European Trajectories In Space Law (english)

European trajectories in space law 2006 by

J.L. VAN DE WOUWER and

F. LAMBERT

Photo credit: ESA/NASA © European Communities, 2008 © Bruylant s.a., 2008 © Homes International s.a., 2008 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publishers. The views expressed in this publication are the sole responsibility of the authors and do not necessarily reflect the views of the institutions of the European Communities.

Published by European Commission Office for Official Publications of the European Communities 2 rue Mercier, L-2985 Luxembourg ISBN 92-78-40348-2 Catalogue number: OA-73-06-897-EN-C Bruylant s.a. Rue de la Régence 67, B-1000 Brussels ISBN 2-8027-2262-X Homes International s.a. Rue Froissart 119/5, B-Brussels ISBN 2-74237-018-8

Contents Acknowledgment

9

Préface

11

Foreword

13

Introduction

15

Space law before 1960

15

Space law between 1960 and 2000

15

Space law as from 2000

16

Part 1 – Space law before 1960

19

Chapter I: First principles A. Several facts have sustained the idea of a separate international legal framework: B. Technical difference between a jet aircraft and a rocket C. An early concept: space is not a location but a source of activities D. Space law: a breakthrough thanks to the regulation of space activities E. Links between air law and space law

21

Chapter 2: The principle of liberty of space extended to celestial bodies A. Distinction between liberty and internationalisation B. Consolidation of the principle of liberty of access to space by two other conventions C. Conclusion

24 24

Chapter 3: Military grounds for civilian developments

27

Chapter 4: Space law as a branch of international law

28

Part 2 – Space law between 1960 and 2000

21 22 22 22 23

25 26

29

Chapter 1: The Outer Space Treaty (OST) (1967)

31

Chapter 2: The Rescue Agreement (1968)

34

Chapter 3: The Liability Convention (1972) A. Concepts (Articles I to V) B. The applicable law (Article XII)

36 36 37 1

EUROPEAN TRAJECTORIES IN SPACE LAW — 2006

C. The mechanism for settling under the Convention (Articles VI–X) D. Dispute settlement (Article XIX)

38 38

Chapter 4: The Convention on Registration of Objects launched into Outer Space (1974) A. Concept B. The mechanism of registry

41 41 41

Chapter 5: Agreement Governing the Activities of States on the Moon and other Celestial Bodies (1979) A. Concepts B. Activities on the Moon

44 44 45

Chapter 6: The Conventions of the European Space Agency (ESA), (1975– 1980) A. Origin of the Convention B. The concept of the ESA C. Comments on the substance D. Comments on the formal aspects

47 47 48 49 52

Chapter 7: The International Telecommunication Union Convention (1973) A. Introduction B. Historical overview C. The concept of the ITU

54 54 54 56

I. II. III.

Legal framework Functioning of the ITU Authority of the ITU

Chapter 8: The intergovernmental agreement (IGA) on the International Space Station (ISS) (1988) Chapter 9: Commercial development plans in space related to the ISS A. Historical background B. An approach for ISS commercialisation C. A commercial development plan for the civil International Space Station (ISS) proposed by NASA (1998) I. II. III. IV.

2

Definitions The US concept A launch does not mean an export, a re-entry not an import The procurement of commercial space transportation services

56 57 59

60 63 63 64 66 66 67 68 68

Chapter 10: Space-related resolutions of the United Nations General Assembly (UNGA)

70

Chapter 11: The particular problem of space debris A. Technicalities B. Definitions C. Existing space law potentially applicable to space debris

7 73 73 774 75

CONTENTS

Chapter 12: The multiple uses of satellites A. Telecommunications B. Satellite navigation C. Remote sensing I. II. III.

Applications in their historical development International law governing remote sensing The concept of remote sensing

D. Solar power satellites (SPS) I. II. III.

Definition of solar energy Function of solar power satellites Legal implications:

E. Nuclear power sources (NPS)

77 77 78 79 79 80 81

84 84 84 84

85

Chapter 13: Galileo, the European satellite positioning project A. History B. Concept of Galileo C. Technicalities around Galileo D. The potential of applications for Galileo E. Political issues

86 86 86 87 87 88

Chapter 14: Industrial law in space applications A. Definitions B. Intellectual property rights

89 89 89

Chapter 15: Insurance of space activities A. History B. Types of insurance C. Definitions

