EuropEan trajEctoriEs in spacE law

2007

European trajectores n space law 2007

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 relect the views of the institutions of the European communities.

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Homes international s.a. rue Froissart 119/5, B-1040 Brussels isBn 2-74237-018-8 RESÚMENES

«European trajectories in space law» describe tres fases distintas en el Derecho del espacio: – el periodo anterior a 1960 – el periodo comprendido entre 1960 y aproximadamente 2000 – el periodo iniciado aproximadamente en 2000.

El Derecho del espacio antes de 1960 aunque el mundo se dividió en dos bloques antagónicos a partir de 1945, se mantuvo el sentimiento común de que el espacio no puede emplearse con ines militares y de que pertenece a la Humanidad.

Entre 1945 y 1960 se establecieron los primeros principios generales, nunca cuestionados posteriormente: n necesidad de un marco jurídico propio, diferenciado del Derecho aéreo n acuerdo en que el espacio no es un lugar sujeto a propiedad, sino una fuente de actividades fácilmente determinables n aceptación de la libertad de acceso al espacio con ines pacíicos

En ese momento sólo había dos Estados que desarrollaran actividades espaciales: los Estados unidos y la unión soviética. ambos coincidían en considerar la exploración del espacio como un asunto internacional por naturaleza.

El principio de libertad del espacio se sustentaba en otros dos convenios internacionales: – la convención de Ginebra de 29 de abril de 1958 sobre la alta Mar – la convención de washington de 1 de diciembre de 1959 sobre la antártida.

El Derecho del espacio entre 1960 y aproximadamente 2000

Durante este periodo se llevó a cabo la institucionalización del espacio, a partir del tratado sobre el espacio ultraterrestre de 1967. para entonces, los rusos habían tomado la delantera al lanzar el sputnik i en 1957 y lograr en 1961 el primer vuelo al espacio tripulado por el hombre (Yuri Gagarin). En Europa se crearon la ElDo −organización Europea para el Desarrollo de lanzadores de Vehículos Espaciales−, mediante convenio que estuvo abierto a la irma hasta el 30 de abril de 1962, y la Esro −organización Europea de investigaciones Espaciales−, mediante convenio abierto a la irma el 14 de junio de 1962.

De ambas instituciones nació en 1975 el convenio de la Esa, la agencia Espacial Europea, que entró en vigor el 30 de octubre de 1980.

 En 1963 las naciones unidas hicieron pública una «Declaración de los principios jurídicos que Deben regir las actividades de los Estados en la Exploración y utilización del Espacio ultraterrestre», poco después de la constitución de la comisión de las naciones unidas sobre la utilización del Espacio ultraterrestre con Fines pacíicos (uncopuos). Ese mismo año se irmó el tratado por el que se prohíben los ensayos con armas nucleares en la atmósfera, en el espacio ultraterrestre y debajo del agua.

En el periodo comprendido entre 1967 y 1979 se aprobaron cinco importantes tratados multilaterales para regular las actividades en el espacio ultraterrestre: n el tratado sobre el Espacio ultraterrestre de 1967, en el que se incluyeron la luna y los demás cuerpos celestes n el acuerdo sobre el salvamento y la Devolución de astronautas y la restitución de objetos lanzados al Espacio ultraterrestre, que entró en vigor el 3 de diciembre de 1968, irmado en previsión de que los astronautas, considerados «enviados de la humanidad», necesitaran ayuda internacional n el convenio sobre responsabilidad internacional por Daños causados por objetos Espaciales, irmado el 29 de marzo de 1972 y que entró en vigor el 1 de septiembre de 1972, para regular la cobertura contra posibles daños ocasionados por actividades espaciales n el convenio sobre el registro de objetos lanzados al Espacio ultraterrestre, abierto a la irma el 14 de enero de 1975 y que entró en vigor el 19 de septiembre de 1976, para hacer un seguimiento de los lanzamientos n por último, el acuerdo que debe regir las actividades de los Estados en la luna y otros cuerpos celestes («acuerdo sobre la luna»), abierto a la irma el 18 de diciembre de 1979 y que entró en vigor el 11 de julio de 1984

Desde mediados de la década de 1960, los Estados unidos han asumido el liderazgo de la exploración espacial. El acuerdo intergubernamental de 1973 entre el Gobierno de los Estados unidos y los Estados miembros de la Esro vinculó a socios europeos al programa del spacelab. En 1988 se consiguió intensiicar la cooperación internacional mediante el acuerdo intergubernamental sobre la Estación Espacial internacional. En septiembre de 1993, tras el hundimiento de la unión soviética, los Estados unidos decidieron vincular a rusia a dicho acuerdo. El 29 de enero de 1998 se dio en washington un nuevo paso en la institucionalización de la cooperación internacional en relación con la Estación Espacial internacional, con la irma por parte de quince Estados (Estados unidos, rusia, japón, canadá y once Estados miembros de la Esa).

En 1973 se alcanzó un acuerdo de ámbito mundial en un campo especíico pero importante, el de las telecomunicaciones, al irmarse el convenio de la unión internacional de telecomunicaciones (itu). Desde entonces, son muchos los satélites de telecomunicaciones que se lanzan desde un pequeño número de centros de lanzamiento (de la nasa en Florida, Kourou en la Guyana Francesa y Baikanur en Kazajstán).

En 1990, el «libro Verde sobre un planteamiento común en el ámbito de las comunicaciones por satélite en la comunidad Europea» garantizó un acceso libre y sin restricciones a los proveedores del segmento espacial de la uE. las directrices

 adoptadas por la comisión en 1991 dejaron claro que también era aplicable a los sectores de las telecomunicaciones la legislación sobre competencia de la uE. los satélites tienen muchos usos (orientación para la navegación, misiones de observación, información meteorológica, etc.). El programa GalilEo, proyecto europeo de navegación y posicionamiento mediante satélite, está concebido como sistema civil (plan de acción de la uE sobre las comunicaciones por satélite en la sociedad de la información, 1997).

El Derecho del espacio desde el año 2000 respondiendo a la demanda existente en materia de telecomunicaciones, ya antes del año 2000 se pusieron en órbita satélites de propiedad privada. Este paso se había visto impulsado por el anuncio del presidente de los Estados unidos, el 16 de mayo de 1983, de su Directiva sobre comercialización de vehículos de lanzamiento no reutilizables (conocidos como ElV), en la que se alentaba al desarrollo de actividades privadas de lanzamiento de carácter comercial. la propia nasa, sometida a presiones inancieras, sintió la necesidad de contar con el apoyo de la industria privada y publicó en noviembre de 1998 un plan de desarrollo comercial de la Estación Espacial internacional, sometido no obstante a estrictas normas de protección.

En la uE se periló en los años de cambio de milenio una visión estratégica del espacio. las instituciones europeas se esforzaron por conseguir una convergencia institucional entre la comisión Europea y la Esa. El objetivo de una política espacial europea se recogió en un libro Verde (21 de enero de 2003), seguido del correspondiente libro Blanco (11 de noviembre de 2003). la creación del marco para un nuevo tratado –la convención Europea– constituyó un nuevo hito, ya que fue esa la primera ocasión en que se mencionaron las actividades espaciales en un texto institucional. al mismo tiempo, ha aparecido en Europa una nueva percepción: la necesidad de disponer de una agencia Europea de Defensa. En este contexto, al constituirse el espacio en un bien estratégico para Europa y ampliarse los objetivos, se advierte la necesidad de una industria de defensa europea fuerte y coherente. El proceso se desarrolla simultáneamente a la aparición de determinadas reagrupaciones industriales dirigidas a la creación de un complejo militar-industrial europeo. Están en contra la fragmentación del mercado de defensa europeo y la competencia EE.uu.-uE en los contratos de defensa. se ha adoptado una decisión sobre GalilEo desde una perspectiva que prevé su entrada en funcionamiento en 2008. la uE presta su apoyo al sistema de «Vigilancia global del medio ambiente y la seguridad» (GMEs). la cooperación internacional en asuntos espaciales ha pasado a formar parte de los objetivos de la uE. se ha negociado con éxito el establecimiento de vínculos con la Federación rusa y con ucrania, así como con otros países europeos no pertenecientes a la uE. la dimensión extraeuropea de la cooperación espacial queda demostrada por el compromiso de china de aportar 200 millones de euros al programa GalilEo. completan el

 panorama otros acuerdos con potencias espaciales emergentes, como la india, pakistán, Brasil o argentina. también están en el orden del día la privatización de la organización de viajes espaciales, el cumplimiento del objetivo de realización de tareas de investigación en las estaciones espaciales y la acentuación de la dimensión multilateral de las telecomunicaciones espaciales. la uE, al airmar su deseo de participar plenamente y en un plano de igualdad con los Estados unidos, ha tenido que adoptar decisiones dirigidas a hacer realidad una política de autosuiciencia, por ejemplo en los campos de la exploración del espacio y de su utilización para actividades como las observaciones militares.

Es evidente que la protección del medio ambiente, en el espacio y en general, y la protección contra los residuos espaciales y los meteoritos requieren soluciones multilaterales desarrolladas bajo los auspicios de las naciones unidas, organización que ha demostrado un compromiso constante con el espacio mediante las resoluciones en la materia adoptadas por su asamblea General.

CONCLUSIONES la utilización del espacio debe considerarse como un elemento pleno de la política exterior europea en su sentido más amplio.

Desde la perspectiva europea, se pone el acento en la seguridad antes que en la defensa. En principio, esto supone la erradicación de las iniciativas de militarización del espacio, así como la prohibición en éste de las armas ofensivas. la Esa, la agencia Espacial Europea, ha mostrado puntos débiles en sus planteamientos en el extranjero y en la perpetuación de una división artiicial entre las iniciativas civiles y las militares. por otra parte, hay que reconocer que en su faceta tecnológica se han generado numerosos beneicios derivados del uso de satélites para los ines más diversos, como las observaciones globales, las tareas de orientación y las telecomunicaciones. la ausencia hasta el momento de una política europea de contratos públicos de defensa es muy lamentable, ya que a corto plazo no habrá aplicaciones espaciales disponibles para usos militares. así pues, Europa tiene la ambición reconocida de coniar en sus propias fuerzas, de ser autosuiciente en el terreno militar. Esto signiica que, para sobrevivir en el espacio, el punto clave es la protección de los servicios prestados por los satélites europeos en órbita. otro elemento importante es el desarrollo de la mejor cooperación posible entre los Estados miembros de la uE para la mejora de la seguridad colectiva al menor coste. no es necesario disponer de presupuestos de nivel equiparable al de los Estados unidos para obtener unos resultados comparables, pero hay que admitir que la discrepancia actual es insostenible.

v En términos concretos, Europa debe dotarse de instrumentos que le permitan

1. establecer una política de contratos públicos de defensa 2. estimular la cooperación pragmática de los Estados miembros en relación con el sistema de satélite alemán sar-lupe y el francés HElios ii, que estarán funcionando conjuntamente hacia 2007 3. beneiciarse de un mayor presupuesto en el ámbito de la investigación espacial, en el que se han estimado unas necesidades de unos 16 000 o 17 000 millones de euros anuales (frente a 5 500 millones de euros en 2004), de los 2 000 millones corresponden a usos militares (frente a 500 millones en 2004). se podría disponer de recursos adicionales a través del séptimo programa Marco de investigación, aunque los Estados miembros deberían contribuir en una mayor medida.

En resumen, Europa debe considerar una revisión tanto institucional como inanciera de sus actividades espaciales por el bienestar de sus ciudadanos.

v

ABSTRACTS

in „European trajectories in space law“ werden drei zeitliche abschnitte in der Entwicklung des weltraumrechts unterschieden: – die Zeit vor 1960 – die Zeit zwischen 1960 und etwa dem jahr 2000 – die Zeit ab etwa dem jahr 2000.

Das Weltraumrecht vor 1960 obwohl die welt nach 1945 in zwei antagonistische Blöcke geteilt ist, wird doch weltweit anerkannt, dass der weltraum nicht für militärische Zwecke genutzt werden darf und dass er der gesamten Menschheit gehört.

Zwischen 1945 und 1960 werden die ersten allgemeinen Grundsätze festgelegt, die seither nicht mehr in Frage gestellt wurden: n die notwendigkeit eines gegenüber dem luftrecht eigenständigen rechtsrahmens; n die Übereinkunft, dass der weltraum nicht Gegenstand von Eigentumsrechten sein kann, sondern dass in ihm lediglich aktivitäten stattinden können, die leicht erkennbar sind; n die anerkennung des freien Zugangs zum weltraum zu friedlichen Zwecken.

Damals gibt es nur zwei raumfahrtnationen, nämlich die usa und die sowjetunion. Die beiden ländern erkennen an, dass die Erforschung des weltraums von natur aus internationalen charakter hat.

Der Grundsatz der Freiheit des weltraums wird durch zwei andere internationale Übereinkommen untermauert: – die Genfer Konvention vom 29. april 1958 über die Hochseeischerei und – den am 1. Dezember 1959 in washington unterzeichneten antarktisvertrag.

Das Weltraumrecht zwischen 1960 und etwa dem Jahr 2000 in dieser Zeit beginnt die institutionalisierung des weltraums, die mit dem weltraumvertrag von 1967 ihren anfang nimmt. russland hatte 1957 sputnik i in eine umlaufbahn gebracht und 1961 mit Yuri Gagarin den ersten bemannten raumlug durchgeführt und damit die usa überholt. in Europa werden die ElDo, die Europäische organisation für die Entwicklung von trägerraketen, und die Esro, die Europäische weltraumforschungsorganisation, gegründet, und zwar durch zwei Übereinkommen, die bis zum 30. april 1962 bzw. bis zum 14. juni 1962 zur unterzeichnung auliegen.

v aus den beiden organisationen geht später die Europäische raumfahrtorganisation Esa hervor; sie wird durch ein Übereinkommen aus dem jahr 1975 gegründet, das am 30. oktober 1980 in Kraft tritt.

1963 verabschieden die Vereinten nationen die Erklärung über die rechtsgrundsätze für das Verhalten von staaten bei der Erforschung und nutzung des weltraums. im selben jahr wird auch der Vertrag über das Verbot von Kernwafenversuchen in der atmosphäre, im weltraum und unter wasser unterzeichnet.

