offers a little more detail. It calls upon the nbsa to consult with other national ministries or authorities “affected by the application” as necessary for the proper handling of the license request, and while only the telecommunications administration is mentioned explicitly here, of course it would make sense to consult with the Swedish Ministry of Defence in case a license application raises issues of national security.14 Again, however, no specific reference to such issues is found. One should be aware in this context that Sweden for a long time was taking a relatively neutral stance in the political Cold-War division of Europe between the nato allies and the Soviet Union’s satellite states, ╇ Act on Space Activities (hereafter Swedish Act on Space Activities), 1982: 963, 18 November 1982; National Space Legislation of the World, Vol. I (2001), at 398; Space Law – Basic Legal Documents, E.II.1; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 11; resp. Decree on Space Activities (hereafter Swedish Decree on Space Activities), 1982: 1069; National Space Legislation of the World, Vol. I (2001), at 399; Space Law – Basic Legal Documents, E.II.2; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 11. 11 ╇ See Secc. 1, 2, Swedish Act on Space Activities. 12 ╇ Sec. 3, Swedish Act on Space Activities. Sec. 4 then provides for the possibility of withdrawal of the license, in case the conditions of the license are not complied with. See also N. Hedman, Swedish Legislation on Space Activities, in C. Brünner & E. Walter (Eds.), Nationales Weltraumrecht / National Space Law (2008), 74–6. 13 ╇ See Sec. 5, Swedish Act on Space Activities. 14 ╇ Sec. 1, Swedish Decree on Space Activities. 10

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including a vocal, sometimes almost anti-military stance in Â�international politics. Partly for such reasons, for example accession to the European Union was only politically feasible after the end of the Cold War – and ultimately took place in 1995. Such a background may well be largely responsible for the omission of any specific reference to defence or security in the Swedish case, lest suspicions would arise that Swedish space activities might somehow have a military or security-related aspect, connotation or even purpose. In addition, the most immediately relevant space activities to be undertaken from Sweden would be launches from the Esrange facilities in Kiruna. These, however, were generally undertaken in cooperation with (or even simply by) the European Space Agency, which under its Convention was formally required to undertake its space activities “exclusively for peaceful purposes”.15 This background may well have conspired to cause any explicit reference to security concerns in terms of space activities to remain absent from the Act and Decree. 2.3.╇ The United Kingdom The United Kingdom promulgated its Outer Space Act in 1986.16 This Act is the first one in Europe making explicit reference to defence- and security-related aspects in the context of the license for space activities which is mandatory for citizens of the United Kingdom.17 Notably, the Secretary of State, the uk Member of Cabinet responsible for licenses (and having delegated that responsibility to the UK Space Agency, UKSA) “shall not grant a licence unless he is satisfied that the activities authorised by the licence (…) will not impair the national security of the United Kingdom.”18 Sections 4 and 5 provide further detailed authority to investigate and monitor a potential licensee to determine whether the licensing requirements would actually be complied with. This comprises amongst others ╇ Art. II, Convention for the Establishment of a European Space Agency (hereafter esa Convention), Paris, done 30 May 1975, entered into force 30 October 1980; 14 ILM 864 (1975); Space Law – Basic Legal Documents, C.I.1. 16 ╇ Outer Space Act (hereafter uk Outer Space Act), 18 July 1986, 1986 Chapter 38; National Space Legislation of the World, Vol. I (2001), at 293; Space Law – Basic Legal Documents, E.I; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 12. 17 ╇ See Secc. 1, 2(1), 3, uk Outer Space Act. 18 ╇ Sec. 4(2.c), uk Outer Space Act. 15

230â•…â•…F.G. von der Dunk the possibility to include in a license “in particular (…) conditions (…) requiring the licensee to conduct his operations in such a way as to (…) preserve the national security of the United Kingdom”.19 Licenses granted may also be revoked, varied or suspended, as necessary, to protect these interests.20 Section 8 in addition provides the authorities with quite far-reaching competences with regard to licensees acting in violation of the license requirements, which include the option to “give such directions as appear to him necessary to secure the cessation of the activity or the disposal of any space object”.21 Section 12 finally details the procedures according to which violators would be sanctioned. In short: the Outer Space Act, though in itself still relatively succinct, provides the uk authorities with sufficient and sufficiently explicit and comprehensive legal instruments to ensure that also the particular security-related interests of the United Kingdom will be duly protected in the course of any private space activities licensed under the Act. 2.4.╇Belgium After the United Kingdom had enunciated its Act in 1986, it took almost twenty years for the next European country to follow suit: Belgium enacted its national space law as late as 2005.22 It provided for an obligation to obtain an authorisation for anyone undertaking space activities from within Belgian territorial (including quasi-territorial) jurisdiction, as well as in certain cases for Belgian citizens conducting such activities elsewhere.23 Those activities included all activities coming to mind as being potentially security-sensitive: launching, satellite navigations and satellite remote sensing.24 In order to be granted such an authorisation, amongst others conditions ensuring due protection of the “strategic (…) interests of the ╇ Sec. 5(2.e) sub (iv), uk Outer Space Act. ╇ Cf. Sec. 6(2), uk Outer Space Act. 21 ╇ Sec. 8(2), uk Outer Space Act. 22 ╇ Law on the activities of launching, flight operations or guidance of space objects (hereafter Belgian Space Law), 17 September 2005, adopted 28 June 2005; Nationales Weltraumrecht / National Space Law (2008), at 183. 23 ╇ See Artt. 2, 4(1), Belgian Space Law. 24 ╇ Cf. Art. 2(1), Belgian Space Law. 19 20

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Belgian State” could be imposed by the Belgian authorities, but the discretion to do so lies with the authorities – at least under the Law itself.25 Articles 7 through 12 provide for an elaborate set of rules and procedures to provide the licensing authority with the legal instruments to enforce the requirements of the Law and any license granted under it, which include for example the competence, if necessary, to “take action to deorbit or destroy the space object”.26 Though there is no direct reference to security or defence interests, it may be safely assumed that – once the decision would indeed be made in a given case to include conditions protecting the aforementioned “strategic interests” of Belgium – these instruments could and would be used as required in this context. 2.5.╇ The Netherlands The next European country of concern is the Netherlands, which has a national space law in place since 2007.27 As with the other national space laws discussed, pride of place belongs to a licensing requirement in regard of private space activities, imposed in this case upon those performing space activities in or from within the Netherlands, Dutch ships or aircraft; an obligation which can be extended moreover to certain space activities performed by Dutch nationals elsewhere or organised from within the Netherlands even if actually undertaken outside.28 Again, such private space activities include all activities relevant from a security perspective.29 Amongst the restrictions that can be imposed on licensees by means of additional requirements, those targeted at “protection of the public order” and, even more to the point, protecting the “security of the State” are explicitly mentioned.30 Reference to security issues is further made in the context of potential disasters: ╇ Art. 5(1), Belgian Space Law. ╇ Art. 11(5), Belgian Space Law. 27 ╇ Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry of Space Objects (hereafter Dutch Space Law), 24 January 2007; 80 Staatsblad (2007), at 1; Nationales Weltraumrecht / National Space Law (2008), at 201. 28 ╇ See Secc. 2, 3(1), Dutch Space Law. 29 ╇ Cf. Sec. 1(b), Dutch Space Law. 30 ╇ Sec. 3(3), sub (d) resp. (e), Dutch Space Law. 25 26

232â•…â•…F.G. von der Dunk If an incident occurs or has occurred that may jeopardize (…) national security (…) the licence-holder shall, without delay, take the steps that can reasonably be expected of it in order to prevent the consequences of that event or, where those consequences cannot be prevented, to limit and rectify them as far as possible.31

As in the case of Belgium, the ultimate decision to include relevant requirements in a particular regulation or license is to be made by the Dutch authorities; they are not included automatically as such. However, the responsible Minister has to refuse the grant of a license if, in his view, “facts or circumstances suggest that (…) the maintenance of public order or national security might be jeopardized by issuing the licence”, which may considerably mitigate the lack of a default requirement to comply with the national security interests of the Netherlands.32 In line with the general approach to licenses prevailing under national space laws, also the Dutch Law provides the authorities with various procedural instruments to ensure proper application of its licensing obligations with a view to the Dutch national security-related interests, such as the competences to revoke a license after it has been granted, to enforce compliance by means of further administrative orders and to sanction violations of the terms of the license and/or the Law.33 To explain background and reasons behind the establishment of the Law, as is required under Dutch law an Explanatory Memorandum had accompanied its promulgation.34 It confirmed the increasing Â�involvement of private actors also in the Dutch context, both present and prospective, as presenting the most important reason behind the establishÂ�ment of the Law, together with the need to implement the main international space treaties in that respect. In doing so, however, it barely touches upon security- or defence-related issues: the main focus is indeed on implementing the requirements and consequences of Articles VI, VII ╇ Sec. 10(1), Dutch Space Law. ╇ Sec. 6(1.b), Dutch Space Law. 33 ╇ See, resp., Sec. 7, Sec. 14, and Secc. 15-23, Dutch Space Law. E.g., Sec. 15(1) provides for a maximum administrative penalty of € 450,000 or 10% of the relevant annual sales of the licensee concerned in the Netherlands, whichever is greater. 34 ╇ Explanatory Memorandum, Space Activities Act (13 June 2006). The Dutch version thereof can be found in Tweede Kamer der Staten-Generaal, Vergaderjaar 2005–2006, 30 609, nr. 3. For the unofficial English translation of the explanatory memorandum, reference may be had to http://www.agentschap-telecom.nl/ep/space_activities_act_ explanatory_note.pdf. 31 32

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and VIII of the Outer Space Treaty, the Liability Convention and the Registration Convention.35 No specific reference is made therefore by the Explanatory MemoÂ� randum to security or defence-related issues, and/or to a role for example of the Dutch Ministry of Defence in being privy to the licensing process executed by the Ministry of Economic Affairs. Not even in the discussion on Section 3, as the Section of the Law where the security of the Netherlands is explicitly included in potential further regulations or the licenses itself, is any specific explanation or elaboration given in this respect.36 The discussion of Section 6, providing for the grounds for refusal of a license, does only confirm that the likelihood that the grant of a license might “jeopardize (…) national security” may present such a ground, without going into any further details.37 The framework provisions of the Law have meanwhile been elaborated to some extent by means of an Order Concerning Licence Applications for the Performance of Space Activities and the Registration of Space Objects.38 This Order details the procedure relevant to applications for licenses, including the information to be provided by the prospective licensee, but it focuses almost exclusively on safety-related and financial issues with a view in particular to handle international liability and attendant insurance consequences of the licensee’s future space activities. Only the requirement to provide “as complete a description as possible of the space activities in question” indirectly allows the authorities to judge to some extent whether those space activities may actually be harmful to Dutch national security interests.39 Of course, if such information does not completely satisfy the authorities, or would not allow them a reasonably solid judgement, more information could be ╇ Convention on Registration of Objects Launched into Outer Space (hereafter RegisÂ� tration Convention), New York, done 14 January 1975, entered into force 15 September 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975). 36 ╇ Cf. Ch. II, para. on Sec. 3, Explanatory Memorandum. 37 ╇ Ch. II, para. on Sec. 6, Explanatory Memorandum. 38 ╇ Order Concerning Licence Applications for the Performance of Space Activities and the Registration of Space Objects (Regeling aanvraag vergunning ruimtevaartactiviteiten en registratie) (hereafter Dutch Licensing Order), Ministry of Economic Affairs, no. WJZ 7119929, of 7 February 2008, which entered into force 22 February 2008. 39 ╇ Art. 2(2.a), Dutch Licensing Order. 35

234â•…â•…F.G. von der Dunk requested on an informal level. Still, whilst normally speaking private actors interested in space activities in the Dutch context might not be expected to involve themselves in such activities as directly presenting a risk of interference with national security interests,40 these succinct provisions might not turn out to be sufficient – for example in cases where foreign remote sensing operators might be looking for a license under the Dutch Law. 2.6.╇France In spite of its long-standing involvement in space activities also through the private sector (Arianespace and SpotImage both being French companies) France was the last European country so far to draft a comprehensive national space law, in 2008.41 There were a number of reasons for this absence of a perceived need for a national law so far, one of them being that both the aforementioned companies had the French governmental space agency cnes as the largest single shareholder, allowing for direct control of all their activities by the French government to the extent it could be held responsible and liable under the international space treaties.42 In addition, SpotImage was essentially marketing and selling remote sensing data from the spot system, which was itself directly operated by the French government (with minor participation of some other European states). With Arianespace, a private company offering launch services on a commercial basis to a global market, the situation was a bit more complex, due to the fundamental involvement of the European Space Agency (esa) and other esa member states beside France in the Ariane ╇ It may be noted that the Explanatory Memorandum specifically expects that launch activities, the most directly security-related category of space activities, would not be conducted anytime soon from Dutch territory; whereas from the other end it clarifies that the main expected type of space operators prospectively applying for licenses – further to the one company already currently requiring a license under the Law, New Skies Satellites – would be in the satellite communications field, perhaps the least security-sensitive area of space activities. 41 ╇ Law on space operations (Loi relative aux opérations spatiales) (hereafter French Law on Space Operations; Loi n° 2008-518 du 3 juin 2008; 34 Journal of Space Law (2008), at 453; unofficial translation 34 Journal of Space Law (2008), at 453. 42 ╇ See also supra, A. Kerrest de Rozavel & F.G. von der Dunk, Liability and Insurance in the Context of National Authorisation, sections 6, 7. 40

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launcher development programmes.43 Thus, the legal framework within which Arianespace was to operate consisted of a triptych of legal documents, essentially acting in lieu of a national authorisation process that might otherwise have been required. These documents were the Arianespace Declaration of 1980 (regularly renewed since),44 the Arianespace Convention concluded between esa and Arianespace45 and the csg Agreement.46 Apart from regulating such issues as liability and insurance,47 a few provisions referred to the potential involvement of Arianespace in issues pertinent to international peace and security. Thus, for example the Arianespace Declaration required the company to operate (only) for “peaceful purposes”,48 further to the obligation resting upon esa itself to undertake its activities “exclusively for peaceful purposes”.49 It should be surmised, given the specific context of the Ariane programme as involving a host of European states, that such a requirement would likely also exclude any activity detrimental to the national security interests of France and the other esa member states involved in the programme and Arianespace’s follow-on activities of building, marketing and selling the services of Ariane launch vehicles. As to those national security issues more specifically, however, there was no clause making explicit reference to them. Participating states could of course dissociate themselves from a particular launch, inter alia in case they felt their security interests would be at stake.50 Yet, control ╇See on this e.g. F.G. von der Dunk, Private Enterprise and Public Interest in the European ‘Spacescape’ (1998), 155–60, 167–70, 232–9. 44 ╇Declaration by Certain European Governments Relating to the Ariane Launcher Production Phase (hereafter Arianespace Declaration), done 14 January 1980, entered into force 15 October 1981; 6 Annals of Air and Space Law (1981), at 723. 45 ╇Convention between the European Space Agency and Arianespace (hereafter Arianespace Convention), signed 24 September 1992. 46 ╇ Agreement between the French government and the European Space Agency with respect to the Centre Spatial Guyanais (csg). Effectively, this was a series of renewed regularly protocols between France and esa concerning the use of the Centre Spatial Guyanais (csg). 47 ╇ See further supra, A. Kerrest de Rozavel & F.G. von der Dunk, Liability and Insurance in the Context of National Authorisation, section 6. 48 ╇ Artt. 1.2(a), 3.1, Arianespace Declaration. 49 ╇ Art. II, esa Convention; see further infra, section 4. Cf. also Art. III, Outer Space Treaty. 50 ╇ See Art. 1.6(b), Arianespace Declaration. Cf. also para. (c). 43

236â•…â•…F.G. von der Dunk of the company’s activities through the cnes shareholding and the general obligations to operate within the framework set by esa and the member states, including notably France, were apparently already considered to solve any concerns on such issues. Once France decided to draft a national space law, as a more fundamental and comprehensive tool to control amongst others Arianespace’s activities, however, also these security- and defence-related issues were back on the table. They were to be dealt with, consequently, as part of the process of authorisation of private space operators under the Law, which pertained to any operator of a space activity, including launching, conducted from French territory as well as any French operator launching space objects from outside France.51 The French Law is very outspoken concerning national security concerns: “Authorizations cannot be granted when the operations for which they are requested, regarding in particular the systems intended to be implemented, are likely to jeopardise national defence interests”.52 Further clauses allow the French authorities to elaborate such o Â� bligations in more detail, to control the activities once authorised, and to impose sanctions.53 Transfer of a space object to the command of a third party, after the original activities have been authorised, still requires a separate authorisation – inter alia in view of the security risks posed by uncontrolled transfers of space objects to parties that as such may not be subject to French jurisdiction.54 Authorisations specifically can be revoked or suspended when, once more, the activities at issue “are likely to jeopardise the national defence interests” – whether in contravention of a specific provision in the authorisation or not.55 Finally, specific provisions are included which take care of the Â�potential for remote sensing operations to jeopardise French national security: Any primary space-based data operator undertaking in France an activity having certain technical characteristics defined in a decree passed at the ╇ See Art. 2, French Law on Space Operations. ╇ Art. 4, 2nd para., French Law on Space Operations. 53 ╇ See e.g. Artt. 4, 7, 11, French Law on Space Operations. The latter makes reference to penalties of up to € 200,000. 54 ╇ See Art. 3, French Law on Space Operations. 55 ╇ Art. 9, French Law on Space Operations. 51 52

National security: comparing European and non-European statesâ•…â•…237 Council of State must preliminarily declare it to the competent administrative authority. These technical characteristics are related in particular to the resolution, location accuracy, observation frequency band and quality of the Earth observation data which are received or for which a satellite system is programmed.56

Only to the extent the planned operations would not “harm fundamental interests of the Nation, particular defence matters, foreign policy and international commitments of France” might the authorisation be granted.57 In any event, “the launching and guiding, for the needs of national defence, of vehicles [of] which [the] trajectory passes through outer space” and the activities of the French Ministry of Defence itself acting as space operator are not subject to the relevant limitations under the Act in this respect; it is considered self-evident that such activities have French national security at heart as their overriding concern in any event.58 2.7.╇ Concluding Remarks Comparing the six member states of esa and the European Union currently possessing a national space law with a licensing system for handling private participation in space activities, it turns out they offer a wider range of ways of handling the security issues inevitably involved in most space activities, including the private ones, than might have been expected. The frameworks for authorisation of private space activities in Norway and Sweden make no reference whatsoever to issues of national security or defence. Norway only refers to “certain terms”59 which may be included in the authorisation, whereas Sweden along the same lines only requires in a very general sense to take “the circumstances” into conÂ� sideration and allows the imposition of conditions “for other reasons” than controlling the activity.60 The United Kingdom is the first European state explicitly mentioning “the national security” of the state as a key consideration in granting a license, and therefore as a Â�justification for ╇ Art. 23, French Law on Space Operations. ╇ Art. 24, French Law on Space Operations. 58 ╇ Art. 26, French Law on Space Operations. 59 ╇ Sec. 1, Norwegian Act on Launching. 60 ╇ Sec. 3, Swedish Act on Space Activities. 56 57

238â•…â•…F.G. von der Dunk imposing relevant conditions upon the licensee, but whether and what specific conditions will actually be imposed remains at the discretion of the licensing authority.61 Whilst the national space laws of Belgium and the Netherlands, promulgated some twenty years later, are considerably lengthier and more detailed, those details largely refer to the procedures ensuring proper implementation and enforcement of licenses, and do not lie in detailing the substantive reasons for imposing conditions in the first place or detailing such conditions. In the Belgian case the reference is to “strategic interests”,62 in the Dutch case to “security” respectively “national security”;63 but as with the United Kingdom, ultimately the decision to actually impose relevant conditions rests with the respective authorities (albeit that in the case of the Netherlands, the responsible Minister is forced to take action in case he considers it likely that “the maintenance of public order or national security might be jeopardized by issuing the licence”;64 whereas the uk case amounts to a similar construction). It may also be noted, furthermore, that none of these national acts make reference to involvement in the licensing process of the national military or defence authorities. Sweden actually comes closest ment resting upon the licensing authority, the nbsa, in its requireÂ� to “consult (…) national ministries or authorities affected by the application” for a license.65 Of course, neither of the respective licensing authorities themselves are part of the military or security-side of government: they concern a wide variety of civil space boards and Ministries such as of Economic Affairs or Science and Research, but never the Ministry of Defence. Perhaps, however, not too much value should be attached to the rather open-ended character of those formulations. It still seems rather unlikely that in case a private operator’s planned activities would actually be perceived as presenting potential national security risks, the licensing authorities would not use the options available to them to impose relevant conditions or requirements upon the licensee after all. ╇ Sec. 5(2.e), sub (iv), uk Outer Space Act. ╇ Art. 5(1), Belgian Space Law. 63 ╇ Secc. 3, 6(b), Dutch Space Law. 64 ╇ Sec. 6(1.b), Dutch Space Law. 65 ╇ Sec. 1, Swedish Decree on Space Activities. 61 62

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It is more a matter of relative legal uncertainty at the outset, as to what would be regarded as relevant security interests, than a matter of absence of national legal controls for those purposes. Clearly the major exception in all these respects is France. France does provide for a straightforward obligation for the licensing authority to only authorise private space activities if they are not “likely to jeopardise national defence interests”, and further key controls are in place in the French Law to this effect, including a specific set of clauses regarding remote sensing.66 France also represents the only case where an explicit reference to a Ministry of Defence has occurred in the national space laws of member states of esa and the European Union. Likely, it was a combination of specific factors in the French case giving rise to this very upfront and thorough handling of possible national security concerns in the context of private space activities to be licensed. These would range from a general historical militaristic tradition of grandeur (in explicit contrast with, for example, Sweden and the Netherlands), to an outspoken desire to remain master of its own destiny by depending on its own military force (as illustrated by such issues as the French refusal to agree to a European Defence Community in the 1950s, the development of its own nuclear force and its independent behaviour within the Western alliance), to the administrative centralist make-up of the state forcefully asserting its presence also in the space arena. Surely, the history of Ariane and Arianespace (following the French urge to develop an originally French, then independent European launch vehicle under French leadership) as well as that of spot and SpotImage has moreover provided specifically France with a realisation from up close of the potential of such activities to threaten national security interests. Whatever the origins, however, France stands out as the single esa and eu member state having so far addressed the national security concerns that might arise as a consequence of licensed private space activities in a thorough and upfront manner.67 Since, moreover, the possibility ╇ Art. 4, 2nd para., French Law on Space Operations; see further e.g. Artt. 23–24. ╇ Only the German case, with the 2008 Act on Satellite Data Security, might be referred to in this context as another example of such a national act. Actually, this Act is very much exclusively focused on the security aspects – interestingly, however, the development of the Act was to a large extent driven by the need to satisfy us security concerns; on the other hand, the Act does only deal with remote sensing activities,

66 67

240â•…â•…F.G. von der Dunk to obtain a license under the French Law is open to any operator undertaking launch activities from French territory, with enjoyment of the third-party liability reimbursement cap offered by the French authorities available to anyone operating from within the European Union or another member state of the European Economic Area, this may have interesting consequences for private space activities and their licensing beyond the strict scope of French jurisdiction.68

3.╇ Non-European National Space Laws and the Security Issue 3.1.╇ Introductory Remarks In the previous chapter six cases of member states of esa and/or the European Union have been discussed from the vantage point of security and defence issues: to what extent would potential licensees be, or be likely to be, confronted with conditions and requirements in the course of the licensing process which try to preserve the relevant national security interests of the states concerned. This still leaves the majority of states in the esa and eu realm without national space laws, some of which belong to the main space powers in this part of the world: Germany (although, as seen, Germany has at least taken care of the security concerns in the specific context of private involveÂ�ment in remote sensing), Italy and Spain. In the absence of any clear guidance on the international level as to the details of any such national space legislation, of any competence so far of esa or even the Union to dictate such details or impose a measure of harmonisation upon them,69 and finally and particularly, of much de facto coherence of those six laws on the issue of national security: once the decision to establish a national space law has been taken these states may well look for guidance on handling those issues also to the handful of nonEuropean space laws that are in force dealing with licensing of private space activities. and then even those of a very high resolution character only. See further supra, M. Gerhard & M. Creydt, Safeguarding National Security and Foreign Policy Interests  – Aspects of Export Control of Space Material and Technology and Remote Sensing Activities in Outer Space, section 3. 68 ╇ Cf. Artt. 2(1), 15, French Law on Space Operations. 69 ╇ See further infra, para. 4.

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Thus, the present paragraph will deal from this perspective with the relevant national space acts of the United States, Russia, South Africa, the Ukraine, Australia, Brazil and South Korea. 3.2.╇ The United States The United States actually has, so far, three different national regimes for licensing private space operators in place for the three space sectors where private participation was developing or at least at the time expected to shortly start developing: launching, satellite communications and satellite remote sensing. In each of the three cases certain national security concerns have found their way into the legislation, and will hence be inserted into the licensing of individual operators. The following paragraph will deal with each of these three in turn from that vantage point. 3.2.1.╇ us Licensing of Launch Service Providers The Commercial Space Launch Act of 198470 opened up an era in the United States where private companies could obtain formalised permission to offer launch services on the arising global market, although it was not until a fundamental amendment four years later took away key concerns regarding unlimited liability that companies actually started to apply for launch licenses.71 The 1988-version of the Act provided the Office of Commercial Space Transportation (OCST), part of the DepartÂ� ment of Transport’s Federal Aviation Administration (faa), with the competences as delegated by the Secretary of Transport to grant licenses under the Act, for any operator wishing to undertake launches or re-entry operations or operate a spaceport from/to/on us territory

╇ Commercial Space Launch Act, Public Law 98-575, 98th Congress, H.R. 3942, 30 October 1984; 98 Stat. 3055; Space Law – Basic Legal Documents, E.III.3. 71 ╇See Commercial Space Launch Act Amendments, Public Law 100-657, 100th Congress, H.R. 4399, 15 November 1988; 49 U.S.C. App. 2615; 102 Stat. 3900; Space Law – Basic Legal Documents, E.III.3, 13â•›ff. The original Act provided both for unlimited liability on the national level, and for an unlimited reimbursement of the us government in case the latter had to answer claims under the Liability Convention once the United States would qualify as a launching state for those purposes; the 1988 amendments in both cases imposed flexible and reasonable caps. See further supra, contribution by A. Kerrest de Rozavel & F.G. von der Dunk, Liability and Insurance in the Context of National Authorisation, section 5. 70

242â•…â•…F.G. von der Dunk as well as any us operators wishing to undertake such activities elsewhere.72 The licensing obligations are spelled out in Section 70105 of the Act. Grant of a license should be “[c]onsistent with (…) national security and foreign policy interests” of the United States, and the licensing authority may amongst others prescribe “additional requirement[s] necÂ� esÂ�sary to protect” those.73 On the other side, specific licensing requireÂ� ments or even the requirement to obtain a license per se may be waived in case us national security and foreign policy interests would not be jeopardised by such a waiver.74 Two full Sections further deal with the requirement for the licensing authority to consult and liaise with other departments, agencies and even international partners in applicable cases. Most notably for the current issue, “[t]he Secretary of Transportation shall consult with the Secretary of Defense on a matter under this chapter affecting national security. The Secretary of Defense shall identify and notify the Secretary of Transportation of a national security interest relevant to an activity under this chapter.”75 The Commercial Space Launch Act as now codified also provides for an extensive set of rules to allow for comprehensive monitoring and sanctioning, such as suspending or revoking the license, in case the above requirements are not being met.76 Section 70110 provides for the procedure applicable to administrative hearings and judicial review, whereas enforcement and penalties are regulated by Section 70115, providing inter alia for a maximum civil penalty of us$ 100,000.77 In short: the United States provides for a rather comprehensive and thorough regime to ensure that the granting of licenses and the operations of licensees in the area of launch activities do not impinge upon ╇See Sec. 70104, Commercial Space Transportation – Commercial Space Launch Activities, 49 U.S.C. 70101 (1994); cf. also Sec. 70119. 73 ╇ Sec. 70105(a)(1), resp. (b)(2)(B), Commercial Space Transportation – Commercial Space Launch Activities, 49 U.S.C. 70101 (1994). 74 ╇ See Sec. 70105(b)(2)(C), (c), Commercial Space Transportation – Commercial Space Launch Activities, 49 U.S.C. 70101 (1994). 75 ╇Sec. 70116(a), Commercial Space Transportation – Commercial Space Launch Activities, 49 U.S.C. 70101 (1994). 76 ╇See Secc. 70106, 70107, Commercial Space Transportation – Commercial Space Launch Activities, 49 U.S.C. 70101 (1994). 77 ╇ See Sec. 70115(c)(1), Commercial Space Transportation – Commercial Space Launch Activities, 49 U.S.C. 70101 (1994). 72

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national security concerns – whilst at the same time not being overly regulatory in this respect. Even in the us case, consequently, many of the details will be left to the licensing process and individual licenses, which makes sense in view of the large diversity of possible activities to be licensed under the Act considering the broad range of launch and related activities which the private sector in the United States is involved in. 3.2.2.╇ us Licensing of Satellite Communication Operators The area of satellite communications on the one hand was the space sector earliest subject to commercialisation and privatisation but on the other hand does not raise security issues in the context of licensing to the same extent as launching, very high resolution satellite remote sensing or satellite-based precision navigation. The us licensing system for private satellite operators carries with it some clauses relating to these issues nevertheless. Interestingly, these clauses go back to the 30s, since that is when the Communications Act was promulgated which in 1970 was then fÂ� ormally confirmed to apply to satellite communications as well, in terms of inter alia licensing private operators in the field.78 The regime established by the Act required from any person that wished to “use or operate any apparatus for the transmission of energy or communications or signals by radio”, basically from within the United States, or a us-registered ship or aircraft, to obtain a license from the us Federal Communications Commission (fcc).79 The competencies of the fcc to this end are spelled out in quite some detail already in Section 303 – where no specific reference to security issues is made, however. Section 307, dealing amongst others with the terms of licensees, calls upon the fcc to grant a license “if public (…) interest (…) will be served thereby”, which presumably includes public interests of a national-security nature.80 Also, the fcc is granted the power to refuse construction permits or station licenses, for example “during a national emergency proclaimed by the President or declared ╇ Communications Act, 19 June 1934; 47 U.S.C. 151 (1988); 48 Stat. 1064; the application of the licensing regime to private satellite operators was confirmed by CommuÂ� nications Satellite Facilities, First Report and Order, 22 fcc 2d 86 (1970), Appendix C, p. 1. 79 ╇ Sec. 301, Communications Act. 80 ╇ Sec. 307(a), Communications Act. The same terminology is also used by para. (c)(1). 78

244â•…â•…F.G. von der Dunk by the Congress and during the continuance of any war in which the United States is engaged and when such action is necessary for the national defense or security or otherwise in furtherance of the war effort”.81 If the license to be granted is aimed at communications between the United States and foreign countries, the fcc is specifically empowered to impose any terms or conditions, which obviously focuses inter alia on the risks to us national security which such communications might entail.82 A final interesting clause concerns Section 606, entitled “War powers of the President”, whereby the President is entitled in the context of an ongoing war, “if he finds it necessary for the national defense and security” of the United States, “to direct that such communications as in his judgment may be essential to the national defense and security shall have preference or priority with any carrier” licensed under the Act.83 Furthermore, it is “unlawful for any person during any war in which the United States is engaged to knowingly or willfully, by physical force or intimidation by threats of physical force, obstruct or retard or aid in obstructing or retarding interstate or foreign communication by radio or wire”, and in case of a violation of this prohibition, the President may even “employ the armed forces of the United States to prevent any such obstruction or retardation of communication”.84 Likewise, the President may “if he deems it necessary in the interest of national security or defense (…) suspend or amend” any rules or regulations otherwise applicable to communications activities within the United States – subject to a formal proclamation that “there exists war or a threat of war, or a state of public peril or disaster or other national emergency”.85 Penalties for violations under this Section are scaled: under the 1934 Act a maximum of us$ 1,000 or one year imprisonment would apply to a person who violates or substantially contributes to such a violation, a maximum of us$ 5,000 if it concerns a legal entity so acting, and, in deviation of the foregoing, a maximum of us 20,000 or twenty years imprisonment, in case it concerns “an offense with intent ╇ Sec. 308(a), sub (2), Communications Act. Of course, at the time when the Act was drafted ‘war’ was still a key concept of international law covering most of national security issues that could arise for a state. 82 ╇ See Sec. 308(c), Communications Act. 83 ╇ Sec. 606(a), Communications Act. 84 ╇ Sec. 606(b), Communications Act. 85 ╇ Sec. 606(c), (d), Communications Act. See also supra, n. 81. 81

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to injure the United States, or with intent to secure an advantage to any foreign nation”.86 The provisions of the Communications Act thus focus largely on the national security risks involved in international communications being used for spying activities, respectively of communications in the context of national defence being interrupted or obstructed, and proceeds to provide for appropriate legal instruments to counter those threats. Whilst the Communications Act has been repeatedly amended, most fundamentally by the 1996 Telecommunications Act87, the above conclusions would still hold true. 3.2.3.╇ us Licensing of Satellite Remote Sensing Operators For those interested in operating remote sensing satellite systems and/or marketing and selling the data generated by such systems, the National Oceanographic and Atmospheric Administration (noaa), a subdivision of the us Department of Commerce, acts as the licensing authority. While the original act, the 1984 Land Remote Sensing Commercialization Act,88 setting noaa up with this authority, was repealed by the 1992 Land Remote Sensing Policy Act,89 the essential characteristics of the licensing system remained intact. Thus, any “person who is subject to the jurisdiction or control of the United States may, directly or through any subsidiary or affiliate, operate any private remote sensing space system” only if granted a license by noaa.90 The phrase “jurisdiction or control’ is generally taken to comprise any relevant activities undertaken from us territory and/or by us nationals, as well as activities with substantial connections to the United States allowing the latter to exercise its jurisdiction. noaa itself in this respect uses the terminology “any other private space system operator ╇ Sec. 606(h), Communications Act. Note the amounts; as confirmed in particular by the twenty years of imprisonment in the last case, in current terms these amounts would not seem very ‘proportional’ to the imprisonment penalties. Yet, as far as could be traced, they have never been updated post-1934. 87 ╇Telecommunications Act, Public Law 104-104, 104th Congress, 3 January 1996, signed into law 8 February 1996; 110 Stat. 56. 88 ╇ Land Remote Sensing Commercialization Act, Public Law 98-365, 98th Congress, H.R. 5155, 17 July 1984; 98 Stat. 451; Space Law – Basic Legal Documents, E.III.4. 89 ╇ Land Remote Sensing Policy Act, Public Law 102-555, 102nd Congress, H.R. 6133, 28 October 1992; 15 U.S.C. 5601; 106 Stat. 4163. 90 ╇ Sec. 5622(a), Land Remote Sensing Policy Act. 86

246â•…â•…F.G. von der Dunk having substantial connections with the United States or deriving substantial benefits from U.S. law that support its international remotesensing operations”;91 examples thereof would be the use of us launchers (requiring in itself a license under the us Commercial Launch Act), the critical involvement of a us ground station or marketing activities within the United States.92 The most prominent requirement to be complied with in order to be granted a license is to “operate the system in such manner as to preserve the national security of the United States”; another requirement relevant in the present context is to “notify the Secretary of any significant or substantial agreement the licensee intends to enter with a foreign nation, entity, or consortium involving foreign nations or entities”.93 The SecreÂ� tary of Commerce, as appropriate having delegated this to noaa, may exercise a range of investigative, administrative and regulatory competencies to ensure compliance with the Act and the license.94 Noncompliance with the requirements of the license or attendant regulations may carry a maximum civil penalty of us$ 10,000 for each day of ongoing violation (!), whilst not excluding the possibility to bring criminal charges in addition or instead.95 A good illustration of how the competences of the Secretary of Commerce may be used in order to protect national security interests – even if, in this case, they did not concern us national security! – Â�concerned the implementation in a very specific case of so-called ‘shutter control’ inserted into the Act by an amendment in 1998.96 The legal provision so included provided in full: (a) Collection and Dissemination. – A department or agency of the United States may issue a license for the collection or dissemination by a

╇ As per http://www.licensing.noaa.gov/faq.html (most recently accessed 20 February 2010). 92 ╇ See J.F. Keeley & R.N. Huebert, Commercial satellite imagery, and United Nations peacekeeping: a view from above (2004), 18. 93 ╇ Sec. 5622(b)(1) resp. (6), Land Remote Sensing Policy Act. Further explicit references to the need to protect us national security interests can be found in Secc. 5621(b)(1), 5623(a)(2), as well as Sec. 5601(9), (10), on the findings underlying the establishment of the Act. See also Sec. 5622(11), where “noncommercial purposes” is defined with reference inter alia to potentially adverse affects on us national security. 94 ╇ See Secc. 5623–24, Land Remote Sensing Policy Act. 95 ╇ Sec. 5623(a)(3), Land Remote Sensing Policy Act. 96 ╇ See Public Law 105-503, Amendments 1998 – Subsec. (b). 91

National security: comparing European and non-European statesâ•…â•…247 non-Federal entity of satellite imagery with respect to Israel only if such imagery is no more detailed or precise than satellite imagery of Israel that is available from commercial sources. (b) Declassification and Release. – A department or agency of the United States may declassify or otherwise release satellite imagery with respect to Israel only if such imagery is no more detailed or precise than satellite imagery of Israel that is available from commercial sources.97

Thus, also in the context of private satellite remote sensing activities, the us authorities can avail themselves of a broad and comprehensive legal toolbox to preclude any national security interests from being put at risk by such activities, at least to the extent that the United States can exercise jurisdiction over them. 3.3.╇ The Russian Federation Russia developed its own national space law in 1993,98 shortly after the dissolution of the Soviet Union and the collapse of communism required a transition also of the space sector, previously totally controlled by government, to an era where it would largely have to fend for itself through becoming appropriately commercialised and privatised99 – whilst national security interests of, now, the Russian Federation should obviously continue to be preserved in that new context. Interestingly, enunciation of the Law was perceived as desirable mainly in reaction to the fact that all space activities in the Soviet era had been conducted in a manner intricately linked to military activities.100 The scope of the Law and its licensing obligation ratione personae is defined very broadly, with reference to all “space activities under ╇ Public Law 104-201, div. A, title X, Sec. 1064, 23 September 1996; 110 Stat. 2653. See further e.g. Keeley & Huebert, 17–9. ╇98 ╇ Law on Space Activity (hereafter Russian Law on Space Activity), No. 5663-1, 20 August 1993, effective 6 October 1993; National Space Legislation of the World, Vol. I (2001), at 101. ╇99 ╇ Cf. Preamble, 3rd para., Russian Law on Space Activity: the Law was “intended to provide legal regulation for space activities and stimulate (…) the application of the potential of space science and industry for solving socio-economic, scientific, technical and defense tasks”. 100 ╇See e.g. N. Malysheva, Space Activity and Space Law in the Post-Soviet Area, 54 Zeitschrift für Luft- und Weltraumrecht (2005), 571â•›ff. ; cf. also already V.S. Vereshchetin & G.V. Silvestrov, Space Commercialization in the Soviet Union: Facts, Policy and Legal Issues, in K. Tatsuzawa (Ed.), Legal Aspects of Space Commercialization (1992), 33. ╇97

248â•…â•…F.G. von der Dunk the jurisdiction of the Russian Federation”.101 This jurisdiction must be read to include both territorial and national jurisdiction, as becomes clear when reference is made to other provisions of the Russian Law, and is even expressly extended to include Russian-registered space objects.102 The demise of the Soviet Union, communism and the secret veil behind which all space activities were essentially carried out by the Russian military of course did not spell the end of the involvement of the latter in the former, and the Russian Law is therefore also rife with references to, inter alia, national security. One of the main goals of the Russian space endeavour, as organised by means of the Law, is to ensure the security of the Russian Federation.103 More precisely, one of “[t]he main tasks of space activities under the jurisdiction of the Russian Federation shall be (…) ensuring defense capabilities of the Russian Federation”.104 A list of specific prohibitions “to ensure strategic (…) security” is added.105 Further references to Russian national security can be found in Articles 4(3) and 6(2); all such clauses of course will be duly taken into account when any grant of a license is considered under Article 9.106 The 2002 Order on licensing confirmed this approach, making reference inter alia to “ensuring the protection of data deemed state secret” and observing requirements designed to protect them (specifically referring to “foreign technical intelligences”(!).107 ╇ Art. 9(2), Russian Law on Space Activity. ╇ See Artt. 3(1), 4(1) & (2), 5(1), 9(2), 18(4), esp. 2nd sent., 27(1); also Art. 17(2), Russian Law on Space Activity. 103 ╇ See Art. 3(1), Russian Law on Space Activity. 104 ╇ Art. 3(2), Russian Law on Space Activity. 105 ╇ Art. 4(2), Russian Law on Space Activity. The activities specifically mentioned concern the deployment and testing of weapons of mass destruction, the use of space objects and other space technology as a means of influence upon the environment for military and other hostile purposes, the use of the moon and other celestial bodies for military purposes, the creation of deliberate immediate threats to the safety of space activities, and the causation of harmful contamination of outer space which leads to unfavourable changes of the environment, including deliberate elimination of space objects in outer space. 106 ╇See further also the Statute on Licensing Space Operations of 2 February 1996, e.g. paras. 2, 5(i), 24(d). 107 ╇ E.g. Art. 4(a), Order of the Government of the Russian Federation On Approval of the Regulation on Licensing of Space Activity, of 14 June 2002; National Space Legislation of the World, Vol. II (2002), at 302. 101 102