92 92 92 93

Chapter 16: Dispute resolution — jurisprudence A. Concept B. Case law C. The settlements of disputes

95 95 95 98

Part 3 – Space challenges faced by Europe from a legal perspective (2000–) 101 Chapter 1: Take-off of a strategic vision for space in Europe A. History B The reflection time

104 104 105

Chapter 2: Efforts to achieve institutional convergence between the European Commission and the ESA 107 A. The Bildt-Peyrelevade-Späth report and its influence 107 B. The Joint Task Force EC/ESA (2001) 109

3

EUROPEAN TRAJECTORIES IN SPACE LAW — 2006

C. The EC/ESA framework paper I. II. III.

110

Purpose of the cooperation Joint initiatives with their restrictions Duration of the agreement

110 110 111

D. The future of the EU/ESA relationship

112

I.

The actual model of cooperation, through partnership, on the one hand

II.

The integration model, on the other hand

112 112

Chapter 3: The Green Paper initiative (21 January 2003) followed by the White Paper (11 November 2003) 114 A. The Green Paper (21 January 2003) 114 I. II. III.

Introduction Content of the Green Paper The ESA's similar programme for scientific users

B. The White Paper (11 November 2003) I. II.

Introduction Content of the White Paper

114 114 116

117 117 120

Chapter 4: The setting of a new treaty framework: the European Convention 127 A. References to space 127 I. II. III.

The basic reference to space lied in Article 1-14, al. 3: The second reference There was an implicit reference to space also in Article 41-3-2 :

127 129 129

Chapter 5: Towards a European Defence Agency A. Introduction B. Space, a strategic asset for Europe C. A need for a strong and coherent industry

131 131 132 133

Chapter 6: The European military-industrial complex A. Introduction B. The French-German-British-Spanish-Italian regrouping (July 2000): EADS C. Fragmentation of the European defence market D. US–EU competition in defence contracts

137 137

Chapter 7: Galileo and GNSS challenges during the 21st century A. The Galileo Joint Undertaking

141 141

I. II. III. IV. V.

Introduction to the development phase — historical background Motivation for the creation of the Galileo Joint Undertaking Legal bases for the Galileo Joint Undertaking Introduction to the operational phase System potentialities

137 139 139

141 142 143 143 144

B. Strategic nature of the European satellite radio-navigation programmes and establishment of structures for its management: the GNSS supervisory authority 145 4

CONTENTS

C. The EU–US dispute and compromise 150 D. Other legal aspects to watch in the future implementation of GNSS and Galileo 151 Chapter 8: EU cooperation with third countries on space issues A. General scope B. The European dimension of cooperation in space affairs I. II. III.

Cooperation with Russia Cooperation with Ukraine Cooperation with other non-EU countries of Europe

C. The extra-European dimension of cooperation in space affairs I.

The special issue of space cooperation between the People’s Republic of China and the European Union II. Cooperation with India III. Cooperation with Brazil IV. Cooperation with Japan V. Cooperation with Canada

153 153 154 154 159 164

165 165 166 166 167 167

Chapter 9: A need to clarify the role assigned to ISS A. The need to reconsider the operational bases for the ISS B. The growing importance of Europe in the scientific area C. International reflection on the future of ISS

169 169 170 171

Chapter 10: Space travel in a privatisation perspective A. Feasibility studies from the 1990s B. First legal framework for space tourism C. Space privatisation principles D. Aviation regulation, a model for space carriage? E. Death and injury of passengers — damage to payload F. Damage to cargo (e.g. minerals, rare stones) G. The problem of insuring a space passenger

17 172 172 173 174 17 176 177 177 178

Chapter 11: Developments in the International Telecommunications Union (ITU) 180 A. Historical background 180 I. II. III.

First commitments in international telecommunications Reference paper The new negotiations

180 180 183

B. American dominance 183 C. Space segment requirements 185 D. Three different approaches: the USA, Japan, the ESA... and newcomers appear 186 I. II. III. IV.

The US (NASA) perspective The Japanese perspective The European (ESA) perspective Other international developments

186 186 186 187 5

EUROPEAN TRAJECTORIES IN SPACE LAW — 2006

Chapter 12: Multilateral solutions against increasing environmental damage originating in space A. The environmental problem globally: from Rio to Kyoto B. Significance of the Kyoto Climate Protocol C. The environmental liability with regards to the prevention and remedying of environmental damage D. Protection of the environment, a key policy element for the EU E. Implementing GMES F. Pollution of the outer space environment I. II. III.