Zwischen 1967 und 1979 werden fünf wichtige multilaterale Verträge über welt- raumtätigkeiten abgeschlossen: n der weltraumvertrag aus dem jahr 1967, der auch den Mond und alle anderen Himmelskörper betrift; n das weltraumrettungsübereinkommen, das die Gewährung von internationaler Hilfe an in not geratene raumfahrer, die „Gesandten der Menschheit“, vorsieht und am 3. Dezember 1968 in Kraft tritt; n das weltraumhaftungsübereinkommen zur sicherstellung von schadenersatz für durch weltraumaktivitäten verursachte schäden, das am 29. März 1972 unterzeichnet wird und am 1. september 1972 in Kraft tritt; n das der Überwachung der weltraumstarts dienende registrierungs- übereinkommen, das am 14. januar 1975 zur unterzeichnung aufgelegt wird und am 19. september 1976 in Kraft tritt; n der auch andere Himmelskörper betrefende Mondvertrag, der am 18. Dezember 1979 zur unterzeichnung aufgelegt wird und am 11. juli 1984 in Kraft tritt. ab Mitte der 60er jahre übernehmen die usa die Führung bei der Erforschung des weltraums. 1973 werden durch das spacelab-Übereinkommen zwischen der amerikanischen regierung und den regierungen der Esro-Mitgliedstaaten die europäischen partner in das spacelab-programm einbezogen. 1988 wird die internationale Zusammenarbeit mit dem regierungsübereinkommen über die internationale raumstation iss fortgesetzt. im september 1993, nach dem Ende der sowjetunion, beschließen die usa, russland in das iss- Übereinkommen einzubeziehen. am 29. januar 1998 unterzeichnen 15 staaten (die usa, russland, japan, Kanada und die 11 Esa-Mitgliedstaaten) ein neues regierungsübereinkommen über die iss.

1973 wird mit dem internationalen Fermeldevertrag ein weltweites Über- einkommen in einem wichtigen spezialgebiet abgeschlossen, nämlich dem der telekommunikation. Eine große Zahl von Fernmeldesatelliten wird von wenigen startplätzen aus (cape canaveral in Florida, Kourou in Französisch-Guayana und Baikonur in Kasachstan) ins all befördert.

1990 gewährleistet das „Grünbuch über ein gemeinsames Vorgehen im Bereich der satellitenkommunikation in der Europäischen Gemeinschaft“ den uneingeschränkten, freien Zugang zu raumsegmentanbietern in der Eu. 1991 geht aus leitlinien der Kommission klar hervor, dass die wettbewerbsvorschriften der Eu auch für den telekommunikationssektor gelten.

v satelliten haben viele Verwendungszwecke (navigationshilfe, Beobachtungs- missionen, meteorologische informationen usw.), und in Europa wird ein projekt zur Entwicklung des zivilen satellitenortungssystems GalilEo ins leben gerufen (aktionsplan „satellitenkommunikation in der informationsgesellschaft“ aus dem jahr 1997).

Das Weltraumrecht ab etwa dem Jahr 2000 aufgrund der nachfrage des telekommunikationssektors hatte man bereits vor dem jahr 2000 damit begonnen, private satelliten auf eine Erdumlaufbahn zu befördern. Diese Entwicklung erhielt zusätzlichen auftrieb, als der amerikanische präsident am 16. Mai 1983 seine richtlinie über die Kommerzialisierung von Einwegträgerraketen (ElV) ankündigte, mit der kommerzielle weltraumstarts durch den privaten sektor gefördert werden sollten. Die unter inanziellem Druck stehende nasa benötigt die unterstützung der industrie und veröfentlicht im november 1998 einen kommerziellen Entwicklungsplan für die iss, der allerdings strenge aulagen vorsieht. in der Eu nimmt um die jahrtausendwende eine strategische Vision der Raumfahrtpolitik Gestalt an. Die Europäischen institutionen bemühen sich um institutionelle Konvergenz zwischen der Eu-Kommission und der Esa. Eine europäische raumfahrtpolitik ist Gegenstand zunächst eines Grünbuchs (vom 21. januar 2003) und dann eines weißbuchs (vom 11. november 2003).

Die ausarbeitung eines neuen Vertragswerks – der Europäischen Verfassung – ist ein weiterer Meilenstein, denn damit werden weltraumaktivitäten zum ersten Mal in einem Vertragstext erwähnt. in Europa wird aber auch eine andere notwendigkeit wahrgenommen: die notwendigkeit einer Europäischen Verteidigungsagentur. Der weltraum ist in diesem Zusammenhang für Europa ein strategischer Faktor, der, wenn man weiter reichende Ziele im auge hat, eine starke, kohärente europäische Verteidigungsindustrie erforderlich macht. Dies erfordert industrielle umstrukturierungen im interesse einer europäischen militärisch-industriellen Basis. sie werden behindert durch den fragmentierten charakter des europäischen Verteidigungsmarktes und den wettbewerb zwischen den usa und der Eu um Verteidigungsaufträge.

Es wird beschlossen, dass GalilEo ab 2008 in Betrieb gehen soll. Die Eu unterstützt das projekt einer globalen umwelt- und sicherheitsüberwachung (GMEs). Die internationale Zusammenarbeit auf dem Gebiet der raumfahrt gehört zu den Zielen der Eu. in diesem Zusammenhang inden erfolgreiche Verhandlungen mit der russischen Föderation und der ukraine sowie mit nicht zur Eu gehörenden europäischen ländern statt. Die außereuropäische Dimension der Zusammenarbeit auf dem Gebiet der raumfahrt wird durch die Zusage chinas, sich mit 200 Mio. Eur am programm GalilEo zu beteiligen, verdeutlicht. weitere Vereinbarungen mit neuen weltraummächten (indien, pakistan, Brasilien, argentinien …) kommen hinzu.

x Eine privatisierung steht auch an, wenn es um weltraumreisen, die Verwirklichung der Forschungsziele der raumstation und die multilaterale Dimension der satellitengestützten telekommunikation geht. nachdem sie erklärt hatte, ein gleichberechtigter partner der usa sein zu wollen, muss die Eu Entscheidungen trefen, um etwa im Bereich der Erforschung und der nutzung des weltraums - vor allem zur militärischen Beobachtung - unabhängig zu werden. umweltschutz im weltraum und im allgemeinen erfordert ebenso wie der schutz vor weltraumabfall und Meteoriten multilaterale lösungen im rahmen der uno, die durch entsprechende resolutionen der Generalversammlung immer wieder ihr Engagement für den weltraum unter Beweis gestellt hat.

FAZIT

Die nutzung des weltraums ist als integraler Bestandteil der europäischen außenpolitik im weitesten sinne anzusehen. aus europäischer sicht liegt der schwerpunkt nicht auf dem Verteidigungs-, sondern auf dem sicherheitsaspekt. Dies bedeutet, dass militarisierende initiativen im weltraum grundsätzlich vermieden und dass angrifswafen im weltraum verboten werden müssen.

Die Europäische weltraumagentur Esa hat bei ihrem Vorgehen im ausland ebenso schwächen gezeigt wie dadurch, dass sie zur aufrechterhaltung einer künstlichen trennung zwischen zivilen und militärischen initiativen beigetragen hat. andererseits muss anerkannt werden, dass sie auf technischem Gebiet einen vielfältigen nutzen ermöglicht hat, der durch die nutzung von satelliten zu den unterschiedlichsten Zwecken, von der Erdbeobachtung über navigationshilfen bis zur telekommunikation, entstanden ist.

Dass es bisher keine europäische Beschafungspolitik im Verteidigungsbereich gibt ist äußerst bedauerlich; daher werden den streitkräften kurzfristig keine raumfahrtanwendungen zur Verfügung stehen.

Europa hat den erklärten Ergeiz, sich auf seine eigenen Kräfte verlassen und auf militärischem Gebiet unabhängig sein zu wollen. Damit Europa im Bereich der raumfahrt überleben kann, müssen daher vor allem die von europäischen satelliten bereitgestellten Dienste geschützt werden.

Ein weiterer wichtiger punkt ist die bestmögliche Zusammenarbeit zwischen den Eu-Mitgliedstaaten, damit die kollektive sicherheit mit möglichst geringen Kosten verbessert werden kann. Vergleichbare Ergebnisse erfordern nicht unbedingt Budgets amerikanischer Größenordnung, die derzeitige Diskrepanz ist jedoch zugegebenermaßen nicht tragbar.

x Konkret bedeutet dies, dass Europa dafür sorgen sollte, dass es in der Lage ist:

1. eine Beschafungspolitik im Verteidigungsbereich zu entwickeln; 2. die pragmatische Mitarbeit der Mitgliedstaaten am deutschen satelliten- system sar-lupe und am französischen satellitensystem HElios ii zu fördern; der Verbund der beiden system wird ab etwa 2007 betriebsbereit sein; 3. über mehr Mittel für die weltraumforschung zu verfügen; der entsprechende Mittelbedarf wurde auf 16 bis 17 Mrd. Eur pro jahr veranschlagt (gegenüber 5,5 Mrd. Eur 2004), wovon 2 Mrd. Eur auf militärische Zwecke entfallen (gegenüber 0,5 Mrd. Eur 2004). aus dem 7. Forschungsrahmenprogramm können zusätzliche Mittel bereitgestellt werden; die Mitgliedstaaten sollten jedoch ebenfalls einen größeren Beitrag leisten.

Kurz gesagt, Europa muss seine weltraumorientierten aktivitäten im interesse seiner Bürger in institutioneller und inanzieller Hinsicht überprüfen.

x

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 irst general principles, which will never be questioned afterwards, are established between 1945 and 1960: n the necessity of a separate legal frame, distinctive from air law n the agreement that space is not a location subject to ownership but a source of activities which can easily be identiied n 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 isheries – 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 irst human light 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 known

x 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 ive major multilateral treaties governing outer space activities were adopted: n the outer space treaty in 1967 included the Moon and all other celestial bodies; n 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; n 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; n in order to monitor launches, the registration convention was opened for signature on 14 january 1975, and entered into force on 19 september 1976; n inally, 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 inter- Governmental 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 ield, 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 ield 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, meteoro- logical 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).

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 xv 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 inancial pressure, felt the need to get support from industrial sources and released in november 1998 a commercial Development plan for the iss beit under strict protective rules. in the Eu, around the millennium change, a strategic vision for space takes shape. the European institutions deploy eforts 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 irst 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 afairs 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 co-operation in space afairs 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 suiciency 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).

CONCLUSIONS the use of space must be considered as a full part of European foreign policy in the widest sense.

xv in the European perspective, stress is put on security rather than defence. in principle it means eradication of militarizing initiatives in space, and interdiction of ofensive armament in space.

Esa, the European space agency, has shown weaknesses in its approaches abroad and in perpetuating an artiicial break between civil and military initiatives. on the other hand, it must be recognized that in its technological role numerous beneits were generated in using satellites for the most diverse purposes, global observations, guidance and telecommunications. the absence until now of a European defence procurement policy is most regrettable so that in the short term no space applications will be available to the military.

Hence, Europe has an outspoken ambition to rely on its own forces, to be self- suicient in the military ield. it means that in order to survive in space the keypoint is protection of services provided by orbiting European satellites. another important element is the best possible co-operation between Member states of the Eu in order to improve collective security at the lowest cost. there is no need to urge american-level budgets to obtain comparable results but it must be admitted that the present discrepancy is unbearable.

In concrete terms, Europe should provide itself with the instruments which will allow 1. to set up a defence procurement policy; 2. to stimulate Member states’ co-operation, on a pragmatical basis, for the German sar-lupe and the French HElios ii satellite systems which in combination will be operational around 2007; 3. to beneit from an increased budget in the domain of space research where needs have been established at an estimated 16 to 17 billion Euros annually (against 5,5 billion Euros in 2004), of which 2 billion Euros for military uses (versus 0,5 billion in 2004). additional resources can be made available by the 7th research Framework programme, whilst Member states should contribute to a larger extent. in short, Europe must envisage both institutional and inancial review of its space- oriented activities for the well-being of its citizens.

xv RÉSUMÉS

la publication intitulée «European trajectories in space law» (trajectoires européennes en matière de droit spatial) distingue trois phases de développement du droit spatial: – la période avant 1960; – la période entre 1960 et l’an 2000 environ; – la période à partir de l’an 2000 environ.

Le droit spatial avant 1960

Bien que le monde fût divisé en deux blocs antagonistes après 1945, il était globalement admis que l’espace ne devait pas être utilisé à des ins militaires et appartenait à l’humanité tout entière. les premiers principes généraux, jamais remis en question par la suite, sont établis entre 1945 et 1960: n nécessité d’un cadre juridique spéciique, distinct du droit aérien; n reconnaissance du fait que l’espace est non pas un lieu susceptible d’appropriation, mais une source d’activités facilement identiiables; n acceptation du libre accès à l’espace à des ins d’utilisation paciique.

À l’époque, il n’existait que deux États spatiaux, à savoir les États unis et l’union soviétique. tous deux ont reconnu le caractère international de l’exploration de l’espace. le principe de la liberté de l’espace s’est appuyé sur deux autres accords internationaux: – la convention de Genève du 29 avril 1958 sur la pêche en haute mer; – le traité de washington du 1er décembre 1959 sur l’antarctique.

Le droit spatial entre 1960 et l’an 2000 environ au cours de cette période, l’espace fait l’objet d’une institutionnalisation, dont le traité sur l’espace extra atmosphérique de 1967 marque le début. la russie avait alors imposé sa suprématie grâce au lancement du satellite spoutnik i en 1957 et à la réalisation du premier vol spatial humain par Youri Gagarine en 1961. En Europe, l’organisation européenne pour la mise au point et la construction de lanceurs d’engins spatiaux (ElDo) et l’organisation européenne de recherches spatiales (Esro) ont été créées par deux conventions, ouvertes à la signature respectivement jusqu’au 30 avril 1962 et au 14 juin 1962.

xv ces deux organisations ont donné naissance, en 1975, à l’agence spatiale européenne (Esa), instituée par une convention entrée en vigueur le 30 octobre 1980.

En 1963, les nations unies, sur proposition de leur comité des utilisations paciiques de l’espace extra atmosphérique (uncopuos), ont adopté une déclaration formelle des principes juridiques régissant les activités des États en matière d’exploration et d’utilisation de l’espace extra atmosphérique. Dans la même année, le traité interdisant les essais d’armes nucléaires dans l’atmosphère, dans l’espace extra atmosphérique et sous l’eau a été signé.

Entre 1967 et 1979, cinq traités multilatéraux majeurs régissant les activités dans l’espace extra atmosphérique ont été adoptés: n le traité sur l’espace extra atmosphérique de 1967, qui inclut la lune et tous les autres corps célestes; n les astronautes étant considérés comme des “envoyés de l’humanité” et pouvant avoir besoin d’une aide internationale, l’accord sur le sauvetage a été adopté et est entré en vigueur le 3 décembre 1968; n ain de couvrir les dommages éventuels causés par les activités spatiales, la convention sur la responsabilité a été signée le 29 mars 1972 et est entrée en vigueur le 1er septembre 1972; n en vue d’assurer un suivi des lancements, la convention sur l’immatriculation a été ouverte à la signature le 14 janvier 1975 et est entrée en vigueur le 19 septembre 1976; n enin, le traité sur la lune, qui concerne également les autres corps célestes, a été ouvert à la signature le 18 décembre 1979 et est entré en vigueur le 11 juillet 1984.