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In addition to those substantive references to the national security of the Russian Federation, the latter is also taken care of in an institutional manner, through the central role of the Ministry of Defense provided for by the Law.108 Most particularly, Article 7 of the Law relegates space activities for the purpose of defence and security of the Russian Federation to the domain of the Ministry of Defense.109 The 2002 Order on licensing, however, does not make any specific reference to the Ministry of Defense anymore in this specific context. On the other hand, as pointed out elsewhere, Russia drafted a specific law with reference to military issues, relevant also for military space activities: Government Regulation No. 889 of 20 November 2008 On Licensing Activities in the Field of Arming and Military Engineering.110 In sum, the Russian Federation has taken extensive care that its national security interests would not be harmed or interfered with by any private space operations licensed under the Law, both in a substantive sense – allowing licenses only to be granted if compliant with those interests – and in an institutional sense – allowing the Ministry of Defense a major role in interpreting whether those conditions are actually met, and hence whether a license will be granted at all. 3.4.╇ South Africa As Russia was shedding the shackles on its space programme resulting from its previous political era in 1993, that same year South Africa essentially was doing the same: with apartheid out of the door, the need to keep space technology safely locked behind the doors of the military establishment gave way to an interest in allowing that technology to be put at the disposal of the peoples and society of the country, including private entrepreneurs. Hence, on 6 September 1993 the Space Affairs

╇ Cf. e.g. Artt. 6(2), 8(1), Russian Law on Space Activity, on the role of the Ministry of Defense in elaborating the Russian federal space programme and involving industry in governmental space activities. Also Artt. 20(1), 22(1). 109 ╇ See esp. Art. 7(1), (2), Russian Law on Space Activity, providing for extensive competences of the Ministry of Defense. Also Artt. 7(3), 18(1). 110 ╇See supra, contribution by I. Marboe & F. Hafner, Brief Overview over National Authorization Mechanisms in Implementation of the UN International Space Treaties, section 3.2.2. 108

250â•…â•…F.G. von der Dunk Act of the Republic of South Africa entered into force111 largely as a response to the growing interest of South African industrial and service sectors in space.112 The Act, consequently, prominently included a licensing system for private actors interested in undertaking space activities, whereby launching itself and – presumably – operating a launch facility requires a license both when conducted from South African territory and when conducted by South African nationals elsewhere, whereas all other space activities require a license (only) if conducted by South African nationals.113 The licensing Section already makes reference to the need to obtain such a license in every instance where the activities to be licensed “may affect national interests”.114 Also, specific conditions may be imposed in the license to protect those interests.115 In terms of general security aspects, the Space Affairs Act focuses on weapons of mass destruction and their possible proliferation.116 In consequence, the Minister of Trade and Industry shall take the prevention of such proliferation, at least to the extent required by international obligations, into due account when determining the general space policy of South Africa.117 No clear reference can be found specifically to the national security of South Africa, however, although the Minister of Trade and Industry, the competent authority under the Act, can issue regulations concerning the disclosure, transfer and marketing of any technology or product outÂ�side South Africa.118 What remains to be noted is the general Â�competence of ╇ Space Affairs Act (hereafter South African Space Affairs Act), 6 September 1993, assented to on 23 June 1993, No. 84 of 1993; Statutes of the Republic of South Africa – Trade and Industry, Issue No. 27, 21–44; National Space Legislation of the World, Vol. I (2001), at 413. 112 ╇See I. de Villiers Lessing, South Africa: Recent Development in Space Law, 1 Telecommunications & Space Journal (1994), 139–42. Thus, for example, the South African Council for Space Affairs had to include “two persons from the space industry”; Sec. 6(1)(b), South African Space Affairs Act. 113 ╇ See Sec. 11(1), South African Space Affairs Act. 114 ╇ Sec. 11(1)(d)(i), South African Space Affairs Act. 115 ╇ See Sec, 11(2)(b), South African Space Affairs Act. 116 ╇ So already e.g. in Sec. 1, 6th def., South African Space Affairs Act, where “dualpurpose technologies” are defined as any technologies contributing to such “proliferation of weapons of mass destruction”. 117 ╇ See Sec. 2(1)(b), South African Space Affairs Act. 118 ╇ See Sec. 22(1)(i), South African Space Affairs Act. 111

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the Minister of Defense vis-à-vis his confrere of Trade and Industry to preserve the national interests when it comes to this type of security.119 3.5.╇ The Ukraine The Ukraine, the second largest heir of the space legacy of the Soviet Union, also was the second former Soviet state to draft a national law, for largely the same reasons and largely along the same lines as Russia, in 1996.120 Relative to Russia (and also Kazakhstan), the only category of space capabilities the Ukraine did not inherit was a launch site; the manufacturing of launch vehicles however was a major stronghold of the country’s industry. The Law on Space Activity of Ukraine provides for a licensing system applicable to space activities “in [read: undertaken from] the Ukraine or, under jurisdiction of the Ukraine, abroad”, the latter phrase obviously referring to Ukrainian nationals.121 In addition, in view of the extended and precise formulation of the obligation to register relevant space objects with the Ukrainian authorities in Article 13, the same phrase would also refer to space objects so registered.122 In terms of the attention paid to national security issues, allowable purÂ�poses for, respectively main principles of space activities under the Law include “national (…) defensibility” and “safety of the state”.123 ConÂ� sequently, the National Space Agency of the Ukraine, the authority charged with the granting and monitoring of licenses under Articles 6 and 10 of the Law, is to ensure inter alia proper protection of â•›Â�“military (…) secrets” in the process,124 whereas Article 9 imposes a number of restrictions on licensed space activities, such as involving weapons therein or using the moon and other celestial bodies for military purposes. ╇ Cf. Sec. 3, South African Space Affairs Act. ╇ Law on Space Activity of Ukraine, No. 502/96-VR, 15 November 1996; National Space Legislation of the World, Vol. I (2001), at 36. See further F.G. von der Dunk & S.A. Negoda, Ukrainian national space law from an international perspective, 18 Space Policy (2002), 17. 121 ╇ Art. 10, Law on Space Activity of Ukraine. See also the Preamble. 122 ╇ See also Art. VIII, Outer Space Treaty. 123 ╇ Art. 3, 6th bullet, resp. Art. 4, 3rd bullet, Law on Space Activity of Ukraine. See also Art. 5, 2nd bullet. 124 ╇ Art. 8, Law on Space Activity of Ukraine. 119 120

252â•…â•…F.G. von der Dunk A major reason for establishing the Ukrainian act was the intention of the country to become a trustworthy and interesting player in the context of international cooperation, contributing its space heritage whilst in turn profiting from the expertise of others in a competitive global environment. Thus, Section V of the Law addresses the main principles applicable to such international cooperation, which notably includes the “strengthening of the national sovereignty”.125 Another section, Section VI, addresses “[s]pace activity in the area of defence and security of the Ukraine”. It provides amongst others for the central responsibility of the Ministry of Defence to conduct all space activities in the area of defence and national security, including “construction and use of the military and double assignment space engineering”, and for the further definition of its relationship with the National Space Agency of the Ukraine by a Rule to be defined.126 Though generally speaking defined in less detail, the Ukrainian Law thus follows in its overall approach very much the Law of the Russian Federation on Space Activities in allotting a large and explicit role to the Ministry of Defence wherever the national security of the state would directly impinged upon by space activities, in equal measure limiting the civil licensing authority in that respect. 3.6.╇Australia Australia has, with its 1998 Act,127 called into existence an elaborate licensing system actually establishing four types of licenses: the launch permit, the overseas launch certificate, the authorisation (of the return to Australia of a space object launched outside the country) and the

╇ Art. 18, 1st bullet, Law on Space Activity of Ukraine. ╇ Art. 26, Law on Space Activity of Ukraine; see also Artt. 27, 28, as well as Art. 7. “Double assignment” is the term used here for ‘dual use’, i.e. wherever both civil and military application or use are directly possible. 127 ╇ An act about space activities, and for related purposes (hereafter Australian Space Activities Act), No. 123 of 1998, assented to 21 December 1998; National Space Legislation of the World, Vol. I (2001), at 197. The Act was amended a few times, the most recent version being as amended by amending legislation up to Act No. 8 of 2010; see http://www.austlii.edu.au/au/legis/cth/consol_act/saa1998167/notes .html. 125 126

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space license (to operate a launch facility on Australian territory).128 In addition, in some cases exemption certificates can be issued.129 Protecting the interests in Australian national security is not explicitly mentioned amongst the objects of the Act.130 Nevertheless, in the actual requirements for obtaining one or the other license the security issues are taken into consideration. Thus, a launch permit can only be granted if “the Minister does not consider that, for reasons relevant to Australia’s national security, foreign policy or international obligations, the launch permit should not be granted”.131 An identical provision pertains to the overseas launch certificate, the authorisation and the space license.132 Other provisions prohibit the licensee to become involved with weapons of mass destruction as part of his licensed activities.133 Further to these requirements, the Act then provides for standard instruments to enforce compliance with them such as revocation, transfer or suspension of a license.134 In some cases, specific penalties are provided for, such as a maximum fine of 600 penalty units or imprisonment of ten years in case of violation of a launch permit condition,135 with additional provisions on civil penalties provided for more generally.136 Also, as important from a security perspective, transfer of a space license, launch permit or overseas launch certificate requires a specific agreement from the responsible Minister.137 On the other hand, there is no explicit reference to the Department of Defence – except in an indirect manner: a “member of the Defence ╇See, resp., Secc. 11, 12, 14, & 15, Australian Space Activities Act. Further e.g. S. Freeland, The Australian Regulatory Regime for Space Launching Activities: Out to Launch? In Proceedings of the Forty-Seventh Colloquium on the Law of Outer Space (2005), 58–60. 129 ╇ See e.g. Secc. 11, 13, Australian Space Activities Act. 130 ╇ Cf. Sec. 3, Australian Space Activities Act. 131 ╇ Sec. 26(3)(g), Australian Space Activities Act. 132 ╇ See, resp., Secc. 35(2)(c), 43(3)(e), & 18(e), Australian Space Activities Act. 133 ╇ See Secc. 26(3)(f), 29(b), Australian Space Activities Act. Sec. 29(c) in addition requires, for the involvement of fissionable materials in the licensed operations under a launch permit, specific prior written approval by the Minister. See further Secc. 43(3)(d), 44(1)(b) & (c) for similar provisions with respect to authorisations of return of overseas-launched space objects. 134 ╇ See e.g. for the space license Secc. 22, 24, 25, Australian Space Activities Act. 135 ╇ See Sec. 30(2)(d), Australian Space Activities Act. 136 ╇ See Secc. 80, 81, Australian Space Activities Act. 137 ╇ See, resp., Secc. 22, 31, 38, Australian Space Activities Act. 128

254â•…â•…F.G. von der Dunk Force” is not covered by the provisions on the requirements for launch permits, overseas launch certificates, authorisations, space licenses or exemption certificates under Sections 11 through 15 of the Act (as is the Commonwealth itself).138 Australian military space activities, in other words, do not require any of these types of authorisations. 3.7.╇Brazil Brazil represents an interesting case of a state issuing a national space law – an Administrative Edict of 2001 encompassing the Regulation of licenses properly speaking139 – most notably because it is the first developing country to clearly do so, wishing to maximise the benefits from, in particular, its Alcantara launch site very close to the equator.140 Consequently, many of its provisions deal with the possibility of foreign operators interested in using Alcantara, and balancing their commercial interests with the interests of Brazil itself in benefiting from such highkey technology operations beyond simple licensing and access fees.141 The Administrative Edict and the Regulation focus exclusively on launching, providing an obligation to obtain a license if somebody wishes to launch from Alcantara (or the other Brazilian launch basis, Barreira do Inferno).142 The Regulation provides for an extended list of documents to be provided by the license applicant, some of which clearly serve to address possible security concerns of the Brazilian government. These range from the basic requirement for licensees to have headquarters or be formally represented in Brazil (allowing the authorities to effectively enforce any relevant conditions),143 to a statement of ╇ Sec. 16 sub (b), Australian Space Activities Act. ╇ Administrative Edict No. 27, 20 June 2001; National Space Legislation of the World, Vol. II (2002), at 377. 140 ╇ See further e.g. J. Monserrat, Brazilian Launch Licensing and Authorizing Regimes, in Proceedings United Nations / International Institute of Air and Space Law Workshop on Capacity Building in Space Law (2003), 97â•›ff. 141 ╇ Cf. e.g. Artt. 3, 6, 7(IV) & (V), 8(V), 14, Regulation on Procedures and on Definition of Necessary Requirements for the Request, Evaluation, Issuance, Follow-Up and SuperÂ�vision of Licenses for Carrying out Launching Space Activities on Brazilian Territory (hereafter Brazilian Launch Regulation), part of Administrative Edict No. 27. 142 ╇ See Art. 6, Brazilian Launch Regulation, part of Administrative Edict No. 27. 143 ╇ See last sentence Art. 6, Brazilian Launch Regulation, part of Administrative Edict No. 27; cf. also Art. 7(V). 138 139

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acquaintance with “the Security Regulations and Procedures established by aeb [the Brazilian Space Agency, which wields the licensing competence under the Administrative Edict]”144 and a commitment to abide by the technology safeguard controls imposed by Brazil145 inter alia meant to refer to Brazilian commitments on non-proliferation of missile technology under the mtcr agreement.146 Furthermore, the Brazilian Space Agency aeb is entitled to consult, prior to the grant of a license, with other organs or bodies of the Brazilian government “as to the existence of conflict with the interests of security and foreign policy concerning the space launching activities proposed by applicant”.147 With respect to foreign license applicants, in addition statements are required confirming their authorisation to operate the activities concerned under the laws of their home countries, as well as to the existence of appropriate safeguard agreements on sensitive technology between Brazil and their respective home countries.148 3.8.╇ South Korea Further to its ambitions to become a major space-faring power, South Korea promulgated its Space Development Promotion Act in 2005.149 As the Act states, one of its main purposes “is to facilitate the peaceful use and scientific exploration of outer space and to contribute to national security”.150 South Korea technically speaking is still at war with North Korea, and ever since its initiation as a separate state feels very much threatened by the close-by presence not only of North Korea but also of communist China, and until the collapse of the Soviet Union, that other communist superpower as well – which well explains why national ╇ Art. 8(IV), Brazilian Launch Regulation, part of Administrative Edict No. 27. ╇ See Art. 8(V), Brazilian Launch Regulation, part of Administrative Edict No. 27. 146 ╇ Agreement on Guidelines for the Transfer of Equipment and Technology Related to Missiles, done 16 April 1987; 26 ILM 599 (1987). 147 ╇ Art. 12, Brazilian Launch Regulation, part of Administrative Edict No. 27. 148 ╇ See Art. 14, Brazilian Launch Regulation, part of Administrative Edict No. 27. 149 ╇ Space Development Promotion Act (hereafter Korean Space Development PromoÂ� tion Act), promulgated 31 May 2005, entered into force 1 December 2005; unofficial translation 33 Journal of Space Law (2007), at 175. See further Y. Lee, A Review of the Space Development Promotion Act of the Republic of Korea, 33 Journal of Space Law (2007), 123–74; D.H. Kim, Space Law in Korea: Existing Regulations and Future Tasks, 57 Zeitschrift für Luft- und Weltraumrecht (2008), 575–9. 150 ╇ Art. 1, Korean Space Development Promotion Act. 144 145

256â•…â•…F.G. von der Dunk security issues are so prominently included even in a civil space act designed also to develop “the national economy and improvement of the people’s living”.151 The obligation to obtain a license to launch (the Act does not as such deal with other space activities, such as remote sensing), which applies to launches undertaken from South Korean territory or facilities as much as to launches undertaken with Korean-owned launch vehicles elsewhere,152 is taking this special national-security context into consideration. In granting a license, the Minister of Science and Technology “may attach necessary conditions” including “the appropriateness of the purpose of using a launch vehicle”,153 which in light of the aforementioned key purpose of the Act at least in theory should exclude any possibility for such a launch activity to negatively impact South Korea’s national security. Also, Article 4 of the Act clearly reserves the possibility for other acts and statutes to exclude certain types of activities, including of course security-related ones, from the scope of the Act and the possibility to obtain a license under it.154 Further means of control of the national security interests are offered through the Basic Plan on Space Development Promotion under Article 5 to be formulated by the government. In a centralised country like South Korea such a plan determines the main possibilities also for the private space industry to become realistically involved in space activities themselves – through r&d support, tax privileges and suchlike.155 The Minister has to formulate the implementing plan every year after consulting with the “heads of central administrative authorities concerned including the Director General of the National IntelliÂ�gence  Service”, whereas “matters related to national security need not be publicized”.156 A National Space Committee is installed to deliberate detailed matters

╇ Art. 1, Korean Space Development Promotion Act. ╇ See Art. 11(1), Korean Space Development Promotion Act. 153 ╇ Art. 11(4), resp. (3)(a), Korean Space Development Promotion Act. Cf. also Art. 8, on registration, e.g. paras. 3(i), 4. 154 ╇ Art. 4, Korean Space Development Promotion Act, provides: “This Act is applicable to matters relating to the promotion of space development and the use and management of space objects unless there are special provisions in other laws.” 155 ╇ Cf. also Art. 18(1), Korean Space Development Promotion Act. 156 ╇ Art. 5(3), Korean Space Development Promotion Act. 151 152

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regarding the Basic Plan and the implementing plans, but may be restrained from discussing launch licenses “if the omission [of such discussions] is necessary for reasons such as national security”.157 The Ministry of National Defense may not be mentioned anywhere in these particular clauses; the direct control exercised by the President over the National Space Committee and the Special Agency for Space Development158 (and by the government as a whole over the Basic Plan) would already guarantee that no activities to be licensed under the Act would present a substantial risk to national security. Also post-grant, the authorities can exercise substantial control for national security purposes. In addition to more general causes for revocation of a license (such as pertaining to general lack of compliance with imposed conditions), “[w]here a head of central administrative authorities concerned requests for the revocation of a license due to an anticipated serious threat to national security”, that license will indeed be revoked.159 More broadly still, the Minister of National Defense may request “the suspension of space development being carried out by a national of the Republic of Korea on account of a military operation in case of war, disturbance or similar kind of emergency”, in which case the Minister of Science and Technology shall indeed order the national to suspend relevant activities.160 Finally, “[w]hen the Minister of Science and Technology pushes forward a space development project related to national security, the Minister shall consult heads of central administrative authorities concerned in advance”, whereas “[n]ecessary matters relating to the establishment and implementation of security measures in relation to the space development project of paragraph 1 shall be prescribed by Presidential Decree”.161

╇ Art. 6(2), Korean Space Development Promotion Act. ╇ See Art. 7, Korean Space Development Promotion Act. 159 ╇ Art. 13(1)(c), Korean Space Development Promotion Act. 160 ╇ Art. 19(1), Korean Space Development Promotion Act. Art. 19(2) provides for a similar competence for authorities at a lower level than the Ministry, although in that case the Minister has the option to “rectify” the space development or not require such ‘rectification’. 161 ╇ Art. 29(1), resp. (2), Korean Space Development Promotion Act. 157 158

258â•…â•…F.G. von der Dunk

4.╇ Concluding Remarks: A European Issue? Generally speaking, non-European national space laws and licensing regimes turn out to be just as diverse in their handling of national security and defence issues in the context of licensing private space enterprise. They make use of the same generic mechanisms, allowing the licensing authorities to insert conditions and requirements in licenses designed to protect national security, providing them with competences to enforce such conditions and requirements even after the fact of granting a license. They may also refer to more institutionalised ways of controlling national security interests, such as by allowing the respective Ministry of Defence a voice in the licensing process and carving out any security-sensitive space activities ipso facto from the licensing process, relegating it to the exclusive domain of the military or defence authorities. From that perspective, as also following from the particular shape and form the security paradigms take on for each particular country (compare, for example, the specific historical situations of South Korea, Russia, the Ukraine and South Africa), these non-European examples of national space laws dealing with national security concerns may not present much of a harmonised and coherent set of laws either, from the perspective of any European state seeking to implement a national space law still. Rather, it presents a sample sheet of individualised options to assert appropriate sovereign concerns in this area also in the context of licensing private space operators. If anything, it may be noted that, generally speaking, the non-European space laws are more forceful and explicit in taking care of such national security-related issues in this context. This brings us finally to the question of whether, absent much of such specificity, transparency and explicitness (with the exception of France, as argued), there might perhaps be a role for overarching European institutions in this area. This is not the proper place to go deep into those issues,162 but obviously the only institutions reasonably representing candidates for such a role are the European Union and esa. ╇ For those interested in the author’s views, reference may be had to F.G. von der Dunk, Europe and Security Issues in Space: The Institutional Setting, 4 Space and Defense (2010), 71–99.

162

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As for esa, as starting point for any discussion it should be noted that the possibility of the organisation to become involved in handling military and security issues within the European space endeavour at various levels depends on the interest of individual esa member states, as a Â�consequence inter alia of the structure of esa programmes, in particular the optional ones.163 In particular, the major investors in esa and esa programs – France, Germany, Italy, the United Kingdom, and Spain – need to possess the political will and wherewithal in having esa become so involved. Originally, furthermore, the Agency was supposed only to undertake activities for “exclusively peaceful purposes”.164 However, firstly also esa could not escape the inevitable close relationship between space activities and security issues, for example in the context of the Ariane launcher programme. Secondly, its participation in the first decade of the present century in the two European flagship programmes, Galileo and gmes (Global Monitoring for the Environment and Security), once more inevitably giving rise to some security issues, was accepted without much political upheaval, testifying to a growing realisation that also in the (broader) security area, strong European cooperation in space was becoming, if perhaps not yet unavoidable altogether, at least more and more beneficial – as well as, simply put, a fact of life. In the context of Galileo, in spite of the civil governance structure developed firstly the possibility of potential adversary use of its signals will have to be faced165 and secondly the envisaged Public-Regulated Service (prs), while painstakingly avoiding any reference to military or defence, was modelled in many respects on the gps Precise Positioning Signal – which is being used by the us military and its allies. Whilst the prs is officially to be made accessible to all governmental services, the debate on whether this should not also include the use by the military of ╇ Cf. Artt. V(1), XI(5.c), esa Convention. ╇ Art. II, esa Convention. 165 ╇ This was essentially taken care of by involving a “Galileo security center” in the overall governance scheme for the Galileo system, as well as specific security-related regulations; see Preamble, 16th para.; Artt. 7, 13, 14, and 16, Regulation of the European Parliament and of the Council on the further implementation of the European satellite navigation programmes (egnos and Galileo), No. 683/2008/EC, of 9 July 2008; OJ L 196/1 (2008); also see Council Joint Action on aspects of the operation of the European satellite radio-navigation system affecting the security of the European Union, 2004/552/CFSP, of 12 July 2004; OJ L 246/30 (2004). 163 164

260â•…â•…F.G. von der Dunk respective member states is gradually but clearly moving into the direction of acceptance of the latter. In the context of gmes, the concept of “Security” as part of its official label gradually came to be interpreted beyond the concept of “civil security” so as to encompass more ‘traditional’ military and defence issues of security.166 As gmes is tasked specifically to provide Europe with its own independent and comprehensive satellite earth observation infrastructure for generation of data and information on a comprehensive range of subjects, it will bring the inclusion of defence, security, and military matters even more explicitly into the broader civil European governance structures to be developed in this context. The major partner of esa in both the Galileo and the gmes contexts is, of course, the European Union. Also the Union has developed from an entity officially barred from substantially dealing with military and defence issues until the Treaty on European Union167 to an actor with increasing juridically enshrined possibilities to make its views heard. The Treaty on European Union introduced the pillar of the Common Foreign and Security Policy (cfsp) into the institutional construct of the Union,168 although as such this pillar remained intergovernmental in character for the time being. From this starting point, however, the Union’s role in the security arena developed along two lines. Firstly, the cfsp gradually developed into a more integral part of the Union’s institutional structure, by now absorbing the Western European Union.169 With the Treaty of Lisbon,170 the cfsp is even formally integrated into the Union as part of the Treaty on the Functioning of the  European Union,171 although that does not really take away its ╇ See further on this F.G. von der Dunk, A European “Equivalent” to United States Export Controls: European Law on the Control of International Trade in Dual-Use Space Technologies, 7 Astropolitics (2009), 101–34. 167 ╇ Treaty on European Union, Maastricht, done 7 February 1992, entered into force 1 November 1993; 31 ILM 247 (1992); OJ C 191/1 (1992). 168 ╇ See Artt. 10A-28, Treaty on European Union. 169 ╇The weu was established as the (previous) main focus of intergovernmental security cooperation in Europe by the Paris Agreements amending the Brussels Treaty, Paris, done 23 October 1954,; 211 UNTS 342; UKTS 39 (1955) Cmd. 9498. 170 ╇ Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (hereafter Treaty of Lisbon), Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 306/1 (2007). 171 ╇ Treaty establishing the European Community as amended by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European 166

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essentially intergovernmental character: the individual member states still retain a large and sovereign measure of control over the way they wish to handle national security issues.172 Secondly, however, in a much narrower area the Community, then Union, did commence to exercise proper legislative competences: that of trade in security-sensitive items and know-how, further to the mtcr and the Wassenaar Arrangement.173 Thus, Regulation 1334/2000 provided a baseline framework for implementing in a binding European context the international obligations resulting from the formally nonbinding mtcr and Wassenaar regimes, while working towards a harmonization of the ways and means by which individual member states would implement and apply those international obligations and guidelines.174 This Regulation has been updated ever since on average almost once a year, the latest version being Resolution 428/2009.175 The regime inter alia provides for a Community General Export Authorisation (cgea) which is to replace national export authorisations of securitysensitive items and know-how in a limited set of circumstances as well as for certain obligations of transparency and loose conformity with respect to national export authorisations wherever these are still applicable.176 Apart from this specific (and still limited, though growing) measure of competence of the Union in matters pertinent to security issues, however, it should – a contrario – be concluded that for the time being there is little to be expected in terms of an eu lead in the development of harmonised clauses relating to the licensing of private space operators in Community (hereafter Treaty on the Functioning of the European Union), Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 115/47 (2009). See e.g. Art. 2(4), Treaty on the Functioning of the European Union. 172 ╇ See further the analysis in Europe and Security Issues in Space: The Institutional Setting. 173 ╇ Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, Wassenaar, done 19 December 1995, effective 12 July 1996; http://www.wassenaar.org/. 174 ╇Council Regulation setting up a Community regime for the control of exports of dual-Â� use items and technology, No. 1334/2000/EC, of 22 June 2000; OJ L 159/1 (2000). 175 ╇Council Regulation setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items, No. 428/2009/EC, of 5 May 2009; OJ L 134/1 (2009). 176 ╇ See in detail A European “Equivalent” to United States Export Controls: European Law on the Control of International Trade in Dual-Use Space Technologies, 110–24.

262â•…â•…F.G. von der Dunk the field of security and military issues. It should also be pointed out here that following the Treaty of Lisbon’s entry into force, the Treaty on the Functioning of the European Union specifically excludes the competence to harmonise national laws and regulations of the member states from the so-called space competence now inserted.177 Since also the European Space Agency has no competences in the area of licensing of space activities – even apart from the specific aspects of licensing space activities relevant from the perspective of concerns with national and international security – it seems that, for the time being, those European states that have not yet developed comprehensive national space legislation dealing with the licensing of private space enterprise almost completely remain at liberty to handle in that process their particular security considerations and concerns. That may be an almost self-evident consequence of the importance attached by all sovereign states to their national security; obviously that in itself does not suffice to deny the benefits for Europe of arriving at least at a certain measure of coordination – if only, to prevent the existing extent of the freedoms to trade and move goods within the European Union from giving rise within Europe to certain ‘flags of convenience’ for all the wrong purposes.

╇ See Art. 189(2), Treaty on the Functioning of the European Union. Also infra, the analysis by B. Schmidt-Tedd, Authorisation of Space Activities after the Entry into Force of the EU Reform Treaty, section 2.

177

Chapter Nine Space Tourism – The Authorisation of Suborbital Space Transportation M. Gerhard* 1.╇Introduction Everyone can fly into outer space. Human spaceflight for people other than astronauts is not a dream anymore. There are about a dozen commercial projects worldwide1 aiming to bring paying passengers into outer space – at least for some minutes – as part of a suborbital space flight.2 Amongst the companies engaged in this kind of ‘space tourism’ there are some European organisations, such as eads Astrium.3 eads Astrium is not only the design organisation for such a suborbital spaceship, it also aims at operating it. At the same time, non-European operators of suborbital spaceships already announced that they are intending to use European spaceports for their activities, for example Virgin Galactic (the winner of the Anzari X Prize).4 Virgin intends to operate – among others – from Kiruna in Sweden. *╇ The views expressed in this paper are those of the author. 1 ╇ See e.g. M. Otto, Feasibility Study and Future Projections of Suborbital Space Tourism at the Example of Virgin Galactic (2008), 15â•›ff.; A. Cartier & I. Cristoiu, Space Tourism – Regulatory Framework of the private initiatives and projects with a special interest on RLV regulations, in Proceedings of the Forty-Ninth Colloquium on the Law of Outer Space (2007), 35â•›ff. 2 ╇ A suborbital space flight is a flight in which a transport vehicle enters outer space but does not reach an orbit. 3 ╇See http://www.astrium.eads.net/en/families/space-plane-tourism-flight-shuttle?set _language=en. 4 ╇See http://www.virgingalactic.com/htmlsite/overview.php and http://www.virgin galactic.com/htmlsite/news.php.

264â•…â•…M. Gerhard The above demonstrates that once suborbital space transportation will take place, it will emanate to a large extent from Europe. European industries seem ready to make the dreams of people come true to fly into outer space. Unfortunately, such activities also involve some risks for the life and integrity of paying passengers of such suborbital space flights as well as of people on the ground or in the air. Usually, the legislator mitigates such risk by requiring an authorisation, by which the applicant demonstrates that the activity for instance is safe. In addition, the legislator usually sets additional requirements to some activities, aiming at other purposes, for example the protection of the environment. Such legislation exists for aviation. Such legislation also exists to some extent for space flights. But are these existing laws applicable to activities on the encounter of air space and outer space, that is suborbital space transportation? Or does the legislator need to establish a new set of rules applicable to suborbital space transportation? Which legislation applies to design organisations for suborbital space vehicles? Do operators of suborbital space flights need an (operational) authorisation to perform such activities? And if so, which one(s)? This article tries to shed some light on the applicable legislation on the encounter of air space and outer space (law).5

2.╇ Technical Concepts of Suborbital Space Vehicles Industry concepts so far known show a great variety of suborbital space vehicles. Without doubt, the applicable legal framework depends upon the technical concept chosen. A vehicle that takes off vertically (like the us space shuttle) and lands vertically (like the Russian Soyuz capsule) without any air flight supported in the atmosphere from the reactions of the air against the earth’s surface will not fall under the air law system. Other technical concepts rely on a two-part system, namely an aircraft mounted with a suborbital space vehicle. Both vehicles do separate at a certain point in the airspace. But most of the technical concepts for

╇ The article will only assess the applicability provisions of certain legislation. The article does not aim to discuss the requirements for such authorisation, unless those considerations are essential in order to define and understand its scope.

5

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suborbital space flights are built upon hybrid vehicles, meaning that they combine aviation and space technology. Those vehicles may take off and/or land horizontally and are designed to perform some parts of the flight with support in the atmosphere from the reactions of the air against the earth’s surface (that is using lift in the air), while other parts of the flight are supported by rocket-power (that is using thrust). Although presenting some very specific design characteristics (additional rocket power), these vehicles are very similar to existing (winged) aircraft. For the purpose of the present article the technical approach of hybrid vehicles is chosen as the reference concept, as it takes place in the area where air and outer space law fully encounter each other. Although suborbital space transportation will take place in this area of encounter of air space and outer space, they are – even when they clearly enter into outer space6 – no typical outer space activities, as they are not intended to enter into an earth orbit or beyond. Most activities in outer space, such as the operation of satellites or the ‘flight’ of space stations, take place within an earth orbit. Space probes even leave earth orbits and go beyond, using to some extent the gravity of other celestial bodies instead of its own propulsion. But it is important to recall that activities can be performed in outer space, without entering into an earth orbit, hence remaining sub-orbital: the term ‘suborbital’ does not give an indication about the altitude of an activity, but only expresses that no orbit is being performed. For instance, most launching rockets remain suborbital, only the upper stages of such rockets will remain in a low earth orbit for some time. The same applies for sounding rockets, which can be launched up to several hundreds of kilometres above sea level. As they do not enter into an orbit they are suborbital activities. And the same applies for suborbital touristic space transportation in the scope of this article, too.

3.╇ Applicability of Air Law or Outer Space Law Authorisation Requirements As suborbital space transportation takes place for its main part in the air space and for some part (although not in an earth orbit but) in outer ╇ For the discussion on the delimitation of air space and outer space, see infra, section 5.1.1.

6

266â•…â•…M. Gerhard space, the owner and operator of such vehicle has to follow the applicable air law as well as the applicable space law rules. Since more than 30 years there is an ongoing discussion whether there is a general delimitation between the applicability of air law rules and space law rules. According to some, air law rules are applicable if the vehicle used is considered aircraft, space law is applicable if the vehicle used is considered space object and both are applicable if the vehicle is hybrid (sometimes named ‘aerospace object’); this is known as the ‘functional approach’.7 According to others, air law rules are applicable if the activity / flight takes place in the air space, space law rules apply if it takes place in outer space and both apply if it takes place in air space and outer space; this is known as the ‘spatial approach’.8 Only the spatial approach makes it necessary to define a delimitation / demarcation of air space and outer space.9 Those discussions also took place within the International Civil Aviation Organisation (icao) as well as within the United Nations Committee for the Peaceful Uses of Outer Space (uncopuos), the international organisations that objectively deal with the two areas at stake.10 Within the Legal Subcommittee of uncopuos there is a permaÂ�nent agenda item as well as a working group on matters relating to the ╇See P.S. Dempsey, Air & Space Law Norms Governing Space Transportation, in Proceedings of the Fiftieth Colloquium on the Law of Outer Space (2008), 179; S. Gorove, Aerospace Object – legal and policy issues for air and space law, 25 Journal of Space Law (1997), 101â•›ff.; G. Oduntan, The never ending dispute: Legal theories on the spatial demarcation boundary plane between airspace and outer space, in Hertfordshire Law Journal (2003), 69; B. Cheng, The legal regime of airspace and outer space: the boundary problem functionalism versus spatialism: the major premises, 5 Annals of Air and Space Law (1980), 346. With regard to suborbital vehicles that will be separated from an aircraft: J. Cloppenburg, Legal aspects of space tourism, in M. Benkö & K.U. Schrogl (Eds.), Essential air and space law: current problems and perspectives for future regulation (2005), 196. ╇8 ╇ See Dempsey, 180; P.S. Dempsey & M.C. Mineiro, The intersection of air law and space law: icaos role in regulating safety and navigation in suborbital aerospace transportation, in Proceedings of the 3rd IAASS Conference ‘Building a Safer Space Together’ (2008), Chapter IV. ╇9 ╇ For more details, see infra, section 5.1.1. 10 ╇Cf. e.g. R. Abeyratne, Space Tourism – Parallel synergies between air and space law?, in 53 Zeitschrift für Luft- und Weltraumrecht (2004), 193, 198; R. Jakhu & R. BhatÂ�tacharya, Legal aspects of space tourism, in Proceedings of the Forty-Fifth Colloquium on the Law of Outer Space (2003), 123. ╇7

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definition and delimitation of outer space. However, no agreement of the member states on substantive legal issues is apparent, and the matter has been referred to the Scientific and Technical Subcommittee for consideration.11 Within icao, the Council had within its work programme of the 175th Session (2005) an exchange of views on the concept of suborbital flights; as part of that exchange of view a reference was made to the discussion within uncopuos on the definition and delimitation of outer space, including reference to the functional and spatial approaches. Like uncopuos, icao has not taken a position on this question.12 Unlike the United States,13 so far, neither the European Union nor a European state has established any specific legislation that was drafted to be applied to suborbital (human) space transportation – and thus neither of them has taken a position in the discussion on the functional versus the spatial approach. The applicability discussion based on the functional approach versus the spatial approach is by nature very general (and theoretical). The present article aims to be more specific. A general approach (either a functional or a spatial one) will never be able to identify all rules applicable to suborbital space transportation. It is the opinion of the author that in the first place the scope of potentially applicable rules needs to be identified individually. It will be shown that some rules do indeed follow a spatial approach (that is, are applicable to air flight or space flight), but other rules exist that follow a functional approach (that is, are applicable to aircraft or space objects). Only this specific approach will identify the full set of rules applicable to suborbital space transportation flights. After having identified these applicable rules, a specific decision can be taken to what extent these rules (stemming from air law and space law) are consistent and can be applied together. ╇ Historical summary on the consideration of the question on the definition and delimitation of outer space, Report of the Secretariat, un Doc A/AC.105/769. 12 ╇ Concept of Sub-orbital flights, presented by the Secretary General, icao Council Working Paper C-WP/12436. 13 ╇Cf. Commercial Space Launch Act, 49 U.S.C., Chapter 701, as amended by the Commercial Space Launch Amendments Act, Public Law 108-492, 108th Congress, 23 December 2004, 49 U.S.C.; 118 Stat. 3974; see e.g. T. Hughes & E. Rosenberg, Space Travel Law (and Politics): The Evolution of the Commercial Space Launch Amendments Act of 2004, in 31 Journal of Space Law (2005), 1â•›ff.; M.C. Mineiro, U.S. Federal Licensing and Regulation of Commercial Human Space Flight, in 73 Journal of Air Law and Commerce (2008), 759â•›ff. 11

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4.╇ Scrutiny of Air Law Rules Although the suborbital space flight is intended to go into outer space, most parts of its journey will take place in the air space. Air law rules apply to that part of the flight, as will be explained in the following. Air law rules stem from the national sovereignty of each state to regulate aviation in the airspace above its territory.14 These national rules have been gradually harmonised through several international treaties and agreements, to name only the 1944 Convention on International Civil Aviation (Chicago Convention). Within the European Union, some competences (both to legislate as well as to execute air law rules) have been transferred from the member states to the Union.15 4.1.╇ General Considerations on the Applicability of the Air Law Rules Many air law rules have in common that they apply to aircraft or civil aviation. That is why these two terms need some consideration first. Firstly, the term ‘aircraft’ is not defined in the Chicago Convention. Nevertheless, a broadly accepted definition exists, which is also reflected in some of the icao Annexes to the Chicago Convention, especially within Annex 7 to the Chicago Convention (Aircraft Nationality and Registration Marks).16 According to this definition, an aircraft is 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. Suborbital space vehicles in the scope of the present article (hybrid vehicles) take off and navigate for most part of their flight like an air╇ See Art. 1, Convention on International Civil Aviation (hereafter Chicago ConvenÂ�tion), Chicago, done 7 December 1944, entered into force 4 April 1947; 15 UNTS 296; TIAS 1591; 61 Stat. 1180; Cmd. 6614; UKTS 1953 No. 8; ATS 1957 No. 5; icao Doc. 7300. 15 ╇ On the principled difference between air law rules and space law rules see S. Freeland, Up, Up and … Back: The Emergence of Space Tourism and Its Impact on the International Law of Outer Space, in 6 Chicago Journal of International Law (2005), 4â•›ff.; S. Freeland, The impact of space tourism on the international law of outer space, in Proceedings of the Forty-Eighth Colloquium on the Law of Outer Space (2006), 180. 16 ╇ See Dempsey, 179; Shawcross & Beaumont, Air Law, Chapter 6, 1; M. Milde, Essential Air and Space Law (2008), 59. This definition is also used in Commission Regulation on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these tasks, No. 2042/2003/EC, of 20 November 2003, OJ L 315/1 (2003); see Art. 2(a). 14