Debris Emissions Contrails

G. Kyoto celebrations H. Sustainable spatial development I. II. III.

The European Environment Agency Europe’s Meteorological Satellite Organisation: Eumetsat DG Research’s Space Conferences and Exhibitions in Brussels (12–20 February 2005) IV. Recent analysis of the ITU environment

188 188 188 191 191 193 194 194 194 194

195 197 197 200 201 201

J. Consequences for ITU 202 K. ITU partnership with Inmarsat in support of the least developed countries 203 L. EU legislation in telecommunication 204 I. II. III. M.

The ‘satellite directive’ The ‘full competition directive’ The ‘licensing directive’ What has been done at an international level to facilitate the obtaining of necessary authorisations?

205 205 206 206

Chapter 13: Future insurance of space activities 208 A. Insurance requirements for space carriers and space travel operators from the EU 208 B. The space insurance market 215 I. II.

Recent evolution in the space insurance market Personal risks to be covered

C. Linkage with the aerospace industry Chapter 14: Space competition, claims and dispute resolution A. Bases in European competition law B. Which solutions could be envisaged? C. The problem of insuring humans in space D. Recent consolidation in space markets and industry structure I. II.

6

Market situation of the ‘big three’ Restructuring in the satellite building and launcher industries

215 217

219 220 220 222 223 226 226 227

CONTENTS

E. Judicial differentiation between the satellite market and the market for launch services 229 I. II.

F.

Case No COMP/M.1879 — Boeing/Hughes — October 2000 Case No COMP/M.1636 — MMS/DASA/Astrium — March 2000

229 230

Questions about space transport emergence

233

I. II. III. IV.

What will happen when space transport comes in? Will space transport one day be part of the common transport policy? Are bilateral space services agreements possible? What is interesting about the Court’s decision?

233 234 234 235

G. Liability regarding space services, necessarily subject to be limited H. Liability regarding exploitation of space resources

235 236

I.

Dispute settlement

237

Chapter 15: Space and security — concentration in the aerospace industry 238 A. Introduction 238 I. II.

Background: Article 296 of the EC Treaty The need for a European independent, common defence procurement

C. EU procurement rules in relation to space policy I. II.

What will be the defence applications of Europe’s space effort? What is the future for EU–US space cooperation?

243 243

244 244 245

D. De facto competitiveness in the aerospace industry depends on military orders 246 Epilogue Scientific advanceand EU space policy

249 249

Annexes

257

Acronyms

259

Bibliography

263

ITU historical review

273 27

Extracts from the Radio Regulations

277

Framework agreement between the European Community and the European Space Agency 279 Status of international agreements relating to activities in outer space as at 1 January 2006 A. United Nations Treaties B. Other Agreements C. International status

287 287 289 293

Space law instruments and regulations

303

7

ABSTRACTS « European Trajectories in Space Law » describes three distinctive phases in space law: • • •

the period before 1960 the period between 1960 and ca. 2000 the period which starts from ca. 2000 on.

Space law before 1960 Although the world was split into two antagonist blocks after 1945, there was a global feeling that space may not be used for military purposes and belongs to mankind. The first general principles, which will never be questioned afterwards, are established between 1945 and 1960: • • •

the necessity of a separate legal frame, distinctive from air law the agreement that space is not a location subject to ownership but a source of activities which can easily be identified the acceptation of liberty of access to space for peaceful uses.

At the time there were only two space States, the US and the Soviet Union. Both States agreed the exploration of space is international by its nature. The principle of liberty of space was sustained by two other international conventions: • •

the Convention of Geneva of 29 April 1958 on the high sea fisheries the Convention of Washington of 1st December 1959 on the Antarctic.

Space law between 1960 and ca. 2000 During this period space becomes subject to institutionalisation starting with the Outer Space Treaty (OST) in 1967. By then, the Russians had taken the lead with launching Sputnik I in 1957 and securing the first human flight in space with Yuri Gagarin in 1961. In Europe, ELDO-European Organisation for the Development and Construction of Space Vehicle Launchers --- was set up by a Convention opened for signature until 30 April 1962, and ESRO-European Space Research Organisation --- set up by the Convention opened for signature on 14 June 1962. Both institutions resulted in 1975 in the Convention of ESA, the European Space Agency which entered into force on 30 October 1980. During 1963 the United Nations issued a formal Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space