À partir du milieu des années 1960, les États unis prennent la tête en matière d’exploration spatiale. l’accord intergouvernemental concernant le laboratoire spatial spacelab, conclu en 1973 entre le gouvernement des États unis et les États membres de l’Esro, associe des partenaires européens au programme spacelab. une étape supplémentaire dans la coopération internationale est franchie en 1988, avec l’accord intergouvernemental sur la station spatiale internationale (iss). En septembre 1993, après l’efondrement de l’union soviétique, les États unis ont décidé d’associer la russie à l’accord sur l’iss. la poursuite de la coopération internationale sur l’iss a été institutionnalisée le 29 janvier 1998, à washington, par la signature d’un nouvel accord intergouvernemental par 15 États (États unis, russie, japon, canada et 11 États membres de l’Esa). un accord mondial dans le domaine spéciique, mais important, des télé- communications, est obtenu en 1973 par le truchement de la convention de l’union internationale des télécommunications (uit). De nombreux satellites de télécommunications sont lancés à partir de quelques sites de lancement spatial (cap canaveral en Floride, Kourou en Guyane française et Baïkonour au Kazakhstan).

En 1990, le “livre vert sur une approche commune dans le domaine des communications par satellites dans la communauté européenne” garantit un xv libre accès, sans restriction, aux fournisseurs de secteur spatial au sein de l’uE. Des lignes directrices de la commission indiquent clairement, en 1991, que les règles de concurrence communautaires s’appliquent également aux secteurs des télécommunications. les satellites connaissent de nombreuses applications (aide à la navigation, missions d’observation, informations météorologiques, etc.) et GalilEo, le projet européen de positionnement par satellites, est conçu en tant que système civil (plan d’action sur les communications par satellite dans la société de l’information – 1997).

Le droit spatial à partir de l’an 2000 environ

En réponse à la demande de télécommunications, la mise sur orbite de satellites privés à déjà commencé avant 2000. cette évolution s’est accélérée à la suite de l’annonce par le président des États unis, le 16 mai 1983, de sa directive sur la commercialisation des lanceurs consommables, qui encourageait le développement par le secteur privé des opérations de lancement à caractère commercial. sous pression inancière, la nasa elle même a jugé nécessaire de s’assurer le soutien de sources industrielles et a publié, en novembre 1998, un plan de développement commercial pour l’iss, en imposant toutefois de strictes règles protectrices. au sein de l’uE, une vision stratégique de l’espace prend forme aux alentours du passage au nouveau millénaire. les institutions européennes déploient des eforts pour parvenir à la convergence institutionnelle entre la commission européenne et l’Esa. un objectif en matière de politique spatiale européenne est soumis à consultation dans le cadre d’une initiative de livre vert (21 janvier 2003), suivie d’un livre blanc (11 novembre 2003). l’élaboration d’un nouveau traité cadre – par la convention européenne – constitue un autre tournant décisif: les activités spatiales sont, pour la première fois, mentionnées dans des textes institutionnels. par ailleurs, l’Europe ressent également le besoin de se doter d’une agence européenne de défense. Dans ce contexte, l’espace représente un enjeu stratégique pour l’Europe et, du fait de la ixation d’objectifs élargis, donne naissance à une demande de mise en place d’une industrie de défense européenne forte et cohérente. il s’ensuit des regroupements industriels destinés à favoriser la création d’un complexe militaro industriel européen. De tels regroupements sont cependant rendus diiciles par la fragmentation du marché européen de la défense et la concurrence que se livrent les États unis et l’uE dans le domaine des contrats de défense. une décision est prise sur le système GalilEo, dans la perspective de son utilisation opérationnelle en 2008. l’uE apporte son soutien à l’initiative de surveillance mondiale de l’environnement et de la sécurité (GMEs). la coopération internationale dans les afaires spatiales fait partie des objectifs de l’uE. Des négociations visant à établir des liens avec la Fédération de russie et l’ukraine, ainsi qu’avec d’autres pays européens non membres de l’uE, sont menées avec succès. la dimension extra européenne de la coopération spatiale est mise en évidence par l’engagement de la chine de contribuer à hauteur de 200 millions d’euros au programme GalilEo.

xx D’autres arrangements avec des puissances spatiales émergentes (inde, pakistan, Brésil, argentine…) viennent compléter le tableau. la privatisation est aussi à l’ordre du jour pour l’organisation de voyages dans l’espace, la réalisation de l’objectif de recherche de la station spatiale et la mise en œuvre des télécommunications spatiales, dont la dimension multilatérale est à souligner. airmant sa volonté d’être un partenaire à part entière, placé sur un pied d’égalité avec les États unis, l’uE a dû prendre des décisions allant dans le sens d’une politique d’autosuisance dans des domaines tels que l’exploration de l’espace et son utilisation pour certaines activités, parmi lesquelles igurent notamment les observations militaires. la protection de l’environnement, tant dans l’espace qu’en général, de même que la protection contre les débris spatiaux et les météorites requièrent incontestablement la recherche de solutions multilatérales sous l’égide de l’organisation des nations unies, laquelle n’a cessé de démontrer son engagement en faveur de l’espace au travers de résolutions correspondantes émises par son assemblée générale.

CONCLUSIONS l’utilisation de l’espace doit être considérée comme faisant partie intégrante de la politique étrangère européenne, au sens le plus large.

Du point de vue européen, l’accent est davantage mis sur la sécurité que sur la défense. cela signiie, en principe, l’élimination des initiatives de militarisation de l’espace et l’interdiction des armements ofensifs dans l’espace. l’agence spatiale européenne (Esa) a laissé apparaître des faiblesses dans ses approches adoptées à l’extérieur de l’Europe, ainsi que dans son maintien d’une distinction artiicielle entre initiatives civiles et militaires. D’un autre côté, force est de reconnaître que, par son rôle technologique, elle a procuré de nombreux avantages dans le domaine de l’utilisation des satellites aux ins les plus diverses, qu’il s’agisse de l’observation du globe terrestre, du guidage ou des télécommunications. l’absence, à ce jour, d’une politique européenne des marchés publics de défense est des plus regrettables et, de ce fait, aucune application spatiale ne sera, à court terme, disponible pour les militaires. l’Europe a dès lors comme ambition déclarée de compter sur ses propres forces et d’être autosuisante dans le secteur militaire. pour survivre dans l’espace, il est donc essentiel d’assurer la protection des services fournis par les satellites européens en orbite. il importe, en outre, d’instaurer la meilleure coopération possible entre les États membres de l’uE, ain d’améliorer la sécurité collective au moindre coût. s’il n’est pas nécessaire de réclamer des budgets du niveau américain pour obtenir des résultats comparables, il n’en faut pas moins admettre que l’écart actuel est inacceptable.

xx Concrètement, l’Europe devrait se doter des instruments lui permettant:

1. de mettre en place une politique des marchés publics de défense; 2. de stimuler la coopération pragmatique entre États membres sur les systèmes satellitaires allemand sar lupe et français HElios ii, qui, utilisés en combinaison, seront opérationnels vers 2007; 3. de bénéicier d’un budget accru dans le domaine de la recherche spatiale, où les besoins sont estimés entre 16 et 17 milliards d’euros par an (contre 5,5 milliards en 2004), dont 2 milliards d’euros pour les ins militaires (contre 0,5 milliard en 2004).

Des ressources supplémentaires peuvent être mises à disposition par le septième programme cadre de recherche, tandis que les États membres devraient fournir une contribution plus importante.

En bref, l’Europe doit, pour le bien être de ses citoyens, envisager de réexaminer, sur les plans tant institutionnel que inancier, ses activités orientées vers l’espace.

xx

SINTESI

“European trajectories in space law” (“traiettorie europee nel campo del diritto spaziale”) descrive tre fasi distinte del diritto dello spazio: – il periodo precedente il 1960 – il periodo compreso tra il 1960 e il 2000 circa – il periodo che comincia intorno all’anno 2000.

Il diritto spaziale prima del 1960 sebbene dopo il 1945 il mondo fosse diviso in due blocchi antagonisti, l’opinione generale era che lo spazio non possa essere usato per scopi militari e appartenga all’umanità. i primi principi generali, che non saranno mai più messi in discussione, vengono stabiliti fra il 1945 e il 1960: n la necessità di un quadro giuridico a sé stante, distinto da quello del diritto aeronautico n l’accordo sul fatto che lo spazio non è un luogo soggetto a diritti di proprietà, ma una fonte di attività facilmente identiicabili n l’accettazione del principio della libertà di accesso allo spazio per usi paciici. a quell’epoca vi erano solo due stati attivi nel settore spaziale, gli usa e l’unione sovietica. Essi concordavano sul fatto che l’esplorazione dello spazio è per sua natura internazionale. il principio della libertà dello spazio era anche confermata da due convenzioni internazionali: – la convenzione di Ginevra del 29 aprile 1958 sulla pesca in alto mare – la convenzione di washington del 1° dicembre 1959 sull’antartide.

Il diritto spaziale fra il 1960 e il 2000 circa in questo periodo lo spazio comincia ad essere istituzionalizzato, a partire dal trattato sullo spazio extra-atmosferico (“outer space treaty”, ost) del 1967. nel frattempo i russi avevano conquistato la leadership con il lancio dello sputnik i nel 1957 e col primo volo umano nello spazio, quello di Yuri Gagarin nel 1961. in Europa, con una convenzione aperta alla irma ino al 30 aprile 1962, veniva istituita l’organizzazione europea per lo sviluppo e la costruzione di vettori spaziali (ElDo, European launcher Development organisation), e con la convenzione aperta alla irma il 14 giugno 1962 veniva creata l’organizzazione europea di ricerca spaziale (Esro, European space research organisation).

xx le due istituzioni danno vita nel 1975 alla convenzione sull’agenzia spaziale europea (Esa, European space agency), entrata in vigore il 30 ottobre 1980. nel 1963 le nazioni unite adottano una dichiarazione uiciale sui principi giuridici che disciplinano le attività degli stati nell’esplorazione e nell’uso dello spazio extra- atmosferico, nota col nome di uncopuos (united nations committee on peaceful uses of outer space, il comitato delle nazioni unite per l’uso paciico dello spazio extra-atmosferico). lo stesso anno viene irmato il trattato sull’interdizione degli esperimenti di armi nucleari nell’atmosfera, nello spazio e sott’acqua. nel periodo che va dal 1967 al 1979 furono adottati cinque importanti trattati multilaterali volti a disciplinare le attività nello spazio. n il trattato sullo spazio extra-atmosferico del 1967 comprendeva la luna e tutti gli altri corpi celesti; n gli astronauti, essendo considerati “inviati dell’umanità”, avrebbero potuto avere bisogno di aiuto internazionale, per cui fu adottato l’accordo di salvataggio degli astronauti, che entrò in vigore il 3 dicembre 1968; n per coprire eventuali danni provocati dalle attività spaziali, il 29 marzo 1972 venne irmata la convenzione sulla responsabilità per danni, che entrò in vigore il 1° settembre dello stesso anno; n per poter vigilare sui lanci efettuati, il 14 gennaio 1975 fu aperta alla irma la convenzione sull’immatricolazione degli oggetti lanciati nello spazio, che entrò in vigore il 19 settembre 1976; n inine, il 18 dicembre 1979 veniva aperto alla irma il trattato sulla luna, riguardante anche altri corpi celesti, entrato in vigore l’11 luglio 1984. a partire dalla metà degli anni ‘60 la leadership dell’esplorazione dello spazio era passata agli stati uniti. l’accordo intergovernativo sullo spacelab, del 1973, tra il governo degli stati uniti e gli stati membri dell’Esro, associa i partner europei al programma spacelab. la cooperazione internazionale compie un ulteriore passo in avanti nel 1988 con l’accordo intergovernativo sulla stazione spaziale internazionale (iss, international space station). nel settembre 1993, dopo il crollo dell’unione sovietica, gli stati uniti decidono di coinvolgere la russia nell’accordo iss. un altro passo avanti della cooperazione internazionale sull’iss viene istituzionalizzato il 29 gennaio 1998, a washington, con la irma di 15 stati (usa, russia, Giappone, canada, e gli 11 stati membri dell’Esa). un accordo mondiale in un settore speciico ma importante quale quello delle telecomunicazioni è raggiunto nel 1973 dalla convenzione dell’unione internazionale delle telecomunicazioni (uit, o itu secondo l’acronimo inglese). Molti satelliti per telecomunicazioni vengono lanciati da un limitato numero di basi di lancio (la base della nasa in Florida, la base di Kourou nella Guyana francese e quella di Baikanur nel Kazakistan). nel 1990, il “libro verde su un approccio comune nel campo delle comunicazioni via satellite nella comunità europea” garantisce la libertà di accesso illimitato ai fornitori di segmenti spaziali nell’uE. Gli orientamenti della commissione del 1991 chiariscono che le regole di concorrenza comunitarie si applicano anche ai settori delle telecomunicazioni. xxv le utilizzazioni dei satelliti sono molteplici (guida alla navigazione, missioni di osservazione, informazioni meteorologiche, ecc.) e GalilEo, il progetto europeo di posizionamento satellitare, è concepito come sistema civile (piano d’azione sulle comunicazioni via satellite nella società dell’informazione – 1997).

Il diritto dello spazio dal 2000 in poi in seguito alla domanda di telecomunicazioni, già prima del 2000 hanno cominciato ad essere messi in orbita satelliti privati. Questa pratica ha trovato una spinta nell’annuncio da parte del presidente degli stati uniti, il 16 maggio 1983, della sua direttiva sulla commercializzazione dei veicoli di lancio non riutilizzabili (ElV, Expendable launch Vehicles), che ha incoraggiato lo sviluppo di operazioni di lancio commerciali da parte del settore privato. la stessa nasa, per necessità inanziarie, ha sentito il bisogno del sostegno di fonti di inanziamento industriali e nel novembre 1998 ha lanciato un piano di sviluppo commerciale per la iss, corredato di rigorose norme di protezione. sul volgere del millennio prende forma nell’uE una visione strategica per lo spazio. le istituzioni europee si adoperano per raggiungere una convergenza istituzionale fra la commissione europea e l’Esa. l’obiettivo di una politica spaziale europea diventa oggetto di un libro verde (21 gennaio 2003) seguito da un libro bianco (11 novembre 2003). la nuova veste che i trattati assumono con la convenzione europea segna un altro passaggio storico: per la prima volta i testi istituzionali menzionano le attività spaziali.