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craft, using the reactions of the air against the wings. It is only at a certain flight altitude that the vehicles ignite their rocket engines and use thrust to fly into higher altitudes. When leaving outer space, the vehicles again use the reactions of the air against the wings to navigate through air space, before it lands horizontally as any other aircraft. Hence, the vehicle is for most parts of its flight an aircraft.17 The fact that for some time, after ignition of the rocket engines, the vehicle does not derive support from the reaction of the air, does not exclude the vehicle from being considered aircraft. That is because the definition does not refer to the actual use of the vehicle, but to its general ability to derive support in the atmosphere (“can derive”). The vehicle does not forfeit its classification as an aircraft due to the fact that it refrains from aerodynamic flight and uses rocket power for some part of the flight. Secondly, the term ‘civil aviation’ is defined neither in Chicago ConÂ� venÂ�tion, nor in one of its Annexes. However, there is a common understanding that is also reflected in some legislation of the European Union, for example Regulation 300/2008.18 According to this, civil aviation means “any air operation carried out by civil aircraft, excluding operations carried out by State aircraft referred to in Article 3 of the Chicago Convention on International Civil Aviation”. Suborbital space vehicles are considered aircraft as seen above. The existing suborbital concepts use civil aircraft for the envisaged services. The aircraft operates for most part of its flight in airspace. In conclusion, suborbital space flight is considered being part of ‘civil aviation’. 4.2.╇ Applicability of European Air Law Rules In Europe, air transport authorisations19 are today first and foremost based on European Union law. This is because the Council did lay down ╇ See Dempsey, 179â•›ff.; for the US Space Shuttle, Milde comes to the same conclusion – although recognising that nasa does not consider the shuttle as an aircraft but as sui generis, see Milde, 60. Further also icao Council Working Paper C-WP/12436, para. 2.2; S. Hobe & J. Cloppenburg, Towards a new aerospace convention? Selected legal issues of “space tourism”, in Proceedings of the Forty-Seventh Colloquium on the Law of Outer Space (2005), 379. 18 ╇ Regulation of the European Parliament and of the Council on common rules in the field of civil aviation security and repealing Regulation (ec) No 2320/2002, No. 300/2008/EC, of 11 March 2008; OJ L 97/72 (2008). 19 ╇ The term “authorisation” is used to broadly cover authorisations, permits, licenses etc. 17

270â•…â•…M. Gerhard appropriate provisions on many aspects of air transport based on Article 100(2) of the Treaty on the Functioning of the European Union.20 Article 100(2) of the Treaty on the Functioning of the European Union also applies to suborbital space transportation, because such flights are partly air transport. Transportation21 is the movement of persons and goods.22,23 With suborbital space transportation, persons are moved from a spaceport (through airspace) into outer space, through outer space and from outer space (through airspace) back to the spaceport of origin or – in the future – to another spaceport. The secondary legislation of the European Union as established on the basis of Article 100(2) of the Treaty on the Functioning of the European Union (the air transport acquis of the European Union) covers almost all aspects of civil air transportation, including regulations concerning the internal market, the supply of services, air safety, security, air traffic management, environmental protection and passenger rights. Only to the extent that no transfer of competences on air ╇ Treaty establishing the European Community as amended by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (hereafter Treaty on the Functioning of the European Union), Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 115/47 (2009). 21 ╇ While for instance the English and the Portuguese version use the term “transport” respectively “transportes aeroes”, the terms used in other versions does not make a link to transportation, see e.g. the French (“navigation aérienne”), Italian (“navigazione aerea”) or German (“Luftfahrt”) version. 22 ╇See Encyclopaedia Britannica. This definition is used also by some legislation of the European Union, e.g. Commission Regulation amending Regulation (ec) No 91/2003 of the European Parliament and of the Council on rail transport statistics, No. 1192/2003/EC, of 3 July 2003; OJ L 167/13 (2003); which defines “transport of passengers by rail” by “the movement of passengers using railway vehicles between the place of embarkation and the place of disembarkation”, or Regulation of the European Parliament and of the Council on statistics of goods transport by inland waterways and repealing Council Directive 80/1119/EEC, No. 1365/2006/EC, of 6 September 2006; OJ L 264/1 (2006); which defines “inland waterways transport” by “any movement of goods and/or passengers using inland waterways vessels which is undertaken wholly or partly in navigable inland waterways”. 23 ╇ It is contested whether “transport” in civil aviation is understood as the transport of persons and goods from point A to point B – or whether it includes roundtrips, meaning transport of persons from point A to point A. This should not be discussed in detail here, as the aviation safety rules discussed further below do widely cover round trips. 20

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transport has been decided by the Council (that is Article 100(2) of the Treaty on the Functioning of the European Union or the secondary legislation based on that Article does not apply), national air law rules remain applicable.24 Some provisions of the air transport acquis of the European Union that give rise to the need of authorisations for suborbital space transportation will be illustrated in the following section. 4.2.1.╇ Aviation Safety Authorisations In order to establish and maintain a high uniform level of civil aviation safety in Europe, Regulation 216/200825 establishes some authorisation requirements for the airworthiness of aircraft as well as with regard to the ability of design and production organisations, for flight crew and for air operators (including third-country operators). Suborbital space transportation is covered by that scope, as it is considered civil aviation, as per the above. Regulation 216/2008 applies to “the design, production and operation of aeronautical products (…) as well as the personnel and organisations involved”.26 Aeronautical products are defined as “aircraft, engine and propeller”.27 By concluding above that suborbital space vehicles are considered aircraft, Regulation 216/2008 does apply to suborbital space transportation. Some aircraft are excluded from the applicability of Regulation 216/2008 and remain subject to national aviation requirements (socalled Annex II aircraft);28 but the suborbital space vehicles in question do not fall within one of the categories of such aircraft. The fact that such vehicles might be produced in very limited numbers as such is not sufficient to qualify them as Annex II aircraft. The criterion of “very limited production” is mentioned in Annex II to Regulation 216/ 2008, but only in combination with aircraft designed for research, ╇ National air law is not reflected in the present article. ╇ Regulation of the European Parliament and of the Council on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (ec) No 1592/2002 and Directive 2004/36/EC, No. 216/2008/EC, of 20 February 2008; OJ L 79/1 (2008). 26 ╇ Art. 1(1), Regulation 216/2008. 27 ╇ Art. 3(c), Regulation 216/2008. 28 ╇ See Art. 4(4) and (5), Regulation 216/2008, in conjunction with its Annex II. 24 25

272â•…â•…M. Gerhard experimental or scientific purposes. That is not the case for suborbital space vehicles, which are designed to transport people. 4.2.1.1.╇ Airworthiness Authorisations Aircraft within the scope of Regulation 216/2008 shall comply with certain airworthiness requirements as described in Article 5(1) of RegulaÂ�tion 216/2008 in conjunction with its Annex I. These (essential) requirements are further elaborated within the implementing rules to Regulation 216/2008 (namely Regulation 1702/200329 for airworthiness and environmental certification and Regulation No 2042/200330 for continuing airworthiness) as well as the applicable certification specifications and applicable means of compliance. The compliance with these requirements needs to be demonstrated by holding several authorisations. The aircraft type must hold a type certificate;31 this certificate is issued by the European Aviation Safety Agency (easa). In addition, individual aircraft must hold a certificate of airworthiness;32 this certificate is issued by the competent (national) authority when the individual aircraft conforms to a design as approved by the type certificate.33 A type certificate is issued, when the aircraft meets the essential requirements established in Annex I to Regulation 216/2008. In that regard, the implementing rules established in the Annex (Part 21) to Regulation 1702/2003 specify that the applicant has to demonstrate that the aircraft complies with the applicable type certificate basis (and the environmental protection requirements34) or provide an equivalent level of safety and no feature or characteristic makes it unsafe for the uses for which certification is requested.35 The applicable type certification basis ╇ Commission Regulation laying down implementing rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organizations, No. 1702/2003/ ec, of 24 September 2003; OJ L 243/6 (2003). 30 ╇See supra, n. 16. 31 ╇See Art. 5(2)(a), Regulation 216/2008, in conjunction with Art. 2(1), Regulation 1702/2003 and Subpart B (Artt. 21A.11â•›ff.) of its Annex (Part 21). 32 ╇See Art. 5(2)(c), Regulation 216/2008, in conjunction with Art. 2(1), Regulation 1702/2003 and Subpart H (Artt. 21A.171â•›ff.) of its Annex (Part 21). 33 ╇ See Art. 21A.173(a), Annex (Part 21) to Regulation 1702/2003. 34 ╇ The environmental protection requirements are not dealt with in the present article. 35 ╇ See Art. 21A.21, Annex (Part 21) to Regulation 1702/2003. 29

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consists of two levels: the applicable certification specifications established by easa and any special condition prescribed by easa.36 Firstly, easa has established certification specifications for specific aircraft categories, for example large aeroplanes with maximum take-off mass of minimum 5700â•›kg [Certification Specification (cs) 25], aircraft with maximum take-off mass of 5700â•›kg (cs 23), very light aircraft (cs vla) and so on. None of these existing certification specifications can be considered adequate as such to show compliance of suborbital space vehicles with the essential airworthiness requirements.37 Secondly, special conditions are prescribed if the related certification specification does not contain adequate or appropriate safety standards because the product has novel or unusual design features, the intended use is unconventional or experience from the application or the certification specification has shown that unsafe conditions may develop.38 Suborbital space vehicles do have novel or unusual design features so that one might consider special conditions to an existing airworthiness code (cs 2539 or cs 2340) as a solution to prescribe the certification basis to show compliance with the essential airworthiness requirements.41 However, as the design of suborbital space vehicles might be considered very novel and very unconventional compared to a ‘normal’ aircraft, many special conditions will be needed in order to establish an ╇ See Artt. 21A.16A, 16B, 17, Annex (Part 21) to Regulation 1702/2003. ╇ A combination of the airworthiness codes established in CS 25 and CS 23 might technically be a starting point to identify a certification basis for suborbital space vehicles, see J.B. Marciacq et al., Accommodating sub-orbital flights into the easa regulatory system, in Proceedings of the 3rd IAASS Conference ‘Building a Safer Space Together’ (2008), Chapter 3.2. However, a combination of two certification specifications is not foreseen in the Annex (Part 21). The Agency may only use one of these CSs and apply those parts from another CS which is, more appropriate, as special conditions. 38 ╇ See Art. 21A.16B, Annex (Part 21) to Regulation 1702/2003. Note that Art. 21A.16B refers to “airworthiness code”, a concept which used to be included in Art. 18(c), Regulation 216/2008: “issue certification specifications, including airworthiness codes and acceptable means of compliance”. As a consequence certification specifications were established by easa, containing Book 1 “Airworthiness Code” and Book 2 “Acceptable means of compliance and guidance material”. Art. 18(c), Regulation 216/2008, was amended by Regulation 1108/2009 and reads now “issue certification specifications and acceptable means of compliance”. 39 ╇ See http://www.easa.europa.eu/ws_prod/g/rg_certspecs.php#CS-25. 40 ╇ See http://www.easa.europa.eu/ws_prod/g/rg_certspecs.php#CS-23. 41 ╇ See Marciacq et al., Chapter 3.2. 36 37

274â•…â•…M. Gerhard appropriate certification basis based on one of the existing css. But the concept of special conditions is not aiming at covering major deviations from existing css, which themselves derive from long-standing aviation experience. It can therefore be questioned whether existing airworthiness codes accompanied by special conditions are suitable to apply the essential airworthiness requirements42 to suborbital space vehicles. It must be concluded that suborbital space vehicles are subject to the essential airworthiness requirements as established in Article 5(1) of Regulation 216/2008 and its Annex I, but that – without establishment of a new cs by easa – the present system of type certificate (and certificate of airworthiness) is not appropriate to show compliance of such vehicle with these essential airworthiness requirements. However, the regulatory system established in Article 5 of Regulation 216/2008 does not stop at type certification and certificates of airworthiness. It also provides for other means to show compliance with the essential airworthiness requirements. In derogation of the aforesaid, that is when the aircraft type does not hold a type certificate and the individual aircraft does not hold a certificate of airworthiness, compliance with the essential airworthiness requirements can also be demonstrated through the following means: •  For specific purposes listed in the legislation43 an individual aircraft that does not meet, or has not been shown to meet, the essential airworthiness requirements but is capable of safe flight under defined conditions, can be issued a permit to fly.44 None of the purposes listed applies to suborbital space transportation in operation.45 A permit to fly therefore cannot be issued to certify the airworthiness of suborbital space vehicles. •  In case an aircraft has not been issued a type certificate, an individual aircraft can demonstrate compliance with the essential airworthiness requirements by holding a restricted certificate of airworthiness.46 ╇ And to discharge the certifying authority from its responsibilities and liabilities. ╇ Cf. Art. 21A.701, Annex (Part 21) to Regulation 1702/2003. 44 ╇See Art. 5(4)(a), Regulation 216/2008, in conjunction with Art. 2(1), Regulation 1702/2003 and Subpart P (Artt. 21A.701â•›ff.) of its Annex (Part 21). 45 ╇ Of course a suborbital space vehicle can be issued a permit to fly during development, production flight testing, flying for authority acceptance etc. 46 ╇See Art. 5(4)(b), Regulation 216/2008, in conjunction with Art. 2(1), Regulation 1702/2003 and Art. 21A.184 of its Annex (Part 21). 42 43

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•  If the number of aircraft of the same type eligible for such restricted certificate of airworthiness so justifies, also a restricted type certificate may be issued.47 A restricted type certificate may be issued when a type certificate is inappropriate and the aircraft is designed for a special purpose, for which it is justified to deviate from the essential airworthiness requirements. Restricted type certificates would include limitations for the use related to the special purpose. Therefore, a restricted type certificate and restricted certificate of airworthiness might be the best possibility for suborbital space vehicles to demonstrate their airworthiness. Airworthiness does not stop at certification. The continuing airworthiness of the aircraft must be ensured, too. Continuing airworthiness is required by Article 5(2)(c) of Regulation 216/2008 and point 1.d of Annex I (essential requirements) in conjunction with Article 2(1) of Regulation 2042/2003 and its Annex I (Part M). According to these provisions, modifications and repairs must be approved, occurrences in service must be analysed and corrective action taken if necessary. In addition, airworthiness of products goes along with organisation approvals. In principle, type certificates and restricted type certificates  are only issued to organisations that hold a design Â�organisation approval.48 In addition, an organisation manufacturing aircraft in accordÂ� ance with type design data needs to hold a production organisation approval.49 Finally, organisations involved in the continuing airworthiness need to hold approvals in accordance with Article 4 of RegulaÂ� tion 2042/2003 in conjunction with its Annex II (Part 145), Article 5 of Regulation 2042/2003 in conjunction with its Annex III (Part 66) or Article 6 of Regulation 2042/2003 in conjunction with its Annex IV (Part 147). 4.2.1.2.╇ Other Safety Related Authorisations Regulation 216/2008 also establishes other safety-related authorisation needs. Because the ╇See Art. 5(4)(c), Regulation 216/2008, in conjunction with Art. 2(1), Regulation 1702/2003 and Art. 21A.23 of its Annex (Part 21). 48 ╇ See Art. 21A.21(a), 21A.14, Annex (Part 21) to Regulation 1702/2003. The requirements are established in Subpart J (Artt. 21A.231â•›ff.) of the Annex (Part 21) to Regulation 1702/2003. 49 ╇ The approval is issued in accordance with Subpart G (Artt. 21A.131â•›ff.) of the Annex (Part 21) to Regulation 1702/2003. 47

276â•…â•…M. Gerhard implementing rules for these authorisations are about to be established at the moment, only general information can be given so far. Pilots involved in the operation of aircraft shall hold a license, as per Article 7(1) of Regulation 216/2008 in conjunction with the essential requirements established in its Annex III.50 In addition, the operation of aircraft needs to comply with Article 8 of Regulation 216/2008 and the essential requirements for air operations as established in Annex IV to this Regulation. These rules will be likely to apply also to pilots of suborbital space vehicles. With regard to commercial air operations, the implementing rules will be developed on the basis of the common technical requirements and administrative procedures as specified in Annex III to Regulation 3922/91 (“eu-ops”).51 easa has published its proposal for an opinion to the Commission in the beginning of 2009.52 Having demonstrated their capabilities and means to discharge these responsibilities, operators engaged in commercial operations53 will be issued with a certificate.54 These rules will be likely to apply also to operators of suborbital space transportation. ╇ According to the same rules, also persons and organisations involved in the training, testing, checking or medical assessment of pilots as well as flight simulation training devices need to comply with these essential requirements. 51 ╇Council Regulation on the harmonization of technical requirements and administrative procedures in the field of civil aviation, No. 3922/91/EEC, of 16 December 1991; OJ L 373/4 (1991), as last amended by Commission Regulation amending Council Regulation (eec) No 3922/91 as regards common technical requirements and administrative procedures applicable to commercial transportation by aeroplane, No. 859/2008/EC, of 20 August 2008; OJ L 254/1 (2008). Annex III (“EU-OPS”) will be deleted upon entry into force of the implementing rules to Regulation 216/2008; see Art. 69(3). 52 ╇ NPA 2009-02, see AR.OPS.210. 53 ╇ Operators engaged in non-commercial operations shall only declare their capabilities and means to discharge the requirements laid down by the essential requirements, see Art. 8(3), Regulation 216/2008. 54 ╇ This certificate is known as the air operator certificate (AOC), currently issued in accordance with OPS 1.175 of Annex III to Regulation 3922/91 (“EU-OPS”), as last amended by Regulation 859/2008: an operator shall not operate an aeroplane for the purpose of commercial air transportation otherwise than under, and in accordance with, the terms and conditions of an Air Operator Certificate. This Annex III will be deleted upon entry into force of the implementing rules to Regulation 216/2008; see Art. 69(3), Regulation 216/2008. 50

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Suborbital space vehicles registered in a third country55 (or registered in a member state which has delegated regulatory oversight to a third country) and operated by a third-country operator into, within or out of the European Union need to demonstrate to the competent authority that they comply with the applicable icao standards, in accordance with Article 9(1) and (2) of Regulation 216/2008. A proposal on how to implement Article 9 of Regulation 216/2008 has been published by easa early 2011. As a suborbital space vehicle is considered an aircraft, vehicles that are operated within the European Union (such as with take-off from or landing on an air-/spaceport located within the European Union) need to hold an authorisation as a third-country operator, even if it is neither registered in the European Union nor operated by an EU operator (those projects already exist, as was shown by the example given in the introductory remark). Finally, Regulation 216/2008 has been amended with regard to safetyrelated requirements for air navigation and the operation of aerodromes.56 These requirements are not of direct relevance to the operators of suborbital space vehicles, but only to the air navigation service providers and airport operators on whose airport such vehicle take-off or land. 4.2.2.╇ Other Authorisations╅ In order to improve the function of the internal market within the European Union, the European legislator ╇ Third countries are states which are not member of the European Union and states which are not associated with the relevant part of the legislation of the European Union. With regard to the air transport acquis of the European Union, the eea member states (Norway, Iceland and Liechtenstein) as well as Switzerland usually do associate, see Agreement on the European Economic Area (hereafter eea Agreement), Oporto, done 2 May 1992, entered into force 1 January 1994; OJ L 1/3 (1994); 3; Annex XIII (Transport) as amended, and the Agreement between the European Union and the Swiss Confederation on Air Transport as amended. Annex XIII to the Agreement on the European Economic Area as well as the Agreement between the ec and Switzerland have not yet been amended with regard to Regulation 216/2008, as a consequence of which Regulation of the European Parliament and of the Council on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, No. 1592/2002/EC, of 15 July 2002; OJ L 240/1 (2002); is still applicable in that regard. 56 ╇ See Regulation (ec) No 1108/2009 of the European Parliament and of the Council of 21 October 2009 amending Regulation (ec) No 216/2008 in the fields of aerodromes, air traffic management and air navigation services and repealing Directive 2006/23/ ec, OJ L 309/51 (2009). 55

278â•…â•…M. Gerhard has established within the air transport acquis of the European Union an operational authorisation requirement. This is also applicable to operators of suborbital space vehicles. No undertaking established in the European Union shall be permitted to carry by air passengers, mail or cargo for remuneration or hire, unless it has been granted the appropriate operating licence, as per Article 3(1) of Regulation 1008/2008.57 Suborbital space transportation is air carriage of passengers for remuneration.58 Hence, its operator also needs to hold such authorisation. 4.3.╇ Conclusions on Air Law Rules Some authorisations required by the air transport acquis of the European Union do apply to suborbital space transportation. This includes airworthiness certification according to Article 5(1) of Regulation 216/2008 and the essential requirements as established in Annex I. No appropriate airworthiness code exists to become the main part of a certification basis to demonstrate compliance with the essential airworthiness requireÂ�ments. The system of special conditions to existing airworthiness codes might be used but probably cannot be considered suitable. However, Article 5(4) of Regulation 216/2008 allows for issuance of restricted type certificates (and restricted certificates of airworthiness), according to which compliance with the essential airworthiness requirements can be demonstrated. Organisations involved in the design of suborbital space vehicles need to hold a design organisation approval, organisations involved in its manufacture a production organisation approval. Pilots of such vehicles need to hold a flight crew license. In addition, the operator has to apply for an air operator certificate in accordance with ops 1.175 of Annex III to Regulation 3922/91 (“eu-ops”) respectively Article 8(2) of Regulation 216/2008 as well as for an operating license in accordance with Article 3(1) of Regulation 1008/2008. Third-country operators ‘using’ the territory or airspace of a member state of the European Union, such as taking off from or landing at an ╇ Regulation of the European Parliament and of the Council on common rules for the operation of air services in the Community (Recast), No. 1008/2008/EC, of 24 September 2008; OJ L 293/3 (2008). 58 ╇ See Hobe & Cloppenburg, 379. 57

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airport respectively spaceport located in the territory of a member state, have to hold an authorisation, too. This authorisation shall recognise compliance with the applicable icao standards. The airworthiness authorisation is built upon a ‘functional approach’ (that is applicable to aircraft), while all other authorisation requirements identified are built upon a ‘spatial approach’ (that is applicable to air carriage or air operations).

5.╇ Scrutiny of Outer Space Law Rules Having reached outer space means being in international territory. Outer space is not subject to national appropriation by claim of sovereignty, by means of use or by any other means.59 As a consequence, the applicable legal framework is the one established by international law. States can only set up national legislation to implement the international legal framework60 or to establish rules that do not constitute a national appropriation of outer space.61 5.1.╇ General Considerations on the Applicability of the Space Law Rules Some rules of outer space law are applicable only to activities that take place in (or beyond) an orbit around the earth,62 to activities on the ╇ See Art. II, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967). 60 ╇ E.g. national legislation to authorise national activities in outer space, implementing Art. VI, Outer Space Treaty. 61 ╇ On the principle difference between air law rules and space law rules see Freeland, Chicago Journal of International Law, 4╛ff.; Freeland, Proceedings of the Forty-Eighth Colloquium on the Law of Outer Space, 180. 62 ╇ E.g. Art. IV(1), Outer Space Treaty, prohibiting to place objects carrying nuclear weapons or any other kinds of weapons of mass destruction; the full Convention on Registration of Objects Launched into Outer Space (hereafter Registration Convention), New York, done 14 January 1975, entered into force 15 September 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975). 59

280â•…â•…M. Gerhard moon and other celestial bodies63 or to specific uses of outer space.64 None of these rules applies to suborbital space transportation. However, most of the rules of outer space law apply to activities that take place in outer space. Suborbital space transportation takes place partly in outer space, as will be described in the following. 5.1.1.╇Delimitation Between Airspace and Outer Space There is a long-lasting discussion on were the exact ‘boundary’ between air space and outer space is.65 The physical approach defines the demarcation between air and outer space where an aircraft will not find sufficient aerodynamic lift to sustain a flight; if the air lift is reduced to zero, centrifugal forces have to take over to continue flight. This concept was first presented in the late 1950s by von Kármán. The exact altitude of this demarcation line varies, according to the basic parameters chosen for the calculation. The original calculation by von Kármán resulted in roughly 84â•›km, while in the course of the years different results have been given by others, all between 80 and 95â•›km. Because a demarcation between airspace and outer space has to be well-defined, some have taken the position – based on this physical approach – that the demarcation is at 50 miles (roughly 80â•›km), others that it is at 100â•›km.66 In addition, some take the view that the Â�demarcation

╇ E.g. Art. IV(1), Outer Space Treaty, on use for peaceful purposes; Art. XII, Outer Space Treaty, on access to stations, installations etc. on the basis of reciprocity; the full Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereafter Moon Agreement), New York, done 18 December 1979, entered into force 11 July 1984; 1363 UNTS 3; ATS 1986 No. 14; 18 ILM 1434 (1979). 64 ╇E.g. Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, UNGA Res. 37/92, of 10 December 1982; un Doc. A/AC.105/572/Rev.1, at 39; Principles Relating to Remote Sensing of the Earth from Outer Space, UNGA Res. 41/65, of 3 December 1986; un Doc. A/AC.105/572/Rev.1, at 43; 25 ILM 1334 (1986). 65 ╇ For an overview of the discussion see un Committee on the Peaceful Uses of Outer Space, Legal Subcommittee, Doc A/AC.105/769 Report of the Secretariat, “Historical summary on the consideration of the question on the definition and delimitation of outer space”; see also F G von der Dunk, The sky is the limit – but where does it end?, in Proceedings of the Forty-Eighth Colloquium on the Law of Outer Space (2006), 86â•›ff. 66 ╇ See Cheng, 350â•›ff. 63

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has to be legally confirmed by a legal instrument at an altitude not exceeding 110â•›km.67 One state so far has taken a position by defining the launch of a space object as launching an “object into an area beyond the distance of 100â•›km above mean sea level, or attempt to do so”: Australia. This was done for the purpose of defining the applicability of its Space Activities Act 1998, as per its Section 8.68 The same altitude (100â•›km) was chosen, when launching the Ansari x prize. This was a space competition in which the x prize Foundation offered a us$ 10,000,000 prize for the first non-governmental organisation to launch a reusable manned spacecraft into space twice within two weeks. The edge of space was defined as 100â•›km altitude above sea level. Although this cannot be considered of much legal value in terms of establishing a legal demarcation, it is an interesting indication of where outer space is considered to begin. In addition, although there is no internationally accepted delimitation of air space and outer space, there is a strong indication that during suborbital space transportation the vehicle will enter into outer space – irrespective of where lawyers and legislators will define the delimitation between these two spaces: it is the underlying intention of the passengers to fly into outer space. Some passengers may ‘simply’ intend to fly to such an altitude that allows an extraordinary view on our earth, including the curvature of the earth. That can be achieved already at an altitude of 60 to 80â•›km, that is from higher air space. But for the majority of passengers the real intention to book a suborbital space transportation flight will be to enter into outer space and to enjoy the extraordinary view on the earth especially from outer space. Considering this demand, operators of such flights will therefore apply a technical concept that meets the expectations of potential passengers. As most people today consider outer space beginning at about 100â•›km, the existing business concept foresee such flights to go beyond an altitude of 100â•›km above sea level. If the common understanding changes or a demarcation ╇Proposal made in the uncopuos Legal Subcommittee, un Doc A/AC.105/C.2/ L.139: cf. also Cheng, 356. 68 ╇ An act about space activities, and for related purposes (hereafter Australian Space Activities Act), No. 123 of 1998, assented to 21 December 1998; National Space Legislation of the World, Vol. I (2001), at 197; as amended by amending legislation up to No. 100 of 2002. 67

282â•…â•…M. Gerhard will be defined, it can be assumed that business concepts will change accordingly. In conclusion, in view of both the fact that on the one hand the legal definition of the boundary of air space and outer space is likely to be somewhere between 80 and 100â•›km above sea level and on the other hand operators plan to fly into outer space and therefore do present concepts flying beyond the altitude of 100â•›km, the present article will be based on the assumption that during suborbital space transportation the vehicle does indeed enter outer space. 5.1.2.╇Activity in Outer Space The outer space law rules that apply to activities in outer space do also apply to activities that – like suborbital space transportation – take place partly in outer space. Most scholars consider an activity in outer space as being an activity which makes outer space accessible, explorable or usable.69 This includes activities that partly take place in outer space. Like launching rockets make outer space explorable when they place satellites in an orbit, suborbital space vehicles will make outer space accessible to everybody and – from a mid-term perspective – usable for transportation of passengers through partly using a lower earth orbit. The reason for this is that the telos of the Outer Space Treaty requires for this particular part of the flight the application of the Outer Space Treaty’s principles, and calls for state responsibility. 5.1.3.╇ Space Object Many provisions of outer space law apply to space objects. A space object is an object that is launched or intended to be launched into outer space (in order to explore or use outer space).70 As seen above, following the discussion on the delimitation between air space and outer space, a suborbital vehicle is launched into outer space. The ignition of the engines in flight can be considered to be a launch.71 Finally, the vehicle ╇ See K.H. Böckstiegel, Handbuch des Weltraumrechts (1991), 246, 266 & 351; H.L. van Traa-Engelman, Commercial utilization of outer space – law and practice (1993), 18â•›ff. 70 ╇See M. Hintz, ‘Weltraumgegenstände’ in K.H. Böckstiegel (Ed.), Handbuch des Weltraumrechts (1991), 157, 160â•›ff.; W. von Kries, B. Schmidt-Tedd & K.U. Schrogl, Grundzüge des Raumfahrtrechts (2002), 23. 71 ╇ See sections 4.1 and 5.2.1. 69

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uses outer space for tourist purposes. In conclusion, suborbital space transportation vehicles can be considered space objects.72 5.2.╇ Authorisations Based on Outer Space Law State parties to the Outer Space Treaty are obliged to authorise and continuously supervise activities of non-governmental entities in outer space, under Article VI, second sentence. This sentence requires states to take measures to implement Â�provisions in national laws or regulations according to which non-governmental entities have to have an authorisation before they conduct an activity in outer space. Some states have implemented these authorisation requireÂ� ments within a dedicated legislation on space activities, in Europe namely Norway, Sweden, the United Kingdom, Belgium, France and the Netherlands. Some other states ensure authorisation through other – not so transparent – means. For the present article, only the transparent implementation within national legislation shall be taken into consideration. 5.2.1.╇ The Scope of National Authorisation Requirements The authorisation needs to be established for all activities of non-governmental entities (in outer space). Non-governmental entities are all natural persons as well as those legal persons that do not exercise supreme state authority, that is those who are not directly bound by the Outer Space Treaty. Most private activities can be qualified as nongovernmental activities; only if the state is acting as a private person, such activity still will be qualified as conducted by governmental agencies. Therefore, most operators of suborbital space transportation are considered non-governmental entities. The authorisation needs to be established for all activities (of nongovernmental entities) in outer space. As demonstrated above,73 suborbital space flights are activities that (partly) take place in outer space. ╇ See Dempsey, 180; Y. Zhao, Developing a Legal regime for Space Tourism: Pioneering a Legal Framework for Space Commercialization, in Proceedings of the Forty-Eighth Colloquium on the Law of Outer Space (2006), 202. Consideration of these questions with regard to the Space Shuttle was undertaken by Gorove, 103â•›ff., but for the discussion it should be kept in mind that the Space Shuttle is not a suborbital vehicle but enters into an earth orbit. 73 ╇See supra, section 4.1. 72

284â•…â•…M. Gerhard Therefore, that particular part of the flight which takes place in outer space needs to be authorised. However, not all states have implemented the Outer Space Treaty to the full extent. For that reason, a closer look is owed whether the scope of the European legislation on space activities covers suborbital space transportation for the time being. The Norwegian Act on launching objects from Norwegian territory into outer space of 196974 does not apply to activities in outer space. Thus, this small segment of the flight that takes place in outer space is not within the scope of the Norwegian Act. However, according to its Article 1, the Act applies to the launching of objects, from Norwegian territory, from Norwegian vessels and aircrafts and for launching from international territory if that launch is undertaken by a Norwegian citizen. That raises the question whether a vehicle within the scope of the present article (hybrid vehicle) can be considered to be launched (from Norwegian territory).75 If one considers ‘launching’ as the take-off or the ignition of the engines, the launching might take place in the air at the moment when the aerodynamic flight ends and the flight continues to be supported by the thrust of the rocket engines. However, as there is no separation of vehicles, the second alternative (launched from an aircraft) is not applicable. The Norwegian Act on Launching would only apply if the ignition of the engines takes place in the Norwegian airspace or if the launch is undertaken by a Norwegian citizen. The Swedish Act on Space Activities76 applies to activities in outer space, as per its Section 1. As suborbital space transportation partly takes place in outer space, such activity should be covered in principle. But this part of the scope must be interpreted restrictively. As the second sentence of Section 1 states that “in addition to activities carried on entirely in outer space” the Swedish legislator obviously understands – contrary ╇Act on launching objects from Norwegian territory into outer space (hereafter Norwegian Act on Launching), No. 38, 13 June 1969; National Space Legislation of the World, Vol. I (2001), at 286. 75 ╇ Cf. K.U. Schrogl & C. Davies, A new look on the concept of the “Launching State”, 51 Zeitschrift für Luft- und Weltraumrecht (2002), 367â•›ff.; S. Gorove, Toward a clarification of the term “space object” – an international legal and policy imperative?, 21 Journal of Space Law (1993), 18. 76 ╇Act on Space Activities (hereafter Swedish Space Activities Act), 1982: 963, 18  November 1982; National Space Legislation of the World, Vol. I (2001), at 398; Space Law – Basic Legal Documents, E.II.1; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 11. 74

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to how the Outer Space Treaty is mostly interpreted – an activity in outer space only if such activity entirely takes place therein. This is not the case for suborbital space transportation. However, the act does also apply to the launching of objects into outer space and all measures to manoeuvre or in any other way affect objects launched into outer space. As seen above, suborbital space transportation might be considered as launching objects into outer space. This does not change because the Act does not apply to the launching of sounding rockets. Although both are suborbital activities, the use of sounding rockets is a very specific activity and different from the transportation of persons into outer space. The reason for that exception in the Swedish Act on Space Activities is that the launching activities only take place in the far north of Sweden and such activities were not considered as being a potential hazard to third parties, especially to aviation. This is different for suborbital space transportation, which are present for longer periods in the airspace than sounding rockets. The uk Outer Space Act77 applies to the launching and procuring the launch of space objects, to the operation of a space object and to any activity in outer space, as per Section 1 of the Act. Thus, suborbital space transportation is covered, both as launching as well as activity in outer space. The Belgian Law on the Activities of Launching, Flight Operations or Guidance of Space Objects78 covers suborbital space transportation vehicles, as they are space objects.79 The Law fully applies to them. The French Law relative to space operations80 applies to the launch and control of space objects, as per Article 1. Thus, similar to what has been said about the uk Outer Space Act, suborbital space transportation is covered by the French Law on Space Operations. ╇ Outer Space Act (hereafter uk Outer Space Act), 18 July 1986, 1986 Chapter 38; National Space Legislation of the World, Vol. I (2001), at 293; Space Law – Basic Legal Documents, E.I; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 12. 78 ╇ Law on the Activities of Launching, Flight Operations or Guidance of Space Objects (hereafter Belgian Space Law), 17 September 2005, adopted 28 June 2005; Nationales Weltraumrecht / National Space Law (2008), at 183. The sphere of application is described in Art. 2. 79 ╇See supra, section 5.1.2. 80 ╇ Law on Space Operations (Loi relative aux opérations spatiales) (hereafter French Law on Space Operations); Loi n° 2008-518 du 3 juin 2008; 34 Journal of Space Law (2008), at 453; unofficial translation 34 Journal of Space Law (2008), at 453. 77

286â•…â•…M. Gerhard The Dutch Space Lawâ•›81 is also all-embracing and covers space activities (the launch, the flight operation or the guidance of space objects in outer space, as per Article 2 in conjunction with Article 1 of the Act), which includes suborbital space transportation, too. 5.2.2.╇ Authorisation Requirements in National European Legislation The European national legislation on space activities require the operator to ensure that the activity does not jeopardise public health or the safety of persons or property. Especially the competent authority in the United Kingdom has established very detailed requirements to ensure safety. Other requirements established by European laws to implement the Outer Space Treaty are consistency with the international obligations, non-contamination of outer space and avoidance of adverse changes to the earth environment, avoidance of interference with other activities in outer space, perseverance of national security and so on. If the operator of suborbital space transportation is subject to one of these laws (meaning in general terms being national of that state, being a legal persons with its principle place of business in that state or undertaking its activity – that is taking off – from the territory of that state), he needs to hold an authorisation for undertaking an activity in outer space according to the applicable national space activities act. 5.3.╇ The Competent Authority to Issue Authorisation Article VI, second sentence, of the Outer Space Treaty requires the ‘appropriate State’ party to the Treaty to authorise an activity in outer space. The term ‘appropriate’ refers to the responsibility of the state for its national activities (activities of governmental agencies and nongovernmental entities) as established by Article VI, first sentence. 5.3.1╇ Competence According to the Outer Space Treaty The responsibility for national activities lies with the state that has jurisdiction over the said activity. It is very much contested on how to

╇ Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry of Space Objects (hereafter Dutch Space Law), 24 January 2007; 80 Staatsblad (2007), at 1; Nationales Weltraumrecht / National Space Law (2008), at 201.

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determine which state has such jurisdiction. The preferred interpretation82 refers to the general concept of jurisdiction in international law, that is the personal jurisdiction and the territorial jurisdiction; considering the fact that an activity usually will take place within an international territory (outer space), quasi-territorial jurisdiction, that is for objects registered within the respective registers, is accepted, too. The competent authority to authorise non-governmental suborbital flights is therefore the competent authority of the state whose nationals conduct the activity – usually the operator – or from whose territory (or objects registered in its registries) an activity is conducted.83 5.3.2.╇Transfer of Competence to the European Union? Within the European Union, the competence for outer space activities is with the member states. The Treaty on the Functioning of the European Union84 does not contain any provision transferring the competence for this matter to the European Union. The title on “Transport” does only cover other means of transport, including sea and air transport.85 The Treaty of Lisbon86 has amended the ec Treaty, including some amendments with regard to outer space matters. Article 4 of the Treaty on the Functioning of the European Union on shared competences states that “in the areas of research, technological development and space, the European Union shall have competence to carry out activities, in particular to define and implement programmes.” In accordance with the new Article 189(1) of the Treaty on the Functioning of the European Union the European Union shall draw up a European space policy. In addition, the European Parliament and the Council shall establish the necessary measures, which may take the form of a EuroÂ� pean space programme, excluding any harmonisation of the laws and ╇ See M. Gerhard, Article VI, in S. Hobe, B. Schmidt-Tedd & K.U. Schrogl (Eds.), Cologne Commentary on Space Law, Vol. I (2009), Chapter 3.1.e. 83 ╇ See also Y. Takaya & R.J. Lee, Space Tourism and permanent human settlement: the legal and regulatory issues, in Proceedings of the Forty-Third Colloquium on the Law of Outer Space (2001), 144. 84 ╇See supra, n. 20. 85 ╇ For (sea and) air transport, see Art. 100(2), Treaty on the Functioning of the European Union. 86 ╇ Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (hereafter Treaty of Lisbon), Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 306/1 (2007). 82

288â•…â•…M. Gerhard regulations of the member states, as per Article 189(2) of the Treaty on the Functioning of the European Union. Therefore, the member states will remain competent on the authorisation of any space activities. 5.4.╇ Conclusions on Outer Space Law Rules Some rules based on outer space law are applicable to suborbital space transportation. These are mainly the rules implemented by states on the basis of Article VI of the Outer Space Treaty, that is requiring operators of activities in outer space to comply with the main principles established by the Outer Space Treaty. These rules aim at ensuring compliance of the operator with the principles set forth in the Outer Space Treaty; these authorisations are built upon a ‘spatial approach’ (that is, apply to activities in outer space). In addition most legislation also establishes general requirements aiming at protecting third parties from suffering any damage. Some of these rules include requirements that can be considered as ‘spaceworthiness’ requirements. These rules built upon a ‘functional approach’ (that is, apply to space objects). It is noteworthy that the competent authority to issue such authorÂ� isation is an authority within the responsible (as per Article VI of the Outer Space Treaty) state. No competence of the European Union exists to that extent.

6.╇ Aspects of Limiting the Applicability of Authorisation Requirements So far it has been demonstrated that no unique legislation for suborbital space transportation exists, but that different authorisation requirements are applicable to such activities, which can be found in air law as well as in space law. Some of them are built upon a ‘functional approach’, so apply to vehicles operating as aircraft or as space object, while others are built upon a ‘spatial approach’, and thus apply to air flight or activities in outer space.87 Following either a strict ‘functional approach’ or a strict ‘spatial approach’ would – without any need – generally exclude some of them, despite their given applicability. The legislator has been ╇ See Dempsey, 180â•›ff.