European Trajectories in Space Law

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known as UNCOPUOS. In the same year the Treaty banning nuclear weapon tests in the atmosphere, in outer space and under water was signed. In the period between 1967 and 1979 five major multilateral Treaties governing outer space activities were adopted: • • • • •

the Outer Space Treaty in 1967 included the Moon and all other celestial bodies; the astronauts, being considered as ‘‘envoys of mankind’’, possibly needed international help, so the Rescue Agreement was adopted and entered into force on 3rd December 1968; in order to cover against possible damage caused by space activities the Liability Convention was signed on 29 March 1972 and entered into force on 1st September 1972; in order to monitor launches, the Registration Convention was opened for signature on 14 January 1975, and entered into force on 19 September 1976; Finally, the Moon Treaty, also concerning other celestial bodies, was opened for signature on 18 December 1979 and entered into force on 11 July 1984.

From the mid-sixties, the US has taken over the lead in space exploration. The Spacelab Intergovernmental Agreement of 1973 between the US Government and the Member States of ESRO associates European partners in the Spacelab programme. Further international cooperation is reached in 1988 with the InterGovernmental Agreement (IGA) on the ISS (International Space Station). In September 1993, after the collapse of the Soviet Union, the US decided to involve Russia in the ISS Agreement. Further international co-operation on the ISS was institutionalised on 29 January 1998, in Washington, by the signature of 15 States (the US, Russia, Japan, Canada and 11 ESA Member States). World-wide agreement in a particular but important field, telecommunications, is reached in 1973 by the International Telecommunication Union Convention (ITU). Many telecommunication satellites are launched from a small number of space launching sites (NASA, in Florida, Kourou in French Guyana and Baikanur in Kazakhstan). In 1990, the ‘‘Green Paper on a common approach in the field of Satellite Communications in the European Community’’ guarantees free unrestricted access to space segment providers in the EU. Commission Guidelines make clear in 1991 that the EC competition rules also apply to the telecommunications sectors. Satellites enjoy many uses (navigation guidance, observation missions, meteorological information, etc.) and GALILEO, the European satellite positioning project, is conceived as a civil system (Action Plan on Satellite Communications in the Information Society --- 1997).

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Space law from ca. 2000 on Following telecommunications’ demand, private-own satellites had already started orbiting before 2000. This move was boosted by the US President’s announcement on 16 May 1983 of his Directive on Commercialisation of Expandable Launch Vehicles (ELV’s) encouraging the private sector development of commercial launch operations. NASA itself, under financial pressure, felt the need to get support from industrial sources and released in November 1998 a Commercial Development Plan for the ISS be it under strict protective rules. In the EU, around the millennium change, a strategic vision for space takes shape. The European Institutions deploy efforts to reaching institutional convergence between the European Commission and ESA. A European space policy objective is submitted to a Green Paper initiative (21 January 2003) followed by the White Paper (11 November 2003). The setting of a new Treaty framework --- the European Convention --- constitutes another milestone: space activities are mentioned for the first time in institutional texts. But there is also another perception in Europe: the need for a European Defence Agency. Within this context, space constitutes a strategic asset for Europe and with wider objectives set gives rise to a demand for a strong and coherent European defence industry. This brings along industrial regroupings to build on a European military-industrial complex. They are challenged by the fragmentation of the European defence market and the US-EU competition in defence contracts. A decision is taken on GALILEO in an operational perspective of 2008. The EU gives its support to the Global Monitoring for Environment and Security (GMES). International co-operation in space a_ airs is part of the EU’s objectives. Ties with the Federation of Russia and Ukraine, as well as with other non-EU countries of Europe are negotiated with success. The extra-European dimension of cooperation in space affairs is demonstrated by China’s commitment to contribute € 200 million to the GALILEO programme. Other arrangements with emerging space powers (India, Pakistan, Brazil, Argentina, ...) are completing the picture. Privatisation is also on the agenda for organising space travel, implementing the space station’s research objective and underlining the multilateral dimension of space telecommunications. The EU claiming its willingness to be a full partner on equal footing with the US had to take decisions towards a policy of self sufficiency e.g. in the domains of space exploration and its use for activities, notably military observations. It is obvious that environment protection, in space and in general, and protection against space debris and meteorites need multilateral solutions under the auspices of the United Nations which organisation has constantly shown its commitment to space through space-related resolutions issued by the UN General Assembly (UNGA).

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CONCLUSIONS [...] see book

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