Ma in Europa si avverte anche un’altra necessità, quella di un’agenzia europea per la difesa. in tale contesto lo spazio costituisce un patrimonio strategico per l’Europa e la deinizione di obiettivi più ampi fa nascere l’esigenza di un’industria europea della difesa forte e coesa. ciò comporta riorganizzazioni industriali per raforzare il complesso militare-industriale europeo, che deve far fronte alla frammentazione del mercato europeo della difesa e alla concorrenza usa-uE per gli appalti della difesa. una decisione su GalilEo è adottata in una prospettiva operativa per il 2008. l’uE dà il proprio sostegno al sistema globale di osservazione per l’ambiente e la sicurezza (GMEs, Global Monitoring for Environment and security). la cooperazione internazionale in materia di spazio fa parte degli obiettivi dell’uE. Vengono negoziati con successo legami con la Federazione russa e con l’ucraina, nonché con altri paesi europei non membri dell’uE. la dimensione extraeuropea della cooperazione in materia di spazio è dimostrata dall’impegno della cina di contribuire al programma GalilEo con 200 milioni di euro. completano il quadro altri accordi con potenze spaziali emergenti (india, pakistan, Brasile, argentina, ...). l’agenda prevede anche privatizzazioni per l’organizzazione di viaggi spaziali e l’attuazione degli obiettivi di ricerca della stazione spaziale, e al ine di sottolineare la dimensione multilaterale delle telecomunicazioni spaziali.

xxv l’uE, che proclama la sua volontà di essere partner a pieno titolo e paritario degli usa, ha dovuto adottare decisioni orientate a una politica di autosuicienza, ad esempio nei settori dell’esplorazione dello spazio e del suo uso per certe attività, in particolare l’osservazione militare.

E’ evidente che la tutela dell’ambiente, nello spazio e in generale, e la protezione contro i riiuti spaziali e le meteoriti richiedono soluzioni multilaterali sotto gli auspici delle nazioni unite, organizzazione che ha costantemente dimostrato il proprio impegno nel campo dello spazio con le risoluzioni adottate in materia dalla sua assemblea generale (unGa).

CONCLUSIONI l’uso dello spazio va considerato parte integrante della politica estera europea intesa nel senso più ampio. nella prospettiva europea, l’accento viene posto sulla sicurezza più che sulla difesa. in linea di principio ciò signiica eliminare le iniziative di militarizzazione dello spazio e interdire gli armamenti ofensivi nello spazio. l’Esa, l’agenzia spaziale europea, ha mostrato debolezze nel suo approccio verso l’estero e nel perpetuare una separazione artiiciale tra iniziative civili e militari. Va peraltro riconosciuto che il suo ruolo tecnologico ha apportato numerosi beneici nell’uso dei satelliti per gli scopi più diversi quali osservazioni globali, sistemi di guida satellitare e telecomunicazioni.

Vi è molto da rammaricarsi per il fatto che inora non esista una politica europea degli appalti della difesa, cosicché a breve termine non vi saranno applicazioni spaziali a disposizione dei militari. l’Europa ha dunque una chiara ambizione a fare aidamento sulle proprie forze, ad essere autosuiciente in campo militare. ciò signiica che per sopravvivere nello spazio il punto fondamentale è la protezione dei servizi forniti dai satelliti europei in orbita. un altro elemento importante è la miglior cooperazione possibile tra stati membri dell’uE, al ine di migliorare la sicurezza collettiva al costo più basso. non è necessario sollecitare bilanci di livello “americano” per ottenere risultati analoghi, ma bisogna ammettere che il divario attuale è intollerabile.

In termini concreti, l’Europa dovrebbe dotarsi degli strumenti atti a consentirle di:

1. istituire una politica degli appalti della difesa; 2. stimolare la cooperazione fra stati membri, su basi pragmatiche, per il sistema satellitare tedesco sar-lupe e quello francese HElios ii, che in combinazione saranno operativi intorno al 2007;

xxv 3. beneiciare di un bilancio più elevato nel settore della ricerca spaziale, per la quale il fabbisogno è stato stimato a 16-17 miliardi di euro l’anno (contro i 5,5 miliardi del 2004), di cui 2 miliardi per usi militari (contro gli 0,5 miliardi del 2004). risorse supplementari potranno essere rese disponibili dal 7° programma quadro di ricerca, mentre gli stati membri dovrebbero contribuire in misura più larga. in sintesi, l’Europa deve prevedere una revisione sia istituzionale che inanziaria delle sue attività orientate allo spazio, per il benessere dei suoi cittadini.

xxv

RESUMO

“European trajectories in space law” (trajectórias europeias no direito do espaço) descreve três fases distintas do direito do espaço: – o período anterior a 1960 – o período entre 1960 e 2000 – o período a partir de 2000.

O direito do espaço antes de 1960 apesar de, após 1945, o mundo se encontrar dividido em dois blocos antagónicos, o sentimento que prevalecia a nível mundial era o de que o espaço não pode ser utilizado para ins militares e pertence à Humanidade. os primeiros princípios gerais, que nunca serão postos em causa, foram estabelecidos entre 1945 e 1960: n necessidade de um quadro jurídico próprio, distinto do quadro do direito aéreo n acordo quanto ao princípio de o espaço não pertencer a ninguém, mas estar na origem de actividades facilmente identiicáveis n aceitação da liberdade de acesso ao espaço para ins pacíicos. na altura, existiam apenas dois Estados com actividades espaciais: os Estados unidos da américa e a união soviética. ambos concordaram que a exploração do espaço é, por natureza, internacional. o princípio da liberdade do espaço foi defendido em duas outras convenções internacionais: – a convenção de Genebra de 29 de abril de 1958 sobre a pesca do alto mar – a convenção de washington de 1 de Dezembro de 1959 sobre o antárctico.

O direito do espaço entre 1960 e 2000

Durante este período, o espaço começou a ser institucionalizado, primeiramente com o tratado de 1967 sobre a exploração do espaço exterior. nessa altura, já os russos tinham assumido a liderança com o lançamento, em 1957, do satélite sputnik i e, em 1961, com a primeira viagem de um homem, Yuri Gagarin, no espaço. na Europa, foi criada a ElDo - organização Europeia para o Desenvolvimento e construção de lançadores de Veículos Espaciais – por uma convenção aberta à assinatura até 30 de abril de 1962, e a Esro - organização Europeia de investigação Espacial – por uma convenção aberta à assinatura em 14 de junho de 1962. ambas as organizações deram origem, em 1975, à convenção da aEE, a agência Espacial Europeia, que entrou em vigor em 30 de outubro de 1980.

xxx Em 1963, as nações unidas publicaram a Declaração formal dos princípios que regem as actividades dos Estados na exploração e utilização do espaço exterior (uncopuos). no mesmo ano, foi assinado o tratado que proíbe os testes com armas nucleares na atmosfera, no espaço exterior e debaixo de água.

Entre 1967 e 1979 foram adoptados cinco grandes tratados multilaterais que regem as actividades no espaço exterior: n o tratado de 1967 sobre o Espaço Exterior, incluindo a lua e outros corpos celestes; n como os astronautas, considerados “enviados da Humanidade”, podiam precisar da ajuda internacional, foi adoptado o acordo relativo ao salvamento dos astronautas, que entrou em vigor em 3 de Dezembro de 1968; n para prevenir eventuais danos causados pelas actividades no espaço, foi assinada em 29 de Março de 1972 e entrou em vigor em 1 de setembro de 1972 a convenção sobre a responsabilidade; n para controlar os lançamentos, foi aberta à assinatura em 14 de janeiro de 1975 e entrou em vigor em 19 de setembro de 1976 a convenção relativa ao registo dos objectos lançados para o espaço exterior; n inalmente, o tratado sobre a lua, aplicável também aos outros corpos celestes, foi aberto à assinatura em 18 de Dezembro de 1979 e entrou em vigor em 11 de julho de 1984. a partir de meados dos anos 60, os Eua assumiram a liderança da exploração espacial. o acordo intergovernamental de 1973 sobre o spacelab, celebrado entre o governo dos Eua e os Estados que faziam parte da Esro, associa os parceiros europeus ao programa spacelab. a cooperação internacional prossegue com a assinatura, em 1988, do acordo intergovernamental sobre a Estação Espacial internacional. Em setembro de 1993, após o desmoronamento da união soviética, os Eua decidiram aceitar a participação da rússia no acordo sobre a Estação Espacial internacional. Em 29 de janeiro de 1998, a cooperação internacional no âmbito da Estação Espacial internacional conheceu um novo capítulo em washington, com a assinatura de 15 Estados (os Eua, a rússia, o japão, o canadá e 11 Estados membros da aEE).

Em 1973, chega-se a acordo a nível mundial num domínio especíico mas importante - as telecomunicações - com a celebração da convenção da união internacional de telecomunicações (uit). são lançados muitos satélites de telecomunicações a partir de um pequeno número de bases de lançamento espaciais (nasa, na Florida, Kourou, na Guiana Francesa, e Baikanur, no Kazaquistão).

Em 1990, o “livro Verde sobre uma abordagem comum no domínio das comunicações por satélite na comunidade Europeia” garante acesso livre e sem restrições aos operadores de segmentos espaciais na união Europeia. Em 1991, as directrizes da comissão tornam claro que as regras comunitárias da concorrência se aplicam também aos sectores das telecomunicações. os satélites conhecem muitas aplicações (apoio à navegação, missões de observação, informação meteorológica, etc.) e o GalilEo, projecto europeu de

xxx navegação e posicionamento por satélite, é concebido como sistema civil (plano de acção sobre as comunicações via satélite na sociedade da informação – 1997).

O direito do espaço a partir do ano 2000 para responder à procura de telecomunicações, já antes de 2000 se encontravam em órbita satélites privados, medida que fora encorajada pela directiva divulgada pelo presidente dos Eua em 16 de Maio de 1983 sobre a comercialização de veículos de lançamento não recuperáveis (ElV), fomentando as operações comerciais de lançamento do sector privado. a pressão inanceira levou a própria nasa a procurar o apoio da indústria, publicando, em novembro de 1998, um plano de desenvolvimento comercial da Estação Espacial internacional, ainda que sujeito a estritas regras de protecção. na união Europeia, perto do virar do milénio, toma forma uma visão estratégica do espaço. as instituições europeias procuram esforçadamente a convergência institucional entre a comissão Europeia e a aEE. o objectivo da política espacial europeia é objecto de um livro Verde, em 21 de janeiro de 2003, logo seguido de um livro Branco, em 11 de novembro de 2003. o novo enquadramento oferecido pela convenção Europeia representa um outro marco importante: as actividades espaciais são mencionadas pela primeira vez em textos institucionais.

Mas surge na Europa uma nova percepção: a da necessidade de uma agência Europeia de Defesa. neste contexto, o espaço representa um elemento estratégico para a Europa e, com o estabelecimento de objectivos mais ambiciosos, gera- se a procura de uma indústria da defesa forte e coerente, que trará consigo reagrupamentos industriais para a constituição de um complexo militar-industrial europeu. o problema reside na fragmentação do mercado europeu da defesa e na concorrência entre os Eua e a união Europeia para a conquista de contratos no domínio da defesa.

É tomada uma decisão sobre o GalilEo na perspectiva da sua entrada em funcionamento em 2008. a união Europeia apoia a iniciativa “Vigilância Global do ambiente e da segurança” (GMEs). a cooperação internacional no que diz respeito ao espaço faz parte dos objectivos da união Europeia. são negociados com êxito acordos com a Federação russa e a ucrânia e com outros países europeus que não fazem parte da união Europeia. a dimensão extra-europeia da cooperação no domínio espacial ica comprovada pela promessa da china de contribuir com 200 milhões de euros para o programa GalilEo. completam o cenário, outros acordos com potências espaciais emergentes (Índia, paquistão, Brasil, argentina, etc.). a privatização está também na ordem do dia para a organização das viagens espaciais, a investigação nas estações espaciais e o reforço da dimensão multilateral das telecomunicações espaciais. o facto de a união Europeia manifestar a sua vontade de participar plenamente, em pé de igualdade com os Eua, implicou a tomada de decisões no sentido de uma

xxx posição de auto-suiciência, por exemplo, nos domínios da exploração do espaço e da sua utilização para actividades, nomeadamente, de observação militar.

É óbvio que a protecção do ambiente, no espaço e em geral, e a protecção contra os detritos espaciais e os meteoritos exigem soluções multilaterais, a adoptar sob os auspícios das nações unidas, organização que sempre se mostrou empenhada na exploração do espaço através de resoluções sobre o tema adoptadas pela assembleia Geral das nações unidas.

CONCLUSÕES a utilização do espaço tem de fazer parte integrante da política externa europeia no seu sentido mais lato. na perspectiva da Europa, a segurança é mais importante do que a defesa, o que, em princípio, implica a recusa de iniciativas militaristas e a proibição de armamento ofensivo no espaço. a aEE - agência Espacial Europeia - mostrou fraqueza nas suas estratégias a nível externo e ao perpetuar uma distinção artiicial entre iniciativas civis e militares. aliás, há que reconhecer que, a nível tecnológico, a utilização de satélites para os mais diversos ins, como as actividades globais de observação e orientação e as telecomunicações, trouxe inúmeros benefícios. a ausência, até agora, de uma política europeia de contratos públicos no sector da defesa é lamentável e, a curto prazo, não existirão no espaço aplicações militares. a Europa ambiciona poder contar com as suas próprias forças e ser auto-suiciente no plano militar. isso signiica que, para sobreviver no espaço, é indispensável proteger os serviços fornecidos pelos satélites europeus em órbita. outro factor importante é a máxima cooperação possível entre os Estados- Membros da união Europeia para melhorar a segurança colectiva com o mínimo de custos. não há necessidade de exigir orçamentos ao nível dos que os americanos consagram à defesa para obter resultados equivalentes, mas há que admitir que a actual discrepância é intolerável.

Em termos concretos, a Europa deve dotar-se de instrumentos que lhe permitam

1. instituir uma política de contratos públicos no sector da defesa; 2. encorajar a cooperação dos Estados-Membros, numa base pragmática, no contexto dos sistemas de satélite alemão sar-lupe e francês HElios ii, que, em conjunto, estarão operacionais por volta de 2007; 3. beneiciar de um orçamento maior para a investigação espacial, cujas necessidades foram avaliadas em 16 a 17 mil milhões de euros por ano (5.500 milhões de euros em 2004), dos quais 2.000 milhões para ins militares (500 milhões em 2004). xxx o 7º programa-Quadro de investigação pode fornecer recursos suplementares e as contribuições dos Estados-Membros são também ser importantes.