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much more selective and has already chosen to apply sometimes ‘functional’ criteria and sometimes ‘spatial’ criteria to determine the applicability of the rules. This choice of the legislator cannot be made obsolete by a much more general approach, stating that suborbital space transportation is subject to either air law or space law.88 However, for the sake of industry as well as of citizens, a harmonised approach of applying requirements from air law as well as space law is necessary. It is therefore examined in the following, whether there are other criteria that would exclude the applicability of some of authorisation requirements identified above. 6.1.╇ Lex specialis Space law rules cannot be considered lex specialis to air law rules. Even where both areas aim at ensuring the same purpose, which is the safety of third parties, there are different means necessary to achieve this purpose. For example, airworthiness requirements established to ensure a safe flight in airspace are different from spaceworthiness requirements to ensure a safe flight in outer space. This is due to the different external conditions as well as due to the different flight physics used. At the same time air law rules cannot be considered as lex Â�specialis, just because the main portion of the transportation activity takes place in air space. There is no general principle of quantitative preponderance. 6.2.╇Purpose The purpose of existing authorisation requirements in air law is to protect the safety of people on the ground as well as the safety of passengers. In addition, the functioning of the internal (European) market is targeted by some of the requirements. Authorisation requirements based on space law serve a slightly different purpose. They intent to ensure the ╇A different opinion is held by Freeland, Chicago Journal of International Law, 5. According to Freeland such a hybrid legal system cannot be applied as it is left to the chance whether the one or the other regulatory system applies. However, Freeland probably has a point when it comes to liability issues (i.e. claims of third parties); but this discussion is independent from the discussion of the applicable authorisation provision, see infra, section 6.3.

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290â•…â•…M. Gerhard safety of third parties (that is, safety of people on the ground and safety of people in other aircraft), but they do not intend to ensure the safety of passengers. In addition, space law requirements aim at ensuring free exploration and use of outer space. Suborbital space transportation will make use of newly developed techniques; innovative vehicles developed on the basis of state of the art aircraft and state of the art spacecraft will open the door to a new market of transportation and tourism. The risk of incidents or accidents cannot be excluded for such newly developed techniques. It is for this reason that authorisation requirements need to ensure the safety of third parties, too. Passenger safety also needs to be ensured. However – at least at an early stage of this new kind of transportation – it might be discussed, whether the legislator (through authorisation requirements) should do so or whether it can be assumed that passengers are aware of the increased risk through newly developed techniques, while only requiring the operator to establish the adequate contractual safeguard provisions for passengers. This can be considered necessary, as the legislator has to find an appropriate balance to protect public health and ensure development of the industry in this new area. 6.3.╇ (In-) Consistency However, after having identified the most relevant provisions applicable to a certain activity, it cannot be excluded that the effects of some of the provisions on the particular activity of suborbital space transportation are not consistent with the effects of other provisions on the same activity. The issue of inconsistency has been brought forward by some authors with regard to registration issues and liability issues: some mentioned the problem of dual registration; a vehicle can not be registered as an aircraft (in accordance with Articles 17 and following of the Chicago Convention) as well as a space object (in accordance with Articles II and IV of the Registration Convention). However, this problem does never occur with regard to suborbital space transportation. Vehicles engaged in such kind of transportation are registered as aircraft only, because Articles II and IV of the Registration Convention do only apply to objects that are launched into Earth orbit or beyond. Suborbital space transportation takes place in outer space, but not in the earth orbit or beyond. No registration as a space object is needed. Much more

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controversial is the discussion on the possible inconsistency of both regimes with regard to liability. Except for some national particularities,89 space law does not contain any provision on liability between the operator / owner of a vehicle towards the person damaged by such vehicle. It is not for the present article to discuss the applicability of the Montreal Convention90 and their likes to suborbital space flight. But a major difference exists with regard to liability in both systems: outer space law does provide for an additional state liability for damages caused by space objects (including those operated by private entities), in conformity with Article VII of the Outer Space Treaty and the LiabiÂ� lity  Convention.91 The person damaged by a space object can choose whethÂ�er to claim indemnification from the operator / owner Â�according to national tort law or against the state, via diplomatic channels, according to Article VII of the Outer Space Treaty and the Liability Convention.92 Such a choice does not exist in the aviation area. Although a suborbital space vehicle is considered a space object, it might be doubtful whether the privilege established for persons damaged by space objects can be applied when the object only acts for a short segment of its flight as a space object. But again, it is not for the present article to discuss this. The above discussion simply demonstrates that – even when consistent authorisation requirements can be identified – this does not mean that all other issues regarding the potential overlap of air and outer space law are consistent, too. The authorisation requirements identified above can mostly be considered consistent and therefore fully applicable to suborbital space transportation: •  In the airworthiness area, air law requires for suborbital space Â�transportation vehicles to comply with the essential airworthiness ╇ See e.g. Secc. 63â•›ff., Australian Space Activities Act. ╇ Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention), Montreal, done 28 May 1999, entered into force 4 November 2003; icao Doc. 9740; 48 Zeitschrift für Luft- und Weltraumrecht (1999), at 326. 91 ╇ Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971). 92 ╇Liability issues related to space tourism are dealt with e.g. by Freeland, Chicago Journal of International Law, 9â•›ff.; Freeland, Proceedings of the Forty-Eighth Colloquium on the Law of Outer Space, 182. 89 90

292â•…â•…M. Gerhard requirements (Article 5(1) of Regulation 216/2008 and its Annex I). Compliance with these requirements can be demonstrated at the moment by holding a restricted type certificate for the design of suborbital space transportation vehicles and by holding a restricted certificate of airworthiness for each individual space transportation vehicle. Nothing similar exists under space law. The basic principles for restricted type certificates as well as for restricted certificates of airworthiness can therefore be applied accordingly. The competent authority just needs to take into consideration that the restricted type certificate needs to respond to specific design needs of the aircraft, allowing it to fly into outer space (rocket engine, heating shields and suchlike). This is technically possible.93 However, it needs to be considered that some national space laws have additional requirements for space activities, including spaceworthiness requirements for space objects. These will apply to suborbital space vehicles, too. Although these are not as much developed as the airworthiness requirements, they are potentially in conflict with the requirements for the restricted certificate of airworthiness. As the restricted certificate of airworthiness is based upon the restricted type certificate, the certification basis for this type design needs to be established in light of the all existing spaceworthiness requirements existing within (space) legislation. •  Still in the airworthiness area, the design organisation and the production organisation of suborbital space vehicles need to be approved. No similar requirements exist in outer space law. Hence, there is no potential conflict between air law provisions and outer space law provisions. •  The operator of suborbital space transportation is required to hold an air operators certificate as well as an operating license, according to air law. National space legislation has established additional operational requirements, most of them high level requirements, to comply with the principles set forth in the Outer Space Treaty. There is no potential of conflict between the two operational requirements. •  Air law requires pilots to hold a flight crew license. Space law does not contain any similar authorisation requirement. Therefore, there is no potential for conflict here, either. ╇ See Marciacq et al., Chapter 3.2.

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In conclusion, most issues are complementary. However, inconsistency can only be fully excluded in case the certification basis for the restricted type certification is established conscious of any existing national ‘spaceworthiness’ requirements. In case such conflict is identified, it should be solved in favour of the applicable legal regime of that part of the transportation activity that involves the highest risk to third parties. However, this can only be a case-by-case decision because not all member states of the European Union have national space legislation (including spaceworthiness requirements) and those member states which have such legislation have established different requirements. It can be concluded that the activity undertaken by a hybrid vehicle also results in a hybrid application of the air and space law provisions. 6.4.╇ Competent Authority Issues Although consistency can be maintained in principle in applying the above referenced authorisation requirements, some difficulties remain. Firstly, conscious of the potential conflict of airworthiness and spaceworthiness rules, a close cooperation between easa and the national authorities competent to authorise space activities, is needed. Secondly, the authorisations based on air law provisions are issued under application of the legislation of the European Union. The competent authority for some of these authorisations (rtc) is a European body, easa. Others (flight crew licenses, air operator certificates, and certificates of airworthiness) are issued by national aviation authorities, subject to the standardisation responsibility of easa. In contrast, the authorisations based on space law provisions are issued by national authorities based upon national legislation that is established and exercised under full national sovereignty. Even in case the responsible state (under Article VI of the Outer Space Treaty) chooses the national aviation authority to issue authorisations under space law provisions, it cannot be fully ensured that there is a harmonised approach in that regard. 6.5.╇Conclusion It can be concluded that suborbital space transportation is subject to a set of authorisation requirements that are to some extent based on air law rules and to some extent based on outer space law rules. There is no

294â•…â•…M. Gerhard practice of the legislator with regard to applying either a functional approach or a spatial approach. Some of the applicable provisions are based on a functional approach, others are based on spatial approach. In addition, there is – to a great extent – no inconsistency between the applicable air law provisions and the applicable space law provisions. Unless unique legislation (lex specialis) is being drafted to apply to suborbital space transportation activities, the existing provisions of both – air and space law – are applicable to such activities and provide for a reasonable legal framework.

7.╇ The Way Forward At the moment it is up to every design organisation, production organisation and operator to identify within the broad range of air law provisions and some outer space law provisions those provisions that are applicable to suborbital space transportation activities. A dual – or even threefold – authorisation is the rule rather than the exception. In addition, the applicable provisions are based upon European legislation as far as air transportation is concerned and upon national legislation as far as outer space activities are concerned. Those organisations will have to identify the competent authorities and apply for the necessary authorisations. As the competent authorities are European and national aviation authorities as well as national space authorities, it is necessary that these authorities coordinate their activities when issuing the necessary authorisation for suborbital space transportation activities. In addition it is up to the legislator(s) to consider amendment of the existing legislation, in order to provide for some very specific provisions for the authorisation of suborbital space transportation activities (lex specialis). Such specific legislation can either be established as part of the aviation provisions, as part of the outer space provisions or as provisions of a third category.94 This is a policy decision, guided for instance by the fact where the legislator considers the air transport part or the outer space activities part as the preponderant part of the flight.

╇ Such legislation must of course also take into consideration other type of suborbital transportation vehicles, not only hybrid vehicles as they have been in the scope of the present article.

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To complicate matters, the competent authority to amend air transport legislation is the European Commission, while the national legislators of the member states are at the moment competent to introduce or amend legislation on outer space activities. A particular challenge for the legislator will be to appropriately harmonise his legislative endeavours with the legislation in the United States. Especially as aviation safety is concerned, the European Union as well as the United States aim at promoting cooperation and mutual recognition of safety standards. But as the United States is far more developed when it comes to suborbital space transportation, the legislator(s) in Europe also need to decide to either gradually develop their own rules or to make use of the experience the United States already made. The United States had to take some very similar decisions – as Europe has to take today – some ten years ago.95 In 2003 still, there was the need for an organisation using hybrid vehicles for suborbital space transportation activities to hold both an airworthiness certificate (or an experimental airworthiness certificate, as long as there were no passengers on board) and a launch license.96 In 2004, the legislator decided to go for a single (“one-stop shopping”) authorisation. The decision was taken that this was the launch license; to this end the Commercial Space Launch Act97 was amended.98 However, the competent authority (faa-ast) still has to consider air transportation issues before issuing the launch license. At the same time, the legislator in the United States took the decision that for a limited time (until 2012) only limited safety regulation shall apply to suborbital space transportation activities.99 The intention was to support the emerging suborbital industry. It was contemplated that space flight participants need less protection than aviation passengers and that safety issues therefore are mainly concerning the need to ╇ An extensive overview of applicable us legislation as well as the discussions to amend the Commercial Space Launch Act are given by Hughes & Rosenberg, 1â•›ff.; Mineiro, 759â•›ff.; Cartier & Cristoiu, 34â•›ff.; Von der Dunk, 90; R. Yates, Minimizing regulation of space tourism to stimulate commercial, private launch capabilities, in Proceedings of the Forty-Ninth Colloquium on the Law of Outer Space (2007), 61. 96 ╇Commercial Space Transportation: suborbital rocket launch notice, 68 Fed. Reg. 59977, 20 October 2003. 97 ╇ Commercial Space Launch Act 2004, 49 U.S.C., Chapter 701. 98 ╇ Commercial Space Launch Amendments Act, Public Law 108-492, 108th Congress, 23 December 2004, 49 U.S.C.; 118 Stat. 3974. 99 ╇ See Sec. 70105(c), Commercial Space Launch Act. 95

296â•…â•…M. Gerhard protect the public on the ground (only). The Commercial Space Launch Act as amended therefore is legislation that considers that suborbital space transportation needs less regulation, with the right balance protecting public but without stifling innovation.100 It is for European policy makers to decide whether Europe wants to follow that path.

╇ 150 CONG. REC. H10048-49 (daily ed. 19 November 2004), as cited by Hughes & Rosenberg, 46.

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Chapter Ten Authorisation of Space Activities after the Entry into Force of the eu Reform Treaty* B. Schmidt-Tedd 1.╇Introduction According to Article VI of the Outer Space Treaty,1 “States Parties to the Treaty shall bear international responsibility for national activities in outer space”. In consequence, national space legislation implements different levels of licensing and authorisation procedures in order to fulfil the international obligations. Nevertheless, the international landscape of such national implementation is far from being complete. The Legal Sub-Committee of the United Nations Committee on the Peaceful Uses of Outer Space (uncopuos) has installed a Working Group on National Space Legislation with the goal of enhancing the present situation. At the same time, the European Union gained a new explicit space competence by virtue of the Treaty of Lisbon.2 Will this lead to any effect on European space legislation? The different layers of law between national responsibilities, a European approach for commercial space *╇ The article is based on reflections presented at the ecsl Practitioners Forum held on 15 December 2008 at esa HQ, Paris. The opinions expressed in this article are entirely those of the author and do not engage organisations with which he is affiliated. 1 ╇ Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967). 2 ╇ Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (hereafter Treaty of Lisbon), Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 306/1 (2007).

298â•…â•…B. Schmidt-Tedd activities and possible areas of harmonisation is not as obvious as it might seem. This article tries to pave the way through this labyrinth.

2.╇ The European Union’s New Space Competence After a long-lasting ratification process in the 27 member states, the Treaty of Lisbon – signed on 13 December 2007 by the Heads of State or Governments of the European Union3 – entered into force on 1 December 2009.4 The reform treaty5 is a further development of the existÂ�ing EuroÂ� pean Union and Community Treaties in line with the Treaty of AmsterÂ� dam (1997)6 and the Treaty of Nice (2001),7 with the desire “to further enhance the democratic and efficient functioning of the institutions so as to enable them better to carry out, within a single institutional framework, the tasks entrusted to them”.8 The general political tendency of the Treaty of Lisbon surely did not go in the direction of enlarging eu competences. Therefore, this specific new competence is of significant relevance. But at the same time this competence needs to be analysed in ╇ See OJ C 306/2007, 17 December 2007, Provisional Consolidated Versions of the Treaty on European Union (TEU) and of the Treaty on the Functioning of the European Union (TFEU) in Council of the European Union 6655/08, Brussels, 15 April 2008. 4 ╇ The Treaty entered into force the first day of the month following the last ratification (deposition of the Czech ratification instrument in Rome on 13 November 2009). 5 ╇ The Treaty of Lisbon is a reform treaty with amendments and changes of the former eu and ec treaties without replacing them; it cannot be read as an autonomous text. The alternative of a new European Constitution as negotiated from 2001 onwards was rejected (OJ 2004 C 319, not entered into force) by the French and the Dutch voters in 2005. As working document reference has to be made to the consolidated versions of the Treaty on European Union respectively Treaty on the Functioning of the European Union, as amended by the Treaty of Lisbon; see infra, at nn. 8, 9. 6 ╇Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts (hereafter Treaty of Amsterdam), Amsterdam, done 2 October 1997, entered into force 1 May 1999; OJ C 340/73 (1997). 7 ╇ Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts (hereafter Treaty of Nice), Nice, done 26 February 2001, entered into force 1 February 2003; OJ C 80/1 (2001). 8 ╇ Preamble, 7th para., Treaty on European Union as amended by the Treaty of Lisbon amendÂ�ing the Treaty on European Union and the Treaty establishing the European CommuÂ�nity (hereafter Consolidated version of the Treaty on European Union), Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 115/1 (2009). 3

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the context of a more precise differentiation and delimitation of competences between the European Union and its member states. 2.1.╇ The Context of the Treaty of Lisbon According to Article 1 of the Treaty on European Union, in the version of the Treaty of Lisbon, the Union is founded on that Treaty and on the Treaty on the Functioning of the European Union9 – a revised form of the former ec Treaty. The wording “ec Treaty” is replaced by “Treaty on the Functioning of the European Union” and the European CommuÂ�nity (ec) is replaced and succeeded by the European Union (eu). The European Union has been given explicit legal personality as per Article 47 of the Consolidated version of the Treaty on European Union. Until the entry into force of the Lisbon Treaty, the former European Union was based on a structure of three pillars: •  1st pillar: European Communities (ec and Euratom, and further until 2002 Coal and Steel Community); •  2nd pillar: Common Foreign and Security Policy (cfsp); and •  3rd pillar: Police and Judicial Cooperation in Criminal Matters (pjccm). The Treaty of Lisbon integrated the pillar structure in one Union; Euratom is only linked by certain provisions. Internally, the matters of the former 1st and 3rd pillar are communitarised Â�(respectively had already been communitarised), while Common Foreign and Security Policy (2nd pillar) remains intergovernmental following Title V of the Consolidated version of the Treaty on European Union, that is Articles 21–46. This qualification is important for space matters, having to a relevant portion the character of such nature – especially the new subject ‘space sÂ� ituational awareness’. Even without a specific space competence, the European Community was active in different fields of space policy during the last decade. The flagship project Galileo, a space-based navigation system, is based on the competence of Trans-European Networks, and even legal initiatives such as the Directive Establishing an Infrastructure for Spatial 9

╇ Treaty establishing the European Community as amended by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (hereafter Treaty on the Functioning of the European Union), Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 115/47 (2009).

300â•…â•…B. Schmidt-Tedd Information in the European Community (inspire)10 have been justified by existing special competences, such as environmental policy. The new space competence must therefore be of a different nature. Article 34 of the Consolidated version of the Treaty on European Union is also relevant for intergovernmental cooperation in international fora: 1. Member States shall coordinate their action in international organisations and at international conferences. They shall uphold the Union’s positions in such forums. The High Representative of the Union for Foreign Affairs and Security Policy shall organise this coordination. In international organisations and at international conferences where not all the Member States participate, those which do take part shall uphold the Union’s positions. 2. In accordance with Article 24(3), Member States represented in international organisations or international conferences where not all the Member States participate shall keep the other Member States and the High Representative informed of any matter of common interest.

This need of coordination supports a more homogeneous European position without formal harmonisation measures. 2.2.╇ Content and Boundary Conditions Space is mentioned twice in the Treaty on the Functioning of the European Union; firstly under the categories of eu competences11 and secondly under Title XIX “Research and Technological Development and Space”, in Article 189. In general, Title I of the Treaty on the Functioning of the European Union defines three categories of competences: 1.╇Exclusive eu competence (Articles 2(1) and 3); 2.╇ Shared competence between the European Union and member states (Articles 2(2) and 4); and 3.╇ Competence to support, coordinate and supplement the actions of member states (Articles 2(5) and 6). ╇ Directive of the European Parliament and of the Council establishing an Infrastructure for Spatial Information in the European Community (inspire), 2007/2/EC, of 14 March 2007; OJ L 108/1 (2007). 11 ╇ See Title I, Art. 4(3), Treaty on the Functioning of the European Union. 10

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In the field of exclusive competence, member states are only able to legislate or to adopt legally binding acts if empowered to do so by the Union.12 In case of the shared competence, member states shall exercise their competence to the extent that the Union has not exercised its competence.13 For the third category, the Union has competence to carry out actions to support, coordinate or supplement the actions of the member states, without thereby superseding their competence in these areas.14 Space is an atypical sub-category of the shared competence under Article 4(3) of the Treaty on the Functioning of the European Union: “In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however the exercise of that competence shall not result in member states being prevented from exercising theirs.” In fact, this is more a parallel competence. A similar competence is formulated for development cooperation and humanitarian aid, as per Article 4(4) of the Treaty on the Functioning of the European Union. The eu competences are enshrined in the basic principles formulated in Article 4 (Enumerative authorisation / empowerment) and Article 5 (Principles of conferral, subsidiarity and proportionality) of the Treaty on European Union: “In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States”.15 That means that an additional eu competence, not contained in the treaty, cannot be argued by an interpretation according to factual needs.16 In addition, “the use of Union competences is governed by the principles of subsidiarity and proportionality”.17 Furthermore, ╇ See Art. 2(1), Treaty on the Functioning of the European Union. ╇ See Art. 2(2), Treaty on the Functioning of the European Union. 14 ╇ See Art. 2(5), Treaty on the Functioning of the European Union. 15 ╇ Art. 4(1), Treaty on European Union. 16 ╇ For formalized changes, see Art. 48(2), Treaty on European Union: “The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union by the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.” In addition, there is the flexibility clause of Art. 352, Treaty on the Functioning of the European Union. 17 ╇ Art. 5(1), 2nd sentence, Treaty on European Union. 12 13

302â•…â•…B. Schmidt-Tedd [u]nder the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.18

Finally, “[u]nder the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.”19 The space competence as a special sub-category of shared competence, in substance a parallel competence without the priority for legislative actions for the Union, should anyhow not exceed the restrictions of the principle of subsidiarity as formulated in Article 5(3) of the Treaty on European Union. The substantive Article 189 of the Treaty on the Functioning of the European Union for the new space competence is worded as follows: 1. To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European space policy. To this end, it may promote joint initiatives, support research and technological development and coordinate the efforts needed for the exploration and exploitation of space. 2. To contribute to attaining the objectives referred to in Paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the necessary measures, which may take the form of a European space programme, excluding any harmonisation of the laws and regulations of the Member States. 3. The Union shall establish any appropriate relations with the European Space Agency. 4. This Article shall be without prejudice to the other provisions of this Title.

Two elements of this Article need to be especially highlighted. First of all, the exclusion of any harmonisation of the laws and regulations of the ╇ Art. 5(3), Treaty on European Union. ╇ Art. 5(4), Treaty on European Union.

18 19

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eu member states and secondly, the reference to the European Space Agency (esa) as the international organisation for European space cooperation in the format of intergovernmental cooperation. On the other hand, for interpreting Article 189 of the Treaty on the Functioning of the European Union, the general context of Title XIX of that Treaty (Research, Technological Development and Space) needs to be taken into account. The Treaty of Lisbon implements the free movement of knowledge as the eu’s fifth freedom.20 In the framework of the Union’s Lisbon Strategy, launched in March 2000, the abolishment of existing barriers to the free transfer of knowledge was formulated and this concept of a European Research Area (ERA) is now formalised in the Treaty on the Functioning of the European Union, with the effect that the European Union will be able to adopt legislative measures to reach those objectives.21 The former support competence22 is upgraded to a shared competence under the special boundary conditions of Article 4(3) of the Treaty on the Functioning of the European Union. Apart from member states, the European Union may act with legally binding instruments in that area. Nevertheless, it is clarified in the DecÂ� laraÂ�tions Concerning Provisions of the Treaties number 34 on Article 179 of the Treaty on the Functioning of the European Union (formerly Article 163 of the Treaty Establishing the European Community) that “[t]he Conference agrees that the Union’s action in the area of research and technological development will pay due respect to the fundamental orientations and choices of the research policies of the Member States”.23 The actual version of the introductory Article 179 of the Treaty on the Functioning of the European Union of the Title “Research, Technological Development and Space” is as follows: 1. The Union shall have the objective of strengthening its scientific and technological bases by achieving a European research area in which ╇ See K. Rohsmann, 7 December 2009, http://www.wbc-inco.net/object/news/76536. html; last accessed 10 March 2010. 21 ╇ See European Press Release, Explaining the Treaty of Lisbon, MEMO/09/531, BrusÂ� sels, 1 December 2009, http://europa.eu/rapid/press-ReleasesAction.do?reference= MEMO/09/531; last accessed 10 March 2010. 22 ╇ See Art. 163, Treaty Establishing the European Community (Consolidated Version) (hereafter ec Treaty); OJ C 325/33 (2002). 23 ╇ OJ C 115/337, at 349, of 9 May 2008. 20

304â•…â•…B. Schmidt-Tedd researchers, scientific knowledge and technology circulate freely, and encouraging it to become more competitive, including in its industry, while promoting all the research activities deemed necessary by virtue of other Chapters of the Treaties. 2. For this purpose the Union shall, throughout the Union, encourage undertakings, including small and medium-sized undertakings, research centres and universities in their research and technological development activities of high quality; it shall support their efforts to cooperate with one another, aiming, notably, at permitting researchers to cooperate freely across borders and at enabling undertakings to exploit the internal market potential to the full, in particular through the opening-up of national public contracts, the definition of common standards and the removal of legal and fiscal obstacles to that cooperation. 3. All Union activities under the Treaties in the area of research and technological development, including demonstration projects, shall be decided on and implemented in accordance with the provisions of this Title.

The whole area of research, technological development and space follows the regime of Article 4(3) of the Treaty on the Functioning of the European Union, defining an atypical sub-category of the general rule of shared competence, which does not prevent eu member states from legislative action in case the Union exercises its competence. In the regular case of a shared competence, member states cannot exercise competence in areas where the Union has done so. The objective for eu actions is defined slightly differently in Article 179 of the Treaty on the Functioning of the European Union as compared to Article 189 thereof. In the case of Article 179, the objective is to strengthen the scientific and technological basis of the Union; in the case of Article 189 it is the promotion of scientific and technical progress, industrial competitiveness and the implementation of its policies. 2.3.╇ Parallel Competence and Non-Harmonisation The content of Article 189 of the Treaty on the Functioning of the European Union is focused on a European space policy (in paragraph 1) and a possible European space programme (in paragraph 2). During the set-up of the European Space Policy24 the extent to which national space ╇ The European Space Council unanimously adopted a resolution on the European Space Policy (ESP) at a meeting in Brussels on 22 May 2007.

24

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programmes should be integrated in a European programme has been discussed. As a result, a strict obligation of integration of national space programmes and a mandatory harmonisation was rejected. Member states may therefore have a national space policy with independent priorities and corresponding programmes and projects. In addition, the long-term esa experience has shown that it is more reasonable to leave scope for decision-making with the relevant member states when it comes to the progressive integration of national space programmes in the European space programme.25 The procedures for the internationalisation of national programmes are formulated in detail in Annex IV to the esa Convention: “The principal objective of the internationalisation of national programmes shall be that each Member State shall make available for participation by other Member States, within the framework of the Agency, any new civil space project which it intends to undertake, either alone or in collaboration with another Member State”.26 The procedures therein also provide for gradual forms of integration and leave member states with the possibility to set their own priorities without neglecting the thought of Europeanisation. Member states are requested to notify esa of new civil space projects before entering into phase B, in order to enable participation of other member states. The initiating member state shall use its best endeavours to accommodate all reasonable responses. Parallel to the discussion on the European Space Policy, the decision on the extension of the esa-eu Framework Agreement was made.27 On the merits, this was a confirmation of the parallelism of esa and the European Union and a decision against an institutional integration of esa in the eu structures.28 The parallel space competence of Article 189 ╇ See Art. II(c), V(3), & Annex IV, Convention for the Establishment of a European Space Agency (hereafter esa Convention), Paris, done 30 May 1975, entered into force 30 October 1980; 14 ILM 864 (1975); Space Law – Basic Legal Documents, C.I.1. 26 ╇ Art. 1 of Annex IV, esa Convention. 27 ╇ Framework Agreement Between the European Community and the European Space Agency (hereafter Framework Agreement), Brussels, done 25 November 2003, entered into force 28 May 2004; OJ L 261/64 (2004); 53 Zeitschrift für Luft- und Weltraumrecht (2004), at 89. 28 ╇ For the original institutional options, see S. Hobe, K. Kunzmann & T. Reuter, RechÂ� tliche Rahmenbedingungen einer zukünftigen kohärenten Struktur der europäischen Raumfahrt, LIT (2006). 25

306â•…â•…B. Schmidt-Tedd of the Treaty on the Functioning of the European Union is based on the logic of this political overall development, as the independent position of esa is to be equalised with the independent decision-making competence of the corresponding member states. The first draft of a space competence for the European Union in the version of the non-adopted draft constitution had a different wording as the later Article 189(2) of the Treaty on the Functioning of the European Union, namely: “To contribute to attaining the objective referred to in paragraph 1, European laws or framework laws shall establish the necessary measures, which may take the form of a European space programme.”29 Against the background of the preceding discussion, a clear adjustment has taken place, which is the insertion of the non-harmonisation clause. Any harmonisation of the laws and regulations of the member states is excluded. This clause addresses the necessary measures to fulfil the objectives of Article 189(1) under ordinary legislative procedures. It is not only of relevance for space policy in general but also for concrete harmonisation measures concerning national space legislation. In 2005, paragraph 3 mentioning esa was then included into the newly numbered Article III-25430 of the updated draft constitution. As a result, the eu space competence was wilfully phrased as a parallel competence instead of a regular shared competence with the legal consequence of Article 2(2) of the Treaty on the Functioning of the European Union. This does not exclude the existence of other regular shared competences with relevance for space activities (such as on the environment or Trans-European Networks). However, in the field of application of Article 189 of the Treaty on the Functioning of the European Union the member states’ independent framework is effective either individually or in intergovernmental (non-communitarised) cooperation, in the esa framework or with third parties. After the preceding overview of the different space-related eu competences, the question on a parallel or common approach should now focus on the authorisation of space activities. ╇ Proposal for Art. III-155, Treaty establishing a Constitution for Europe, Rome, done 29 October 2004, not entered into force; OJ C 310/1 (2004); see Draft Constitution OJ C 169/57, of 18 July 2003. 30 ╇ See Art. III-254, Treaty establishing a Constitution for Europe. 29

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3.╇ un Space Law and National Implementation While reflecting the need for harmonised national space legislation or a common European approach, it is necessary to first analyse the different elements of those international obligations and national regulations. A comparative study may show a wide range of different elements in national space legislation, but only few of them might be the direct result of a transfer of un space law obligations. Others are eventually related to national space policy, organisational and institutional matters, space-related economic law or indirect effects of those international gaÂ� tions such as mandatory insurance or governmental regress obliÂ� against private operators. As a result, the question that needs to be raised is twofold: (1) what are the core obligations for states and what are the subjects for discretion, and (2) for both preceding cases, whether these regulations are more related to the individual situation of a single state or if there is a certain need for an internationally harmonized approach. A first orientation is contained in the concept of “building blocs for national space legislation”,31 a structure of necessary and optional regulatory subjects. 3.1.╇ Core Obligations and other Regulatory Matters The core obligations for states in outer space matters are contained in Article VI (on international responsibility), Article VII (on Â�international liability) and Article VIII (on registration) of the Outer Space Treaty.32 The basic obligations concerning liability and registration are elaborated and formulated more precisely in the Liability Convention33 and the Registration Convention.34 But the starting point of any reflection is Article VI of the Outer Space Treaty: ╇See M. Gerhard, Nationale Weltraumgesetzgebung (2002), English summary with Model Law, 199â•›ff. 32 ╇See supra, n. 1. 33 ╇ Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971). 34 ╇ Convention on Registration of Objects Launched into Outer Space (hereafter RegisÂ� tration Convention), New York, done 14 January 1975, entered into force 15 September 31

308â•…â•…B. Schmidt-Tedd States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organizations.

Article VI of the Outer Space Treaty thus introduces international responsibility for national activities. Activities of non-governmental entities shall require authorisation and continuing supervision. This is the main reason for national space legislation. Governmental agencies are part of the state-owned infrastructure. Therefore, responsibility of governmental agencies can be organised by internal administrative means. By contrast, self-financed, private space activities can only be regulated on a statutory footing. In essence, all non-governmental space activities derive from explicit or implicit state authorisation. The last sentence of Article VI is also of utmost importance in this context. Even activities delegated to international organizations remain under the (co-)responsibility of the respective states. A whole part of the content of Article VI is focused on the intention to safeguard the link between state responsibility and non-governmental activities. This point has also to be kept in mind in view of common European space activities.35 Even in case of space activities of the European Union, member states remain (co-)responsible. Article VII of the Outer Space Treaty establishes a comprehensive liability for all launching states, as outlined in that Article and specified in the Liability Convention. In multinational space projects, this leads to the question of the internal risk and liability sharing. esa has for 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975). 35 ╇ See M. Gerhard, Article VI, in S. Hobe, B. Schmidt-Tedd & K.U. Schrogl (Eds.), Cologne Commentary on Space Law, Vol. I (2009), RZ 34.

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example developed a sophisticated liability scheme for the launcher sector which was recently prolonged for the next decade under the title “Launchers Exploitation Declaration”.36 A further key element is the necessary registration of space objects which attributes jurisdiction and control over a space object to a single launching state. This permits the identification of the relevant national law which is applicable for the space object in question.37 The relevant first sentence of Article VIII of the Outer Space Treaty reads as follows: “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.” The legal effects of registration are connected with the registration in the national registry, not to the latter in the un register. If there are two or more launching states in respect of any such space object, they shall jointly determine which one of them shall register.38 According to Article VII(1) of the Registration Convention, international intergovernmental organisations (igos) are under certain pre-conditions39 able to keep their own registry, keeping in mind that igos can only exercise a delegated part of jurisdiction and control, which is less than under the full sovereignty of a state.40 The non-harmonisation clause might result from general reflections on a limited eu competence but it fits quite well in the legal context of a non-transferable state responsibility for national space activities under Article VI of the Outer Space Treaty. It would be difficult to understand if the European Union takes over the legislation for authorisation of ╇ Declaration by Certain European Governments on the Launchers Exploitation Phase of Ariane, Vega and Soyuz from the Guiana Space Centre, entered into force 26 November 2009. 37 ╇ See B. Schmidt-Tedd & S. Mick, Article VIII, in S. Hobe, B. Schmidt-Tedd & K.U. Schrogl (Eds.), Cologne Commentary on Space Law, Vol. I (2009), RZ 2. 38 ╇ See Art. II(2), Registration Convention. 39 ╇ Cf. Art. VII, Registration Convention, referring to an “international intergovernmental organization which conducts space activities if the organization declares its acceptance of the rights and obligations provided for in this Convention and if a majority of the States members of the organization are States Parties to this Convention and to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.” 40 ╇ See Schmidt-Tedd & Mick, RZ 75–77. 36

310â•…â•…B. Schmidt-Tedd space activities within a framework of a regular shared competence, while the member states would still be responsible and liable for the actions of the Union.41 It is unlikely that the wording of Article 189 of the Treaty on the Functioning of the European Union results from a detailed analysis of Article VI of the Outer Space Treaty, but the parallel competence and the non-harmonisation clause is convincing under the logic of general space law. The core obligations under Articles VI and VIII of the Outer Space Treaty described above are transposed in national space legislation under main chapters concerning authorisation respectively licensing and supervision as well as registration. “Authorisation and continuing supervision” foreseen in Article VI require concrete measures and, in case of a certain level of such activities, rules and procedures with regard to non-governmental entities. Safety assessments and the definition of standards are the necessary conditions for the authorisation requirement. In case of registration at least an information duty must be imposed on the non-governmental entities in order to enable the state to fulfil its international obligations. As far as liability under Article VII of the Outer Space Treaty and the Liability Convention is concerned, there is no direct need for action. States fulfilling the characteristics of a launching state are per se liable in case of damage. Nevertheless, states have a natural interest in knowing the space activities for which they could become liable. In addition – under risk-management perspectives – there is in most cases the interest to make non-governmental entities liable for their space activities on a non-fault basis, corresponding to the existing international relevant state liability. This extension of liability under national law – above the regular civil law level of fault liability – is a decision falling within the discretion of each member state. This liability for space activities based on national law may correspond to a compulsory insurance and a remaining state liability without a right of recourse above a certain ceiling. The modalities are more a question of national policy than of international obligations. Other regulatory matters contained in the existing national space laws are institutional and organizational matters, questions of competent bodies, the role of space agencies and enforcement measures. ╇ See Art. VI, 3rd sent., Outer Space Treaty.

41

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3.2.╇ Individual State-Adapted or Universal Items In an ideal state of affairs, the un space treaties would be applied universally and interpreted in a homogeneous and consistent manner. The homogeneous interpretation of the treaties is the starting point for an harmonised application; and a major part of such harmonised application is the transposition of rights and obligations in a national legal framework for non-governmental entities (if the member state concerned principally admits non-governmental space activities for its nationals). It cannot be said that this ideal state of affairs has yet been met. However, during the last years efforts were made at uncopuos to increase the accession to the treaties considerably and to deal with individual points of discussion of the interpretation of the treaties during the Legal Sub-Committee of uncopuos, for example on the concept of “launching State”. Results have been achieved in form of the Launching State Resolution42 and the Resolution on Registration Practice43. National space legislation is subject of a new on-going working group in the Legal Sub-Committee.44 The harmonisation in view of definitions and the concrete interpretation of provisions of the un treaties is nevertheless a critical subject. It touches upon the sovereign rights of the state parties to the treaties. For national space legislation, the necessity for self-restraint exists. It would be fatal and counterproductive if national space legislation with the goal of implementing the un treaties on a national level would introduce its own definitions and terms which would lead automatically to divergent interpretations. Therefore, reference in national legislation ╇ un GA Doc. A/RES/59/115, Application of the concept of the “launching State”, 10 December 2004. 43 ╇ un GA Doc. A/RES/62/101, Recommendations on enhancing the practice of States and international intergovernmental organizations in registering space objects, 17 December 2007. 44 ╇ The issue of national space legislation is considered in the Legal Sub-Committee and its respective working group under the agenda item “General exchange of information on national legislation relevant to the peaceful exploration and use of outer space” in accordance with the multi-year work plan agreed by the Legal SubCommittee at its forty-sixth session in 2007 and endorsed by copuos at its fiftieth session, also in 2007. See un Doc. A/62/20, Official Records of the General Assembly, sixty-second session, Supplement No. 20, para. 219 and un Doc. A/AC.105/891, Report of the Legal Sub-Committee on its forty-sixth session para. 136. 42

312â•…â•…B. Schmidt-Tedd should always be made to the terms and definitions of the authentic un treaties’ texts. This basic rule for the formulation of national implementing laws at least guarantees that no new problems in the interpretation will arise. This methodical distinctiveness is an important contribution to harmonisation and can be realised by any national legislator by means of simple consistency of the formulation. Regardless of the above, the question of harmonisation persists. IdeÂ� ally, an interpretation is in the spirit of the treaties by avoiding misinterpretation driven by partial interests. In this respect negative examples do exist. Without touching the sovereign rights of other state parties to the treaties, state parties having the intention to offer a positive example for the interpretation and application of the treaties can act by means of their own model of national legislation and practice or in international legal fora. For example, the precise declaration of responsibility for their respective non-governmental entities in the context or registration belongs to this. Those actions are always under the competence of the member state concerned. A further consensus building on an international level would require a new agreement between the state parties to the treaties by amendments to the treaties or binding interpretations. Would it be possible and reasonable for the European Union to interfere top-down with the interpretation of the un treaties? May the European Union allow codes of practice for the member states being at the same time states parties to the treaties? In case the ‘less-adequate’ interpretation would be the majority vote, should this also be binding for the other states, being at the same time obliged under the un treaties? These questions already show that such an external top-down approach cannot be the adequate way. In addition, it needs to be noticed that the practical concerns of space activities of the eu member states is highly diverse. Also the un treaties, which allow for a declaration of rights and obligations for international intergovernmental organisations,45 contain a clear reference. In both cases, the articles about the right to propose amendments or possible revisions are not applicable to these international intergovernmental organisations. A special subject is the interaction between the different national authorisation and licensing procedures. Article VI of the Outer Space ╇ Cf. Art. XXII, Liability Convention; resp. Art. VII, Registration Convention.

45

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Treaty refers to the international46 responsibility for national activities in outer space. When formulating a national space law, it is unavoidable to transfer the criterion ‘national’ in a concrete field of application for such a law. By an adequate interpretation, each national space activity should be assigned to a concrete state. This is true for space activities of governmental agencies as well as for those of non-governmental entities. Therefore, negative or positive conflicts of competence should be avoided. It would be reasonable to coordinate the scope of application (personal / material and territorial jurisdiction) in a way that at least no national activity would fall outside the field of application of any legislation. A common European approach by member states – in the one or other manner – to solve this problem would strengthen the universal and coherent application of un space law. A second layer of this question, which is more related to economic law than to the implementation of un space law as such, is the mutual cross-border recognition of authorisations and technical assessments of planned space activities. The development of internationally accepted standards, mutual recognition of licenses and technical expertise will in general create a favourable environment for international cooperation as well as for the commercial sector of space activities.

4.╇ Method for a Common Approach in the European Union 4.1.╇ General Aspects The preceding analysis has shown that un space law acts on the assumption of a primary responsibility of the states. All non-governmental space activities require authorisation and continuing supervision by the appropriate state party. The assignment of duties and responsibilities to igos does not lead to a repeal of the member states’ responsibility. Unlike usually in public international law, the states also take over concrete responsibility for private actions. In this respect, a vital difference to other international economic activities exists. Irrespective of precise questions of competences (European Union versus or parallel to ╇ B. Schmidt-Tedd & M. Gerhard, How to adapt the present regime for registration of space objects to new developments in space applications?, in Proceedings of the FortyEighth Colloquium on the Law of Outer Space (2006), 353, 358.

