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Launching from 'Down Under': the New Australian Space Activities Act of 1998

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Launching from 'Down Under': the New Australian Space Activities Act of 1998 University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln Space, Cyber, and Telecommunications Law Program Faculty Publications Law, College of 2000 LAUNCHING FROM 'DOWN UNDER': THE NEW AUSTRALIAN SPACE ACTIVITIES ACT OF 1998 Frans G. von der Dunk University of Nebraska - Lincoln, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/spacelaw Part of the Air and Space Law Commons von der Dunk, Frans G., "LAUNCHING FROM 'DOWN UNDER': THE NEW AUSTRALIAN SPACE ACTIVITIES ACT OF 1998" (2000). Space, Cyber, and Telecommunications Law Program Faculty Publications. 37. https://digitalcommons.unl.edu/spacelaw/37 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Space, Cyber, and Telecommunications Law Program Faculty Publications by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. von der Dunk in Proceedings of the Forty-Third Colloquium on the Law of Outer Space 132-141 (2000). Copyright 2000, F.G. von der Dunk. Used by permission. IISL-OO-IISL.2.03 LAUNCHING FROM 'DOWN UNDER': THE NEW AUSTRALIAN SPACE ACTIVITIES ACT OF 1998 Frans G. von der Dunk * International Institute of Air and Space Law Leiden - The Netherlands Abstract VII and VIII of the Outer Space Treaty, the Liability Convention and the Registration In view of the ongoing privatisation in certain Convention. It will thus evaluate the legal sectors of space activities more and more states consequences of Australia's international become aware that international space law on responsibility and international liability once many counts requires (or at the very least arising, and the usage Australia has made of its stimulates) domestic implementation by means of jurisdiction to ascertain its interests in that national space laws. Thus, on 21 December 1998 respect, especially with a view to its Royal assent was given to a Space Activities Act, establishment of a licensing system. Furthermore, being "an act about space activities, and for it will briefly touch upon a few ,$ubstantive core related purposes", drafted by the Australian issues as emanating from international law - the parliament. Australia thereby became the world's status of outer space, security aspects, safety sixth state enacting a transparent and rather aspects, substantive aspects of liability, and the comprehensive piece of national legislation issue of a central national space agency - and the exclusively focused on space activities - after the measure of domestic implementation provided United States, Sweden, the United Kingdom, the for in the Australian case. Finally, a brief Russian Federation and South Africa. In addition, conclusion will be offered on the extent to which states such as France, Japan, Brazil and Argentina stimulation of private involvement actually have already developed to some extent coherent results from the Act, in view of Australia's quasi-legislative regulation on a national level obligations under international space law. which is of supreme relevance also for certain space activities. At a previous occasion I had the opportunity to 1. Introduction: the generic role of national space analyse and evaluate extensively the national legislation space legislation of the five states referred to from this particular perspective (of regulating private Prior to dealing with the specific case of space and space-related activities), in addition to Australia, and its recently established national the special case of France. The present paper will space law, a summary overview of international summarily apply the same methodology and the space law and the generic role of national space same parameters to the Australian Space legislation within its framework is due. This Activities Act of 1998, in order to allow for some overview is for a major part summarising an conclusions as to its effectiveness and relevance analysis already undertaken in much more detail in stimulating the positive effects of private at another occasion. 1 involvement in space activities whilst curbing its The present international rules concerning space negative aspects. In doing so, it will also take the activities are directed towards states, and, in a specific Australian situation vis-a-vis (private) subsidiary fashion, to public international space activities into account. organisations. Its public character is evident: Thus, it will briefly analyse to which extent most of the rules concerned deal with the Australia in enunciating its Act has actually military, environmental or safety- and liability­ followed the core parameters provided at the related aspects of space activities. Such global international level, notably of course Articles VI, Copyright ©2000 by F.G. von der Dunk. • Co-Director, International Institute of Air and Space Law, Leiden University, The Netherlands; Director IISL; Board Member ECSL; Senior Member AIAA; Member ILA; Member IBAiSBL; Corresponding Member CIDA-E. 132 public issues, in first instance, can only be prOVISIOns set forth in the present Treaty". regulated adequately by public law. Generally speaking, under Article VI states are The same normative system is also applicable to responsible for activities undertaken in outer private commercial space activities, which are in space in case these activities violate obligations principle allowed under space law - albeit under international space law. subject to authorisation by a state. At least Article VI then begs the question: which presently, however, private enterprise is not particular state is to be held responsible on the directly bound to those rights and obligations.2 international plane for which categories of Here lies the task which national space private space activities? The answer lies in the legislation has to achieve - the implementation two key-terms "national activities" and of international space law rules on the domestic "appropriate State". However, no definition of level vis-a-vis certain private space activities. the "national activities" for which a state is International space law itself provides for a responsible, has been provided by international framework determining how to bind private space law. Thus, there is no agreement on the entities, through national legislation, to the proper interpretation of this term. contents of international space law. At whom, The most sensible and effective interpretation of alternatively at which activities should national private "national activities" would make states space legislation be directed? A state will be internationally responsible precisely for those inclined to exercise any available jurisdiction activities over which they can exercise legal primarily vis-a-vis those particular categories of control. Therefore, a state should be held private activities in respect of which it can be responsible for those private activities held accountable internationally. This undertaken from within its jurisdiction. accountability refers to the obligation resting 'Jurisdiction' in this context would essentially upon a legally relevant entity to be held to see to three types of jurisdiction. answer vis-a-vis other legally relevant entities Firstly, a state can exercise personal jurisdiction for certain activities or occurrences. over any private entity with the nationality of Accountability under international space law that state. Secondly, a state also has territorial conceptually speaking has a twofold character: it jurisdiction over any private entity operating on comprises both a general accountability in the its territory Thirdly, as a consequence of Article form of state responsibility, and the specific case VITI of the Outer Space Treaty and its provisions of accountability for damage as presented by on registration and jurisdiction, a state can state liability.3 These two notions have a exercise quasi-territorial jurisdiction over space framework component in that they carry their objects that it has registered. 5 own definitions regarding the entitiesfor which a Private "national activities" thus, as the set of particular state might be held accountable. private space activities for which a particular The Outer Space Treaty4 contains three important state is responsible, should comprise activities Articles in this respect: Article VI on undertaken by nationals of that state, activities international state responsibility and Article VII undertaken from the territory of that state, and on international state liability as the two relevant activities undertaken with space objects forms of accountability, and Article VIIT, on registered with that state. jurisdiction with respect to outer space activities. In addition, Article VI of the Outer Space Treaty contains an important provision on the exercise of jurisdiction over private activities. Under its 2. The international legal framework for national terms, "the appropriate State" has to authorise space legislation - Articles VI and VIII. Outer and continuously supervise activities undertaken Space Treaty by non-governmental entities. Authorisation and continuing supervision clearly are forms of the Article VI of the Outer Space Treaty provides exercise of jurisdiction. They also form the that states are internationally responsible for underlying basis for any licensing system. "national activities in outer space", including So, "the appropriate State" is required to actually cases where these activities are "carried
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