Em resumo, a Europa deve encarar a revisão institucional e inanceira das suas actividades no domínio do espaço para o bem-estar dos seus cidadãos.

xxx

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 21 A. Several facts have sustaned the dea of a separate nternatonal legal framework 2 B. Techncal dference between a jet arcraft and a rocket 22 C. An early concept: space s not a locaton but a source of actvtes 22 D. Space law: a breakthrough thanks to the regulaton of space actv- tes 22 E. Lnks between ar law and space law 23 Chapter 2: The principle of liberty of space extended to celestial bodies 24 A. Dstncton between lberty and nternatonalsaton 24 B. Consoldaton of the prncple of lberty of access to space by two other conventons 25 C. Concluson 26 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 29 Chapter 1: The Outer Space Treaty (OST) (1967) 31 Chapter 2: The Rescue Agreement (1968) 34 Chapter 3: The Liability Convention (1972) 36 A. Concepts (Artcles I to V) 36 B. The applcable law (Artcle XII) 37

 EuropEAn TrAjECTorIES In SpACE LAw — 2007

C. The mechansm for settlng under the Conventon (Artcles VI–X) 38 D. Dspute settlement (Artcle XIX) 38 Chapter 4: The Convention on Registration of Objects launched into Outer Space (1974) 41 A. Concept 4 B. The mechansm of regstry 4 Chapter 5: Agreement Governing the Activities of States on the Moon and other Celestial Bodies (1979) 44 A. Concepts 44 B. Actvtes on the Moon 45 Chapter 6: The Conventions of the European Space Agency (ESA) (1975– 1980) 47 A. orgn of the Conventon 47 B. The concept of the ESA 48 C. Comments on the substance 49 D. Comments on the formal aspects 52 Chapter 7: The International Telecommunication Union Convention (1973) 54 A. Introducton 54 B. Hstorcal overvew 54 C. The concept of the ITu 56 I. Legal framework 56 II. Functonng of the ITu 57 III. Authorty of the ITu 59 Chapter 8: The intergovernmental agreement (IGA) on the International Space Station (ISS) (1988) 60 Chapter 9: Commercial development plans in space related to the ISS 63 A. Hstorcal background 63 B. An approach for ISS commercalsaton 64 C. A commercal development plan for the cvl Internatonal Space Staton (ISS) proposed by nASA (998) 66 I. Deintons 66 II. The uS concept 67 III. A launch does not mean an export, a re-entry not an mport 68 IV. The procurement of commercal space transportaton servces 68 Chapter 10: Space-related resolutions of the United Nations General Assembly (UNGA) 70 Chapter 11: The particular problem of space debris 73 A. Techncaltes 73 B. Deintons 74 C. Exstng space law potentally applcable to space debrs 75

2 ConTEnTS

Chapter 12: The multiple uses of satellites 77 A. Telecommuncatons 77 B. Satellte navgaton 78 C. remote sensng 79 I. Applcatons n ther hstorcal development 79 II. Internatonal law governng remote sensng 80 III. The concept of remote sensng 8 D. Solar power satelltes (SpS) 84 I. Deinton of solar energy 84 II. Functon of solar power satelltes 84 III. Legal mplcatons 84 E. nuclear power sources (npS) 85 Chapter 13: Galileo, the European satellite positioning project 86 A. Hstory 86 B. Concept of Galleo 86 C. Techncaltes around Galleo 87 D. The potental of applcatons for Galleo 87 E. poltcal ssues 88 Chapter 14: Industrial law in space applications 89 A. Deintons 89 B. Intellectual property rghts 89 Chapter 15: Insurance of space activities 92 A. Hstory 92 B. Types of nsurance 92 C. Deintons 93 Chapter 16: Dispute resolution — jurisprudence 95 A. Concept 95 B. Case law 95 C. The settlements of dsputes 98

Part 3 – Space challenges faced by Europe from a legal perspective (2000–) 101 Chapter 1: Take-of of a strategic vision for space in Europe 104 A. Hstory 04 B. The relecton tme 05 Chapter 2: Eforts to achieve institutional convergence between the European Commission and the ESA 107 A. The Bldt-peyrelevade-Späth report and ts nluence 07 B. The jont Task Force EC/ESA (200) 09

3 EuropEAn TrAjECTorIES In SpACE LAw — 2007

C. The EC/ESA framework paper 0 I. purpose of the cooperaton 0 II. jont ntatves wth ther restrctons 0 III. Duraton of the agreement  D. The future of the Eu/ESA relatonshp 2 I. The actual model of cooperaton, through partnershp, on the one hand 2 II. The ntegraton model, on the other hand 2 Chapter 3: The Green Paper initiative (21 January 2003) followed by the White Paper (11 November 2003) 114 A. The Green paper (2 january 2003) 4 I. Introducton 4 II. Content of the Green paper 4 III. The ESA's smlar programme for scentic users 6 B. The whte paper ( november 2003) 7 I. Introducton 7 II. Content of the whte paper 20 Chapter 4: The setting of a new treaty framework: the European Convention 127 A. references to space 27 I. The basc reference to space led n Artcle -4, al. 3: 27 II. The second reference 29 III. There was an mplct reference to space also n Artcle 4-3-2 29 Chapter 5: Towards a European Defence Agency 131 A. Introducton 3 B. Space, a strategc asset for Europe 32 C. A need for a strong and coherent ndustry 33 Chapter 6: The European military-industrial complex 137 A. Introducton 37 B. The French-German-Brtsh-Spansh-Italan regroupng (july 2000): EADS 37 C. Fragmentaton of the European defence market 39 D. uS–Eu competton n defence contracts 39 Chapter 7: Galileo and GNSS challenges during the 21st century 141 A. The Galleo jont undertakng 4 I. Introducton to the development phase — hstorcal background 4 II. Motvaton for the creaton of the Galleo jont undertakng 42 III. Legal bases for the Galleo jont undertakng 43 IV. Introducton to the operatonal phase 43 V. System potentaltes 44 B. Strategc nature of the European satellte rado-navgaton pro- grammes and establshment of structures for ts management: the GnSS supervsory authorty 45

4 ConTEnTS

C. The Eu–uS dspute and compromse 50 D. other legal aspects to watch n the future mplementaton of GnSS and Galleo 5 Chapter 8: EU cooperation with third countries on space issues 153 A. General scope 53 B. The European dmenson of cooperaton n space afars 54 I. Cooperaton wth russa 54 II. Cooperaton wth ukrane 59 III. Cooperaton wth other non-Eu countres of Europe 64 C. The extra-European dmenson of cooperaton n space afars 65 I. The specal ssue of space cooperaton between the people’s republc of Chna and the European unon 65 II. Cooperaton wth Inda 66 III. Cooperaton wth Brazl 66 IV. Cooperaton wth japan 67 V. Cooperaton wth Canada 67 Chapter 9: A need to clarify the role assigned to ISS 169 A. The need to reconsder the operatonal bases for the ISS 69 B. The growng mportance of Europe n the scentic area 70 C. Internatonal relecton on the future of ISS 7 Chapter 10: Space travel in a privatisation perspective 172 A. Feasblty studes from the 990s 72 B. Frst legal framework for space toursm 73 C. Space prvatsaton prncples 74 D. Avaton regulaton, a model for space carrage? 76 E. Death and njury of passengers — damage to payload 77 F. Damage to cargo (e.g. mnerals, rare stones) 77 G. The problem of nsurng a space passenger 78 Chapter 11: Developments in the International Telecommunications Union (ITU) 180 A. Hstorcal background 80 I. Frst commtments n nternatonal telecommuncatons 80 II. reference paper 80 III. The new negotatons 83 B. Amercan domnance 83 C. Space segment requrements 85 D. Three dferent approaches: the uSA, japan, the ESA... and new- comers appear 86 I. The uS (nASA) perspectve 86 II. The japanese perspectve 86 III. The European (ESA) perspectve 86 IV. other nternatonal developments 87

5 EuropEAn TrAjECTorIES In SpACE LAw — 2007

Chapter 12: Multilateral solutions against increasing environmental damage originating in space 188 A. The envronmental problem globally: from ro to Kyoto 88 B. Sgnicance of the Kyoto Clmate protocol 88 C. The envronmental lablty wth regards to the preventon and rem- edyng of envronmental damage 9 D. protecton of the envronment, a key polcy element for the Eu 9 E. Implementng GMES 93 F. polluton of the outer space envronment 94 I. Debrs 94 II. Emssons 94 III. Contrals 94 G. Kyoto celebratons 95 H. Sustanable spatal development 97 I. The European Envronment Agency 97 II. Europe’s Meteorologcal Satellte organsaton: Eumetsat 200 III. DG research’s Space Conferences and Exhbtons n Brussels (2–20 Feb- ruary 2005) 20 IV. recent analyss of the ITu envronment 20 I. Consequences for ITu 202 j. ITu partnershp wth Inmarsat n support of the least developed countres 203 K. Eu legslaton n telecommuncaton 204 I. The ‘satellte drectve’ 205 II. The ‘full competton drectve’ 205 III. The ‘lcensng drectve’ 206 L. what has been done at an nternatonal level to facltate the obtan- ng of necessary authorsatons? 206 Chapter 13: Future insurance of space activities 208 A. Insurance requrements for space carrers and space travel operators from the Eu 208 B. The space nsurance market 25 I. recent evoluton n the space nsurance market 25 II. personal rsks to be covered 27 C. Lnkage wth the aerospace ndustry 29 Chapter 14: Space competition, claims and dispute resolution 220 A. Bases n European competton law 220 B. whch solutons could be envsaged? 222 C. The problem of nsurng humans n space 223 D. recent consoldaton n space markets and ndustry structure 226 I. Market stuaton of the ‘bg three’ 226 II. restructurng n the satellte buldng and launcher ndustres 227

6 ConTEnTS

E. judcal dferentaton between the satellte market and the market for launch servces 229 I. Case no CoMp/M.879 — Boeng/Hughes — october 2000 229 II. Case no CoMp/M.636 — MMS/DASA/Astrum — March 2000 230 F. Questons about space transport emergence 233 I. what wll happen when space transport comes n? 233 II. wll space transport one day be part of the common transport polcy? 234 III. Are blateral space servces agreements possble? 234 IV. what s nterestng about the Court’s decson? 235 G. Lablty regardng space servces, necessarly subject to be lmted 235 H. Lablty regardng explotaton of space resources 236 I. Dspute settlement 237 Chapter 15: Space and security — concentration in the aerospace industry 238 A. Introducton 238 B. Legal nterpretaton of defence procurement rules n the Eu 243 I. Background: Artcle 296 of the EC Treaty 243 II. The need for a European ndependent, common defence procurement 243 C. Eu procurement rules n relaton to space polcy 244 I. what wll be the defence applcatons of Europe’s space efort? 244 II. what s the future for Eu–uS space cooperaton? 245 D. De facto compettveness n the aerospace ndustry depends on mltary orders 246

Epilogue 249 Scentic advance and Eu space polcy 249

Annexes 257 Acronyms 259 Bibliography 263 ITU historical review 273 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 287 A. unted natons Treates 287 B. other Agreements 289 C. Internatonal status 293 Space law instruments and regulations 303

7

Acknowledgment

I would like to thank a number of young legal researchers and interns who, under my coordination, have assisted in realising European trajectories in space law. hey include: Denis Hendrichs (Belgium), Magdelene Davis (South Africa), Ricardo Pereira (Portugal), Rodolphe van der Vaeren (Belgium) and François Lambert (Belgium).

François Lambert in particular was helpful in updating the present book. As from 2005, he is the new project coordinator of the ERA-STAR regions programme, an FP6 project from the European Commission involving European regions and countries that have developed particular competences in space research focusing on Galileo, GMES and technology applications. he ERA-STAR Consortium associates research programme managers from these regions and countries with the objective of building the transregional critical mass in research and technological development capacity needed to meet the growing opportunities that space programmes and space-based services ofer.

I therefore am happy to recognise his merits in co-authorship.

My sincere gratitude also goes to Professor Philippe Busquin, European Commissioner in charge of research between 1999 and 2004, currently Member of the European Parliament, who has kindly accepted to write the foreword of this book with his encouragements and those of his directorate- general.

His message is one of hope as the drat European 'Constitution' has for the irst time incorporated space into the competences of the European Union. He worked hard towards that end during his mandate.

Dr. Jean-Louis van de Wouwer December 2007

9 préface

Ce livre sur les « trajectoires européennes en droit spatial » arrive au bon moment alors que la phase de ratiication de la Constitution européenne a débuté au sein de l’Union Européenne.

En efet, pour la première fois, l’espace fait partie intégrante des compétences de l’Union Européenne. Ayant œuvré dans ce sens durant mon mandat de Commissaire européen chargé de la Recherche, j’en suis particulièrement heureux.

C’est aussi l’aboutissement des négociations menées avec l’Agence Spatiale Européenne pour déinir un accord de collaboration et élaborer un Livre Blanc sur la politique spatiale en Europe. L’espace est un élément géopolitique essentiel intervenant de plus en plus dans le quotidien de chaque citoyen européen.

De plus, la sécurité est assurée par l’observation satellitaire alors que les applications se multiplient, posant des problèmes institutionnels liés aux aspects « défense ».

La Recherche dans ce domaine doit être duale (civile et militaire). Des premiers pas ont déjà été accomplis par l’adjonction d’un volet « sécurité » à la Recherche européenne.

Monsieur Verheugen, Vice-président de la Commission européenne et Commissaire européen chargé des volets « Entreprise et Industrie », en a la responsabilité et la proposition du 7ème Programme-Cadre de la Recherche prévoit une thématique spéciique.

La dimension politique prise par la politique spatiale avec le soutien de l’Agence Spatiale Européenne permet à l’Europe d’être un interlocuteur mondial de premier plan.

Nous sommes surtout présents dans l’observation de la Terre grâce, entre autres, à nos satellites (Envisat, SPOT, etc.) qui constitueront autant d’éléments du système GMES et donneront à l’Europe la possibilité de jouer un rôle majeur dans l’arène internationale.

 EuropEAn TrAjECTorIES In SpACE LAw — 2007

Ce livre explique à merveille les évolutions récentes du secteur et s’inscrit donc dans un objectif prioritaire : prendre conscience de la politique spatiale comme un élément clé du développement de l’Europe.

Professor Philippe Busquin Commissaire Européen en charge de la Recherche entre 1999-2004 Membre du Parlement Européen

2 Foreword

his book on Europe’s trajectories in space law is published at the right time as the ratiication phase of the European Constitution has been launched in the European Union.

Indeed, for the irst time ever, space has been incorporated into the competences of the European Union. I am particularly pleased as I worked towards that end during my mandate as European Commissioner in charge of research between 1999 and 2004. his would not have been possible without tireless negotiations with the European Space Agency (ESA) to deine a cooperation agreement and issue a White Paper on EU space policy. Space is an essential geopolitical component. It has gained such magnitude that it can but only inluence the day-to-day life of Europe’s citizens.

Moreover, our security is guaranteed by satellite observations while applications are on the increase, thus creating institutional defence-related problems. Research in security must be twofold (civil and military). Preliminary steps have already been taken by the introduction of ‘security’ in European research.

Günter Verheugen, Vice-President of the European Commission and Commissioner for Enterprise and Industry, is in charge of this new aspect of research. he seventh research framework programme also deals with this novel approach to research. he political signiicance taken by the European space policy with the support of ESA makes it possible for Europe to be one of the main international proponents in the ield.

We are most notably active in the sector of terrestrial observation thanks to, among others, our satellites (Envisat, SPOT, etc.), which will all be integrated into the GMES (global monitoring for environment and security) system and will consequently give Europe the possibility of playing a major role in the international arena.

3 EuropEAn TrAjECTorIES In SpACE LAw — 2007 his document gives a thorough account of the most recent developments in the space industry and contributes to a prior objective, i.e. the awareness that space policy is one of the key elements of Europe’s importance in the world.