46

314â•…â•…B. Schmidt-Tedd member states) it must be accepted as a basic principle that there are no space activities dissociated from single state responsibility. The European Union, whose basic principles are based on free trade of goods and services as well as on the removal of national trade restrictions, might have difficulties with this starting position. The classical eu harmonisation aims at overcoming deficiencies and barriers of the internal market. But the strategic character as well as the international legal framework for space requires a slightly different approach. The long-term experience of the European igos in the space sector (in particular esa and eumetsat47) shows that this stringent responsibility of the states is no obstacle for intergovernmental cooperation. In addition, especially the European igos have ideally assumed the obligations of the Liability Convention and the Registration Convention by means of a declaration of acceptance of the rights and obligations.48 The espi Report on “Economic and Policy Aspects of Space RegulaÂ� tions in Europe” states that “the strategic character of space also implies a strong public control on space activities and therefore, the classical ╇ Convention for the Establishment of a European Organization for the Exploitation of Meteorological Satellites (eumetsat), Geneva, done 24 May 1983, entered into force 19 June 1986; as amended 14 July 1994, entered into force 27 July 1994; Cmnd. 9483; Space Law – Basic Legal Documents, C.III.1; 44 ZLW 68 (1995). 48 ╇ According to Art. XXII(1), Liability Convention, and Art. VII(1), Registration ConÂ� venÂ�tion, the provisions of these treaties shall – with some exceptions – also apply to “any international intergovernmental organization which conducts space activities if the organization declares its acceptance of the rights and obligations provided for in [these] Convention[s] and if a majority of the States members of the organization are State Parties to [these] Convention[s] and to the [Outer Space Treaty]”. Regarding the Registration Convention, a declaration of acceptance was approved by the esa Council on 12 December 1978; see Annex to U.M. Bohlmann, The Registration Policy of the European Space Agency, in S. Hobe, B. Schmidt-Tedd & K.-U. Schrogl (Eds.), Current Issues in the Registration of Space Objects (2005), 48. eumetsat notified its acceptance of the rights and obligations of the Registration Convention on 10 July 1997. See United Nations Treaty Collection, Status of Multilateral Treaties Deposited with the Secretary-General, Chapter XXIV: Outer Space, Convention on registration of Objects launched into outer space, http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXIV~1&chapte r=24&Temp=mtdsg3&lang=en, last accessed on 10 March 2010. In terms of the Liability Convention, esa has declared its acceptance on 23 September 1976 and eumetsat on 29 September 2005. See United Kingdom Foreign and Commonwealth Office, Treaty Section, Depositary: Convention on international liability for damage caused by space objects, http://www.fco.gov.uk/resources/en/pdf/ 3706546/3892723/TrSpaceObjects1972, last accessed on 10 March 2010. 47

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market approach of the eu, that is through harmonisation, may not be the best suited to space activities”.49 This statement can only be agreed upon. Therefore, the question arises, which alternative methods of approximation the Treaty of Lisbon provides that are reasonable on the merits. 4.2.╇ Method in Compliance with the Treaty of Lisbon Space law in general is quite aware of the methodology of so-called ‘softlaw’. In areas where consensus about international binding legal texts cannot be reached, recommendations and guidelines are an adequate instrument for the approximation of legal practice. In the European Union, an intergovernmental policy method outside legally binding instruments in the form of an “open method of coordination (omc)” is discussed since the late 90s.50 omc, as introduced by the European Council of Lisbon in March 2000, included the following elements: (1) guidelines and timetables for achieving short, medium and long-term goals; (2) indicators and benchmarks tailored to the needs of member states and sectors involved; (3) translating European guidelines into national and regional policies; and (4) a periodic monitoring and process for mutual learning between member states.51 In the White Paper of European Governance of 200152 the omc is discussed as a complementary instrument encouraging cooperation by an exchange of best practice and agreeing common targets and guidelines for member states. A profound analysis of omc as a new method of governance and political action is formulated by Borrás and Jacobsson.53 Starting point ╇ M. Sánchez Aranzamendi, European Space Policy Institute (espi)-Report 21, Vienna, September 2009, http://www.espi.or.at/images/stories/dokumente/studies/espi%20 report%2021.pdf, last accessed on 10 March 2010. 50 ╇Initially, omc was only applied to employment and economic policy and then also extended for policies related to investment in research (Decision of the European Council of March 2003). 51 ╇See http://ec.europa.eu/invest-in-research/coordination/coordination01_en.htm; last accessed on 10 March 2010. 52 ╇ See European Governance, A White Paper, COM (2001) 428 final, Brussels, 25 July 2001. 53 ╇ See S. Borrás & K. Jacobsson, The open method of coordination and new governance patterns in the eu, Journal of European Public Policy (2004), 185–208, http://Â�eucenter. wisc.edu/omc/Papers/borrasJacobssonJEPP.pdf; last accessed on 10 March 2010. 49

316â•…â•…B. Schmidt-Tedd of those reflections is the idea of unity in diversity, which means a pragmatic policy instrument to find the balance between the respect for diversity of member states and a common eu action.54 In comparison to traditional soft law under a supranational approach, the open method of coordination as an intergovernmental approach is described by the following characteristics55: •  Intergovernmental approach: the Council and the Commission have a dominant role; •  Political monitoring at the highest level; •  Clear procedures and interactive process; •  Systematic linking across policy areas; •  Interlinking eu and national public action; •  Seeks the participation of social actors; and •  Aims at enhancing learning process. The combination of common action on eu level with a remaining autonomy on a national level fits quite well in the context of authorisation of space activities as described above. This flexible bottom-up approach with the possibility to mobilise the stakeholders of the space sector has an advantage in this field of rather different concernment and experience. The process of ‘collective self-coordination’ replaces the supranational regulatory body.56 To that extent the focus on this nonregulatory instrument of omc must not be seen as a deficit compared with the real instruments of harmonisation. In the field of authorisation of space activities, omc can definitely be considered as the most adequate new method of governance. The Treaty of Lisbon also contains another alternative instrument; the so-called “enhanced cooperation” under Articles 326–334 of the Treaty on the Functioning of the European Union. This formalised form of a Europe of diverse pace implies a minimum cooperation of nine states. Due to this character of a sub-structure within the Union, the additional political value apart from esa and European Union must then be questioned. After all, the separate European infrastructure for ╇ See Borrás & Jacobsson, 186. ╇ See Borrás & Jacobsson, 188. 56 ╇ GOVECOR (2002), eu governance by self governance: towards a collective “gouvernement économique”, GOVECOR project outline, http://www.govecor.org; last accessed on 10 March 2010. 54 55

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spacefaring nations is esa, which already has a strong relation to the European Union under the Framework Agreement. As a result, the enhanced cooperation does not seem to be an adequate approach, so that the open method of coordination remains as a possible solution method of an approximation in the field of authorisation of space activities.

5.╇ Possible Implementation Measures The question of approximation can be raised in classical areas of standardisation, in areas of eu projects and with regard to a common approach for national space legislation. The development of common technical standards related to the licensing of space activities has been identified as a logical area for harmonisation. The question also has some institutional aspects, namely the question of the most appropriate actor and method – top-down or bottom-up. For instance, there are the European Cooperation for Space Standardisation (ecss) standards which have been developed in an interactive dialogue between esa, space agencies and industry, in the specific field of space technology. There already exist mechanisms and ongoing efforts to produce common technical standards in the European Union, also in the area of space. In general, the objective of harmonising these standards has to be seen against the background of the eu open market and the free movement of goods. This context turns harmonisation of standards into a means for encouraging the competitiveness of the European industry  and for removing barriers to trade.57 Based on Directive 98/34,58 ╇See Communication from the Commission to the European Parliament and the Council on the role of European standardisation in the framework of European policies and legislation, 18 December 2004, 5. 58 ╇ Directive of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical standards and regulations, 98/34/ ec, of 22 June 1998, OJ L 204/37 (1998). The Directive has been amended by Directive of the European Parliament and of the Council amending Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations, 98/48/EC, of 20 July 1998, OJ L 217/18 (1998); and Council Directive adapting certain Directives in the field of free movement of goods, by reason of the accession of Bulgaria and Romania, 2006/96/EC, of 20 November 2006, OJ L 363/81 (2006). 57

318â•…â•…B. Schmidt-Tedd the Commission as well as the standardisation bodies in Europe59 must be informed by the member states about national efforts to prepare or amend a technical standard.60 In this way, they exert indirect influence on the development of these national standards in view of possible barriers to trade that could result from the introduction of the planned standard.61 Moreover, in accordance with the so-called ‘new approach’ to technical harmonisation and standards,62 legislative harmonization in the European Union – by means of directives63 – is limited to the mere determination of certain essential requirements that products have to meet in order to enjoy free movement.64 Detailed technical specifications, which would transform the obligation to meet these requirements into concrete technical solutions, remain subject to technical standards that are elaborated by the competent standardisation bodies,65 namely the three European organizations cen, cenelec and etsi which develop harmonized European standards. Even though these standards are not mandatory,66 and compliance with the essential requirements as contained in the ‘new approach’ directives can also be achieved with other technical solutions, the European standards might serve as references for best practices. Directive 98/34 stipulates that the Commission can officially request (through ‘mandates’) the relevant European standardisation institutions to draw up European standards.67 ╇ This refers to the European standardization organizations and the national standardization bodies. These are the European Committee for Standardization (cen), the European Committee for Electrotechnical Standardization (cenelec) and the European Telecommunications Standards Institute (etsi). See Art. 2(1), Annexes I, II, Directive 98/34. 60 ╇ See Artt. 2(1), 4, Directive 98/34. 61 ╇ See Art. 6(2) & (3), 2nd indent, Directive 98/34. 62 ╇ See Council Resolution on a new approach to technical harmonization and standards, 7 May 1985. 63 ╇ An overview of directives enacted on the basis of this ‘new approach’ can be Â�retrieved from the following website: http://www.newapproach.org/; last accessed 16 March 2010. 64 ╇ See Council Resolution of 7 May 1985, Annex II, 1st fundamental principle. 65 ╇ See Council Resolution of 7 May 1985, Annex II, 2nd fundamental principle. 66 ╇ See Council Resolution of 7 May 1985, Annex II, 3rd fundamental principle. 67 ╇ See Art. 6(3), 1st indent, Directive 98/34. Such a request by the Commission is embedded in the context of eliminating existing or foreseeable barriers to trade. 59

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Regarding the space sector, the Commission has started efforts to harmonise space standardisation in the scope of the European Space Policy which identified the development of standards as part of an effective industry policy that aims at creating a competitive European space industry.68 According to the recommendations of the European Space Policy,69 the Commission requested through a mandate the three European standardisation organizations cen, cenelec and etsi to develop a European standardisation programme for space.70 This shall be done, in a first step, by elaborating a feasibility study and, in a second step, by setting up a work programme in the field of space industry standards.71 Under the leadership of cen, a working group was established which published the requested feasibility study72 that identifies the state of play in European space standardisation and defines priority areas for standardization. In a next step, the standardisation needs for each priority area are planned to be summarised in a comprehensive work programme which is still to be developed.73 Besides these rather recent space-related standardisation activities, cooperation in this area already exists since several years in the context of the European Cooperation for Space Standardisation (ecss). The initiative was established in 1993 with the aim of developing a coherent, single set of user-friendly standards for all European space activities.74 The ecss has published a number of space standards which have been developed in an interactive dialogue between government and industry. ╇See Communication from the Commission to the Council and the European Parliament, COM (2007) 212, European Space Policy, 26 April 2007, 9–10. 69 ╇See Communication from the Commission to the Council and the European Parliament, key action (9), 14. 70 ╇ See European Commission, Programming Mandate Addressed to cen, cenelec and etsi to Establish Space Industry Standards, 25 June 2007, 5. 71 ╇ See European Commission, Programming Mandate Addressed to cen, cenelec and etsi to Establish Space Industry Standards. 72 ╇ See Feasibility Study: Final Report Phase I, Programming Mandate Addressed to cen, cenelec and etsi to Establish Space Industry Standards, CEN/BT/WG 202 – N 076, June 2008. 73 ╇ See Online: European Committee for Standardization (cen), Sector Standards: Space, http://www.cen.eu/cen/Sectors/Sectors/Airandspace/Space/Pages/default.aspx; last accessed on 16 March 2010. 74 ╇ See Online: European Cooperation for Space Standardization, ecss – A Single Set of European Standards, http://www.ecss.nl/; last accessed on 9 March 2010. 68

320â•…â•…B. Schmidt-Tedd Given the current recognition and application of the ecss products, the above-mentioned feasibility study recommended to adopt the ecss system of standards relating to the design, production and operation of space systems as European standards. The future work in regard to the development of standards in the space area should be coordinated between ecss and cen.75 A concrete example for space-related standardisation can be found with regard to space debris. Such standards would provide technical solutions for the implementation of more general guidelines with the objective of limiting the proliferation of space debris, such as the un Space Debris Mitigation Guidelines.76 Future ecss standards, which will be strongly geared to the space debris standards of the International Organization for Standardization (iso),77 could be transformed into European standards, which then might serve as a basis for harmonised European licensing requirements. This would provide the European states the possibility to prescribe in their national space acts the application of unified technical standards with the effect of a coherent implementation of international space debris mitigation guidelines in Europe. As the practical know-how is limited, the development of a formally neutral organisation, which is practically not involved in the sector, would not be reasonable. In this respect, esa as ‘European Implementing Agency’78 could continue to administer this task in future, while the European Union, being a political institution, could concentrate on framework requirements and objectives. ╇ See Feasibility Study: Final Report Phase I, Programming Mandate Addressed to cen, cenelec and etsi to Establish Space Industry Standards, CEN/BT/WG 202 – N 076, June 2008, 30. Some of the ecss standards have already been transformed into European standards through a respective mandate of the Commission. See at 57. 76 ╇ Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, in un Doc. A/62/20, Report of the Committee on the Peaceful Uses of Outer Space, Official Records of the General Assembly, Sixty-second Session, Supplement No. 20, 2007, Annex, at 47–50. 77 ╇The iso established the Orbital Debris Co-ordination Working Group in 2003 which currently draws up technical standards relating to many specific aspects of space debris mitigation. See J. Davey & E.A. Taylor, Development of iso Standards Addressing Mitigation of Orbital Debris, in Proceedings of the 4th European Conference on Space Debris (2005), esa/ESOC, 565. 78 ╇See http://ec.europa.eu/enterprise/policies/space/galileo/index_en.htm, and gmes/ index_en.htm; S. Hobe et al., Entwicklung der Europäischen Weltraumagentur als 75

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There are two European large-scale projects for which the European Union itself has taken over the project management; namely Galileo and gmes.79 Insofar, a joint responsibility for the liability linked to the project exists. In the course of the governance decision especially two questions regarding un space law need to be answered. This is on the one hand the registration, in implementation of Article II(2) of the Registration Convention80, and on the other hand the determination of the internal liability regimes on compensation for the joint and several liability according to Article V(1) of the Liability Convention81. The solutions might differ, as Galileo is completely a European system, while gmes is a mixture of central investments and national contributions in kind. However, the conduct of a deliberate examination of the questions regarding sovereignty and control on the one hand and liability of launching states on the other hand is decisive. More than ten years ago, the European Union already attended to an area of space application; that is to say telecommunication, which represents an actual commercial market. Here, the Union also focused on opening up markets and deregulation. The first step to be accomplished was privatisation of the former international intergovernmental organisations of the sector. After the privatisation, there was a drastic decrease in the registration of satellites of those organisations.82 The securing of a registration practice in accordance with un space law still is a pending subject. In the context of telecommunications the new Article 118 of the Treaty on the Functioning of the European Union should be mentioned. The competence created thereby allows the creation of a ‘European Intellectual Property Right’ title, by co-decision with a qualified majority in the Council. This possible harmonisation of copyright regimes could have also a practical relevance for space business. “implementing agency” der Europäischen Union: Rechtsrahmen und AnpassungÂ� serfordernisse (2009), 359. 79 ╇ See S. Hobe et al. 80 ╇ Art. II(2), Registration Convention, provides: “Where there are two or more launching States in respect of any such space object, they shall jointly determine which one of them shall register the object”. 81 ╇Art. V(1), Liability Convention, provides: “Whenever two or more States jointly launch a space object, they shall be jointly and severally liable for any damage caused.” 82 ╇See un Doc. A/AC.105/C.2/L.255, Practice of States and international organizations in registering space objects, paras. 97 & 99.

322â•…â•…B. Schmidt-Tedd Finally for the area of authorization and national space legislation the question of an approximation in the scope of application seems to be the most relevant item. By means of omc consensus about a non-conflicting definition of the personal, material and territorial field of application should be reached, in order to avoid positive or negative conflicts of competence.

6.╇Summary It has been demonstrated that the core of authorisation of space activities is a national task. This is being embedded in a responsibility of state parties to the un space treaties. There is an objective necessity for an internationally harmonised application; but addressees of this need for action or corresponding implementation measures are the state parties. The non-harmonisation clause of Article 189 of the Treaty on the Functioning of the European Union is in line with the non-transferable state responsibility under Article VI of the Outer Space Treaty. In the context of concrete licensing procedures, some questions of economic nature are affected. A special subject is the avoidance of negative or positive conflicts of competence. Technical standards are a classical subject for harmonisation. In this area of limited actors and highly specialised technology, the actors concerned should be involved in an interactive approach; artificial standardisation structures should be avoided. For all fields where the European Union has the overall responsibility for space projects itself, especially in the case of Galileo and gmes, this should be executed in full compliance with un space law. Registration and an internal liability scheme are basic elements thereof. To act in an exemplary fashion in the application of the treaties can also be seen as a contribution to harmonisation. For national space legislation in general and especially for the legal framework of the commercial space sector, the open method of coordination is an adequate intergovernmental method of approximation, in line with the new parallel space competence of member states and the European Union itself.

Chapter Eleven EU Competition Law and Issues of National Authorisation of Private Space Activities L.J. Smith 1.╇Introduction The parameters of competition law as applied to the space sector in Europe have recently undergone transition. There are two reasons for this. Firstly, the high profile gnss project Galileo, initiated a decade ago by the European Union, inspired the creation of an advanced architecture for collaboration with the European Space Agency (esa), ahead of the Treaty of Lisbon reforms.1 This has led to a demarcation between those space activities carried out under the aegis of the European Union and those carried out within the original remit of the European Space Agency. Secondly, the entry into force of the Treaty of Lisbon,2 with an increased competence base, has extended the role of the European Union in space-related matters, thereby creating a new field to which its competition rules apply.3 The European Union and the European Space ╇ See Framework Agreement Between the European Community and the European Space Agency (hereafter Framework Agreement), Brussels, done 25 November 2003, entered into force 28 May 2004; OJ L 261/64 (2004); 53 Zeitschrift für Luft- und Weltraumrecht 89 (2004). 2 ╇ The Treaty of Lisbon (Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 306/1 (2007)â•›) entered into force on 1 December 2009, the first day of the month after final ratification by the Czech Republic on 13 November 2009, see http://europa.eu/lisbon_treaty/take/index_en.htm. 3 ╇ The attribution of space competence by the member states to the European Union is anchored in Artt. 4(3), 179 & 189, Treaty on the Functioning of the European Union (Treaty establishing the European Community as amended by the Treaty of Lisbon 1

324â•…â•…L.J. Smith Agency, as two independent international economic and governmental organisations, are governed by their own respective founding constitutions. These dictate differing procurement rules that reflect divergent economic philosophies.4 The extension of eu competence to the space sector means that eu competition law now spans an even broader sphere  of market activities than before. It also marks a bifurcation in esa’s original role as initiator and operator of agency-sponsored European or national space programmes, now partly entrusted with shapÂ�ing the contours of the recently formed European Space Policy.5 In short, a distinction between space programmes falling within the remit of European Union and that of esa has become essential, particularly from a competition law perspective. The approach to competition law and procurement by each institution is distinct, if not fundamentally opposed, the financial frameworks of these individual institutions  reflectÂ�ing differing objectives and approaches. Each institution’s budgetary rules impose compliance with separate rules of p Â� rocurement.6 amending the Treaty on European Union and the Treaty establishing the European Community, Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 115/47 (2009)â•›). It is at all times limited by the principle of conferral and subsidiarity under Artt. 4(1), 5(1) & (2), Treaty on European Union (Treaty on European Union as amended by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, Lisbon, done 13 December 2007, entered into force 1 December 2009; OJ C 115/1 (2009)â•›). 4 ╇ See S. Hobe et al., Forschungsbericht esa-eu: Rechtliche Rahmenbedingungen einer zukünftigen kohärenten Struktur der Europäischen Raumfahrt, in Kölner Schriften zum Internationalen und Europäischen Recht, Band 13 (2006). 5 ╇ The concept of a European Space Policy (ESP) was first promoted in a European Parliament Resolution of 17 September 1981 on Europe’s Space Policy (OJ C 260/102, of 12 December 1981), but not followed through until development of the Galileo project; see European Commission, Galileo – Involving Europe in a New Generation of Satellite Navigation Services, of 10 February 1999, COM(1999) 54 final. Proposals for inter-institutional cooperation were subsequently formulated by the latter, see European Commission, Towards a coherent approach for Space, of 7 June 1999, SEC(1999) 789. 6 ╇ The principal financial regulations governing the eu budget are contained in Council Regulation on the Financial Regulation applicable to the general Â�budget of the EuroÂ� pean Communities, No. 1605/2002/EC, Euratom, of 25 June 2002; OJ L 248/1 (2002); as amended by Council Regulation amending Regulation (ec, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, No. 1995/2006/EC, Euratom, of 13 December 2006; OJ L 390/1 (2006). The rules governing implementation of the budget are contained in Commission

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The longer-term effect of these varying procurement rules on the licensing process at national level has yet to emerge. This chapter examines the European competition rules as they currently apply to space activities by focussing on the interaction between the two institutional communities, the European Union and the European Space Agency, their respective space programmes and the rules of competition law.

2.╇ Definition and Scope 2.1.╇Competition Law, Outer Space and Europe The Treaty of Lisbon came into force with effect from 1 December 2009, with a clearly articulated space-related competence in Article 4(3) and Article 189 of the Treaty on the Functioning of the European Union. While Article 4(3) allows the European Union to develop its activities in space without encroaching on traditional areas of national sovereignty by creating a space-linked competence that co-exists with that of its member states,7 Article 189(1) foresees the development and Â�formulation Regulation laying down detailed rules for the implementation of Council Regulation (ec, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, No. 2342/2002/EC, Euratom, of 23 December 2002; OJ L 357/1 (2002) (the ‘Implementing Regulation’), as amended by Commission Regulation amending Regulation (ec, Euratom) No 2342/2002 laying down detailed rules for the implementation of Council Regulation (ec, Euratom) 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, No. 478/2007, of 23 April 2007; OJ L 111/13 (2007). The esa budgetary rules are conditioned by its rules on Industrial Policy in Art. II(d) as further substantiated in Art. VII(d), Convention for the Establishment of a European Space Agency (hereafter esa ConvenÂ� tion), Paris, done 30 May 1975, entered into force 30 October 1980; 14 ILM 864 (1975); Space Law – Basic Legal Documents, C.I.1.; supplemented by the provisions of Annex V, see esa Convention available at http://www.esa.int/convention/ and the new accompanying esa Rules of Procedure ESA/C (2008)202, Paris 17 December 2008. While esa pursues an industrial policy supporting national space industry, the European Union subjects its businesses, whether public or private, to rules of free market competition and participation across the single market, see infra, p. 346. 7 ╇ Art. 4(3), Treaty on the Functioning of the European Union, emphasises the continued competence and sovereignty of member states in the field of space, leading to the notion of coordinated or parallel powers between the member states and the Europen

326â•…â•…L.J. Smith of a European space policy, accompanied by measures for coordinating space exploration and exploitation.8 As a result, the Union is now competent to act in parallel or ‘co-existent’ to its member states in spacerelated matters.9 On an inter-institutional level, collaboration between Europe’s most prominent international governmental organisations involved in space, the European Union and the European Space Agency, has now been anchored in the Treaty of Lisbon.10 This institutional collaboration was originally initiated early on to enable progress with the Galileo project. As Europe’s only space agency, founded in 1975, esa has the necessary technical expertise to accompany this high-profile project.11 Institutional collaboration between the European Union and the European Space Agency, however, now requires greater precision when referring to ‘Europe’ or ‘European’. From an institutional and a competition law perspective, the term is otherwise generic, and even confusing. Space projects henceforth fall either within Union rules or within those applying to esa space programmes. esa’s involvement as an agency does not, however, preclude it from acting under eu rules: its cooperation in eu operations merely reasserts the institutional dependency between both institutions, as well as the Union’s dependency on esa’s technical expertise at an operative level.12 Much has been mooted about whether, how and when both institutions might ultimately merge. Until such time as this takes place, institutional Union, see supra, B. Schmidt-Tedd, Authorisation of Space Activities after Entry into Force of the eu Reform Treaty. ╇8 ╇See supra, B. Schmidt-Tedd, Authorisation of Space Activities after Entry into Force of the eu Reform Treaty. ╇9 ╇ Art. 189(1), Treaty on the Functioning of the European Union, provides: “To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European space policy. To this end, it may promote joint initiatives, support research and technological development and coordinate the efforts needed for the exploration and exploitation for space.” 10 ╇ Art. 189(3), Treaty on the Functioning of the European Union, provides: “the Union shall establish any appropriate relations with the European Space Agency”. 11 ╇ See R. Lüst, History of the European Space Agency, 2 vols., esa SP-1235, details via http://www.esa.int/esaCP/ESAQRHPZ9NC_index_0.html. 12 ╇ The European Union and the European Space Agency have come to an agreement whereby the European Space Agency acts as procurement agent and prime contractor or ‘mâitre d’oeuvre’ for the eu satellite navigation programmes, see Communication from the Commission to the European Parliament and the Council – Progressing Galileo: re-profiling the European gnss Programmes, COM(2007) 534 final, of 19 September 2007, 11.

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cooperation may be seen as an interim solution within the current constitutional framework.13 eu rules of procurement are founded on one of two possible bases: on the one hand, there are rules governing the harmonisation of procurement at member state level; on the other, there are rules governing centralised procurement that falls under the European Union’s own financial procedures.14 Non-eu projects falling within the activities of

╇ Various regulatory options for a possible merger between esa and the European Union have been discussed over the years in works such as: T. Reuter, Die esa als Raumfahrtagentur der Europäischen Union, in Kölner Schriften zum Lauft- und Weltraumrecht, Band 24 (2007); F.G. von der Dunk, Towards one captain of the European spaceship – why the European Union should join esa, 19 Space Policy (2003), 83–6; L.J. Smith & K.U. Hörl, Constructing the European Space Policy, Past, Present and Future, in P. Olla (Ed.), Commerce in Space, Infrastructure, Technologies and Applications (2008), 187–208; T. Hoeber, esa + eu: Ideology or pragmatic task sharing, 25 Space Policy (2009) 206–8; S. Hobe et al., Entwicklung der Europäischen Weltraumagentur als ‘implementing agency’ der Europäischen Union: Rechtsrahmen und Anpassungserfordernisse, in Kölner Schriften zum internationalen und europäischem Recht, Band 17 (2009), 282–339; S. Hobe et al., Ten Years of Cooperation between esa and European Union: Current Issues, 58 Zeitschrift für Luft- und Weltraumrecht (2009), 50–73. 14 ╇ For an overview of the eu Directives harmonising procurement procedure, see http:// ec.europa.eu/internal_market/publicprocurement/legislation_en.htm. On the introduction of e-procurement for the European Union, see http://ec.europa.eu/ internal_market/publicprocurement/e-procurement_en.htm. There is a wealth of detailed European legislation governing coordination of procurement procedures at member state level, of which Directive of the European Parliament and of the Council on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, 2004/18/EC, of 31 March 2004; OJ L 134/114 (2004) (on public works contracts), and Directive of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, 2004/17/EC, of 31 March 2004; OJ L 134/1 (2004) (on utilities and services) are the main harmonising provisions. The procurement rules apply to contract volumes beyond specific financial thresholds. These have recently been amended by Commission Regulation amending Directives 2004/17/EC, 2004/18/EC and 2009/81/EC of the European Parliament and of the Council in respect of their application thresholds for the procedures for the award of contracts, No. 1177/2009/EC, of 30 November 2009; OJ L 314/64 (2009). The European rules go so far as standardising the forms required for public contract notices. Sector-specific procurement rules have been created for a variety of services, and some categories may be exempted from the procurement provisions under the procedure provided for under Art. 30, Directive 2004/17. eu calls are published in the Tenders Electronic Daily, available at http://ted.europa.eu/. 13

328â•…â•…L.J. Smith the European Space Agency remain governed by the esa Convention and its budgetary rules, insofar as esa is not acting on behalf of the European Union in an eu-governed space programme. In turn, activities of the European Union in space programmes remain subject to eu budgetary and procurement rules.15 This point is expanded further below. 2.2.╇Harmonisation of National Space Law and its Effect on Competition The convergence of activities between the European Union and esa in eu projects is accompanied by a trend among member states towards introducing national space legislation.16 In the case of some member states, this involves reforming longer-standing space legislation that was passed in the early eighties.17 This trend reflects the growing interest among European Union and esa member states18 to provide a suitable regulatory infrastructure as a means of fostering a viable commercial ╇ For further details of the Galileo procurement, see infra, p. 352. For a brief discussion of its historical development, see Hobe et al., Ten Years of Cooperation beween esa and eu: Current Issues, 64–9. 16 ╇ Cf. M. Gerhard, Nationale Weltraumgesetze (2002). This work contains a draft model space statute in its annex; also M. Gerhard, Article VI, in S. Hobe, B. Schmidt-Tedd & K.U. Schrogl (Eds.), Cologne Commentary on Space Law, Vol. I (2009), 120–2; M. Sánchez-Aranzamendi, Economic and Policy Aspects of Space Legislation – Finding the Way between Common and Coordinated Action, European Space Policy Institute, Report, 21 September 2009, available at www.espi.or.at. 17 ╇ See e.g. the Swedish Act on Space Activities, 1982: 963, 18 November 1982; National Space Legislation of the World, Vol. I (2001), at 398; Space Law – Basic Legal Documents, E.II.1; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 11; and the Swedish Decree on Space Activities, 1982: 1069; National Space Legislation of the World, Vol. I (2001), at 399; Space Law – Basic Legal Documents, E.II.2; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 11. Transitions are being made within the structure of the former British National Space Corporation (bnsc) to develop a new Space Agency for the United Kingdom, see http://www.ukspaceagency.bis.gov.uk/About-Us/TransitionPlans/13736.aspx. 18 ╇ Membership of the European Union is not indentical with that of esa. esa now has 18 member states and has introduced a special Plan for European Cooperating States (pecs) with a view to facilitating full esa membership for the recent Eastern European accession states, see further http://www.esa.int/SPECIALS/About_ESA/ SEMP936LARE_0.html. Canada cooperates with esa by virtue of a Cooperation Agreement. 15

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space market.19 At the same time, it helps flesh out the development of Europe’s space policy objectives as foreseen under Article 189(1) and (2) of the Treaty on the Functioning of the European Union, by providing a legislative spur to creating a competitive market environment. While there is some common interest in passing legislation to provide a framework for developing space business across the Union, the alignment of national space legislation does not fall within the activities of the European Union that are subject to the harmonisation requirements of the single market. Ultimately, important issues of sovereignty forestall full approximation or harmonisation of national space legislation at the eu level.20 While the Treaty of Lisbon merges the former three-pillar structure of the European Union into a new format, it retains a special voting system in the area of external affairs, following on from the former second pillar on Inter-Governmental Cooperation (igc). Articles 326 through 334 of the Treaty on the Functioning of the European Union provide for the so-called enhanced cooperation between member states.21 There are indications that the European Union has given consideration to the process of harmonising space legislation from the perspective of common governance.22 Developments in national space legislation are monitored at international level through the offices of uncopuos23 and it appears only logical to foster a degree ╇ See M. Gerhard, Nationale Weltraumgesetze; Sánchez-Aranzamendi. ╇ On the process whereby the European Union succeeds in expanding its own competences while retaining room for action at national level, see S. Weatherill, Competence Creep and Competence Control, in P. Eeckhout & T. Tridimas (Eds.), 23 Yearbook of European Law (2004), 6–7: “eu action may ‘creep outward’ but it does not wholly foreclose State choice in the relevant area. Competence is shared (…) it is the Member states, within the eu framework, that have been the primary actors in the centralizing process of ‘creeping competence.’â•›” 21 ╇ Borrás and Jacobsson describe the ‘open method of coordination’ (omc) as one possible form of future cooperation in space activities at eu level; see reference to their work by Schmidt-Tedd, supra, p. 315 at n. 53. 22 ╇ Authorisation is a non-transferable state responsibility under Art. VI, Outer Space Treaty; see Schmidt-Tedd, supra, sections 3.1 & 4. 23 ╇ The topic of national space legislation was the basis of a joint IISL/ecsl symposium on this subject during the 49th Session of the Legal Sub-Committee of uncopuos, March 2010, see further http://www.oosa.unvienna.org/oosa/en/COPUOS; A. Kerrest de Rozavel, National Space Legislation – crafting legal engines for the growth of space activities, Paper, IISL/ecsl Symposium, uncopuos Legal Subcommittee, 22 March 2010, available at that site. 19 20

330â•…â•…L.J. Smith of Â�consistency between national space legislation at the eu level. This could create a common framework that is conducive to commercial space activities within what could progressively develop into an even more unified market.24 Attention has already been drawn to the effects of divergent transposition of the provisions of international space treaty  law through the use of differing concepts and terminology in national space legislation.25 Duties devolving on the state from the provisions of Article VI of the Outer Space Treaty to instate a national space licensing and monitoring regime derive in part from the duty under international law, as further expanded in that Treaty’s Article VII, to ensure parallel allocation of international state and national liability for commercial space operations.26 These duties also devolve on to international organisations.27 Some member states and international organisations have made formal commitments towards liability relating ╇Sánchez-Aranzamendi, 42–43, suggests that a less formal approach to aligning national space legislation is in itself sufficient: “Soft law through the establishment of an open method of coordination (omc) involving countries with commercial space activities can suffice to bring together national practices and to overcome the deficiencies created by the gaps between the laws.” While attractive, this does not necessarily lessen the risks that substantive divergences between national space legislation within the European Union may lead to. A variable regulatory ‘geometry’ could lead to divergent standards that have in other areas such as shipping seen the consequences of outflagging; on this issue, see F. Lyall, Small States, Entrepreneurial States and Space, in Proceedings of the Forty-Ninth Colloquium on the Law of Outer Space (2007), 382. 25 ╇Ensuring continuity between international and national regulatory requirements when drafting national space legislation is a clear dictate for eu member states that are directly involved in space services falling within their jurisdiction. France has its primary involvement in Ariane services, and Belgium with Brussels as the seat of the European Union institutions, provides a link to rules of jurisdiction and applicable law; see further, Sánchez-Aranzamendi, 22. 26 ╇ Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), London/Moscow/ Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967). 27 ╇ Art. VII, Registration Convention (Convention on Registration of Objects Launched into Outer Space, New York, done 14 January 1975, entered into force 15 September 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975)â•›), provides that international organisations can make declarations of acceptance of terms of the Convention. 24

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to the Ariane launcher scheme with this objective in mind.28 esa has formally notified acceptance of its international treaty obligations under Article XXII of the Liability Convention,29 as well as under Article VI of the Outer Space Treaty, by making a declaration on rights and liabilities. As a matter of customary international law, the European Union is bound by these principles by virtue of its sui generis status as part of the international legal order.30 In short, legal regulation of a framework for national space markets can be conducive to shaping business and capability building for a state’s existing or developing space sector. 2.3.╇ The Space Sector from a Competitive Perspective The space sector is traditionally subdivided into major primes, alongside many companies, including Small and Medium Enterprises (smes), ╇ Declaration by Certain European Governments on the Launchers Exploitation Phase of Ariane, Vega, and Soyuz from the Guiana Space Centre, 26 November 2009, reproduced as a uk Command Paper No. 7700 (2009); the initial Declaration by Certain European Governments relating to the Ariane Launcher production phase was agreed 14 April 1980. See further, Sánchez-Aranzamendi, 30–2. 29 ╇ Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971). 30 ╇ The exact relation between eu law and the international legal order is one which has been the subject of much discussion by the European Court of Justice, see Case 22/70, Commission v. Council (ERTA), [1971] ECR 263; Opinion 2/91 [1993] ECR I-1061; and Opinion 1/94 [ 1994] ECR I-5276. The initial findings of the Court of Justice on the relationship between community law as a sui generis part of the international legal order are to be found in Case 26/62, Van Gend en Loos v. Nederlandse Administratie Belastingen [1963] ECR 1. The ERTA judgment discussed the extent to which the European Community (at that stage) had an implicit treaty making power in those fields of competence ascribed to it. Member states are not allowed to enter into international commitments which could prejudice either the standing or status of the Community’s obligations. This recognition of international law obligations has been accepted with regard to the European Union’s overriding liability for the Galileo gnss system, inspired by the Liability Convention, in Art. 17, Council Regulation on the establishment of structures for the management of European satellite radionavigation programmes, No. 1321/2004/EC, of 12 July 2004; OJ L 246/1 (2004); as amended; see further L.J. Smith, Facing up to Third Party Liability for Space Activities, Some Reflections, Proceedings of the International Institute of Space Law 28

332â•…â•…L.J. Smith acting as single source suppliers, and it includes those entities which are involved in research.31 Many of the space industrials in Europe are the outcome of pan-European mergers between former national incumbents. The advent of new markets for downstream space applications in areas such as earth observation, navigation and other communication services has created new entry levels, notably for smaller businesses, particularly in the field of software development. Non-space faring nations and small jurisdictions are becoming home to space activities and services that range from registration services for space objects through to development of small satellites, without existing or traditional space infrastructures or resources.32 These developments may foster market growth. New and smaller entities can enter the market as specialist subcontractors and suppliers at various levels, their activities no longer being restricted to the confines of home markets. A single market for space services offered within the European Union may 2009  (2010), 255–63; L.J. Smith, Where is Paradise? The eu’s Navigation System Galileo – Some Comments on Inherent Risks (or Paradise Lost), in Proceedings of the Fiftieth Colloquium on the Law of Outer Space (2008). A Commission Working Group on gnss Liability was set up subsequent to presentation of a Draft eu Regulation for gnss liability presented by Italy in 2007 and has already reported in: European Commission, Working DocuÂ�ment, ‘Global Satellite Systems (gnss) Extra Contractual Liability’, 24 June 2009, EGPC-09-07-06-02. 31 ╇ The primes are otherwise referred to as major system-level integrators (Astrium, Thales Alenia Space TAS, Alcatel). ohb, as part of the Fuchs Gruppe, previously had sme status. After the recent award to construct a major part of the Galileo FOC segment, there is likely to be a change in its status, see http://www.ohb-technology .de/investor-relations/ir-news/ad-hoc-mitteilungen-detail/items/ohb-fuer-den -bau-von-14-galileo-navigationssatelliten-ausgewaehlt.html. esa pursues a partiÂ� cular  proÂ� gramme of support for its smes, see http://www.esa.int/esaMI/SME/ SEMQKI0CYTE_0.html while the European Union has since 2008 followed a policy of promoting smes through the Small Business Act, see Commission Working Document, Report on the implementation of the SBA, COM(2009) 680, available at http://ec.europa.eu/enterprise/policies/sme/small-business-act/. 32 ╇ On the development of small space jurisdictions, especially the now independent, former Soviet space capabilities and the efforts undertaken within the esa pecs programme, see http://www.esa.int/SPECIALS/PECS/index.html. On the issue of national space legislation, see Lyall. The Isle of Man is an interesting case of a small jurisdiction that operates independently from the United Kingdom and is openly encouraging location of space services. It is able to rely on its particular constitutional dependency on the United Kingdom for defence and with it, the latter’s assumption of international responsibility and liability for damage from space objects.