Professor Philippe Busquin European Commissioner in charge of research between 1999 and 2004 Member of the European Parliament

4 Introducton From a hstorcal pont of vew, there are clearly three perods n space law.

SpACE LAw BEForE 1960 he irst irrefutable general principles are established: • the necessity of a separate legal frame, distinctive from air law; • the idea that space is not a location but a source of activities which can easily be identiied; • the principle of liberty of access to space.

SpACE LAw BETwEEn 1960 and 2000

Mainly under the auspices of the United Nations, and spurred by the space competition between the USA and the USSR/Russia, a number of space treaties, conventions or agreements are approved in this period: • the Outer Space Treaty (OST) (1967); • the Rescue Agreement (1968); • the Convention of the European Space Agency (ESA) (1975–1980); • the Registration Convention (1975); • the Moon Agreement (1979); • the International Telecommunications Convention (1982–85); • the International Space Station (ISS) (1988–98). hese conventions underline the public character of space business in the period.

Astronauts are considered as ‘envoys of mankind’. A number of deinitions such as ‘space object’, ‘launching State’ and ‘space debris’, are speciied.

5 EuropEAn TrAjECTorIES In SpACE LAw — 2007

Europe asserts itself from 1975 with the Convention of the European Space Agency (ESA), which opened for signature on 30 May 1975 and entered into force on 30 October 1980.

In 1988, the Inter-Governmental Agreement (IGA) on the Space Station sets out the general principles for carrying out international cooperation.

In November 1998, NASA releases a commercial development plan for the civil International Space Station (ISS) IGA, which was signed in Wash- ington on 29 January 1998 by the representatives of 15 States (USA, Rus- sia, Japan and Canada plus 11 ESA Member States).

SpACE LAw AS from 2000 he prevailing public character of space business, hence space law, is grad- ually changing. he evolution shows a move towards a mixed situation involving privatisation.

Space law faces new challenges such as space tourism, solar power pro- duction, traic systems and increased environmental issues. A number of deinitions have still to be agreed upon, including the changing status of astronauts, once considered as ‘envoys of mankind’ and now subject to a ‘second generation’.

Consequently, there is plenty of justiication for further space law studies to ill the legal gaps.

1. here is a move towards privatising certain intergovernmental space organisations (Eutelsat, Inmarsat, Intelsat) and we therefore need to con- sider ways of ensuring continuity in the application of the principles of space law (in particular of Article VI of the Treaty and of the relevant pro- visions of other agreements, liability and registration conventions).

We can expect a rise in the number of projects initiated by private compa- nies, for example: • private telecommunication satellites (television and telephone); • private launches; • private mining of asteroids. he European Commission Press Release IP/98/923 whereby the Commission gives the green light to Inmarsat restructuring refers

6 InTroDuCTIon to clearing under EC competition rules of the Inmarsat reform on 22 October 1998 (1)

2. he Outer Space Treaty (OST) must be clariied, for example the notions of liability and responsibility (in French only responsabilité).

Both responsibility and liability are imputable to a State so that private companies are not directly subject to international law and, as such, can- not be parties to cases before international courts.

A possible solution is to bring legal action on a national level. By choosing a nationality, the private company can choose the most favourable liability law. Only in the United States is a comprehensive national space law in force today. he US Commercial Space Launch Act may serve as a useful pattern. However, it looks necessary to maintain the present system and its burden of absolute liability and responsibility on States, which are acting as an ultimate safety net.

3. Space inance — enormous sums of money being involved, the grow- ing trend towards the commercialisation of space has brought with it a change in the proile of the typical customer for space inance. Such cus- tomers will now increasingly be start-up companies with no real credit history and no assets other than a satellite to ofer as collateral.

Such satellites will typically be telecommunication satellites (value: USD 75 million per unit + launching costs probably in excess of that sum).

4. Evaluation of aerospace risk is presently under scrutiny: aerospace insurance and reinsurance markets are backed up by detailed reports on aerospace legal cases and legislation changes. It is useful to make use of Lloyd’s syndicate information on the world’s leading aerospace underwriters.

5. he need to make common rules available for solving disputes involv- ing commercial private enterprises is growing.

Private enterprises have been involved in various ways in space activities. Firstly, they have been engaged as suppliers to State institutions or interna- tional governmental organisations as subcontractors or consortium mem- bers for their space activities.

(1) he main principles of the Satellite Green Paper were enshrined in Directive 94/47/EC of 13 Oc- tober 1994 which has become the main legal base for the transformation of the satellite sector in Europe. See also Council resolution of 16 November 2000 on a European space strategy (OJ C 371, 23.12.2000).

7 EuropEAn TrAjECTorIES In SpACE LAw — 2007

Today, to a growing extent, private enterprises are also engaged directly in space activities, concluding contracts with other private enterprises regarding space activities. Disputes are bound to occur more oten too in this context.

Karl-Heinz Böckstiegel writes: In relative perspective, dispute settlement plays a greater role for private en- terprises than for State institutions, because private enterprises do not have available diplomatic and political means and because private enterprises rely much more on calculating the exposure to costs and risks on the fulilment of contractual obligations and, if necessary, on the enforcement for the other party to fulil the contract or pay damages. For dispute settlement between private enterprises regarding their activities for space or in space, mostly the same legal sources and criteria are relevant which play a role in the business cooperation and contractual relations between private enterprises in other areas of business. (1)

6. here is a need to work out the legal regime of human activities in outer space law.

7. he problem of space debris constitutes an additional liability/respon- sibility aspect for material damages caused by private activity in outer space.

(1) Karl-Heinz Böckstiegel, he settlement of disputes regarding space activities ater 30 years of the Outer Space Treaty, 21 Journal of Space Law, 1.3.1993.

8 part 1

– Space law before 960

pArT  — SpACE LAw BEForE 960

CHApTEr I: First principles

Around 1960, the irst projections of a sister law to air law were publicly expressed by lawyers (1). a. several facts have sustained the idea of a separate international legal framework • the launching of the irst Sputnik, on 4 October 1957; • the launching of Lunik II on 12 September 1959, the irst space object to touch a celestial body, the Moon; • the orbiting of a number of satellites around Earth already at that time.

Space objects were initially called ‘space devices’. Later the terminology moved more towards the concept of today’s space objects. he term ‘space law’ was also far from self-evident initially. Some authors, such as Kroell (2), even made a distinction between ‘astronautical law’ and ‘interplanetary law’. he irst focused on interplanetary and interside- real traic, the second was supposed to cover appropriation of ownerless locations and exploitation of solid bodies. he latter is open to question though. he need to obtain special rules of law so as to meet special types of activi- ties in space became obvious from the late 1950s.

Prof. Ambrosini, the Italian delegate, declared at the UN General Assem- bly’s political committee on 12 November 1958: 'All new human activity which creates wealth, and as a matter of consequence may generate dis- putes, must be met by fair and rational regulations, on risk of confusion and anarchy.' he Soviet delegate, Mr Kouznetsov, added on 11 December 1959: ‘he exploration of space is international by its nature’. he regulatory problem thus became an international item and this idea was supported by the two only existing space States at that time, the USA and the Soviet Union.

(1) Martin, P.-M., ‘Le droit de l’espace’ In: Que sais-je?, Presses Universitaires de France, 1992. (2) Survey in Revue générale de l’Air, Tome I, p. 232, 1953.

2 EuropEAn TrAjECTorIES In SpACE LAw — 2007 he irst steps in space law, in practice, relied primarily upon the work of a special international body, the UN Committee on the Peaceful Uses of Outer Space (Uncopuos) of which two subcommittees: the Scientiic and Techni- cal Subcommittee and the Legal Subcommittee are now based in Vienna.

B. technical diference between a jet aircraft and a rocket

Rockets are needed in order to launch space objects into space. Rockets are propelled in such a way that they are able to overcome the Earth’s attrac- tion, whereas jet aircrat are still based on airworthiness below an absolute maximum altitude of 75 km (in the case of an aircrat-rocket).

C. An early concept: space is not a location but a source of activities

As from the acceptance that space is not a location that can be identiied for appropriation but rather a source of commonly agreed activities, the legal regime has to focus on regulating those activities.

In 1958, the United Nations succeeded in making the USA and the Soviet Union cooperate in space matters around a number of principles. A resolu- tion of 12 December 1959 relects the common views of Brazil, the United States, France, India, Japan, Poland, the United Arab Republic, Romania, the United Kingdom, Sweden, Czechoslovakia and the USSR on the crea- tion of a new committee on the peaceful uses in extra-atmospheric space, which will lead to an international scientiic conference on peaceful uses of space in the early 1960s.

D. Space law: a breakthrough thanks to the regulation of space activities

Space law is a new branch of international law based on the principle of liberty of space. It is based by analogy on what occurred in the past with the evolution of principles in international maritime law: when maritime traic in the west reached a certain degree of intensity, it became neces- sary to deine the regime of the sea and the principle of liberty on high seas was therefore established.

In space, the problem is very similar: activities are increasing steadily, from telecommunications to navigation systems, from surveying to sci- entiic missions.

22 pArT  — SpACE LAw BEForE 960 he concept of sovereignty is no longer working in extra-atmospheric space. Nevertheless, it became obvious that the principle of liberty could be approached in space along two diferent angles: • as a res nullius (property without owner); or • as a res communis (collective property) he latter interpretation has prevailed since there is a risk inherent in the res nullius approach. As in the case of abandoned ships on the high seas in maritime law, the irst users are entitled to take possession. he concept of universal public property was established by the United Nations. he secretariat’s jurist, Mr Schachter, in a book published in 1952 (1), mentions ‘as is the case for the high seas, extra-atmospheric space belongs to the entire humanity’. he principle of liberty of space permits to identify non-airlited objects of space diferently from aircrat of which airlited activity is subject to States’ authority.

Hence, the presence or absence of airlit is not a technical determinant to distinguish between aircrat and spacecrat.

E. links between air law and space law

Before entering into extra-atmospheric zones, spacecrat move in the zone of activity of aircrat. Movements of both crat must therefore be control- led in coordination with terrestrial air traic management centres.

However, an activity will be considered spatial as from its objective to break the earth’s attraction. Its legal regime starts with the beginning of the launch and ends up with its inal return because the source of activity is the determinant element.

It is clear that air law provides analogy for the method that is usable in space law, but it does not dispense from searching for new rules (espe- cially taking into account that from its beginning air law is based on State sovereignty).

Both aircrat and spacecrat need bases or infrastructure, be it on Earth or in space, to sustain navigation. his implies similarity with respect to problems of safety, security, environment protection and management.

(1) Ryan, C. et al., Across the space frontier, Viking Press, 1952, pp. 118 and foll.

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CHApTEr 2: The principle of liberty of space extended to celestial bodies

Before 1960, only the interdiction of non-peaceful uses of space had been agreed. Peaceful uses, a contrario, were considered lawful with respect to international law based on the principle of liberty of space. It is interest- ing to acknowledge that this liberty principle was extended to celestial bodies, because exploration of them was considered a spatial activity. he celestial body must therefore enjoy the same legal regime as its environ- ment, i.e. space, which constitutes a unique system. Celestial bodies are only part of a whole system. his leads us to conclude that the principle of liberty of space also applies to celestial bodies. It thus renders appropria- tion unlawful. a. Distinction between liberty and internationalisation

One should not confuse liberty with internationalisation. It is tempting to imagine that, since celestial bodies do not belong to anybody, they could belong to everyone: this is the traditional interpretation of the res communis.

However, the notion of territorial competence does not apply to celes- tial bodies. Consequently, neither collective appropriation nor particular appropriations are possible. According to Jenks (1), the ideal arrangement would be that the United Nations be recognised to detain exclusive sov- ereignty over the unoccupied territories of the Moon or the other planets or satellites.

Luckily, the Soviet Union having succeeded in launching a space object to the Moon (Lunik II on 12 September 1959), refrained from claiming territorial rights. he principle of liberty of space, including celestial bodies, was thereby taken into account for the beneit of humanity.

(1) Jenks, Wilfred C., ‘International law and space activities’, Comparative Law Quarterly, Janu- ary 1956.

24 pArT  — SpACE LAw BEForE 960

B. consolidation of the principle of liberty of access to space by two other conventions

In the same period, much progress was made in two other areas that are eligible for the liberty principle:

1. the Convention of Geneva of 29 April 1958 on High Sea Fisheries;

2. the Convention of Washington of 1 December 1959 on the Antarctic. he Convention of Geneva of 29 April 1958 mentions, on the one hand, the privileged situations which some States have procured for their nationals with regard to high sea isheries, and, on the other hand, measures taken by coastal States to preserve the sea’s biological resources, i.e. according to Article 2 of the Convention ‘measures which make it possible to attain the optimal constant return of those resources’.

It is true that States could regulate unilaterally or with other States to pro- tect their ish stocks alongside their coastline on which distances vary as far as 200 km. he fact that nationals of a particular State might already be ishing in high sea zones does not prevent nationals from other States from ishing in the same zones, but only in respect of certain coordination as regulated by the Convention, the preservation of ish stocks being in the interest of all. he general interest is thereby the underlying principle. he special interest is the one which coastal States claim so as to ‘maintain productivity of biological resources’ in that part of the sea that is contigu- ous to their territorial sea (Article 6 of the Convention).

Article 8 of the Convention even stipulates that a State of which nationals do not ish in a zone of the sea and which is not a coastal State either, may have a special interest in preserving resources and as such be untitled to claim from States which are actually ishing there to take measures that are necessary to such protection. he Convention of Washington of 1 December 1959 on the Antarctic sets in its Article 2 the principle of ‘liberty of scientiic research in the Ant- arctic and cooperation in this respect, such as they have been practised during the International Geophysical Year’.

Consequently, there is an obligation to exchange information on pro- grammes and observations, as well as scientiic results obtained (Arti- cle 3). Article 7 of the Convention provides for a system of reciprocal con- trol by observers nominated by the contracting parties. As a counterpart,

25 EuropEAn TrAjECTorIES In SpACE LAw — 2007 territorial situations that have been established, claimed or disputed are not questioned by the treaty. c. conclusion hese examples demonstrate that coordination of the general interest and special interests are possible in international law regardless of the notions of property or sovereignty.

It was already clear in 1960 that space States are acting on behalf of the international community. he irst aim is compiling the scientiic obser- vations. If a particular State may be allowed to appropriate techniques, it may not appropriate science.

26 pArT  — SpACE LAw BEForE 960

CHApTEr 3: Military grounds for civilian developments

During the 1950s, the link between the military developments in space and civilian uses became obvious. he two superpowers involved in space activities never separated both aspects (1). When both States grew con- scious of the utility of space, several projects emerged. Dwight Eisenhower was the irst American president to engage the United States into the irst space race, albeit in a pragmatic way because the Americans had not fully anticipated nor measured the importance of space in geopolitics. It was a national shock for the United States when the Soviets launched their irst artiicial satellite into space on 4 October 1957.

It was no secret that the nuclear weapon was also eligible for space applica- tions. Furthermore, the appearance of intercontinental missiles imposed means of surveillance and, possibly, of destruction of the enemy’s arsenal. he United States wanted to avoid another Pearl Harbour at any price. We must remember the Cold War times in this respect. Even before the launching of the irst Sputnik, various surveys had identiied satellites as a unique means (because of their sustainable invulnerability) of maintain- ing conditions to mutual respect between two superpower programmes for which the most absolute secrecy was required. he United States as well as the Soviet Union then developed surveying satellites to watch their mutual missiles’ irings. Military satellites became indispensable for the US and the USSR to manage in common a worldwide nuclear threat. he military aspects in space made possible evolution in political attitudes. Space virtually appeared to become a true capital of power. Technological studies showed the possible civilian applications in telecommunications, navigation and surveillance systems of which the utility for the informa- tion society in transport and political decision-taking was evident.

(1) Garcin, T., Les enjeux stratégiques de l’espace, Bruylant, L-G-D-J, Collection AXES, 2001.

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CHApTEr 4: Space law as a branch of international law

Although some States, such as the United States, the United Kingdom and Sweden, have adopted speciic national legislation relating to outer space activities, the main bulk of space law is still in the domain of public law.

Since 1958, the development of space law in practice has primarily relied upon the work of a special international body, the United Nations Com- mittee on the Peaceful Uses of Outer Space (Uncopuos) with its two subcommittees: • the Scientiic and Technical Subcommittee; • the Legal Subcommittee. he administrative arm of the Committee is the United Nations Oice for Outer Space Afairs, which is now based in Vienna. he function of Uncopuos in some respects is more like that of the ICAO in the ield of the development of air law, although Uncopuos has no com- parable authority to adopt rules and regulations, which are binding upon States parties (1).

Historically, before 1960, only two resolutions of the United Nations Gen- eral Assembly, when it started studying the legal problems posed by outer space activities in 1959, contributed to the development of space law, namely • UNGA Resolution 1348 (XIII) of 13 December 1958; • UNGA Resolution 1472 (XIV) of 12 December 1959.

By virtue of Resolution 1348, Uncopuos irst acted as an ad hoc body, which was transformed one year later by Resolution 1472 into a perma- nent organ of the General Assembly.

(1) Malanczuk, P., ‘Space law as a branch of international law’, Netherlands Yearbook of International Law, Vol. XXV, 1994, pp. 143–180.

28 part 2

– Space law between 960 and 2000

pArT 2 — SpACE LAw BETwEEn 960 AnD 2000

CHApTEr : The Outer Space Treaty (OST) (1967) he United Nations General Assembly continued its work with the adop- tion of Resolution 1721 in December 1961 in order to provide guidance for the subsequent evolution of space law (1). his culminated in the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. his phase led to the adoption of a irst major multilateral treaty governing outer space activities, the Outer Space Treaty of 1967. he treaty was adopted on 19 December 1966, opened for signature on 27 January 1967 and came into force on 10 October 1967. he 1967 Outer Space Treaty became the most important space law instrument in the period 1960–2000, enjoying the widest acceptance by the international community from among all the UN space treaties to come. It also signiicantly contributed to contemporary international law in general because its principles have been recognised by the international community as a whole. It is sometimes referred to as the ‘Magna Carta of space law’, because it provides many valuable principles.

A leading principle spelled out not only the main purpose of international cooperation in space activities but also expressed the requirement for the exploration and use of outer space to be carried out for the beneit and in the interest of all countries. hese activities must remain an attribute of all humankind. It forbids placing nuclear weapons in orbit or on the Moon.

A second series of principles enshrined in the treaty, which are all linked together, are freedom in the exploration and use of outer space, freedom of scientiic investigation in outer space and international cooperation in such activities. It sets the principle that outer space is open to anyone without regard to nationality. hirdly, the principle of non-appropriation of outer space, including the Moon and other celestial bodies, by any means is extremely valuable. It must be emphasised that the principle of non-appropriation relates to outer space as a whole. Since ‘non exception’ has been admitted, no part of outer space (or any celestial body) can be exempted from the impact of this principle.

(1) International Cooperation in the Peaceful Uses of Outer Space, UNGA Resolution 1721 (XVI) of 20 December 1961.

3 EuropEAn TrAjECTorIES In SpACE LAw — 2007

Fourthly, it establishes ground rules for liability and responsibility. States parties to the treaty take international responsibility for national space activities, whether such activities are carried out by governmental agen- cies or by non-governmental entities. States parties must care that national activities are carried out in conformity with the provisions of the OST. his principle goes beyond the norms of general international law relating to State responsibility. he requirement of authorisation and continuing supervision of the non-governmental entities by the ‘appropriate’ State draws the assumption that States in fact have a direct responsibility not only for their own space activities but also for the activities of their non- governmental entities in outer space.

Moreover, the principle of international liability for damage of the State that launches or procures the launching of a space object and the State from whose territory or facility an object is launched for damage to another State or to its natural or juridical persons by such a object or its compo- nent parts on the Earth, in air space or in outer space, was established. OOComments: First comment

Under the irst principle, the general interest of mankind, the stationing of nuclear weapons or any kind of weapons of mass destruction was banned.

Actually, a dual system of space demilitarisation was established. While the Moon and other celestial bodies should be used exclusively for peaceful purposes, outer space per se does not go that far since only the ‘stationing’ of nuclear and mass destruction weapons will be prohibited there.

At the time of conclusion of the OST, the Cold War was threatening. The above solution was a signiicant step forward, but the danger of an arms race in outer space has not been fully stopped, as evidenced by the later developments. Article IV technically prohibits any use of outer space for military purposes but military bases all over the world are buyers of information gained from space, for example of remote sensing data. This leads to controversy over military use of civilian space applications.

Second comment

While declaring — and thus oicially legalising — the exploration and use of outer space, including the Moon and other celestial bodies, as well as the scientiic investigation thereof, the OST does not contain any explicit principle that would be to explore and exploit the space natural resources.

32 pArT 2 — SpACE LAw BETwEEn 960 AnD 2000

However, the basis was created for further steps in the progressive development of outer space law. The OST is nevertheless a relic from the Cold War and not very functional in today’s reality of commercialisation of outer space.

Third comment

If outer space is free from sovereignty and air space not, the question is where the borderline lies. Does a boundary between outer space and air space need to be designed? Will such a deinition solve problems especially in the light of development of spacecrafts that can cross both areas?

There are two schools of thought in this respect. • The spatial approach consists of inding a limit where the atmosphere would legally end and outer space would legally begin. It is out of the question to establish a natural borderline since outer space is considered an area where activities take place. It is not necessary to deine the character of that activity. • The functionalist approach follows the idea that the delimitation of outer space can only be made by referring to the activity under regulation. For example, for a communications satellite it makes little sense to have a diferent regime for diferent phases of its activities.

Fourth comment

The authority of the treaty is somehow undermined because not all nations are parties to it and some national laws of States which are party to it do not always conform to the treaty. While in international law there is no clarity on the delimitation of outer space, some States have been regulating space activities according to the nationality of the launch vehicle itself (cf. Australia).

Fifth comment

The OST gives little guidance regarding the question of how States should settle disputes concerning the application of the Treaty.

Sixth comment

On the positive side, the OST provides a framework for further development of space law. For example, the Rescue Agreement is based on Article V and the Liability Convention on Article VII of the OST. It appears a better idea to work out new texts rather than amend or complement this basic text.

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CHApTEr 2: The Rescue Agreement (1968) he obligation to assist astronauts from whatever nation in distress when navigating or landing became international law by the signature in Lon- don of the Rescue Agreement on 22 April 1968.

Article 1 describes the possible situations: • an accident; • distress of astronauts; • forced or involuntary landing on a territory of its jurisdiction; • forced alighting on the high seas; • landing outside the territory of a State’s jurisdiction. here is an obligation • to inform the authorities of the launching State and the Secretary-Gen- eral of the United Nations over when and where it happens; • to take any appropriate measure for rescue of the space crew (Article 2); • to take any appropriate measure to secure safety for the space crew in distress (Article 4). he Rescue Agreement has international acceptance amongst the main space nations. As far as international organisations are concerned, only the ESA (European Space Agency) has declared its acceptance of the Convention.

Article 2 has been invoked by the USSR ater its Cosmos 954 satellite crashed on Canadian territory. Canada had refused to allow the USSR authorities to join in the search and rescue operations in the hope of limit- ing the damage, and the USSR used the clause as an argument to pay less than the claimed amount of compensation. he Rescue Agreement contributes to deining space law, as Article 6 explains the term ‘launching authority’: For the purpose of this agreement the term ‘launching authority’ shall refer to the State responsible for launching or, when an international intergovern- mental authority is responsible for the launching, that organisation. he organisation has to declare its acceptance of the rights and obligations provided for in the agreement, and the majority of States members of the

34 pArT 2 — SpACE LAw BETwEEn 960 AnD 2000

organisation have to be parties to the agreement and to the main treaty. he article therefore only applies to governmental international organisa- tions, and not to non-governmental organisations. OOComments: First comment

The Rescue Agreement contains a residual element of the principle of sovereignty of States banned elsewhere in space law.

Second comment

The agreement shows some shortcomings: • there is a lack of a provision expenditure incurred for the rescue and return of astronauts (see note hereafter); • it is silent on the types of accident spacecraft personnel must have sufered; • it is silent on the conditions of distress spacecraft must have experienced; • it does not specify the kinds of emergency landing they must have made.

NB: In this regard, the Convention on the Principles Relevant to the Use of Nuclear Power Sources in Outer Space states that compensation shall include reimbursement of the duly substantiated expenses for search, recovery and clean-up operations, including expenses for assistance received from third parties.

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CHApTEr 3: The Liability Convention (1972) he Liability Convention on the International Liability for Damage Caused by Space Objects was opened for signature in London, Moscow and Wash- ington on 29 March 1972. a. concepts (articles i to V) here are based on Article 7 of the Outer Space Treaty and add a whole series of new deinitions in space law.

Article I speciies the terms ‘damage’, ‘launching’, ‘launching State’ and ‘space object’. he term ‘space device’ disappears from then. • ‘Damage’ means loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organisations. his deinition is one of the widest in contemporary law as it encompasses:

° death, physical injury and other impairment of health;

° loss of or damage to public or private property. • ‘Launching’ also includes attempted launching i.e. failure in launching ater ignition. • ‘Launching State’ means:

° a State which launches or procures the launching of a space object;

° a State from which territory or facility a space object is launched. he nationality of the facilities from which a space object is launched is determinant. his includes, for example, a ship on the high seas. • ‘Space object’ includes component parts of a space object as well as its launch vehicle and parts thereof.

Articles II–IV indicate a distinction between absolute liability and fault liability.

(i) For damage caused by a space object on the surface of the Earth or to an aircrat in light, the Convention introduces absolute liability (Articles II and part of IV).

36 pArT 2 — SpACE LAw BETwEEn 960 AnD 2000

Under the regime of absolute liability, States will be liable under any cir- cumstances, even in cases of force majeure.

Exception: he Convention allows one exception to the rule of absolute liability namely when a launching State can prove that the damage has resulted either or wholly or partially from gross negligence or from an act or omission done with intent to cause damage on the part of a claimant State or of natural or juridical persons it represents.

(ii) For damage caused by a space object elsewhere than on the surface of the Earth fault liability will apply (Articles III and part of IV).

Joint liability applies whenever two or more States launch a space object in a joint efort: they will be jointly and severally liable for any damage caused.

Inspiration by air law he pattern followed here is that of the joint liability in air law, laid down in the Rome Convention of 1952 on damage caused to third persons on the surface by aircrat (1).

As far as collisions between spacecrat are concerned, parties are here in a position of equality. herefore, following the example of air law and basing liability on fault in such cases would give the most reasonable solution.

B. the applicable law (article Xii)

Compensation for damage to be paid by the launching State should be determined in accordance with international law and the principles of justice and equity coupled with the obligation of integral restitution (restitutio in integrum). his Article XII should be seen as one of the great merits of the Conven- tion in that it succeeded in imposing an obligation to restore to the status quo ante (2).

(1) Diederichs-Verschoor, I. H., An introduction to space law, 2nd rev. ed., Kluwer Law International, 1999, p. 40. (2) International Law Association, London Conference (2000), Space Law Committee, ‘Review of space law treaties in view of commercial space activities’, p. 5 Prof. M. Williams; p. 13, Dr N. Jasen- tuliyana.

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No limit to the amount of compensation was inserted in the Convention. Introducing a limit would have made it easier to solve insurance problems according to Diedericks-Verschoor. he reference to international law encompasses treaty law, customary law and general principles of law as stated in Article 38 of the International Court of Justice Statute. Whenever international tribunals were called upon to give a decision in accordance with international law, the task raises no problem of conlict of laws.

Article XI anticipates the possibility of other remedies being used in order to recover compensation for damage caused by space objects.

Dr Jasantuliyana anticipates that, with the growth of commercial space activities and the present role of private entities in outer space, the pursu- ance of claims through these alternative channels will become more popu- lar than recourse to diplomatic channels. c. the mechanism for settling under the convention (articles Vi–X) he mechanism for settling such complicated international claims under the Convention has never been tested so far (2007). he only notable inter- national compensation claim for damage to date was the Cosmos 954 case in 1978 when the Soviet satellite went out of control and landed in Canada causing great ecological damage. he matter was not even presented to a judicial body but a settlement was reached between the States without reference to the Liability Convention (1).

D. Dispute settlement (article XiX)

Article XIX, which states that decisions by the Claims Commission are not binding unless so previously agreed to by the parties, is the weak point of the Convention. Binding decisions should become the rule unless otherwise agreed.

According to general international law, however, there is a free choice of means and the consent of States is always necessary for binding methods (see Article 2(3) of the UN Charter). here should be a move towards third-party dispute settlement.

(1) Protocol between the Government of Canada and the Government of the Union of Soviet Socialist Republics. www.oosa.unvienna.org/SpaceLaw/multibi/indexpf.html

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he prior acceptance of the principles of compulsory third-party settle- ment of international disputes is not merely of procedural signiicance but has an efect on the quality of the law as practised by States (1).

he conclusion of the 70th ILA Conference is that no amendment should be made to Article XIX but on the basis of this article and UNGA Resolu- tion 2777 (XXVI), third paragraph, States should be prompted to accept in advance the binding force of the Claims Commission decisions and awards. OOComments: First comment

Article 6 of the OST determines that States shall bear international responsibility for national activities in outer space. The OST provides that it is the responsibility of the ‘appropriate State’ to undertake the authorisation and continuing supervision of the activities of non-governmental entities. Both the OST and the Liability Convention also provide that a ‘launching State’ is liable for any ‘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 or in outer space’.

However, only ‘launching State’ is deined. Because of Article I, three States qualify as ‘launching States’: • the State which procures the launching; • the State which actually carries out the launching; • the State whose territory has been used for launching.