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appear attractive, but need not be based on ‘all-embracing harmonisation’.33 Notions of future single market authorisation or licensing, however, conveniently side-step the fact that the major state functions of licensing, export control and regulatory aspects such as monitoring are still exercised by states themselves as an integral part of their sovereign role, even although some eu rules, notably in the de-regulated sectors, may be common to all.34 Interest in single licences has been raised by, inter alia, the European Satellite Operators Association, esoa.35 While not an immediate issue, the timing of a single market for space will re-emerge with increased integration of Europe’s capabilities in this sector. The introduction of coordinated eu procurement rules for specific services and goods for the defence market is but one step in this direction.36

3.╇Competition Law 3.1.╇ General Function of Competition Law Competition law traditionally ensures fair access for interested parties onto the market. The space sector presents a special case in the competition sector, in that public funding is normally involved in the particular deal, making public procurement an essential part of the competitive ╇ See Sánchez-Aranzamendi, 43. ╇Telecommunications are in a privileged position by virtue of previously de-regulated eu regimes. For the latest approach to reform that foresees increased mobile telephony and increased broad band provision, alongside a Body of European Regulators (ber) for telecoms, see eu Telecom licensing package MEMO/09/491 of 5 November 2009, available at http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/491. 35 ╇See the European Satellite Operators’ Association (esoa) Position Paper on the prospects of a single market license, available at http://www.esoa.net/v2/events/ assets_20081112_EUParliament/ESOA_20081112_PositionPaperEUTelecoms.pdf. 36 ╇ Rules coordinating a large part of procurement for military equipment and services have been in force in the European Union since 2004. The latest reform of eu defence procurement legislation is Directive of the European Parliament and of the Council on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC, No. 2009/81/EC, of 13 July 2009; OJ L 216/76 (2009). The scope of the Directive is outlined in its Article 4. The Directive entered into force on 21 August 2009. 33 34

334â•…â•…L.J. Smith process. Once commercially active on the market, competition law thereafter operates against any direct or indirect market concentration or unfair restrictions on competition by one or more firms. The space market covers some military and defence contracting, so that some firms active in this sector may stand to have benefitted from previous participation in national space and/or defence programmes, with varied  sources of European or national funding, depending on whether the projects were civilian or military. This in turn raises issues as to how to assess the competitive advantages that result from contractors’ prior involvement in procurement procedures. Contractors may occupy a privileged position when seen from a competitive perspective. The acquisition of know-how and advantageous market positions remains a constant concern of competition law.37 However, procurement for military or government contracts, once an exclusively national domain, now partly falls within the European rules on competition, a sector that may well see further integration and growth over time, in conjunction with what are now common eu export rules in this sector.38 The interaction between the primarily civilian remit of esa and the growing interests of the European Union in employing the military capabilities of Galileo remain yet another development that is both an example of ‘competence creep’ and one of testing the borders of civilian space capabilities. Public procurement is therefore standard practice for implementing national, eu or esa space policies and programmes. Those space activities falling within publicly funded research programmes will not, however, have a formal commercial status, although commercial activities

╇Member states may, however, make use of the exemption provisions for defence contracts that affect national security under the provisions of Art. 346, Treaty on the Functioning of the European Union, thereby limiting the application of the European rules. The concept of national interest has traditionally defied judicial review. For further European rules on defence contracting, see notably Directive of the European Parliament and of the Council simplifying terms and conditions of transfers of defence-related products within the Community, 2009/43/EC, of 6 May 2009; OJ L 146/1 (2009); further http://ec.europa.eu/internal_market/publicprocurement/dpp_en.htm. 38 ╇Council Regulation setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items, No. 428/2009/EC, of 5 May 2009; OJ L 134/1 (2009); the Regulation came into effect on 27 August 2009. 37

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may subsequently develop.39 A company’s status as a research unit stands to change when using business models such as spin-offs. Programmes such as gmes may lead to the development of business opportunities once the eu funding changes from research-orientated to commercial business models.40 Competition law regulates how space projects and calls for participation are managed. It oversees a fair spread of interests in the various markets relating to space transportation, satellite systems and space services. Finally and most importantly, industry is faced with high technical risks and investments in the space sector in view of the potential liability scenarios involved. Given this background, it could well be maintained that the current industrialists have not yet been exposed to the full impact of competition law beyond procurement. This may well stand to alter in the near future with the advent of new markets and market incumbents. 3.2.╇ Scope of Competition Law in the European Union Competition law provides two forms of regulatory control; firstly, a control over market entry level, governed by cartel law;41 secondly, unfair competition law, which controls behaviour between those companies once they are active on the market.42 The eu competition rules cover ╇ Many major projects and notably gmes are funded within framework programme 7 (fp7), thereby side-stepping any influences of competition law, see http://ec.europa .eu/research/fp7/. 40 ╇ gmes was originally operated within the fp7 structure and the final Regulation regulating its transition has now been approved; see Regulation of the European Parliament and of the Council on the European Earth monitoring programme (gmes) and its initial operations (2011 to 2013), No. 911/2010/EU, of 22 September 2010; OJ L 276/1 (2010). See L. Mantl, Commission Proposal for a regulation on the European Earth Observation programme gmes and its initial operations, 58 Zeitschrift für Luftund Weltraumrecht (2009), 404–22; further information on gmes can be obtained via its own dedicated website http://www.gmes.info/. On the recent steps undertaken by the European Space Agency to foster investment in space business spin-offs, see http://www.esa.int/esaCP/SEM2235NL9G_index_0.html. 41 ╇See P. Trepte, Public Procurement in the eu, a Practioner’s Guidebook (2007); V. Korah, Introductory Guide to European Competition Law and Practice (7th ed.) (2009); A. Jones & B. Sufrin, Competition Law, Cases and Materials (3rd ed.) (2007). 42 ╇ See Jones & Sufrin, 24â•›ff., with further references to the works of R.H. Bork and R. Posner; also 112–3. 39

336╅╅L.J. Smith both cartel and unfair competition and aim to eliminate distortions of the market caused by agreements that lead to a limitation of free competition at either vertical or horizontal level.43 The former type of agreement may be seen to exist between the manufacturing and distribution stage, the latter where companies operating in the same markets at the same level may, with a view to conducting important research and development and/or undertaking technology transfer, cooperate or even occupy a dominant position on that particular market, thereby blocking entry for new incumbents. The rules governing anti-competitive conduct are contained in Articles 101 and 102, alongside rules governing state aid under Article 107 of the Treaty on the Functioning of the European Union. The eu competition rules apply equally to public undertakings and undertakings with special or exclusive rights (Article 106). As a result, unfair competition between either private, public and private or exclusively public undertakings falls within the Treaty rules. Article 101 of the Treaty on the Functioning of the European Union prohibits agreements at either vertical or horizontal level that are either designed or have the ╇ For the former Artt. 81, 82, Treaty establishing the European Communities as per the Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts (Nice, done 26 February 2001, entered into force 1 February 2003; OJ C 80/1 (2001)╛), now read Artt. 101, 102, Treaty on the Functioning of the European Union. Exceptions to competition law have been dominated by the practice of so-called Block Exemption Regulations (ber) under Art. 101(3), formerly Art. 81(3), applicable to certain classes of economic activity where competitive restrictions on these markets at horizontal or vertical level are seen to be justifiable. For a list of the currently applicable bers, including recent amendments to the Vertical Block Exemption Regulation (Commission Regulation on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices, No. 2790/1999/EC, of 22 December 1999; OJ L 336/21 (1999)╛) on restraints on vertical distribution that expires on 31 May 2010, see http:// ec.europa.eu/competition/antitrust/legislation/legislation.html. The existing ber relating to horizontal cooperation agreements in the sphere of R&D (Commission Regulation on the application of Article 81(3) of the Treaty to categories of research and development agreements, No. 2659/2000/EC, of 29 November 2000; OJ L 304/7 (2000)╛) and specialisation agreements (Commission Regulation on the application of Article 81(3) of the Treaty to categories of specialisation agreements, No. 2658/2000/ EC, of 29 November 2000; OJ L 304/3 (2000)╛) were due to expire on 31 December 2010 and now being reviewed with a view to their reform and reintroduction in 2011, see http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/489.

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effect of restricting trade between member states. Article 102 of the Treaty on the Functioning of the European Union prohibits the abuse of a dominant position on the relevant market. Individual or block exemptions apply in terms of Article 101(3), particularly to supply and distribution agreements, as well as r&d and specialisation agreements. These would normally fall foul of the prohibition under Article 101(1), but may nevertheless be deemed to have a beneficial effect on that market sector and therefore be exempted through specific provisions. There is an abundance of case law at both national and European level relating to illegal market practices and legal remedies.44 With the growth of space commerce, the role of national space agencies may well alter over time to become more than just a business facilitator. To the extent that they become more involved in the commercial market, space agencies may one day constitute not only collaborators but also competitors in the particular market.45 The market in space data is already leading to spin-offs and new business fields in areas that traditionally fell within sovereign state activities alone and were formerly operated by the agencies themselves.46 The growth of commercial space markets may well see the application of these rules to new activities in downstream space ╇ The General Report of the Activities of the European Communities prescribed under Art. 249(2), Treaty on the Functioning of the European Union, contains a special report on the annual activities in the competition law sector, see http://europa.eu/ generalreport/en/welcome.htm. The latest General Report available is from 2009. Updates on current activities in the competition sector can be accessed via http:// europa.eu/pol/comp/index_en.htm. 45 ╇ The space agencies as a part of government administration have a duty to ensure that the eu rules on competition law are duly applied, all the more so since the decentralisation of application of competiiton law under the Modernisation Regulation (Council Regulation on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, No. 1/2003/EC, of 16 December 2002; OJ L 1/1 (2003)╛); see further infra, p. 340. 46 ╇The uk firm Qinetic is an example of how defence contracting for the public sector can operate as a commercial enterprise specialising in modern technology, see http:// www.qinetiq.com/global/about_us.html. Paradigm uk offers secure military communication services under contract to governments and agencies, see http://www. paradigmsecure.com/. There are further developments in the space data imagery sector, notably the Blue Planet project developed initially within cnes and now outsourced, see http://www.incubateurmipy.com/sciences-de-l-ingenieur/projet-blueplanet.html. Google Earth purchases its space and aerial imagery either from space agencies or satellite operators, however, the imagery is not real-time. 44

338â•…â•…L.J. Smith applications, particularly in the developing geo- and space information sectors. 3.3.╇ Function of Competition Law in the Space Sector There is a particular symbiosis between the authorisation and licensing of space activities on the one hand, and enforcement of competition rules on the other. While licensing ensures maintenance of regulatory requirements such as frequency regulation and compliance with liability insurance requirements, cartel law and unfair competition law issues may, but need not, be directly relevant to the licensing process. This will depend on whether the licence is for an independent space activity, such as a new launch, or whether it is a service that, notably by virtue of de-regulation provisions, is already subject to procurement rules. The latter case would arise where access to the market is limited to a certain number of operators or incumbents that are de jure subject to both licensing and procurement clearance within the administrative procedure. Compliance with competition rules may, therefore, but need not always, be a pre-condition for authorising space activities. The activity subject to licensing may in some, but not necessarily in all cases, raise issues relating to competition law. Cartel law will, however, prescribe an a priori examination of the company’s position on the market in sectors that are subject to eu procurement rules or which could create economically unjustified monopolies. Until such time as all European space activities or services involve full competitive tenders, as with Galileo or the telecommunication sector within the European Union, the act of licensing remains a separate administrative issue from that of assessing market concentration. The telecommunications market is, alongside energy and postal services, one of the few examples where licensing requires an assessment of the activity in terms of European Union and national services legislation.47 As markets and financial instruments develop for navigation and earth observation services, the relation between cartel law and licensing may ╇ This was the case with the admission of five, then ultimately four competitors to the 4-G telecom auction in Germany that took place in April 2010; for further details, see Bundesnetzagentur Press Release, 5 March 2010, at http://www2.bundesnet zagentur.de/frequenzversteigerung2010/images/pressemitteilungen/FrequenzÂ� versteigerung%20mit%20vier%20Unternehmen.pdf.

47

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become more acute. Beyond this, however, the law of unfair competition is available directly to competitors, enabling enforcement between private parties, independent of regulatory agencies. Competition authorities, however, retain a statutory duty at a public level to control anti-competitive activity. Their remit does not, however, prevent direct legal challenges being brought by competitors against other market competitors. The dictates of cartel law are such that space agencies, in awarding the tender and directly or indirectly ensuring licensing, must ensure that their authorisations do not lead to anti-competitive situations on the market. The combined effect of ensuring transparency and effecting public calls for tender means adherence to formal procurement procedures.48 Because of the structure of national defence markets, hedged with innate issues of security, the commercial space market within national and international space programmes has not necessarily attracted either the concentration or the variety of bidders that competition law seeks to control in other markets. Regulators and agencies must nevertheless ensure equal opportunities and conditions of access, independent of market size. From a competitive perspective, the space market segment ranges technically from effective monopoly- or oligopoly-type market-holds in segments such as launching, through to suppliers of essential single sourced materials or products that are often only available, somewhat paradoxically, through smaller firms. Many manufacturers and suppliers of specific components, goods and services deliver through specialist companies which fall within the small-to-medium sized firm bracket (smes). At the opposite extreme, the current major space industries (primes) are corporate structures that now operate as major systemlevel integrators within complex holding company structures, generally subdivided into various operative divisions.49 Where space activities are carried out under the heading of research, there may be no immediate issues of competition law at all, given that the activities may not be commercial and even then, any relevant restrictive agreements such as

╇ See Trepte, nos. 7.01–7.65. ╇ For an overview of the latest European space industry statistics, see ASD-Eurospace, The Space Group in ASD, Facts and Figures, 14th Report, August 2010, available at http://pagesperso-orange.fr/eurospace/.

48 49

340â•…â•…L.J. Smith market delimitation or restrictions on exploitation of results would generally justify exemption from the competition rules in so far as block or individual exemptions are granted. As indicated, space markets were traditionally dominated by nationally focussed, primarily defence and security-related interests.50 Growth of programmes at an eu level, notably in the field of trans-European networks, environmental applications within earth observation programmes such as gmes, and other downstream applications have witnessed an increase in European commercial capability in the secondary space market. The advent of Galileo gnss, the European Union’s highest profile and highest volume space project to date, requires compliance with the Union procurement procedures that depend on the applicable eu budgetary rules. Galileo’s financial and geographical volume led in turn to discussions as to the applicability of the World Trade Organisation (wto) rules of competition governing services procurement, by virtue of the European Union’s membership of the World Trade Organisation.51 The esa Convention rules on procurement for the space sector contrast greatly with those of the European Union. Based on a philosophy of strengthening national industry, in line with national budgetary contributions to esa, the esa provisions are not designed to encourage free competition between member states but to foster national industry within the individual member states. This point is taken up again in greater detail later below when examining the effect of European Space Agency industrial policy on market competition.52

4.╇ National, European and International Competition Law 4.1.╇ The Relation between National and European Competition Law There is a close nexus between national and European competition law following on from the direct applicability of European law at national ╇ See W. von Kries, B. Schmidt-Tedd & K.U. Schrogl, Grundzüge des Raumfahrtrechts, Rahmenbestimmungen und Anwendungsgebiete (2002), ch. 15. 51 ╇ See Hobe et al., Ten Years of Cooperation between esa and eu. 52 ╇ See further infra, p. 346. 50

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level.53 The anti-cartel provisions are formulated in the same terms at national and European levels.54 The direct applicability of the European cartel provisions of Articles 101 and 102 of the Treaty on the Functioning of the European Union (formerly Articles 81 and 82 of the ec Treaty)55 led the European Commission in the 1980s to encourage national governments to transform and adapt national competition provisions to mirror their content. This process has been completed for all the member states.56 The question of whether there is a breach at either national or European level is determined according to the same formal criteria and relates at all times to an assessment of the behaviour of the individual company in relation to its market share, as seen against the particular geographical and temporal market for equivalent products or

╇ See Walt Wilhelm v. Bundeskartellamt, [1969] ECR 1. Regulation 1/2003 which came into force on 1 January 2004, ensures the coordination in the application of eu competition law between the national and European level. This creates parallel regulatory competences between one or more national authority. Where a greater European dimension is involved, the Commission can then become involved in the investigation and enforcement. See Commission Notice on Cooperation within the Network of Competition Authorities; OJ C 101, of 27 April 2004. A list of national competition authorities is available at http://ec.europa.eu/competition/ecn/competition_authorities.html. In recognising the applicability of eu competition rules to the defence market, starting with the Commission’s Interpretative Communication on Defence Procurement COM(2006) 779 final, the same principles are to be applied, at least to the extent that the national security exemption is not relied on, see Jones & Sufrin, ch. 14–15, esp. 1270–1285; further P. Koutrakos, Regulation of Defence Products in the Law of the European Union, in Trade, Foreign Policy and Defence in eu Constitutional law (2001), ch. 8. 54 ╇ See 6/64 Costa v. Enel, [1964] ECR 585. For an overview of the process of adaptation of national to community competition law rules, see D. Cahill (Ed.), The Modernisation of eu Competition Law Enforcement in the eu, FIDE 2004 National Reports (2004); further H. Ullrich (Ed.), Evolution of European Competition Law, Whose Regulation, Which Competition (2006). 55 ╇ Treaty establishing the European Economic Community (ec Treaty), Rome, done 25 March 1957, entered into force 1 January 1958; 298 UNTS 11; as amended by the Treaty on European Union, Maastricht, done 7 February 1992, entered into force 1 November 1993; 31 ILM 247 (1992); OJ C 191/1 (1992). 56 ╇ The findings of the European Competition Law Network (ECN) 2008 survey of the convergence effect and operation of eu competition law at national level after Regulation 1/2003 can be accessed at http://ec.europa.eu/competition/ecn/ecn_convergencequest_April2008.pdf. 53

342â•…â•…L.J. Smith services (‘the relevant market’).57 As a result of the procedural and administrative reform, notably with the decentralisation in application of eu competition law that took place in 2004,58 national competition authorities have since been empowered to apply European competition rules at national level. National competition law applies where the anticompetitive situation or suspected breach takes place at national level only and has no intra-Community effect.59 This form of administrative collaboration has been further strengthened by the Treaty of Lisbon. The competition authorities of member states may request the ComÂ� mission to assist in investigating cases of suspected infringement of ComÂ�muÂ�nity rules (Article 105). This ensures that the (respective) investigative competences at national and European level are enforced with regard to effective access to justice. Where the breach extends beyond the jurisdiction of one member state, the Commission will cooperate with the national states affected in pursuing the infringement and investigation. The European rules apply in turn to the exclusion of national rules, where the suspected breach has a community dimension.60 In short, there is a high degree of cooperation in the supervision and application of competition law between member states and the European Commission.61 Remedies, although predominantly national in the case of unfair competition law,62 still follow the primacy dictates of eu law. The ╇ Cf. Europemballage Corporation and Continental Can Ltd v. ec Commission [1973] ECR 215; 27/76 United Brands Co. v. ec Commission, [1978] ECR 207. For a full discussion of the development of the law of procurement within the European Union, see V. Hatzopoulos, Legal Aspects in Establishing the Internal Market for Services, Research Paper No. 6, College of Europe (2007), available at www.coleurop.be/file/…/ ResearchPaper_6_2007_Hatzopoulos.pdf. 58 ╇ For an overview of ECJ cases on competition law since 1998, see http://curia.europa .eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=judgements&num aff=C%25&datefs=&datefe=&nomusuel=&domaine=CONC&mots=&resmax=1000. 59 ╇ Art. 2.1, Principles of allocation, Commission Notice on Cooperation within the Network of Competition; OJ C 101/43, of 27 April 2004. 60 ╇ Art. 2.1.10, Commission Notice on Cooperation within the Network of Competition. 61 ╇ In relation to current eu space activities, the competence for ensuring open and fair procurement will, by virtue of the type of space activity such as gmes or Galileo, continue to remain at eu level. 62 ╇ See Commission Notice on the enforcement of state aid by national courts; OJ C 85, of 9 April 2009; at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:5 2009XC0409%2801%29:EN:NOT. In view of the Commission’s 2008 General Block 57

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principles established by the European Court of Justice continue to dominate the approach to damages as a remedy for breach of eu competition law. There are as yet no centralised rules as to the level of individual damages – as opposed to fines – awarded in any one case.63 National courts are left to assess damages on the basis of the individual case law. In contrast, infringement cases brought directly by the Commission rely on the rules governing fines that are closely linked to the concept and principles of anti-trust damages. Competition law in the European Union has a rich history and is renowned for its vigour. Its application to the space sector at the eu level is, with the exception of the Galileo procurement, still in its infancy. The structure of the various space segments of launchers, satellites and services presents a diverse, but clear spectrum of market players. The growth of downstream applications and business may well see a change of wind to come. While this will not alter these main three segments, it will present a new community of providers and users, within what is likely to be predominantly information, navigation and communication-driven service markets. Exemption Regulation (Commission Regulation declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General Block Exemption Regulation), No. 800/2008/EC, of 6 August 2008; OJ L 214/3 (2008)â•›); declaring certain categories of aid compatible with the common market, certain decisions as to state aid can in future be made by national courts directly, thereby rendering a notification of state aid unnecessary. The provisions of the Regulation are directly effective. It is predicted that this provision may lead to a number of conflicts relating to the level at which decisions should be made. 63 ╇See Garden Cottage Foods v. Milk Marketing Board [1984] AC 130; C-453/99, Courage Ltd. v. Creehan, [2001] ECR I-6297. Various studies have been prepared on behalf of the Commission on the issue of damages, see Ashurst, Study on the Conditions of Claims for Damages for Infringement of European Competition Law, Comparative report, 31 August 2004, available at http://ec.europa.eu/competition/ antitrust/actionsdamages/comparative_report_clean_en.pdf; more recently, QuantiÂ� fying damages, Towards non-binding guidance for courts, Paper, Study prepared for the European Commission, December 2009, available at http://ec.europa.eu/competition/antitrust/actionsdamages/quantification_study.pdf. There are various preparatory documents form the Commission dealing with this subject, see http://ec.europa. eu/competition/antitrust/actionsdamages/documents.html. The Commission publishes a regular Competition Policy Newsletter, available at http://ec.europa.eu/competition/publications/cpn/ that can be subscribed to. For information on how fines are assessed, see Guidelines on the method of setting fines imposed pursuant to Art. 23(2)(a), Regulation 1/2003.

344â•…â•…L.J. Smith 4.2.╇ Public Procurement Access to the particular space activity is determined by the rules governing public procurement, irrespective of whether the space activity is private, public or a mixture of both (ppp).64 National and European public procurement rules subject market incumbents to various forms of competitive procedures and their pre-requistises.65 The eu procedures include the open, the restricted, the negotiated procedure and the competitive dialogue.66 Rules are in place to ensure that companies participate in the procurement if they are to be considered within the formal call for tenders. The rules coordinating procurement may not, however, regulate subsequent contractual restrictions between parties further down the line, notably between contractors and sub-contractors or between other parties interested in having access to the project results. This level of access, use and licensing may be the subject of a separate agreement that, in turn, may be relevant to restrictions on competition. The principal competition law provisions may in certain situations be declared inapplicable by virtue of the block exemption regulations under Article 101(3) of the Treaty on the Functioning of the ╇ The term ppp is not defined at Community level and has been subject of a study, see Report on Public Consultation on Green Paper on ppp and Community Law on Public Contracts and Concessions, SEC(2005), 629, thereafter COM(2005) 569. The Commission published an Interpretative Communication on the application of Community law to ppp and Concessions to Institutionalised ppps, February 2008, available at http://ec.europa.eu/internal_market/publicprocurement/ppp_en.htm. 65 ╇ See Trepte, nos. 1.01–1.82; Von Kries, Schmidt-Tedd & Schrogl, 48–55. Exceptions to the European law rules on procurement in the defence field exist for procurement undertaken in the interest of national security as contained in Art. 346(1.a), Treaty on the Functioning of the European Union; see details of recent Directive 2009/81 of 31 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC. 66 ╇Art. 91(1)(a)-(e), ec Financial Regulation (Council Regulation on the Financial Regulation applicable to the general budget of the European Communities, No. 1605/2002/EC, Euratom, of 25 June 2002; OJ L 248/1 (2002); amended by Council Regulation amending Regulation (ec, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, No. 1995/2006/EC, Euratom, of 13 December 2006; OJ L 390/1 (2006)â•›) contains the full range of procurement procedures available, which also includes a contest procedure. Inter-institutional or agency procurement is admissible. 64

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European Union. These limit the impact of either unfair or restrictive agreements that may otherwise be considered justifiable for example, by protecting technology transfer.67 There may be overriding economic reasons for protecting and limiting access to know-how and intellectual property and subjecting parties to necessary restrictions. Such exceptions highlight the logic behind the rules that allow state aid to be approved: there may be a clear need to protect national interests and/or in the case of space, those results obtained from research or development having a high technology impact.68 It is worth recalling that, at the international level, many space activities continue to take place within programmes operating on the basis of “no exchange of funds” or barter, thereby side-stepping the impact of international competition law.69 In such projects, the contracting states regulate the conditions of participation through their space agencies, and the substance of the agreement is then contained in larger-scale international agreements, often including additional Memoranda of Understanding (mou).70 This does not remove the requirement of opening the projects to public procurement. In all, whether within the European Union, at regional or international level within trade agreements such as the World Trade Organisation (wto) with its General ╇This is the justification behind the exemptions applicable to technology transfer agreements under the Block Exemption Regulation, Commission Regulation on the application of Article 81(3) of the Treaty to categories of technology transfer agreements, No. 772/2004/EC, of 27 April 2004; OJ L 123/11 (2004). 68 ╇ Regulation 2659/2000, on the application of Article 81(3) of the Treaty to categories of research and development agreements, is due to expire at the end of 2010 and proposals for future regulation are currently under deliberation, see http://europa.eu/ rapid/pressReleasesAction.do?reference=IP/10/489. 69 ╇ See L.J. Smith & C. Bank, Capability and Fair Return in European and International Space Cooperation: the Example of Columbus, in Proceedings of the International Institute of Space Law 2008 (2009). 70 ╇ One such example is the Intergovernmental Agreement relating to the International Space Station (Agreement among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America concerning Cooperation on the Civil International Space Station, Washington, done 29 January 1998, entered into force 27 March 2001; Space Law – Basic Legal Documents, D.II.4.), also available at http://www.state.gov/documents/ organization/107683.pdf. For further discussion, see: F.G. von der Dunk & M.M.T.A. Brus (Eds.), The International Space Station (2006). 67

346â•…â•…L.J. Smith Agreement on Trade in Services (gats),71 procurement rules are in place to ensure effective application of competition rules across the entire business chain, from the implementation phase, access to the market, up to a company’s activities once active on the market.

5.╇ esa Procurement and Structure 5.1.╇General The esa procurement system operates within the scope and terms of the esa Convention. esa procurement conditions have the objective of supporting national space programmes in correlation to the budgetary contributions of member states.72 This effectively allows direct support for national industry, an objective that is illegal at the eu level. While certain forms of state subsidies may be declared legitimate under eu state aid rules, such aid remains the exception rather than the rule, and is in all cases subject to prior approval of the European Commission.73 In contrast, the European Space Agency pursues an industrial Â�policy that enables clear support for the space industry at national and European level. This approach emphasises the fundamentally differing philosophies behind esa and European Union procurement. esa industrial policy foresees two types of space programme – the compulsory or optional,74 the latter being a medium for ensuring the balance of return towards member states, the former prescribing compulsory participation in esa’s main programmes. The return co-efficient for optional programmes is regularly monitored and amended.75 This enables awards that are favourable to member states and their Â�industry.76 Member states are awarded contracts in accordance with a proportional

╇ General Agreement on Trade in Services, Marrakesh, done 15 April 1994, entered into force 1 January 1995; ATS 1995 No. 8. 72 ╇ For a fuller discussion of esa’s objectives and budgetary rules, see Reuter. 73 ╇ See Art. 107, Treaty on the Functioning of the European Union; for a discussion of ongoing reform of the European Union state aid rules, notably in the face of economic crisis, see http://ec.europa.eu/competition/state_aid/overview/index_en.html. 74 ╇ See Annex V, esa Convention, available at http://www.esa.int/convention/. 75 ╇ See Art. IV, Annex V, esa Convention, Nos. 4–5. 76 ╇ See Art. II, Annex V, esa Convention, No. 1. 71

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return on their financial contribution to esa, according to their parÂ� ticular coefficient.77 This is referred to as the principle of geo-return or juste retour and has dominated the operation of esa space projects since  their inception.78 The European Space Agency procurement specifically reflects the industrial hierarchy, from the prime contractor down to the sub-contractor. Its task is to monitor maintenance of the various project phases and follow through to completion. The risks and investments involved in major space projects impacts on their success. By awarding particular projects to member states’ industry on this basis, a steady and equal development of space industry across the esa member states can be achieved. The principle of geo-return within the esa Convention specifically allows member states to favour their own industry.79 Should a country’s return fall below a specific level, the esa Director General and Council are empowered to review the situation and if need be, make proposals to counteract this.80 The esa procurement system operates less on principles of competition theory than on principles of effective return to member states.81 This does not, however, prevent esa from conducting its operations on the basis of open competition.82 According to Article 10(1.a) of the esa ProÂ�cureÂ�ment regulation, transparency and fair and equitable treatment are to be upheld towards contenders. As indicated, the esa structure is less designed to enhance free competition and rather to ensure the success of its programmes and in that context, support national industry.83 ╇ This may also be increased according to a specific weighting that takes the technological significance of the project into account, see Art. IV, Annex V, esa Convention. 78 ╇ The following expressions are all commonly used to reflect the geo-return principle: “industrielle Rückflussprinzip”, “fair return”, “geographical distribution”. 79 ╇The provisions governing geo-return are contained in Art. IV, Annex V, esa Convention. The esa Director General and Council are empowered to make decisions as to how industrial policy will be exercised in particular missions or applications. 80 ╇ See Hobe et al., Forschungsbericht esa-eu, 49–53. 81 ╇ National space programmes are also governed by rules of public procurement rules applicable to particular sectors of government contracts in question; see Von Kries, Schmidt-Tedd & Schrogl. 82 ╇ See Reuter; Hobe et al., Forschungsbericht esa-eu, 211. 83 ╇ See Hobe et al., Forschungsbericht esa-eu, 212. 77

348â•…â•…L.J. Smith 5.2.╇Specific esa Procurement Rules Under the new esa Procurement Regulation,84 there are generally five types of esa procurement procedures, the main category being the competitive tender. Article 13 of the Procurement Regulation provides for two sub-categories within the competitive tender, the open and the restricted competitive tender;85 the former is the general type of procurement procedure used, the latter is appropriate where a full procurement effort would be disproportionate to the outcome or volume at stake. Thereafter, the non-competitive tender, regulated in Article 14 of the Procurement Regulation, may be relied on particularly in the case of single source supply or where the threshold is below € 100,000.86 Article 15 of the Procurement Regulation subsequently provides for the framework agreement, which may be used where the project has a limited budget and time frame, with a maximum span of five years. Finally, there is a two-stage procedure provided for under Article 16 of the Procurement Regulation, designed to facilitate projects where the description and design have not yet been devised, thereby requiring further formulation in a second phase, after an initial call for interest or invitation to tender has been launched within the first stage. This latter category is particularly designed to be used in the case of public private partnerships.87 The choice as to which specific type of tender depends on the particular project (or programme) under development. The Industrial Policy Committee (ipc) is responsible for overseeing larger projects and deals with all types of procurement procedures. As a means of ensuring a functioning European space industry with an economically viable and uniform geographical spread of capabilities across the member states, esa may in addition reserve the right to restrict certain projects to small and medium enterprises or research institutes, thereby excluding the major system-level integrators.88 There are further criteria restrictÂ�Â�ing the qualifications of contractors eligible to tender by virtue of ╇ The revised esa Procurement Regulation, ESA/C (2008)202, Paris, 17 December 2008, can be accessed at http://emits.esa.int/emits-doc/ESA_HQ/EIO-PROCUREMENT_ REGULATIONS.pdf. 85 ╇ See Art. 13, esa Procurement Regulation. 86 ╇ See Art. 14, esa Procurement Regulation. 87 ╇ See Art. 16, esa Procurement Regulation. 88 ╇ See Hobe et al., Forschungsbericht esa-eu, 212. 84

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establishment in their home state within the terms of Article II(3) of Annex V of the Convention. 5.3.╇ Particularities of esa Procedure esa has a history of thirty-plus years of contract practice, based on its General Clauses and Conditions (GCC) and of procurement procedure, from which it has devised standards for developing the various phases involved in designing, procuring and managing space programmes and operations. It has acquired a wealth of experience in carrying out its activities as a space agency. Its procedures, clauses and conditions, includÂ�ing rules for subcontracting and best practices, have developed as a result of intergovernmental debate, driven by interests of coordinating and pursuing the goals of the European and national space programmes under Article II of the esa Convention. These demonstrate a necessary but careful balance between the risks and liabilities of an international governmental organisation in relation to its contractors and operators. Details of how esa operates its procurement are easily accessible via its website under the rubric “doing business with esa”.89 The esa procurement procedure is subject to the individual rules contained within its Annex V, as supplemented by its rules of procedure, and depends on the particular type of call under tender.90 There has been criticism in practice of certain preliminary issues in cases where contracts are awarded, but final details have not yet been concluded with the contractor: this can lead to a so-called preliminary authorisation to proceed (pap), a situation in which the tender has already been won by a contractor, but details of actual terms remain open to further negotiation.91 This contrasts greatly with procedures under eu law, where continued negotiation subsequent to award would breach rules of legal certainty.92 Once the content of the esa call – contained in a ╇See http://www.esa.int/esaMI/industry_how_to_do_business/SEMJFO6H07F_0.html. ╇ For a further assessment of esa procurement in practice under the existing rules, see Smith & Bank. 91 ╇ How to do business with esa; see website 213: http://www.esa.int/esaMI/industry _how_to_do_business/SEMJFO6H07F_0.html. 92 ╇ A procurement procedure involving ongoing negotiation would be prohibited under ‘open call’ procurement rules of eu law. eu principles of fair and due process require that all conditions be equal and transparent from the outset, see C-174/89, Hoche 89

90

350â•…â•…L.J. Smith Tender Evaluation Manual (tem) – has been published and the Tender Evaluation Board (teb) has ensured a procedurally fair call, there is a period during which esa and the contractor continue to negotiate on essentials, even once the choice of contractor has been made.93 From a competition law perspective, the separation between the esa and eu regimes for space procurement and contract practices has enabled the esa operated space programmes to operate independently of any immediate restraints deriving from eu competition and procurement law. 5.4.╇ Reform of esa Procurement Rules The European Space Agency decided in 2008 to carry out a review of its existing procurement rules with a view to introducing greater transparency. As a result, the new procurement rules that are expected to come into force after their approval in summer 2010 will lead to a revised procedure allowing a second assessment or review on procedural grounds.94 This new procurement regulation is a response to a variety of criticisms and suggestions made over time regarding the need for greater transparency and re-assessment within the procurement process. While an industrial Ombudsman has exercised a conciliatory function between the European Space Agency and the various contractors since 2004,95 [1990] ECR I-2681. According to established case law, the principle of equal treatment is breached where equal situations are treated differently or different situations are treated alike. 93 ╇ esa procurement calls are available online via http://emits.esa.int/owa/emits.main. See Smith & Bank; Hobe et al., Entwicklung der Europäischen Weltraumagentur als ‘implementing agency’ der Europäischen Union, 358. The 2008 reform of esa procurement rules, may however, go some way in altering this. 94 ╇ The concerns voiced at the approach to space procurement and current national rivalries in Europe can be followed in the public press; see the comments relating to procurement for the next generation of weather satellites, http://www.europeanvoice. com/Art./imported/brussels,-we-have-a-problem/67646.aspx (8 April 2010). 95 ╇ The current ombudsman is Alain Gaubert, the office having been created within the context of the esa procurement regulations. His remit is restricted to issues relating to procurement. See Best practices for the selection of subcontractors by prime-contractors in the frame of esa’s major procurements; esa/ipc (2005) 34, rev. 3; for the egnos Geo procurement procedure, see http://ec.europa.eu/dgs/energy/tenders/ doc/specifications/2009/s103_147724_conditions_of_tender.pdf.

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this office does not replace an official appeal structure. The Ombudsman’s role is particularly to mediate where subcontractors are selected by primes within the scope of larger esa projects. The Ombudsman is not, however, responsible for disputes between the industry and the agency itself, this being dealt with by the head of procurement to whom all such issues must be notified.96 The new Procurement Regulation is designed to ensure due process and maintenance of standards of fair hearing. Decisions made by esa are otherwise not subject to judicial review.97As an international organisation, the European Space Agency is immune from jurisdiction and execution.98 5.5.╇ Final Comparison between eu and esa Procurement Rules The essential differences between the esa procurement procedure and that of the European Union are as follows: the European Union at first sight imposes stricter substantive formalities. Whether the esa reforms do away fully with any procedural disadvantages that previously existed can only be judged in the future. From a competition law perspective, however, the principle of georeturn runs counter to the eu single market tenet of equal and reasonable competition between all member states. The greater the number of member states within the Union, the greater the entry level for potential competitors onto the specific market. This applies even more so in view of the applicability of the wto Agreement on Government Procurement to third-country participation in non-security related programmes.99 Procedural differences appear to remain, in that renegotiation of contract terms is not possible within eu procurement after an award of tender. esa involvement in operating the Galileo procurement ╇See http://www.esa.int/esaMI/industry_how_to_do_business/SEMPRN6H07F_0 .html#subhead1. 97 ╇ There have been attempts in recent years to challenge esa decisions from a due process perspective. 98 ╇ See Art. IV, Annex I, esa Convention. 99 ╇ For details of the Agreement on Government Procurement (Marrakesh, done 15 April 1994, entered into force 1 January 1996; 1915 UNTS 103; UKTS 1996 No. 53), see http://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm. The Agreement is administered by a Committee on Government Procurement and applies to those contracting states which are parties to it. 96

352â•…â•…L.J. Smith automatically exposed the tender to the standards for European Union procurement procedures.100 The lack of a judicial, as opposed to administrative, review procedure that is open to commercial parties marks the greatest difference between the two institutional procedures.101 Judicial review remains assured within the European Union, all the more so as a result of implementation of the public procurement sector-specific remedies Directives.102

6.╇Procurement for gnss Galileo: A Particular Case 6.1.╇ General: Cooperation between European Union and esa The decision to locate Galileo squarely within the competence of the eu was taken at the end of 2007 after failure of the initial ppp model.103 By placing ownership of Galileo with the European Union, procurement for the space segment automatically falls within the ambit of European Union law and its financial provisions relating to public procurement.104 The basis for the European Union’s procurement rules is to be found within Council Regulation 1605/22 relating to the Union’s ╇ This secures a minimum adherence to the basic principles of due process audi alterem partem that allows parties affected to be heard by the dispute settlement panel. 101 ╇ Member states can resort to the esa arbitration rules in accordance with the esa Convention in the event of institutional disputes, see Art. XVII, in conjunction with Art. XXVI, Annex I. 102 ╇Reform of the public procurement remedies Directives from the 80s through to Directive of the European Parliament and of the Council amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts, 2007/66/EC, of 11 December 2007; OJ L 335/31 (2007); now means that contracts may only be signed after an initial ‘cooling off ’ period that enables competitors to request review of procedure in the forefront of awarding the final contract; see http://ec.europa.eu/internal_market/ publicprocurement/remedies/remedies_en.htm. On the recent consolidation of thresholds for application of the procurement Directives, see Regulation 1177/2009. 103 ╇ For a short overview of the history of the ppp model, see Hobe et al., Ten Years of Cooperation between esa and European Union, 54–7; for further details, see Hobe et al., Entwicklung der Europäischen Weltraumagentur als ‘implementing agency’ der Europäischen Union, 369. 104 ╇ See Hobe et al., Entwicklung der Europäischen Weltraumagentur als ‘implementing agency’ der Europäischen Union, 138–64. 100

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budget.105 This document of principle is supplemented in greater detail by the European Union budgetary Implementing Regulation  2342/ 2002.106 This Regulation contains rules for implementing and applying the general eu budget in practice. Title V of the ImpleÂ�menting Regulation specifies the general provisions governing procurement, including the procedure and types of calls that may be made.107 The European Union’s membership of the wto Agreement on General Procurement, to which the Union is signatory, gives rise to further procurement considerations relating to Galileo that are discussed below. Through its participation in the World Trade Organisation, the Union is bound by wto procurement rules and must open its procurement to member states from those countries, unless there are considerations exempting it from such open procurement. esa had been entrusted with the role of procurement agent early in the development of Galileo,108 so that subsequent procedural and adminÂ� isÂ�trative steps could be successfully channelled through the services of esa and its technical division, estec.109 esa’s involvement was essential to ensure implementation of the European Space Policy, which effectively led to its direct administration of the entire procurement process.110 ╇ The general rules on the coordination of public procurement across the member states of the European Union are contained in Directives 2004/18 and 2004/17, both of 31 March 2004, see further supra, n. 14. These provisions are designed to open up and coordinate eu-wide projects to pan-European tenders in keeping with eu competition theory, thereby ensuring equality of opportunity to tender across all member states and with this the single market. 106 ╇ See Art. 91, Regulation 1605/2002, as amended by Regulation 1995/2006. 107 ╇See supra, n. 66. 108 ╇ See Commission Communication, Progressing Galileo: Reprofiling the European gnss Programmes; Hobe et al., Forschungsbericht esa-eu, 383. 109 ╇ The tender process was operated via the European Union’s own electronic mail invitation to tender system (EMITS) and relevant documentation was accessible via http://estext231.estec.esa.int/Galileo-FOC/. This has since been taken offline, as the tender process has been completed. The relationship between esa and the European Union has, as previously indicated, since been further consolidated through entry into force of the Treaty of Lisbon, and Article 189(3) thereof in particular. 110 ╇See Commission Communication of 26 April 2007 on European Space Policy, COM(2007) final; see further Regulation of the European Parliament and of the CounÂ�cil on the further implementation of the European satellite navigation programmes (egnos and Galileo), No. 683/2008/EC, of 9 July 2008; OJ L 196/1 (2008). 105

354â•…â•…L.J. Smith 6.2.╇ Compatibility of Galileo Procurement with wto Law The relationship of wto law to eu law is one of international trade law and the relations between international governmental organisations and member states. It is correspondingly complex and its applicability the subject of academic discussion and case law alike, notably about the directly applicability of wto law within the system of eu law.111 The interaction between eu competition law with the organisation’s own General Rules on Trade and Services (gats) became an issue for Galileo, particularly in relation to public procurement. The Council, acting on behalf of the European Community, approved the agreement on government procurement by Decision 94/800 that came into effect on 1 January 1996 after the 1994 Uruguay Round.112 This contains an Agreement on Government Procurement that is applicable and binding on wto signatory states. The Agreement on Government Procurement covers not only goods but services, including construction.113 As a result, the Agreement on Government Procurement is applicable to public procurement in the space sector, and notably Galileo. The international dimension of the Galileo procurement was established by virtue of the European Union’s wto membership. The specific characteristics of the space sector, its military and defence aspects, alongside threshold levels of the project, resulted in considerations being made as to the eligibility of non-eu contractors within the deployment phase for consideration within the procurement. In other words, the Agreement on Government Procurement could have exposed the European space sector to greater competition beyond the borders of its internal market to include third states.

╇See the authoritative work of P. Hilpold, Die eu im gatt/wto-System (3rd ed.) (2009). Further details of the wto Dispute Settlement Panel and decisions relating to the eu’s failure to implement wto law, see http://www.wto.org/english/tratop_e/ dispu_e/dispu_e.htm. On the significance in practice of the General Procurement Agreement, see Trepte, nos. 2.74–2.81. 112 ╇Council Decision concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986–1994), No. 94/800/EC, of 22 December 1994; OJ L 336/1 (1994). For the latest reference to Galileo procurement, see http://www. esa.int/esaNA/SEMULY6K56G_index_0.html. 113 ╇ See Trepte, no. 2.74. 111

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The Agreement on Government Procurement, however, provides for various exemptions from its open procurement provisions, notably in the case of national security interests, as defined under Article 28 of the Agreement. Given the significance of the provision of satellite services and activities relating to energy transport and telecommunications, the view that the Agreement on Government Procurement was inapplicable prevailed. For this reason, the provisions of the Agreement on Government Procurement did not come into operation in relation to the Galileo tender. 6.3.╇ Legal Basis for Galileo Procurement Procurement for Galileo exposes participants and procedure alike to the general principles and provisions of primary and secondary eu law that have developed over the years: equal treatment, non-discrimination, mutual recognition, proportionality and transparency.114 This in turn imposes high procedural and substantive standards concomitant with its status as a sui generis legal order.115 As previously indicated, the procurement principles of European Union law were applicable to the procurement by virtue of the Union’s ownership of Galileo.116 In view of the particularly complex nature of the contract involved, the procurement procedure chosen for Galileo was the competitive dialogue,117 with the European Space Agency acting as procurement agent.118 Rules prescribe what must be intimated in the notices governing the type of procedure chosen. Regulation 2151/2003 updated the Common Procurement Vocabulary introduced in 2002, enabling consistency in the content of calls and exact wording used.119 Maintenance of the ╇ See Art. 1(3), Treaty on European Union; Art. 17(1), Regulation 683/2008. ╇ See 6/64 Costa v. Enel, [1964] ECR 585; 26/62 Van Gend en Loos [1963] ECR 1. 116 ╇ See Art. 91, Regulation 1605/2002, as amended by Art. 122, Regulation 2342/2002. Each procedure has its own specific conditions as to the number of candidates admitted to compete in the procedure through formal pre-selection. See Trepte, no. 10.98; Hobe et al., Ten Years of Cooperation between esa and European Union. 117 ╇See the eu procurement rules contained in the Financial and Implementation Regulations, as amended rules of Art. 17(3)(b), Regulation 683/2008. 118 ╇ See Art. 18, Regulation 683/2008. 119 ╇ Commission Regulation amending Regulation (ec) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary (CPV), No. 2151/2003/EC, of 16 December 2003; OJ L 329/1 (2003). 114 115

356â•…â•…L.J. Smith procurement principles was one of the major objectives associated with the Galileo deployment phase. 6.4.╇ The Galileo Tender and Competition Law Competence for Galileo is exclusively located with the Directorate General for energy and transport (dgtren)â•›) and further information on the procurement, including updates on the call, has been available at all stages from its services.120 The original call for tender for Galileo (foc phase) was announced in a Contract Notice of the European Council, published in July 2007.121 This notice contained the descriptions of the required Work Packages (wps) that were subsequently detailed in Article 17(3) of the main Galileo gnss Regulation 683/2008.122 The official calls for the Galileo project were published in the supplement to the Official Journal on the public procurement website Tender Electronic Daily (ted), with the Commission’s Directorate General for Energy and Transport as the official author of the call. Criticism has been made that the legislative provisions validating the call were passed subsequent to the call itself, remaining a salutary witness to the European Union’s failure to comply with general principles of administration within the law. Against this, it has been argued that the immense difficulties and overspill of the initial ppp Galileo model may have contributed to this overload, a fact that does not, however, justify what is a failure to maintain constitutional requirements of due process.123 Article 17(1) of Regulation 683/2008 ensures the application of the Community’s public procurement rules to the Galileo call. As a means of avoiding dominance among successful prime contractors, the work packages were subdivided into two categories.124 Firstly, according to the ‘two out of six rule’ contained in Article 17(3)(b), the prime contractor was limited to two out of the six main work packages. Using the ╇See http://ec.europa.eu/enterprise/policies/space/galileo/index_en.htm. ╇ The call was published in a supplement to the Official Journal, OJ S 125 of 1 July 2008, see IP/08/1068 of 6 July 2008, http://europa.eu/rapid/pressReleasesAction.do? reference=IP/08/1068&type=HTML&aged=0&language=EN&guiLanguage=en. 122 ╇ See Regulation 683/2008. 123 ╇ See Hobe et al., Ten Years of Cooperation between esa and European Union. 124 ╇ See Smith & Hörl. 120 121

EU competition law and authorisation of private space activitiesâ•…â•…357

mechanism known as the 40% rule, Article 17(3)(c) ensured that at least 40% of the aggregate value of work was to be subcontracted to companies other than the primes. This way a reasonable distribution of economic interests could be ensured between market players, whilst ensuring allocation to smaller companies. The particular security considerations connected with Galileo dictated the conditions of participation in the Galileo tender: candidates had to be admitted or established in one of the member states of the European Union. Some exceptions were allowed that enabled the inclusion of third-country subcontractors. In relation to non-security areas, subcontractors could be included in the calls in terms of the Agreement on Government Procurement, insofar as goods are to be delivered. Services, however, remain restricted to companies established in the European Union or the European Economic Area (eea),125 so that only companies operating within the European Union’s borders were eligible to join the procurement.

7.╇ Conclusion / Outlook The foregoing review has demonstrated the diverse drivers and philosophies behind the procurement systems within the European Union and the European Space Agency. The European Union has an advanced system of competition law, geared to maintaining established principles of eu law that uphold equal treatment, non-discrimination, proportionality and transparency for those seeking access to relevant markets. In the new eu space sector, the ultimate objective of competition law is to support implementation of the European Space Policy in the aftermath of the Treaty of Lisbon. Galileo, as its major flag bearer, has enabled a complex procurement process to be carried out at a highly professional level. The esa procurement scheme is, in contrast, geared to maintaining and serving predominantly industrial needs of member states’ national markets. The result is that there is currently only a limited exposure of esa market players to ex ante or ex post procedural review procedures as between competitors. This is the essential difference between the

╇ Agreement on the European Economic Area, Oporto, done 2 May 1992, entered into force 1 January 1994; OJ L 1/3 (1994).

125

358â•…â•…L.J. Smith procurement systems at European Union and at esa level. Both systems ensure open competition, but only the European Union procurement procedure ensures full competitivity on the market. The distinction between competition and competitivity is important when assessing whether procurement systems support market openings only, or go further by facilitating economically viable or reasonable competition between incumbents. The lack of judicial – as opposed to administrative – review within the esa procurement procedure means that it does not – and, as an international organisation, need not – conform to the European Union’s standards of justiciability towards natural and legal persons. This situation will require further assessment after implementation of the reformed esa procurement rules. While the esa Procurement RegulaÂ� tion has responded to criticisms against its procurement procedure by introducing greater transparency, it does not offer those enforceable remedies that are associated with legal process. Despite these differences, both the European Union and the European Space Agency facilitate and support their respective space markets, albeit by using differing mechanisms to serve these ends. European competition law currently applies to the European Union’s space activities in the area of environment, energy and transport, egnos, Galileo and soon gmes. Competition within the European Space Agency remains an issue of procurement, and competition law is marginalised. Continued development of space activities and programmes within the European Union could well lead to greater impact of competition law on the legal order of member states and with this, both the European Union and the European Space Agency at centralised level. Until such time, however, as the long-term relations between these organisations are finally re-addressed, the full impact of European competition law is unlikely to be put to the test in the space sector.

Index absolute liability╇ 80, 88, 90–92, 97–98, 111, 123, 126, 165, 167 abuse of a dominant position╇ 337 access (to outer space)╇ 73–123, 282 accident╇ 47, 75, 89, 109–112, 125, 127, 131, 132, 143, 153, 158, 160, 163, 171, 172, 290 accountability╇20 acquis╇ 270, 271, 277, 278 activities in outer space╇ 4, 6–9, 14, 17, 18, 29, 31, 35, 47, 48, 51, 57, 75, 76, 166–167, 189–223, 225, 228, 240, 279, 282, 284, 286, 288, 297, 308, 312–313 additional insured╇ 168, 173 Administrative Edict (Brazil)╇ xx, 254, 255 AEB. see Brazilian Space Agency AECA. see Arms Export Control Act AEMG. see Autorisation d’Exportation de Matériels de Guerre Ago, Roberto╇ 76 Agreement for the Implementation of the Provisions of the United Nations Con­ vention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks╇ xiv, 106–107 Agreement on Government Procurement╇ xiv, 351, 354, 355, 357 Agreement on Telecommunications Services╇ xiv, 135 Agreement Relating to the International Telecommunications Satellite Organization (INTELSAT)╇ xii, 154 AIG. see American International Group aircraft╇ xviii, 33–34, 58–61, 85, 93, 94, 96–99, 126, 165, 200, 227, 231, 243,

264–269, 271–277, 279, 280, 284, 288–290, 292 air law╇ 88, 96, 97, 264–279, 288, 289, 291–294 airport╇ 85, 277–279 airspace╇ 85, 264, 266, 268–270, 278–282, 284, 285, 289 airworthiness╇ xviii, 268, 271–275, 278, 279, 289, 291–293, 295 AL. see German Export List Alcantara╇254 Alcatel╇332 Allianz╇169 America╇ xv, xxii–xxiii, 33, 40–42, 72, 77, 83, 110, 345 American International Group (AIG)╇ 175 Amlin╇169 analyzed information╇ 99 Annex 7 to the Chicago Convention╇ 268 anomaly╇ 146, 163 Ansari╇281 Antarctica╇ 85, 107–109 Antarctic Treaty╇ xi, 99, 107–108 Anti-Satellite (ASAT) weapons╇ 180, 185 apartheid╇ 249 application╇ xvi, xvii, xix–xxi, 9, 11, 16, 18, 20, 31, 34, 40, 46–47, 54–57, 60, 64–66, 81, 83, 85–87, 93, 97, 99, 104–105, 114, 115, 118, 120, 122, 155, 161, 179, 186, 195, 204, 212, 228, 233, 282, 306, 311–313, 320–322, 336–338, 340–347, 356 appropriate state╇ 7, 10, 17–18, 31, 47–49, 75, 76, 86, 89–90, 99, 101, 111, 120, 121, 126, 286, 308, 313 Arangio-Ruiz, Gaetano╇ 76, 77

360â•…â•…Index arbitral awards╇ 16 arbitration╇ xxviii, 77, 172, 352 Argentina╇192 Ariane╇ xiii, 151–154, 234–235, 239, 259, 309, 330–331 Arianespace╇ 120, 151–154, 158, 234–236, 239 Arianespace Convention╇ xiv, 152, 235 Arianespace Declaration╇ xiii, 151–153, 235 armed forces╇ 214, 244 Arms Export Control Act (AECA)╇ xxii, 202, 205 Article III (Outer Space Treaty)╇ 8, 10, 101, 110–111, 165, 235 Article IX (Outer Space Treaty)╇ 12, 18 Article V (Outer Space Treaty)╇ 8, 47, 61 Article VI (Outer Space Treaty)╇ 3–28, 31–33, 37, 47, 48, 51, 57, 61, 65, 66, 73–123, 155, 156, 232–233, 279, 283, 286, 288, 293, 297, 307–310, 312–313, 322, 329–331 Article VII (Outer Space Treaty)╇ 13, 19–23, 80, 85, 88–114, 117, 120–122, 125–126, 133, 155, 164, 232–233, 291, 307, 308, 310, 330 Article VIII (Outer Space Treaty)╇ 8, 16, 19, 24–25, 27, 47, 88–114, 232–233, 235, 251, 307, 309, 310 Aruba╇ 38, 59 ASAT. see Anti-Satellite (ASAT) weapons Asia╇83 Assistant Secretary of State for PoliticalMilitary Affairs (United States)╇ 205 Astrium╇ xxv, 153, 218, 263, 332 astronaut╇ xii, 30, 47, 82, 95, 97, 102, 182, 227, 263 atmosphere╇ 96, 159, 264, 265, 268, 269 attribution╇ 6, 9, 12–14, 17, 19, 20, 77–79, 84, 99, 110–111, 219, 309, 323 audi alterem partem╇ 352 Australia╇ xx, 32, 40, 45–46, 49, 53, 56, 60, 63, 64, 66, 68, 97, 148–150, 192, 205, 226, 241, 252–254, 281

Australian Space Activities Act╇ 45–46, 49, 53, 56, 60, 66–68, 93, 97, 190, 252–254, 281, 291 Austria╇ xxvi, xxviii, 10, 192 Autorisation d’Exportation de Matériels de Guerre (AEMG) (France)╇ 212 AWG. see Foreign Trade and Payments Act AWV. see Foreign Trade and Payments Regulation BAFA. see Federal Office of Economics and Export Control Baikonur╇110 ballistic missile╇ 193–194, 202–203 balloon╇94 bank╇ 23, 345, 349, 350 Barcelona Traction Case╇ 15 Barreira do Inferno╇ 254 barrier(s) to trade╇ 317, 318 Basic Plan on Space Development Promotion (South Korea)╇ 256 Beatnik satellite╇ 95 Belgian Space Law╇ xxviii, 36, 37, 49, 52, 55, 59–61, 65–68, 100, 114, 118–120, 133, 166, 167, 230, 231, 238, 285 Belgium╇ xx, xxviii, 10, 15, 32, 36–38, 49, 56, 59–61, 63–69, 73–123, 129, 133, 153, 165, 167, 192, 226, 230–232, 238, 283, 285, 330 benefit╇ xxix, 5, 7, 61, 75, 86–89, 93, 97, 102, 113, 122, 161, 173, 174, 182, 184, 186, 214, 245–246, 254, 259, 262, 334, 337 BER. see Block Exemption Regulation; Body of European Regulators BERR. see Department for Business, Enterprise and Regulatory Reform best practice╇ 96, 183, 185, 187, 315, 318, 349, 350 bilateral agreement╇ 217, 219 biological weapon╇ 193–194, 199 BIS. see Bureau of Industry and Security; Department for Business, Innovation and Skills blacklist╇ 191, 196, 197, 199

Indexâ•…â•…361 Block Exemption Regulation (BER)╇ 336, 343–345 Blue Planet╇ 337 BNSC. see British National Space Centre bodily injury╇ 163 Body of European Regulators (BER)╇ 333 Boeing 747╇ 98 Bonaire╇38 Borrás, S.╇ 315, 316, 329 Brachet, Gérard╇ 109 Brazil╇ xx, 226, 241, 254–255 Brazilian Launch Regulation╇ 254, 255 Brazilian Space Agency (AEB)╇ 254–255 break-up╇70 British National Space Centre (BNSC)╇ 35–36, 49, 64, 65, 328 broker╇ 203–205, 207, 208, 225, 261, 334 Brussels╇ xi, xv, 260, 298, 303–305, 315, 323, 330, 350 budget(ary)╇ xviii, xxvi, 88, 324–325, 327–328, 340, 344, 346, 348, 352–353 Bulgaria╇ 192, 317 Bundesrat (Germany)╇ 218 Bundestag (Germany)╇ 218, 223 Bureau of Industry and Security (BIS) (United States)╇ 197–199, 202 Canada╇ xv, xx, 109, 192, 194, 214, 217, 220, 226, 328, 345 Canadian Remote Sensing Space Systems Act╇ xx, 217 Canadian Remote Sensing Space Systems Regulations╇ xx, 217 Canadian Space Agency (CSA)╇ 217 cap/ceiling (on liability)╇ 4, 113, 117, 131, 133, 138, 143–146, 150, 159–161, 168, 239–241, 310 cartel╇ 335–336, 338–339, 341 case law╇ 74, 337, 343, 350, 354 causal link╇ 111 CCL. see Commerce Control List celestial bodies╇ xi, xiii, 5, 7–8, 10, 16, 18–19, 24, 25, 30, 31, 74, 75, 118, 125, 155, 164–166, 182, 227, 248, 251, 265, 279–280, 297, 307–309, 330

CEN. see European Committee for Standardization CENELEC. see European Committee for Electrotechnical Standardization Centre National d’Études Spatiales (CNES) (France)╇ 49, 109, 151, 153, 157, 158, 234, 237–238 Centre Spatial Guyanais (CSG)╇ xiv, 152, 153, 235 certification╇ xviii, xxvi, 67, 148–150, 204, 252–254, 272–276, 278, 292, 293, 295 CFSP. see Common Foreign and Security Policy CGEA. see Community General Export Authorisation chain of collisions╇ 112 Charter of the United Nations (UN Charter)╇ xi, 5, 61 Chartis╇169 Chaumont, Charles╇ 88, 122 chemical weapon╇ xiv, 192, 194, 199, 200 Chemical Weapons Convention╇ xiv, 199, 200 Chicago Convention╇ xi, 96, 268, 269, 290 China╇ 70, 180, 181, 185, 192–193, 202–203, 255 CIEEMG. see Commission Interministérielle pour l’Etude des Exportations de Matériels de Guerre Citizen(ship)╇ xxxii, 37, 58, 69, 73–123, 131–132, 160, 227, 229, 230, 284, 289 civil law╇ xxvi, 68, 111, 310 civil penalty╇ 67, 202, 242, 246, 253 CJEU. see Court of Justice claim╇ xxvi, xxxii, 5, 14, 16, 20, 25–27, 76, 80, 81, 85, 107, 123, 127–132, 134, 143–146, 152–153, 156, 157, 166–169, 172–174, 176, 177, 221, 241, 279, 289, 291, 343 Claims Commission╇ 129 CNES. see Centre National d’Études Spatiales COCOM. see Coordinating Committee for Multilateral Strategic Export Controls code of conduct╇ xxviii, 113, 180, 183, 207

362â•…â•…Index Code of Federal Regulations (United States)╇ 146, 197 codification╇ 77, 143 Cold War╇ 4, 83, 102, 192–193, 228–229 collision╇ 70, 109–114, 121, 128, 156–157, 163, 171, 176, 180, 181, 184, 186–188 Commerce Control List (CCL) (United States)╇ xxii–xxiii, 198–199, 202, 206 commercialisation╇ 3, 11, 12, 29, 30, 35, 53, 81, 151–152, 215, 247, 283 Commission Interministérielle pour l’Etude des Exportations de Matériels de Guerre (CIEEMG) (France)╇ 211–212 Committee on the Peaceful Uses of Outer Space (COPUOS/UNCOPUOS) xxviii, xxix, 4, 35, 39–41, 45, 46, 50, 54, 70, 109, 114, 182, 266, 267, 280, 281, 297, 311, 320, 329–330 Common commercial policy (European Union)╇208 Common Foreign and Security Policy (CFSP) (European Union) 259–261, 299 common interest of all mankind╇ 5 common law╇ 111, 117 common market╇ xix–xx, 137–139, 343 Common Military List of the European Union╇ 207, 210 Common Procurement Vocabulary (CPV) (European Union)╇ xviii, 355 Commonwealth╇254 Communications Satellite Act╇ xxii, 4 Communism/communist╇ 3, 6, 132, 247, 248, 255–256 community dimension╇ 342 Community General Export Authorisation (CGEA) (European Union)╇ 209, 261 compass╇181 compensation╇ 20, 76, 81, 101–103, 125–128, 130–134, 137–138, 141, 143–145, 149, 153, 168, 321 competence creep╇ 329, 334 competition (law/regime)╇ 134–141, 226, 323–358 competitive tender╇ 338, 348

component part╇ 19, 128, 165 computer╇ 83, 200 Comsat (Corporation)╇ 4, 342 conferral╇ 301, 324 conflict of interests╇ 158 conflict of laws╇ 15 Congress (United States)╇ xxii, xxiii, 145, 179, 197, 202, 204, 216, 241, 243–245, 267 Conseil d’Etat (France)╇ 155, 161, 219 contractor╇ 171, 326, 334, 344, 347–351, 354, 356 Control Act (United Kingdom)╇ 212 controlled good╇ 191, 194, 212–213 conventional arms╇ xiv, 192, 261 Convention Establishing the European Telecommunications Satellite Organization (EUTELSAT)╇ xiii, 154–155 Convention for the Establishment of a European Organization for the Exploitation of Meteorological Satellites (EUMETSAT)╇ xiii, 314 Convention on the International Maritime Satellite Organization (INMARSAT)╇ xii, 154 Coordinating Committee for Multilateral Strategic Export Controls (COCOM)╇ 192–193 COPUOS. see Committee on the Peaceful Uses of Outer Space corpus juris╇ 87 cosmonaut╇ 94–95, 132 Cosmos╇109–114 Council (of the European Union)╇ xvii, xviii, xix, 109, 207, 214, 269–270, 276, 298, 301, 304, 315, 324, 331, 333, 337, 352–353 Country Chart (United States)╇ 199 Court of Justice (of the European Union) (CJEU)╇ 135–136, 331, 342–343 Cox Report╇ 203 CPV. see Common Procurement Vocabulary crew╇ 95, 102, 271, 278, 292, 293

Indexâ•…â•…363 Criminal jurisdiction (criminal law)╇ 15, 87 criminal law. see criminal jurisdiction Croatia╇192 cross-waiver (of liability)╇ 161, 174 cruise missile╇ 194 CSA. see Canadian Space Agency CSG. see Centre Spatial Guyanais CSG Agreement╇ xiv, 152, 153, 235 Cuba╇195 Curaçao╇38 customary international law╇ 8, 18, 48, 105, 331 customary norms╇ xxxii Czech Republic╇ 192, 323 DA. see Distribution Agreement damage(s)╇ xii, 13, 19–22, 30, 38, 48, 76, 80–82, 85–91, 101–104, 108, 110–113, 116–117, 120–123, 125–134, 140–141, 143–147, 149, 150, 152, 153, 159–161, 163–166, 168, 170–173, 176, 177, 182, 227, 288, 291, 307, 310, 314, 321, 331, 332, 342–343 database╇ xxi–xxii, 33–35, 41–42, 44–46, 184, 185, 215–216 DDTC. see Directorate of Defense Trade Controls debris╇ xxix, 31, 63, 64, 70, 109–113, 121, 128, 156–157, 160, 169, 173, 174, 179–188, 320 Decision 94/800╇ xvii, 354 Decision 626/2008╇ xix, 140 Decision 710/97╇ xvii, 139 decommissioned (spacecraft)╇ 109, 114 Decree 2009-643 (France)╇ xx–xxi, 155, 156, 158 deep seabed╇ 105, 106 Defence Export Services Organisation (DESO) (United Kingdom)╇ 213 deliberate fault╇ 159, 160 delimitation (of outer space)╇ 266–267, 280 delivery system╇ 193–194 Delta╇144 de minimis rule╇ 198, 199, 201

Denmark╇ xxvii, 192 de-orbiting (manoeuvre)╇ 159, 171 Department for Business, Enterprise and Regulatory Reform (BERR) (United Kingdom)╇213 Department for Business, Innovation and Skills (BIS) (United Kingdom)╇ 213 Department of Commerce (United States)╇ 196, 216, 245 Department of Defence (Australia)╇ 253–254 Department of State (United States)╇ 196, 202, 203, 206 Department of the Treasury (United States)╇206 Department of Trade and Industry (South Africa)╇ 50 Department of Transportation (United States)╇41 derelict object╇ 165 design features╇ 187, 273 DESO. see Defence Export Services Organisation DGTREN. see Directorate General for Energy and Transport Digital Globe╇ 216 diplomatic immunity╇ 15 Directive 88/301╇ xvi, xvii, 139 Directive 90/388╇ xvii, 139 Directive 94/46╇ xvii, 139 Directive 97/13╇ xvii, 140 Directive 98/34╇ xvii, 317–318 Directive 2009/43╇ xix, 207, 209–210, 334 Directive 2009/81╇ xix, 327, 333, 344 Directive Establishing an Infrastructure for Spatial Information in the European Community (INSPIRE)╇ 299–300 Directorate General for Energy and Transport (DGTREN) (European Union)╇356 Directorate of Defense Trade Controls (DDTC) (United States)╇ 202, 204 direct television broadcasting╇ xvi, 11, 87, 182, 280 disposal╇ 70, 181, 187, 230, 249

364â•…â•…Index dissemination╇ 33, 100, 215, 246–247 Distribution Agreement (DA) (United States)╇204 DLR. see German Space Agency dual registration╇ 290 dual-use (technology/items)╇ xiv, xvii, xix, 189, 191–193, 195–197, 207–209, 212–214, 225, 260, 261, 334 Dual-Use Regulation. see Regulation 428/2009 due care (responsibility)╇ 9, 81 due diligence (responsibility)╇ 9, 81 due process╇ 69, 349–352, 356 Dutch Licensing Order╇ 233 Dutch Space Law╇ 37, 38, 50, 52, 55, 60, 61, 64–67, 133, 166–168, 231, 232, 238, 286 EAA. see Export Administration Act EADS Astrium╇ 153, 263 EAR. see Export Administration Regulations earth observation╇ 29, 55, 100, 185, 237, 260, 332, 335, 338–340 earth orbit╇ 62, 113, 144, 180, 181, 265–266, 283, 290 EASA. see European Aviation Safety Agency Eastern bloc╇ 192–193 EC. see European Community ECCN. see Export Control Classification Numbers ECO. see Export Control Organisation economic law╇ xxviii, 307, 313 ECSL. see European Centre for Space Law ECSS. see European Cooperation for Space Standardisation EC Treaty╇ xiii–xv, 137, 287, 299, 303, 341 EEA. see European Economic Area EEA Agreement╇ xiii–xiv, 277 effective control╇ 86, 93, 119 EGNOS. see European Geo-Stationary Navigation Overlay System Electronic Communications Act (South Africa)╇52

embargo╇ 195–196, 199–201, 207, 208, 212–213 embassy╇ 78, 91–92 encryption╇ 200–201, 222 end of operational life requirement╇ 186 enforcement╇ xxvi, 15, 67, 84, 100, 107, 108, 206, 238, 242, 310, 338, 339, 341–343 enhanced cooperation (European Union)╇ 316, 317, 329 environment (law)╇ xxxii, 88 environmental impact assessment╇ 119, 156–157 environmental protection╇ 107, 179–188, 270, 272 equality╇ 5, 21, 61, 353 equal treatment╇ 349–350, 355, 357 equator╇254 equity╇ 127, 144 ERA. see European Research Area erga omnes obligation╇ 89 ERTA judgement╇ 331–332 ESA. see European Space Agency ESA Convention╇ xii, 184, 229, 235, 259, 305, 314, 325, 327–328, 340, 346, 347, 349, 351, 352 ESA Procurement Regulation╇ 348, 350, 358 ESOA. see European Satellite Operators Association ESP. see European Space Policy ESPI. see European Space Policy Institute Esrange╇229 ESTEC╇ xxvii, 353 Estonia╇192 ETSI. see European Telecommunications Standards Institute EU. see European Union EUMETSAT. see European Organization for the Exploitation of Meteorological Satellites Euratom╇ xvii–xviii, 299, 324–325, 344 European Aviation Safety Agency (EASA)╇ xviii–xix, xxvi, 271–274, 276, 277, 293

Indexâ•…â•…365 European Centre for Space Law (ECSL)╇ xxv–xxix, 1–2, 23, 53, 297, 329 European Coal and Steel Community╇ 299 European Commission (European Union)╇ 117, 210, 319, 324, 331–332, 341–343, 346 European Committee for Electrotechnical Standardization (CENELEC)╇ 318–320 European Committee for Standardization (CEN)╇318–320 European Communities╇ xiv–xv, xviii, 298, 299, 324–325, 336, 337, 344 European Community (EC)╇ xv–xx, 32–33, 116, 134, 135, 137, 139, 207, 260–261, 270, 287, 297, 299–301, 303, 305, 323–324, 331–332, 354 European Cooperation for Space Standardisation (ECSS)╇ 317, 319, 320 European Council (European Union)╇ 214, 301, 315 European Defence Community╇ 239 European Economic Area (EEA)╇ xiii–xiv, 239–240, 277, 357 European Geo-Stationary Navigation Overlay System (EGNOS)╇ xix, 259, 350, 353, 358 European Intellectual Property Right╇ 321 European Organization for the Exploitation of Meteorological Satellites (EUMETSAT)╇ xiii, xxvii, 314 European Parliament (European Union)╇ 270, 277, 287–288, 301, 326, 333, 334 European Research Area (ERA) (European Union)╇ 30, 303–304 European Satellite Operators Association (ESOA)╇333 European Space Agency (ESA)╇ xii–xv, xxvi–xxviii, 2, 24–25, 28, 32–40, 70, 109, 117, 120, 151–153, 173, 184, 205, 226–227, 229, 234–237, 239, 240, 258–260, 262, 297, 302–303, 305–306, 308–309, 314, 316–317, 320, 323–329, 331, 332, 334, 335, 340, 345–358 European Space Council╇ 304 European Space Policy (ESP)╇ xxviii, 3, 22, 117, 136, 248, 249, 287, 302,

304–305, 315, 319, 324–328, 341, 353, 357 European Space Policy Institute (ESPI)╇ 32, 50, 314–315, 328 European Space Programme╇ 117, 287–288, 302, 304–306 European Telecommunications Satellite Organization (EUTELSAT)╇ xiii, 154–155 European Telecommunications Standards Institute (ETSI)╇ 318–320 European Union (EU)╇ xiii–xx, xxviii, xxxi, 28, 32–33, 116–118, 135–138, 159, 195, 205, 207, 210, 214, 226, 229, 237, 239–240, 258–262, 267–271, 277–279, 287–288, 293, 295, 297–306, 308–310, 312–318, 320–338, 340–341, 343–346, 351–358 European Union Code of Conduct on Arms Exports╇ 207 Eurospace╇339 EUTEL SAT. see European Telecommunications Satellite Organization Eutelsat╇ 155, 160 evasive manoeuvre╇ 110 exclusive competence╇ 301–302 exemption╇ 130–131, 137, 138, 157, 252–254, 334, 336, 337, 340, 342–345, 355 exoneration╇ 80, 84–85, 91–92 Explanatory Memorandum (Netherlands)╇233 exploitation╇ 32, 81, 89, 99, 101, 106, 108, 114, 120–122, 164, 302, 308–309, 314, 325–326, 331, 339–340 exploration (of outer space)╇ xi–xii, xvi, 5, 7–8, 18–19, 25, 30, 40, 41, 46, 50, 74–76, 125, 164, 182, 189, 227, 255, 279, 289–290, 297, 309, 311, 330 Export Administration Act (EAA) (United States)╇ xxii–xxiii, 197 Export Administration Regulations (EAR) (United States)╇ 196–202, 206 export control(s)╇ xiv, xxv, 189–223, 225, 239–240, 260, 261, 333

366â•…â•…Index Export Control Classification Numbers (ECCN) (United States)╇ 198–199, 201 Export Control Order (United Kingdom)╇ 212–213 Export Control Organisation (ECO) (United Kingdom)╇ 213 extradition╇15 FAA. see Federal Aviation Administration facility╇ 13, 19, 21, 24, 47, 53, 56, 92, 125, 126, 148, 149, 156, 164–165, 250, 252–253 failure╇ 67–68, 119, 163, 352, 354, 356 fair return╇ 345, 347 fault (liability)╇ 104, 110–111 FBI. see Federal Bureau of Investigation FCC. see Federal Communications Commission FCO. see Foreign and Commonwealth Office Federal Aviation Administration (FAA) (United States)╇ 41, 97, 142–143, 147, 241 Federal Bureau of Investigation (FBI) (United States)╇ 206 Federal Communications Commission (FCC) (United States)╇ 41, 50, 141, 148, 243–244, 253 Federal Foreign Office (Germany)╇ 210–211 Federal Ministry of Economics and Technology (Germany)╇ 210–211 Federal Ministry of Education and Research (Germany)╇ 218 Federal Office for Science Policy (Belgium)╇ xxviii, 36, 65 Federal Office of Economics and Export Control (BAFA) (Germany)╇ 210–211 Federal Service for the Technical and Export Control (FSTEK) (Russian Federation)╇213 financial guarantee(s)╇ 40, 129, 147, 157, 168 financial responsibility╇ 143, 146, 147, 149, 150 fine(s)╇ 67, 69, 343

Finland╇192 flags of convenience╇ 70, 75, 93, 106, 262 flag state╇ 104–105, 107 flight operation╇ xx, 36, 101, 166, 285 Foreign and Commonwealth Office (FCO) (United Kingdom)╇ 213, 254, 314 foreign policy╇ 189–223, 225, 237, 240, 242, 253, 255, 341 Foreign Trade and Payments Act (AWG) (Germany)╇210 Foreign Trade and Payments Regulation (AWV) (Germany)╇ 210 forum non conveniens╇ 15 forum shopping╇ xxxi, 161 Framework Agreement╇ xv, 305, 317, 323 France╇ xiv, xx, xxvii, 10, 32, 39–40, 49, 56, 59–61, 63–66, 70, 77, 80, 95, 109, 116, 120, 134, 150–161, 165–168, 192, 194, 211–212, 214, 215, 219, 226, 234–237, 239–240, 258, 259, 270, 283, 285, 298, 330 France Telecom╇ 154 free movement╇ 135–136, 138, 303, 317, 318 free provisions of service╇ 138 French Community (of Belgium)╇ 120 French Guyana╇ 151, 159 French Law on Space Operations╇ 39, 52, 55, 60, 61, 66, 67, 155–161, 166–168, 173, 174, 234, 236, 237, 239, 240, 285 FSTEK. see Federal Service for the Technical and Export Control Fuchs Gruppe╇ 332 functional approach╇ 266, 267, 279, 288, 293–294 Galaxy 15╇ 89 Galileo╇ xix, 117, 259, 260, 299, 321–324, 326, 332, 334, 338, 340, 342, 352–358 Galileo security center╇ 259 GATS. see General Agreement on Trade in Services GATT. see General Agreement on Tariffs and Trade Gaubert, Alain╇ 350

Indexâ•…â•…367 General Agreement on Tariffs and Trade (GATT)╇ xi, xiv, 134–136, 346, 354 General Agreement on Trade in Services (GATS)╇ xiv, 134–136, 345–346, 354 General Assembly (United Nations)╇ 4, 5, 10–11, 54, 70, 115, 182, 311, 320 General Block Exemption Regulation╇ 336, 342–345 General Clauses and Conditions (European Space Agency)╇ 349 General Correspondence Case (United States)╇204 Geneva╇ xi, xiii, xiv, xxviii, 134, 135, 183–184, 314 GEO. see Geosynchronous Earth Orbit geographical distribution╇ 347 geo-return╇ 347, 351 geostationary satellite╇ 157, 160 Geosynchronous Earth Orbit (GEO)╇ 181 Geosynchronous Transfer Orbit (GTO)╇181 German Act on Satellite Data Security╇ xxi, 219, 225, 239 German Export List (AL)╇ 210 German Space Agency (DLR)╇ xxv, xxvi, xxviii, 218, 220 Germany╇ xxi, xxix, 70, 192, 194, 210, 214, 218–221, 240, 259, 338 Globalization╇ 31, 83, 122 Global Monitoring for the Environment and Security (GMES)╇ 117, 259, 260, 321, 322, 335, 340, 342, 358 Global Navigation Satellite Systems (GNSS)╇ 181, 323, 326, 331, 332, 340, 352–357 Global Positioning System (GPS)╇ 181, 259 Glonass╇181 GMES. see Global Monitoring for the Environment and Security GNSS. see Global Navigation Satellite Systems good faith╇ 48 good practice╇ 183 Google Earth╇ 215–216, 337 governance╇ xxvii, 179, 259, 260, 315, 316, 321, 329

governmental agencies╇ 6, 7, 9, 10, 31, 34, 75, 283, 286, 308, 313 GPS. see Global Positioning System grandeur╇239 graveyard orbit╇ 181 gravity╇265 Greece╇192 Green Paper on a common approach in the field of satellite communications in the European Community╇ xx, 139 Green Paper on the Development of the Common Market for Telecommunications Services and Equipment╇ xix–xx, 138–139 gross negligence╇ 80, 149, 153 ground station╇ 26, 100, 246 GTO. see Geosynchronous Transfer Orbit guidance╇ xx, 11–14, 16, 27, 36, 51, 54, 55, 64, 65, 118–120, 129–131, 133, 166, 180–181, 185, 194–195, 230, 240, 273, 285, 286, 343 guidelines╇ xiii, 31, 64, 70, 113, 121, 180, 182–183, 188, 194, 195, 255, 261, 315, 320, 343 habitual place of residence╇ 108–109 Haigneré, Jean-Pierre╇ 95 hand launch╇ 94–95 hardware╇191 harmful contamination╇ 18, 61, 248 harmonisation/harmonization╇xxxi, 28, 37, 51, 71, 114–118, 137, 139, 140, 240, 287–288, 297–298, 302–303, 305, 306, 311, 312, 314–318, 321, 322, 327–331, 333 hazardous (undertaking/activities)╇ 80, 91, 103, 104, 121, 125, 163 headquarters╇ 2, 15, 16, 39, 83, 151, 173, 254 Helms-Burton Act╇ 195 high resolution (data/satellites)╇ xxi, 214–216, 218, 219, 221, 223, 225–226, 240, 243 high seas╇ 22, 85, 105–107

368â•…â•…Index hold-harmless (provision)╇ 163, 165, 170, 174 home state╇ xxxi, 348–349 host state╇ 15 House of Representatives (United States)╇ 145 human rights╇ 208 Hungary╇192 hybrid╇ 96, 264–266, 268–269, 284, 289, 293–295 IADC. see Inter-Agency Debris Coordination Committee IADC Space Debris Mitigation Guidelines╇ 31, 70, 113, 183 ICAO. see International Civil Aviation Organisation Iceland╇277 ICJ. see International Court of Justice IGC. see Inter-Governmental Cooperation ignition╇ 146, 147, 269, 282, 284 IGO. see International intergovernmental organization ILC. see International Law Commission ILC draft articles╇ 77, 80, 103–105 impact zone╇ 169 imperium╇ 75 imprisonment╇ 67–69, 205, 228, 244–245, 253 incident╇ 78, 171, 180, 202, 232, 290 indemnification╇ 75, 81, 85, 88, 90, 108, 110, 115, 130–132, 145–148, 157–159, 167–169, 172, 174, 291 India╇ xxv, 70, 219 Indian National Remote Sensing Agency╇219 individual schedules of commitment╇ 135 Industrial Policy Committee (IPC) (European Space Agency)╇ 348, 350 information╇ xvii, 33, 36–41, 43, 44, 46, 50, 52, 53, 55, 57, 64, 66, 68–70, 87, 98–101, 113, 122, 156, 157, 180, 186, 193, 196, 199, 209, 215–217, 233, 260, 275–276, 310, 311, 317, 335, 337–338, 343, 356 Infoterra╇ 218, 220

infrastructure╇ 40, 57, 132, 260, 308, 316, 327, 328, 332 injured parties╇ 127, 128, 165 injury╇ 163, 170, 244–245 INMARSAT. see International Maritime/ Mobile Satellite Organization in-orbit (phase)╇ 13, 95, 111, 114, 158– 160, 163, 166–168, 170–171, 173 institutional integration╇ 305 insurance╇ xxvi, 93, 122, 125–161, 163– 177, 233–235, 241, 307, 310, 338 insurance cover(age)╇ 132, 146, 147, 168, 172–174 insurance market╇ 145, 157, 164, 165, 169–174 insured amount╇ 149 INTELSAT. see International Telecommunications Satellite Organization Intelsat╇89 intent to cause damage╇ 149 Inter-Aero╇175 Inter-Agency Debris Coordination Committee (IADC)╇ 70 intergovernmental╇ 113, 116, 117, 260–261, 299, 300, 303, 306, 314–316, 322, 349 Intergovernmental Agreement relating to the International Space Station╇ 345 Inter-Governmental Cooperation (IGC) (European Union)╇ 329 intergovernmental organisation╇ xvi, xxvii, 24, 77, 86, 117, 118, 123, 154, 182, 309, 311, 312, 314, 321 Inter-Hannover╇169 Inter Ministry Council (Russian Federation)╇213 Internal Compliance Program╇ 209 internal market╇ 137–140, 208, 270, 277–278, 304, 314, 327, 334, 342, 344, 352, 354 international agreement╇ 60, 83, 119, 130, 185, 191–192, 345 International Chamber of Commerce╇ 172 International Civil Aviation Organisation (ICAO)╇ xi, xv, 96, 266–269, 277, 279, 291

Indexâ•…â•…369 international cooperation╇ 4, 5, 8, 36, 61, 82, 182, 252, 300, 313 International Court of Justice (ICJ)╇ xi, 15–16, 74, 76–78, 84, 91–92 International intergovernmental organization (IGO)╇ xvi, 24–25, 182, 309, 311, 314 International Law Commission (ILC)╇ 76, 77, 80, 103–105 international legal order╇ 6, 331 International Maritime/Mobile Satellite Organization (INMARSAT)╇ xii–xiii, 154 international organisation/organization╇ 3, 6, 7, 31, 53, 75, 106, 127, 144, 193, 200, 205, 266, 300, 302–303, 308, 321, 330, 351, 358 international peace and security╇ 5, 8, 235 international responsibility╇ 6, 7, 10–12, 17, 26, 27, 31, 48, 57, 61, 62, 75–82, 84–86, 89, 90, 100, 105, 118, 297, 307, 308, 332 International Space Station (ISS)╇ xv, 2, 94–96, 345 International Standardisation Organisation (ISO)╇ 184 International Telecommunications Satellite Organization (INTELSAT)╇ xii, 154 International Telecommunication Union (ITU)╇183–184 International Traffic in Arms Regulations (ITAR) (United States)╇ 196, 199, 202–206, 225 international(ly) wrongful act╇ 9, 76–78, 80, 81, 89–90 internet╇ 39, 64–65, 68–69, 87, 95 inter-party liability╇ 153 IPC. see Industrial Policy Committee Iran╇ 78, 207 Iran-United States Claims Tribunal╇ 16 Ireland╇192 Iridium╇ 109–114, 180 Isle of Man╇ 332 ISO. see International Standardisation Organisation Israel╇246–247

ISS. see International Space Station Italy╇ 70, 153, 192, 194, 240, 259, 332 ITAR. see International Traffic in Arms Regulations ITU. see International Telecommunication Union ITU Constitution╇ 183 ITU Convention╇ 183–184 Jacobsson, Krister╇ 315, 329 jamming╇89 Japan╇ xv, 70, 192, 194, 205, 345 joint and several liability/jointly and severally liable╇ 112, 126, 164, 321 joint initiative╇ 302, 326 judicial remedies╇ 165 judicial review╇ 242, 334, 351, 354 jurisdiction and control╇ 16, 24–25, 47, 58, 59, 98–106, 108, 118, 206, 245, 309 jurisdiction or control╇ 118 juste retour╇ 347 justice╇ xi, 15–16, 74, 76–78, 84, 127, 136, 144, 206, 331–332, 342–343 Kazakhstan╇ 110, 251 Kiln╇ 169, 175 King (Belgium)╇ 36, 119 Kingdom (of the Netherlands)╇ 38, 66, 165, 226, 238, 283 Kiruna╇ 229, 263 Korean Space Development Promotion Act╇ 46, 49, 52, 56, 59, 60, 66–68, 255–257 Korean Space Liability Act╇ 46 Kourou╇ 151, 152, 158, 160 Lagrangian point╇ 180 La Reunion Aerienne╇ 175 Latvia╇ xxix, 192 launch contract╇ 26–27, 53, 140, 152 Launchers Exploitation Declaration (European Space Agency), 308–309, 331 launching authority╇ 101–103 launching state╇ xvi, 13, 15–17, 19, 20, 22, 25–27, 31, 37, 39, 47, 52–54, 85, 89–92, 98, 100–103, 110–112, 115, 120, 121,

370â•…â•…Index 126–129, 140, 141, 144, 148, 149, 152–154, 157–159, 164–166, 172, 179, 182–183, 241, 284, 308–311, 321 Launching State Resolution╇ 311 launch of a space object╇ 17–18, 23, 37, 52, 53, 91–93, 140, 142, 148, 166, 167, 252–253, 281, 285 launch phase╇ 146, 159 launch service provider╇ 26–27, 164, 170–171, 241–243 launch site╇ 55, 59, 146, 151, 164, 169, 170, 251, 254 launch trajectory╇ 143, 169, 237 launch vehicle╇ 26, 53, 56, 59, 94, 126, 143, 144, 146, 147, 151, 163–64, 170, 171, 173, 176, 194, 227, 235, 239, 251, 256 Law on entrepreneurial activities (Ukraine)╇66 Law on licensing on certain types of commercial activities (Ukraine)╇ 66 Law on Space Activity of Ukraine╇ 44, 50, 53, 56, 57, 59, 60, 62, 67, 68, 251, 252 legal disputes╇ 74, 153, 266 legal personality╇ 6, 299 Legal Subcommittee (LSC) (COPUOS)╇ xxviii, 36, 38, 39, 42, 54, 266–267, 280, 281, 297, 311, 329 legal uncertainty╇ 28, 74, 93, 239 LEO. see low earth orbit level playing field╇ 135, 138, 179, 207 Liability Convention╇ xii, xxxii, 13, 19–24, 26–28, 30, 33, 47, 53, 80, 89, 90, 94, 98, 101–102, 110–113, 117, 118, 121–122, 125–131, 133, 134, 137–138, 140–145, 148, 149, 152–155, 158–160, 164–166, 172–173, 182, 227, 232–233, 241, 291, 307, 308, 310, 312, 314, 321, 331–332 liberalisation╇ 136, 138, 139 licensing state╇ 91, 92, 122–123, 136, 140–141, 171 Liechtenstein╇277 limited liability╇ 15–16, 117, 123 Lisbon╇ xv–xvi, xxxi, 32–33, 116, 135, 137, 260–262, 270, 287, 297–300,

315–317, 323–326, 329, 342, 353, 357 Lisbon Strategy╇ 303 Lithuania╇192 Lloyd’s╇172 London╇ xi–xiii, 7, 13, 30, 74, 80, 82, 125, 126, 154, 164, 182, 227, 279, 291, 297, 307, 330, 331 Lotus╇ 84 Low Earth Orbit (LEO)╇ 163, 181, 183–187, 265 LSC. see Legal Subcommittee Luxembourg╇192 Maastricht╇ 260, 341 Madrid Protocol╇ 107–109 Magna Charta╇ 8 Major defense equipment (MDE)╇ 204 malfunction(ing)╇128 Malta╇192 manufacture/manufacturer/ manufacturing╇ 20, 21, 170, 173, 180, 181, 186, 187, 194, 201, 204, 251, 275, 278, 336, 339 Manufacturing License Agreement (MLA) (United States)╇ 204 marine platform╇ 85, 106 maritime law╇ 75 Marrakesh╇ xiv, 134, 135, 346, 351 Mars╇180 maximum probable loss╇ 142, 143, 147, 150 MCTL. see Military Critical Technology List MDE. see Major defense equipment Medium Earth Orbit (MEO)╇ 180–181 MEO. see Medium Earth Orbit microgravity╇95 military╇ 4, 43, 70, 77, 100, 109, 123, 177, 183, 187, 189, 191–193, 195, 196, 203–205, 207, 208, 210, 213, 214, 229, 238, 239, 247–249, 251, 252, 254, 257–260, 262, 333, 334, 337, 354 Military Critical Technology List (MCTL) (United States)╇ 203

Indexâ•…â•…371 mineral resources╇ 108 Minister for Federal Scientific Policy (Belgium)╇49 Minister for Innovation, Industry, Science and Research (Australia)╇ 49 Minister of Finance (France)╇ 157 Minister of Research (France)╇ 156 Minister of Trade and Industry (South Africa)╇34 Ministry of Defence (France)╇ 211, 212, 237, 239 Ministry of Defence (Netherlands), 233, 238 Ministry of Defence (Russian Federation)╇213 Ministry of Defence (South Africa)╇ 258 Ministry of Defence (Sweden)╇ 228 Ministry of Defence (Ukraine)╇ 252 Ministry of Defence (United Kingdom)╇ 238 Ministry of Economic Affairs (Netherlands)╇ 50, 233 Ministry of Industry, Employment and Communications (Sweden)╇ 34 Ministry of National Defense (South Korea)╇257 Ministry of Science and Technology (South Korea)╇ 49 Ministry of Telecommunications (Russian Federation)╇ 43 Ministry of Trade and Industry (Norway)╇33–34 Mir╇95 missile╇ 192–195, 199, 201–203, 227, 255 Missile Technology Control Regime (MTCR)╇ 192–195, 202 mitigation╇ 31, 64, 70, 113, 121, 156, 180–183, 186, 187, 320 MLA. see Manufacturing License Agreement Modernisation Regulation╇ 337 Molniya╇181 monopoly/monopolies╇ 4, 338, 339 Montego Bay╇ 105 Montreal Convention╇ 291

moon╇ 7, 18, 19, 25, 30, 31, 73–75, 89, 125, 155, 164–166, 180, 182, 227, 248, 251, 279, 297, 308, 309, 330 Moon Agreement╇ 10, 11, 14, 61, 118, 280 Moscow╇ 7, 13, 30, 74, 80, 82, 125, 126, 164, 182, 227, 279, 291, 297, 307, 330, 331 MTCR. see Missile Technology Control Regime mutual recognition╇ 295, 313, 355 nanosatellite╇95 narcotics╇206 NASA. see National Aeronautics and Space Administration national activities (in outer space/on the moon)╇ 6, 7, 9–17, 19, 20, 27, 31, 48, 54, 57, 61, 75, 86, 156, 279, 286, 297, 308, 313 National Aeronautics and Space Act (United States)╇ 41 National Aeronautics and Space Administration (NASA) (United States)╇41 National Board for Space Activities. see Swedish National Space Board National Board for Space Activities. see Swedish National Space Board national emergency╇ 206, 243, 244 national export control(s)╇ 191, 193, 194, 197, 214 National Intelligence Service (South Korea)╇256 nationality╇ 12, 14, 15, 22–25, 48, 57–61, 82–87, 106–108, 116, 119, 136, 205, 268 National Oceanographic and Atmospheric Administration (NOAA) (United States)╇ 142, 148, 216, 245 national register╇ 34, 61 national security╇ 189–223, 225–262, 286, 334, 341, 344, 355 national space agency╇ 50 National Space Agency of Ukraine. see Ukrainian National Space Agency

372â•…â•…Index National Space Committee (South Korea)╇ 46, 256, 257 National Space Council (United Kingdom)╇65 national space policy╇ 305, 307 national space programme╇ 305, 324, 346, 347, 349 NATO. see North Atlantic Treaty Organization navigation╇ 55, 179, 181, 230, 243, 250, 266, 270, 277, 299, 324, 326, 331, 332, 338, 343, 353 NBSA. see Swedish National Space Board Netherlands╇ 10, 23, 32, 37, 38, 50, 52, 55, 56, 59–61, 63–67, 133, 165, 166, 168, 190, 192, 226, 231–234, 238, 239, 283, 286, 298 Netherlands Antilles╇ 38 New Skies Satellites╇ 234 New York╇ 10, 16, 30, 94, 107, 118, 158, 182, 233, 279, 280, 307, 330 New Zealand╇ 77, 192, 205 Nguyen Quoc Dinh╇ 78, 104 NOAA. see National Oceanographic and Atmospheric Administration no exchange of funds╇ 345 non-appropriation╇61 non-disclosure agreement╇ 205 non-discrimination╇ 61, 355, 357 non-governmental entities╇ 6, 7, 9–11, 14, 20, 31, 35, 39, 41, 45, 54, 58, 61, 65, 68, 69, 75, 78, 79, 82, 91, 283, 286, 308, 310–313 non-interference╇61 North Atlantic Treaty Organization (NATO)╇ 205, 228 North Korea╇ 255 Norway╇ 32–34, 50, 51, 56, 59–63, 66, 192, 226–228, 237, 277, 283, 284 Norwegian Act on Launching╇ 33, 51, 56, 59–61, 66, 227, 237, 284 notification╇ 102, 104, 110, 119, 158, 212, 242, 246, 301, 305, 314, 331, 343, 351 NSAU. see Ukrainian National Space Agency

nuclear power source╇ xvi, 102–103, 119, 182 nuclear risk╇ 157 nuclear war head╇ 194 nuclear weapon╇ 62, 192, 279 OAS. see Organisation of American States object and purpose╇ 8, 48, 57, 65 OFAC. see Office of Foreign Asset Control Office for Outer Space Affairs (OOSA) (United Nations)╇ 10, 33–35, 44–46 Office of Commercial Space Transportation (United States)╇ 41, 241 Office of Foreign Asset Control (OFAC) (United States)╇ 196, 206 Office of the Associate Administrator for Commercial Space Transportation (United States)╇ 142–143 Off-shore Procurement Agreement (OPA) (United States)╇ 204 OGEL. see Open General Export License OHB. see Orbital High-technology Bremen OIEL. see Open Individual Export License oligopoly╇339 Ombudsman╇350–351 OMC. see Open method of coordination omission╇ 77–79, 81, 138–139, 153, 229, 257 one-stop shopping╇ 295 on-orbit (phase). see in-orbit (phase) OOSA. see Office for Outer Space Affairs OPA. see Off-shore Procurement Agreement Open General Export License (OGEL) (United Kingdom)╇ 213 Open Individual Export License (OIEL) (United Kingdom)╇ 213 Open-market Reorganization for the Betterment of International Telecommunications Act (United States)╇ xxiii, 4

Indexâ•…â•…373 Open method of coordination (OMC)╇ 315–317, 322, 329, 330 Operating Agreement on the International Maritime Satellite Organization (INMARSAT)╇ xii–xiii, 154 Operating Agreement Relating to the European Telecommunications Satellite Organization (EUTELSAT)╇ xiii, 154–155 Operating Agreement Relating to the International Telecommunications Satellite Organization (INTELSAT)╇ xii, 154 Opinio juris (sive necessitatis)╇ 18, 27, 28 Oporto╇ xiv, 277, 357 optional programme╇ 151, 346 orbit(al)╇ 23, 53, 55, 70, 89, 94–95, 103, 109–114, 119–123, 144, 146–148, 155, 157, 163, 180, 181, 183, 184, 186, 187, 218, 265, 279–280, 282, 283, 290 Orbital High-technology Bremen (OHB)╇332 Orbital Utility For Telecommunication Innovation (OUFTI)╇ 120 Orbview╇216 Order on Licensing (Russian Federation)╇ 248, 249 ordinary meaning╇ 48, 54 Organisation for Security and Cooperation in Europe (OSCE)╇ 195, 209 Organisation of American States (OAS)╇195 OSCE. see Organisation for Security and Cooperation in Europe OUFTI. see Orbital Utility For Telecommunication Innovation Outer Space Treaty╇ xi, xxxii, 3–28, 30–33, 37, 47–49, 51, 57, 60–62, 65, 66, 68, 73–123, 125–126, 133, 155, 156, 164, 182, 227, 232–233, 235, 251, 279, 280, 282–286, 288, 291–293, 297, 307–310, 314, 322, 329–331

PAP. see Preliminary authorisation to proceed Paradigm UK╇ 337 parallel competence╇ 137, 301, 302, 304–306, 310 Paris╇ xi–xiii, xxv–xxvii, 1, 73, 151, 154, 155, 184, 229, 260, 297, 305, 325, 348 passenger(s)╇ xxxii, 263, 264, 270, 278, 281, 282, 289–290, 295–296 payload╇ 89, 94–95, 100, 101, 114, 120–121, 123, 146, 147, 189, 194 PCIJ. see Permanent Court of International Justice peaceful (purposes)╇ 5, 61, 62, 229, 235, 259, 280 PECS. see Plan for European Cooperating States Pegasus╇144 Permanent Court of International Justice (PCIJ)╇84 permanent export╇ 204, 212 personal hand-held satellite services╇139 personal jurisdiction╇ 14, 15, 58, 60, 84, 85, 106, 287 pilot╇ 276, 278, 292 PJCCM. see Police and Judicial Cooperation in Criminal Matters place of incorporation╇ 15, 16 planetary protection╇ 156–157 Plan for European Cooperating States (PECS)╇ 328, 332 Poland╇192 Police and Judicial Cooperation in Criminal Matters (PJCCM) (European Union)╇299 Portugal╇ 192, 270 PPP. see Public-Private Partnership Practitioners’ Forum╇ 1, 2, 297 Precise Positioning Signal (GPS)╇ 259–260 prejudice╇ 25, 76, 92, 105, 108, 302, 331 pre-launch operations╇ 163 Preliminary Approval (France), 211–212, 214

374â•…â•…Index Preliminary authorisation to proceed (PAP) (European Space Agency)╇ 349 premium (level)╇ 129, 138, 169–170 President (of the Russian Federation)╇ 50 President (of the United States)╇ 202, 206, 243–244 Presidential Directive╇ 216 press law╇ 87 primary collision╇ 112 primary data╇ 99, 236–237 primary distributor╇ 221 prime╇ 88, 102, 326, 347, 350, 356 Prime Minister (France)╇ 155, 211–212 private international law╇ 15 private spaceflight╇ 58, 96, 126, 142, 186 privatisation/privatization╇ 4, 29, 53, 69, 71, 81, 90, 121, 154–155, 243, 321 PROBA╇120 processed data╇ 99, 222 processing centre╇ 100 procurement/procure╇ xiv, xviii, 19, 21, 23, 24, 53, 54, 92, 126, 140–141, 152, 180, 204, 324–328, 333–335, 338–358 product liability╇ 170 proliferation╇ xxi, 62, 193, 194, 200, 206, 219, 225, 250, 320 propellants╇ 147, 194 property╇ 63, 64, 92, 110, 118, 126, 132, 147, 163, 169, 176, 286, 321, 345 proportionality╇ 245, 301–302, 346–347, 355, 357 propulsion╇ 94–96, 120, 194, 199, 265 Proton╇110 province of all mankind╇ xxxi, 7–8, 97 PRS. see Public-Regulated Service public affairs╇ 29, 91 public contract╇ 304, 327, 344, 352 public health╇ 63, 64, 286, 290 public interest╇ 5–7, 10, 17, 25, 86, 127, 235, 243 public international law╇ xxv, xxvi, 9–10, 14, 15, 25, 30, 58, 76, 82, 92–93, 111, 313 public order╇ 63–64, 231, 232, 238

Public-Private Partnership (PPP)╇ 344, 352, 356 public procurement╇ 327, 333–335, 344–347, 352–354, 356 Public-Regulated Service (PRS) (Galileo)╇ 259–260 public undertaking╇ 336 Qinetic╇337 quasi-national╇ 25, 27–28 quasi-territorial (jurisdiction)╇ 16, 25, 27–28, 85, 99, 107–108, 230, 287 quota╇135 Radarsat╇217 radio communications╇ 41, 50, 55, 243–245 radio frequencies╇ 43, 89 range safety procedure╇ 163, 169 ratione loci╇ 82–84, 86–87, 119 ratione personae╇ 82–84, 247–248 reasonable cost╇ 130, 143, 145 reciprocity╇ 135, 280 reconnaissance drone╇ 194 re-entry (site/vehicle)╇ 41, 59, 147, 148, 163, 171, 194–195, 241–242 re-export╇ 191, 197–201, 203, 204, 206 Reform Treaty╇ 226, 262, 297–323, 326 Regional Fisheries Management Organizations (RFOS)╇ 106–107 register╇ 25, 28, 34, 61, 98, 120, 147, 158, 204, 205, 251, 287, 309, 321 registering state╇ 25, 58, 61, 67, 92, 98–101, 103, 106, 120, 123, 158, 277, 321 Registration Convention╇ xii, xxxii, 16, 24–25, 27, 28, 30, 31, 33, 34, 47, 53, 94, 98, 101, 110, 118, 123, 158, 182, 232–233, 279, 290, 307–309, 312, 314, 321, 330 registration/registry╇ xxi, xxvi, 16, 24–27, 37, 38, 46, 47, 58, 61, 67, 83, 85, 92, 97–101, 108, 115, 118, 133, 134, 156, 158, 166, 190, 198, 233, 256, 268, 286, 290, 307, 309–313, 321, 322, 332 Regulation 216/2008╇ 271–278, 291–292

Indexâ•…â•…375 Regulation 300/2008╇ xviii–xix, 269 Regulation 428/2009 (Dual-Use Regulation)╇ xix, 207–209, 214, 225, 261, 334 Regulation 683/2008╇ xix, 259, 353, 355, 356 Regulation 1008/2008╇ xix, 278 Regulation 1177/2009╇ xix, 327, 352 Regulation 1334/2000╇ xvii, 207–208, 261 Regulation 1605/2002╇ xviii, 324–325, 344, 353, 355 Regulation 1702/2003╇ xviii, 272–275 Regulation 1995/2006╇ xviii, 324, 344, 353 Regulation 2042/2003╇ xviii, 268, 272, 275 Regulation 2151/2003╇ xviii, 355 Regulation 2342/2002╇ xviii, 325, 353, 355 Regulation 2659/2000╇ xvii, 336, 345 Regulation 3381/94╇ xvii, 207 Regulation 3922/91╇ xvii, 276, 278 reimburse/reimbursement╇26–27, 129–135, 141, 143–145, 149, 150, 152–153, 167–168, 176, 239–241 relevant market╇ 337, 341–342, 357 remote sensing (systems)╇ xvi, xx, xxii, xxvi, 11, 29, 41, 55, 141–142, 148, 153, 179, 182, 189–223, 225, 230, 234, 236, 239–241, 243, 245–247, 256, 280 reparation╇ 80, 85–86, 127, 144 Republic of Korea. see South Korea Rescue Agreement╇ xii, 30, 33, 61–62, 82, 97, 99, 102, 118, 182, 227 Research, Technological Development and Space (European Union)╇ 287, 300–304, 326 Resolution 37/92╇ xvi, 11, 14, 87, 182, 280 Resolution 41/65╇ xvi, 11, 14, 280 Resolution 47/68╇ xvi, 102, 182 Resolution 59/115╇ xvi, 54, 115, 182 Resolution 62/101╇ xvi, 115, 182 Resolution 1962(VIII)╇ 5–7 Resolution on Registration Practice╇ 115, 311 return (of a space object)╇ xii, 56, 82, 148, 155, 182, 227, 252–253 reusable╇ 95, 281 revocation╇ 253, 257

right of recourse╇ 167, 310 risk assessment╇ 104, 184, 186 rockets╇ 74, 94, 96, 98, 110, 147, 163, 169, 189, 194–195, 265, 269, 282, 284, 285, 292, 295 Romania╇ 192, 317 Rome╇ xiii–xv, 137, 298, 306, 341 Roscosmos (Russian Space Agency)╇ 43, 50, 55, 65–66, 96, 132 Royal Decree (Belgium)╇ 36 Russia. see Russian Federation Russian Federation╇ xv, xxi, 40, 42–43, 50, 52, 55–57, 60, 63–66, 131, 132, 192–193, 213, 226, 247–249, 252, 345 Russian Law on Space Activity╇ 42, 50, 52, 55, 57, 60, 247–249 Russian Licensing Law╇ 42, 52, 66 Russian Licensing Statute╇ 42, 50, 52, 55–57 Russian Space Agency. see Roscosmos Saba╇38 safety╇ xviii–xix, xxvi, 35, 45–46, 49, 62–64, 69, 70, 73, 83, 88, 113, 129, 147, 163, 169, 226, 233, 248, 251, 266, 270– 277, 286, 289–290, 295–296, 310 satellite communications╇ xvii, xx, xxii–xxiii, 4, 13, 41, 55, 135, 136, 138–141, 179, 234, 241, 243–245 satellite operator╇ 13, 26–27, 121, 140–141, 166–168, 170–171, 173, 174, 220, 243, 333, 337 science/scientific╇ 4, 5, 7, 49, 53, 56, 74–88, 94–97, 108, 120–121, 123, 132, 183, 187, 214–216, 218, 220–221, 247, 255, 267, 271–272, 302–304, 326, 337 Scientific and Technical Subcommittee (STSC) (COPUOS)╇ 70, 267 Scotland╇ xxix, 59, 186 SDN. see Specially Designated Nationals Sea Launch╇ 22 secrecy╇ 67, 215, 216 Secrétariat Général de la Défense Nationale (SGDN) (France)╇ 211–212

376â•…â•…Index Secretary General (United Nations)╇ 158, 267, 314 Secretary of Commerce. see Department of Commerce (United States) Secretary of Defense (United States)╇ 242 Secretary of State (for Innovation, University and Skills) (United Kingdom)╇ 35, 49, 129, 131, 229 Secretary of Transportation. see Department of Transportation (United States) security╇ xviii–xix, xxi, xxvi, xxviii, 5, 7–8, 63, 71, 88, 93, 115, 156, 158, 189–223, 225–262, 269, 270, 286, 299, 300, 333, 334, 339–341, 344, 355, 357 Security Council (United Nations)╇ 209 Senate Commerce, Science and Transportation Committee (United States)╇145–146 sensitive items╇ 191, 261 sensitivity check╇ 222 sensor╇ 189, 215, 218, 223 settlement╇ 99, 107, 112, 128, 129, 172, 287, 352, 354 SGDN. see Secrétariat Général de la Défense Nationale shared competence╇ 32, 33, 287, 300, 301, 303, 304, 306, 309–310 shareholders╇ 83, 93, 151, 153, 158, 181, 234 ship╇ xxxi, 59, 106, 107, 200, 243, 263 shutter control╇ 246 Siberia╇110 SIEL. see Standard Individual Export License signal defect╇ 166 Significant Military Equipment (SME)╇ 204, 332 single market╇ 325, 328–333, 351, 353 Sint Eustatius╇ 38 Sint Maarten╇ 38 SLASO. see Space Licensing and Safety Office Slovakia╇192 Slovenia╇192

Small and Medium Enterprises (SMEs)╇ 331, 332, 339 Small Business Act╇ 332 SME. see Significant Military Equipment SMEs. see Small and Medium Enterprises Société Anonyme╇ 153 soft law╇ 70, 193, 315, 316, 330 software╇ 186, 191, 194, 196–201, 203, 208, 332 sounding rocket╇ 98, 194, 265, 284–285 South Africa╇ xxi, 32, 40, 44–45, 50, 52, 56, 60, 62–64, 66–68, 190, 192, 226, 241, 249–251, 258 South African Council for Space Affairs╇ 45, 250 South African Space Affairs Act╇ 44–45, 52, 56, 250 South America╇ 151 South Korea╇ xxi–xxii, 12, 24, 40, 46, 49, 52, 56, 59, 60, 63, 64, 66–68, 192, 226, 241, 255–258 Soviet Union╇ 3–6, 9, 40, 43, 44, 75–76, 95, 228, 247, 248, 251, 255, 332 Soyuz╇ 264, 309, 331 Space Activities Amendment Act (Australia)╇45 Space Activities Regulations (Australia)╇46 Space Affairs Amendments Act (South Africa)╇ xxi, 45, 142 space craft╇ 16, 22, 95, 102, 110, 112, 114, 121, 163, 165, 166, 170, 171, 176, 177, 203, 281, 290 Space Debris Mitigation Guidelines╇ 31, 70, 182–183, 320 space-derived products╇ 99 spaceflight participant╇ 96, 97, 295 Space Imaging╇ 219 Space Licensing and Safety Office (SLASO) (Australia)╇ 49 space object╇ xii, xvi, xx, xxi, xxvi, 13, 16–21, 23–28, 30, 34–37, 41, 46, 47, 51–56, 61, 70, 74, 80–82, 90–94, 98–103, 110–111, 115, 117–123, 125–129, 133, 134, 140–142, 146, 148,

Indexâ•…â•…377 149, 152, 155, 156, 158, 159, 164–167, 179, 182, 190, 227, 230, 231, 233, 236, 248, 251–253, 256, 266, 267, 281–286, 288, 290–292, 307, 309, 311, 313, 314, 321, 331, 332 spaceport╇ 186, 241, 263, 270, 277–279 SpaceShipOne╇1 Space Shuttle╇ 95, 264, 269, 283 space situational awareness╇ 181, 299 space station╇ xv, 2, 85, 95, 96, 181, 265, 345 space tourism╇ xxix, xxxii, 1, 95–97, 142, 179, 186, 263–296 space traffic management╇ 113 spaceworthiness╇ 288, 289, 292, 293 Spain╇ xxviii, 15, 192, 240, 259 spatial approach╇ 266, 267, 279, 288, 294 spatial resolution╇ 218, 221 Special Agency for Space Development (South Korea)╇ 257 Specially Designated Nationals (SDN) (United States)╇ 206 special or exclusive rights╇ 336 spectral channel╇ 221 spectral coverage╇ 221 spin-off╇ 335, 337 SPOT╇ 74, 84, 153, 234, 239 Spot Image╇ 153–154, 234, 239 standard╇ 164, 170, 185–186, 213, 253, 317–318, 322, 334 standard exclusion╇ 172, 176–177 Standard Individual Export License (SIEL) (United Kingdom)╇ 213 state aid╇ 137–138, 336, 342, 343, 345, 346 state of registry╇ 24–27, 47, 61 state of residence╇ 179 state practice╇ 12, 18, 27, 28, 62, 141, 182, 311, 321 state responsibility╇ 6, 8–9, 11, 14, 18–19, 26, 30, 76–83, 97, 122, 126, 282, 308, 309, 313–314, 322, 329 Statute of the International Court of Justice╇ xi, 76 Strategic Command (United States)╇ 110 strategic interests╇ 63, 230–231, 238 Strela╇109–110

Strom Thurmond Act╇ xxiii, 202 STSC. see Scientific and Technical Subcommittee sub-orbital╇ 29, 95–98, 147, 263–296 subsidiarity╇ xxxii, 301, 302, 324 sui generis╇ 78, 98, 269, 331, 355 Suitsat╇95 sunset provision╇ 145, 146 Sun Synchronous Orbit╇ 184 supermarkets╇29 supranational╇ 116, 316 suspension╇ 66, 67, 131, 253, 257 Swatch╇95 Sweden╇ xxii, 32, 34, 49, 51, 54, 56, 60, 62, 63, 66, 67, 98, 130, 131, 153, 165–168, 192, 226, 228–229, 237–239, 263, 283–285, 328 Swedish Act on Space Activities╇ 34, 49, 51, 54, 60, 66, 67, 98, 167, 168, 228, 237, 284, 285, 328 Swedish Decree on Space Activities╇ 34, 228, 238, 328 Swedish National Post and Telecom Agency╇49 Swedish National Space Board╇ 34, 49, 228, 238 Switzerland╇ 192, 205, 277 TAA. see Technical Assistance Agreement take-off╇ 94, 97, 273, 277, 284 target drone╇ 194 tariffs╇ xi, 134–135 TAS. see Thales Alenia Space tax╇ xxvi–xxvii, 115, 122, 256 TEB. see Tender Evaluation Board Technical Assistance Agreement (TAA) (United States)╇ 204, 205 technical standard╇ xvii, 70, 317–318, 320, 322 technology╇ xiii, xvii–xxix, 4, 49, 53, 55–57, 69, 87, 102, 143, 189–223, 225, 239–240, 248–250, 254–257, 261, 264–265, 303–304, 317, 322, 332, 336–337, 345 technology transfer╇ 336, 345

378â•…â•…Index Tehran╇ 77, 78, 91–92 Telecommunications╇ xii–xx, xxiii, xxvii, xxviii, 4, 31, 43, 44, 52, 109–110, 135, 138–141, 148, 154–155, 160, 183–184, 228, 245, 250, 318, 321, 333, 338, 355 Telecommunications Act (United States)╇ 4–5 TEM. see Tender Evaluation Manual temporary export╇ 200, 204, 212 tender╇ 327, 338, 339, 344, 348–353, 355–357 Tender Evaluation Board (TEB) (European Space Agency)╇ 349–350 Tender Evaluation Manual (TEM) (European Space Agency)╇ 349–350 TerraSAR-X╇ 218, 220 territorial jurisdiction╇ 14, 15, 22, 24–28, 58, 83–85, 104, 107, 109, 120, 287, 313 terrorism╇ 172, 199 Thales Alenia Space (TAS)╇ 332 Théorie du risque créé╇ 103, 104 third-party liability╇ 97, 137–138, 142, 146, 148, 152–154, 163–165, 167–173, 239–240 threshold╇ xix, 110, 117, 186, 327, 348, 352, 354 through-life requirement╇ 186 time limits╇ 65–66, 127 Toulouse╇ 151, 153 trade law╇ 87, 354 trade sanction╇ 206 trajectory╇ 55, 95, 121, 143, 169, 237 transboundary (harm)╇ 80, 103 Trans-European Networks (European Union)╇ 299–300, 306, 340 transfer╇ xiii, xix, 23, 41, 61, 63, 89–90, 101, 103, 111, 117, 119, 123, 146, 156, 158, 160–161, 170, 181, 192, 194, 195, 198, 202–205, 207–210, 212–213, 225–226, 236, 250, 253, 255, 261, 268, 287–288, 303, 307, 313, 334, 336, 345 transmission/transmitter╇ 41, 55, 95, 100, 156, 197–198, 243 transparency╇ 47, 65, 68, 123, 132, 136, 137, 139, 141, 192, 193, 215, 258, 261, 283, 339, 347, 349, 350, 355, 357, 358

transponder╇ 53, 189 travel agencies╇ 29 Treaty establishing a Constitution for Europe╇ xv, 137, 306 Treaty of Amsterdam╇ xiv–xv, 298 Treaty of Lisbon╇ xv–xvi, xxxi, 32–33, 116, 135, 137, 260–262, 270, 287, 297–300, 303, 315–317, 323–326, 329, 342, 353, 357 Treaty of Nice╇ xv, 298, 336 Treaty on European Union╇ xiii–xvi, 32–33, 116, 135, 137, 260–261, 270, 287, 297–302, 323–324, 336, 341, 355 Treaty on the Functioning of the European Union╇ xv–xvi, 135–138, 260–262, 269–271, 287–288, 298–306, 310, 316, 321–326, 329, 334, 336–337, 341, 344, 346 Truck╇85 Turkey╇192 turn key (satellite)╇ 53 Tyurin, Mikhail╇ 94–95 UK Outer Space Act╇ 23, 35, 52–55, 59, 65, 66, 68, 129, 167, 168, 173, 185, 190, 229, 230, 238, 285 Ukraine╇ xxii, 32, 40, 43, 44, 50, 53, 56, 57, 59, 60, 62–64, 66–68, 70, 192, 226, 241, 251, 252, 258 Ukrainian Constitution╇ 44 Ukrainian National Space Agency╇ 44, 50 UKSA. see UK Space Agency UK Space Agency (UKSA)╇ 35–36, 186, 229 UN. see United Nations UN Charter. see Charter of the United Nations UN Convention on the Law of the Sea╇ xiii, 105 UNCOPUOS. see Committee on the Peaceful Uses of Outer Space underwriters╇ 169, 172 United Kingdom╇ 23, 32, 35, 49, 51–52, 54–56, 59, 60, 64, 66, 67, 69, 70, 129, 131, 165, 167, 171, 192, 212, 214, 226,

Indexâ•…â•…379 Verne, Jules╇ 73 vessel╇ 33–34, 58, 61, 107, 200, 270, 284 victim╇ 75, 78, 80, 85–91, 101–102, 104, 112, 113, 121, 123, 128, 144, 157–161, 167, 168, 174 Vienna╇ xii, 8, 48, 54, 57, 79, 193, 315 Vienna Convention on the Law of Treaties╇ xii, 8, 48, 54, 57, 79 Virgin Galactic╇ 96, 263 von Kármán, Theodore╇ 96, 280

229, 230, 237, 238, 259, 283, 286, 314, 328, 332 United Nations (UN)╇ 5, 12, 24–25, 33–35, 38, 41–42, 44–47, 54, 61, 62, 77, 103, 105–107, 110, 114, 122, 195, 199, 206, 209, 246, 254, 266, 297, 314 United States╇ xv, xxii, 3–6, 16, 32, 33, 40–42, 44, 50, 52, 55, 56, 59, 60, 64–66, 70, 75–77, 97, 110, 141–143, 145, 150, 159, 179, 190, 192, 194, 197, 198, 202, 203, 206, 214, 216, 217, 220, 226, 241–247, 260, 261, 267, 295, 345 United States Munitions List (USML)╇ xxiii, 202–204, 206 University╇ 35, 49, 120 University of Liège╇ 120 University of Nebraska-Lincoln╇ xxv University of Western Brittany╇ xxvii UN Resolution(s)╇ 10, 31 US Commercial Space Launch Act╇ 41, 42, 52, 55, 59, 60, 65, 66, 134, 150, 155, 158–161, 190 US Commercial Space Launch Act Amendments╇ xiii, 142, 146, 241 US Commercial Space Launch Amendments Act╇ xxiii, 142, 179, 267, 295 US Communications Act╇ 41, 42, 55, 59, 66 use (of outer space)╇ xi, xvi, 4, 5, 7, 18, 25, 29–31, 33, 35, 36, 38–42, 45, 46, 48, 50, 53, 56, 57, 63, 64, 70, 74, 76, 110, 114, 125, 164, 182, 189, 227, 266, 279, 280, 290, 309, 311, 320, 330 use of force╇ 62 US Land Remote Sensing Commercialization Act╇ xxii, 141, 245 US Land Remote Sensing Policy Act╇ xxiii, 41, 55, 142, 216, 245, 246 USML. see United States Munitions List

WA. see Warehouse Agreement waiver (of liability)╇ 161 war╇ 4, 83, 102, 177, 192, 228, 229, 244 Warehouse Agreement (WA) (United States)╇204 Washington╇ xv, xi, xii, 7, 13, 30, 74, 80, 82, 99, 107, 125, 126, 154, 164, 182, 227, 279, 291, 297, 307, 330, 331, 345 Wassenaar Arrangement╇ xiv, 192, 193, 203, 208, 261 weapon(s) of mass destruction (WMD)╇ 62, 194, 206, 248, 250, 253, 279 weather satellite╇ 181, 350 Western European Union (WEU)╇ 260 WEU. see Western European Union Whitehorn, Will╇ 1 White Paper on European Governance╇315 wilful misconduct╇ 152, 153, 168, 172 withdrawal╇ 40, 66–67, 119, 228 WMD. see Weapon of mass destruction working group national space legislation╇ xxvii, 29, 54, 297, 311 World Trade Organization (WTO)╇ xiv, 134 WTO. see World Trade Organization Wurtt╇175

vacation trips╇ 29 Vega╇ 120, 309, 331

XL Aerospace╇ 169, 175 X-Prize╇ 263, 281

STUDIES IN SPACE LAW ISSN 18717659

1.╇Dunk, F.G. von der and M.M.T.A. Brus (eds). The International Space Station. Commercial Utilisation from a European Legal Perspective. 2006. ISBN 978 90 04 15256 4 2.╇Goh, Gérardine Meishan. Dispute Settlement in International Space Law. A Multi-Door Courthouse for Outer Space. 2007. ISBN 978 90 04 15545 9 3.╇Viikari, Lotta. The Environmental Element in Space Law. Assessing the Present and Charting the Future. 2008. ISBN 978 90 04 16744 5 4.╇Tronchetti, Fabio. The Exploitation of Natural Resources of the Moon and Other Celestial Bodies. A Proposal for a Legal Regime. 2009. ISBN 978 90 04 17535 8 5.╇Ito, Atsuyo. Legal Aspects of Satellite Remote Sensing. 2011. ISBN 978 90 04 19032 0 6.╇Dunk, F.G. von der (ed). National Space Legislation in Europe. Issues of Authorisation of Private Space Activities in the Light of DevelopÂ� ments in European Space Cooperation. 2011. ISBN 978 90 04 20486 7