Potential victims therefore have the option of holding anyone of those liable for the total amount of damage incurred.

In reaction to their liability/responsibility, some States have formulated national law to regulate space activities undertaken by non-governmental agencies (e.g. Australia, Russia, Sweden, the UK and the USA).

Problems arise, for example, where multinationals, non-governmental agencies and governments collaborate on space projects. Legal certainty is critical to private enterprise, whether causing or sufering damage (2).

(1) International Law Association, London Conference (2000), Space Law Committee, ‘Review of space law treaties in view of commercial activities’, Prof. B. Cheng, p. 13. (2) Mosteshar, S., ‘Development of the regime for the low Earth orbit and the geostationary orbit’, In: ‘Outlook on space law over the next 30 years: essays published for the 30th anniversary of the Space Treaty’, Kluwer Law International, 1997, p. 103.

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Indeed, at the international level, rights and obligations are those for the States with no requirement for compensation to a private party. This leaves intact the right of a private entity under national law, provided this is available. If a private claim is brought, the Liability Convention cannot be used. Currently, private entities can only sue at national level.

Second comment

Although the deinition of damage is one of the widest in contemporary law and covers damage caused by all related activities such as launching operation or the refuelling of space vehicles on Earth, there could be some additions. The deinition could be improved, for instance, in order to also cover damage caused by space debris.

It could be diicult, however, to prove that certain kinds of environmental damage fall under the deinition of Article I of the Liability Convention. The best solution would be a separate instrument on space debris such as an ILA document.

Third comment

There is also the problem of who is responsible with regard to high seas launches. National lags might be a problem. Due to the location of a launching platform on the equator, less fuel is needed to place satellites into orbit, which makes this type of launching much more cost-efective and highly competitive. However, it will be clear that here too problems may occur with regard to the launching; especially as this does not take place from the territory of any speciic State (1).

(1) Diederichs-Verschoor, I. H., An introduction to space law, op. cit.

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CHApTEr 4: The Convention on Registration of Objects launched into Outer Space (1974) he ‘Registration Convention’ was adopted by the General Assembly of the United Nations in New York on 12 November 1974. his Convention is also based on the OST with speciic reference to Article VIII. a. concept

Article I adds one new deinition:

‘State of registry’ means a launching State on whose registry a space object is carried in accordance with Article II.

Article II includes two possibilities: one, and two or more launching States:

When a space object is launched into earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry, which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry.

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 appropri- ate agreements concluded or to be concluded among the launching States on jurisdiction and control over the space object and over any personnel thereof.

B. the mechanism of registry

Article II-3 speciies that the contents of each registry and the conditions under which it is maintained shall be determined by the State of regis- try concerned. he role of the Secretary-General of the United Nations on registry is crucial (see Articles III to V). he determinant actors are

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States (see Articles VI to IX) which are entitled to propose amendments to the Convention. Intergovernmental bodies such as the ESA and Eumetsat have also adhered.

Article X automatically foresees anyway a review of the Convention 10 years ater its entry into force, whilst Article XI states that any State party to this Convention may give notice of its withdrawal from the Con- vention one year ater its entry into force by written notiication to the Secretary-General of the UN, with efect one year from the date of receipt of this notiication. OOComments: First comment

The Space Law Committee of the ILA shares the view that the Registration Convention is only remotely related to the commercial aspect of space activities (1).

A more stringent application of the Convention, including a monitoring entity, is however needed to make it consistent with evolution in time.

Problems to be solved include unifying national registries kept by launching States and adding the name and position of the subjects performing the launch, as well as the subjects owning and/or operating the space object.

This could probably be done by negotiating legally binding instruments.

Second comment

Another problem is the timing of the information. Is it to be given after the launching or before? As there is always a risk of unsuccessful satellite launchings (attempted launches), information given immediately after the launching would be more accurate, and the more Article III-2 prescribes full and open access to the information on the register. Consequently, once the information has been recorded, all States can have access to it. This makes one wonder whether the rule does not defeat the purpose, for it will make States even more circumspect and reluctant to provide full details.

Third comment

In the face of commercialisation of space activities, there is a need for appropriate requirements relating to the content of entries in national registries and

(1) International Law Association, New Delhi Conference (2002), Space Law Committee, ‘Final report on the review of space law treaties in view of commercial space activities’, p. 6.

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information in the UN register as provided for in Articles I, II, IV. Both national registries and registries with the UN should clearly identify the launching State as well as other legal entities taking part in the space activity, for example the ESA.

Suicient information should be provided about the characteristics and extent of such activities that are relevant for the purpose of registration. Information should be equally compulsory in the case of substantial changes of the purpose and parameters of the registered object.

Fourth comment

There are several possible problems about nationality.

Unlike in air law, it is uncertain whether registry by a State confers its nationality on a space object although in practice this is assumed to happen (1).

What is the connecting factor between the private commercial entity and a State, for example in terms such as ‘a State which launches or procures launching’: would the link be nationality, domicile, residence, place of incorporation, centre of business, or something else?

Introduction of a ‘lag of convenience’ in international space law. The question may arise in a situation of two or more launching States with respect to a single space object, and when launching from a ship on the high seas.

(1) Diederichs-Verschoor, I. H., An introduction to space law, op. cit., p.48.

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CHApTEr 5: Agreement Governing the Activities of States on the Moon and other Celestial Bodies (1979) he ‘Liability’ and the ‘Registration’ Conventions are based on a single provision of the OST. he ‘Moon Treaty’, on the other hand, is based on many articles of the OST (Articles I, II, XI and XII). he Moon Treaty was opened for signature at New York on 18 December 1979. a. concepts

Any provision related to the Moon shall also apply to other celestial bodies within the solar system, other than the Earth, for example Mars. Article 1 anticipates a limit however: ‘except in so far as speciic legal norms enter into force with respect to any of these celestial bodies. Speciic norms fol- lowing the Mars exploration are thus not ruled out’.

For the purposes of the Moon Treaty, reference to the Moon shall include orbits around or other trajectories to or around it. he following principles have been introduced in the Treaty. • All activities on the Moon, including its exploration and use, shall be carried out in accordance with international law, in particular United Nations documents (Charter, Declaration on Cooperation among States) (Article 2). • he Moon shall be used by all States parties exclusively for peaceful purposes: no military activity shall be allowed (Article 3). • he Moon has to be considered as the ‘province of all mankind’ for its exploration and use, involving cooperation and mutual assistance in any activity (Article 4). • here is an obligation to keep the Secretary-General of the UN as well as the public and the international scientiic community informed to the greatest extent possible and to coordinate similar simultaneous activities between States parties (Article 5). • here shall be freedom of scientiic investigation on the Moon, includ- ing collection of samples, part of which must be made available to other interested States parties and the international scientiic community (Article 6). • he environmental concern is clearly expressed (Article 7).

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• he Moon and its natural resources are the common heritage of man- kind (Article 11-1); this rules out national appropriation. • Equipment moved in on the Moon by a State party, on the other hand, shall continue to belong to that State party (Article 12), but may be made available to other States parties in the event of an emergency (Article 12-3) or otherwise (Article 15-1). • States parties to the Moon Agreement shall bear international respon- sibility for national activities on the Moon, even if they are carried out by non-governmental entities (Article 14).

B. activities on the Moon

Article 11 permits the exploitation of the Moon’s natural resources and their removal by both public and private legal persons, while also allowing commercial as well as scientiic activities.

Article 9 allows the establishment of manned or unmanned stations on the Moon, albeit with restrictions (1). OOComments: First comment

The Moon Agreement aims to provide a framework, but it can be safely said that, as an international instrument, this agreement has been a failure. It has been accepted by only a few States, none of whom is a signiicant space power. Treaties as such, under treaty law, bind only States that are parties to them by an agreed form of acceptance or ratiication.

Article II of the OST has made outer space, the Moon and other celestial bodies res communis or res extra commercium. Article 11-1 of the Moon Agreement, however, refers to another regime by calling it the ‘common heritage of all mankind’ which is also a bit confusing with the ‘the province of all mankind’ formula in Article 4 of the same Treaty. ‘Common heritage’ indicates a cultural humanitarian qualiication, whilst ‘province’ has a territorial connotation especially with reference to a solid body, the Moon!

The term ‘common heritage of mankind’, erected as a principle in the Moon Treaty, remains controversial. It has emerged in connection with the progressive development of international law and relects the application in sea law and the legal framework for Antarctica. In space law (much earlier than in the context of

(1) Diederichs-Verschoor, I. H., An introduction to space law, op. cit., p.51.

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sea law), the principle was irst mentioned in UN General Assembly Resolution 1962 (XVII) of 13 December 1963 and was then incorporated in the OST Article 1 in 1967 as ‘the province of all mankind’.

Second comment

The exploitation and use of natural resources is an aspect that was felt important because of the return to Earth of the ‘Moon rocks’ by the Apollo lunar landings. The Moon and other celestial bodies contain a vast supply of almost all types of mineral resources that are used extensively on Earth. On the Moon, vast deposits of oxygen, silicon, aluminium, iron, calcium and magnesium have been found. This means that there is hardly a commercial venture more promising than the mining of mineral resources on the Moon and other celestial bodies. It is generally believed that any large-scale human operation in space would be more cost- efective if the Moon is utilised, both as a launching base and as a source of minerals and fuels. Resources removed from the Moon or other celestial bodies become the property of those removing such resources. This appears to have become customary international law.

It is debatable, however, whether the action of placing resources from the Moon or a celestial body on the market — in other words, the commercialisation of these resources on Earth — is fully consistent with Article II of the OST and its underlying philosophy.

The lack of recognition of private property rights means a big diiculty in maintaining the interest of private investors in commercial space development.

Third comment

The Moon Agreement does not establish an international legal regime but calls on the parties to negotiate the creation of one. The consensus in the International Law Association is that it would be better to revive the Moon Agreement than to destroy it.

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CHApTEr 6: The Conventions of the European Space Agency (ESA) (1975–1980) a. origin of the convention

In accordance with Resolution No 1 of the Conference of Plenipotentiaries on 20 December 1972, the European Space Agency (ESA) functioned de facto from 31 May 1975 but only entered into force on 30 October 1980.

Some countries parties to this Convention had already introduced instru- ments of ratiication before that date:

Sweden 06.04.1976

Switzerland 19.11.1976

Germany 26.07.1977

Denmark 15.09.1977

Italy 20.02.1978

United Kingdom 28.03.1973

Belgium 03.10.1978

Netherlands 06.02.1979

Spain 07.02.1979

Other countries did so on 30 October 1980 or later on:

France 30.10.1980

Ireland 10.12.1980

Austria 30.12.1986

Norway 30.12.1986

Finland 01.01.1995

Portugal n/a he European Space Conference decided on 31 July 1973 that a new organisation, called the European Space Agency would be formed out

47 EuropEAn TrAjECTorIES In SpACE LAw — 2007 of the existing European Space Research Organisation (ESRO) and the European Organisation for the Development and Construction of Space Vehicle Launchers (ELDO) and that the aim would be to integrate the European space programme on the basis of cooperation. his coopera- tion took into account that ‘the magnitude of the human, technical and inancial resources required for activity in the space ield is such that these resources lie beyond the means of any single European country’. his meant that cooperation among European countries had to be organised.

It was thereby understood that this European cooperation was only aim- ing at peaceful purposes in space research and technology and their space applications, with a view to their being used for scientiic purposes and for operational space applications systems.

A new milestone in space research and applications was now set.

B. the concept of the Esa

Members of the Agency are States, referred to as ‘Member States’ (Arti- cle I). hey have agreed to elaborating and implementing a long-term European space policy and taking all steps thereto (Article II).

Any scientiic results shall be published and made widely available to the scientiic community.

All Member States have mandatory activities and, if subscribed to, optional activities (Article V).

Mandatory activities are: • to ensure the execution of basic activities such as education, documen- tation, studies of future projects and technological research work; • to ensure the elaboration and execution of a scientiic programme including satellites and other space systems; • to collect relevant information and disseminate it to Member States and harmonising programmes; • to establish regular contract with the users of space techniques and keep itself informed of their needs.

Optional activities are, for example: • the design, development, construction, launching, placing in orbit and control of satellites and other space systems;

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• the design, development, construction and operation of launch facili- ties and space transport systems.

Ways and means

Member States and the Agency itself shall endeavour to make the best use of their existing facilities and available services (Article VI).

he industrial policy worked out by the Agency must ensure a just return to all Member States, having regard to their inancial and technological eforts (Article VII).

he latter are speciied in Article VIII: the availability of launchers or other space transport systems in Member States.

Facilities built by the Agency itself shall be made available to any Member State under practical arrangements (Article IX).

c. comments on the substance OOFirst comment: what about the powers of ESA? From the 1960s, space policy has been determined both at the national and intergovernmental levels. The ESA has played an essential role in consolidating the industrial capabilities of Europe and achieving technological independence.

The ESA is a regional intergovernmental organisation and does not possess any supranational powers of its own, unlike the European Union. In basic terms, this means that its Member States have not delegated power to it and it can therefore only do what members authorise it to do.

The ESA is an independent entity that exists outside the EU framework and has evolved separately from the process of European integration within the European Union.

Second comment: what is the meaning of OO‘activities for exclusively peaceful purposes’? The legal basis and the ESA’s mission are mainly deined in Article II of the ESA Convention, which stresses the ESA’s commitment to limit itself to activities for ‘exclusively peaceful purposes’. This is one of the crucial issues in the relationship with the EU.

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Article II further speciies the tasks from which it becomes clear that, apart from scientiic activities, the ESA is also mandated to carry out application activities. Among activities, some are mandatory and others optional. Most of the ESA’s big programmes are optional such as Galileo and GMES (global monitoring for environment and security). It is one of the ESA’s characteristics that Member States are free to choose if and how much they intend to contribute to a project.

This is a diferent approach in comparison to the EU system where States can decide either to join (and then automatically recognise all EU law) or not to join. The possibility to participate in only some branches of EU politics is not granted by the European treaties and all candidate States face the whole of the acqus communautare.

The two organisations directly involved in developing a European space strategy — the European Commission and the ESA — are civilian in character. The ESA Convention’s objective to limit the activities of the Agency to those for ‘exclusively peaceful purposes’ may cause problems with certain applications and EU policies, especially eforts for joint European defence initiatives and military surveillance tools.

Anywhere in an international treaty, resolution or accord where the term ‘peaceful’ occurs, it is highly disputed. The general consensus is that this term no longer has the same meaning as intended by its founders during the Cold War and, since the 1990s, the term ‘peaceful’ is equated with ‘non-aggressive’. What matters is that everyone should perceive and interpret the Convention in the same way. None of the Member States considers that using Europe’s Ariane launcher to deploy military satellites such as Helios, Skynet and others with military payloads, has contradicted the ESA’s principles. The Franco-Spanish intelligence satellite Helios and its payload was even tested at the ESA’s Science and Technology Centre. This shows that the consensus has evolved naturally and that peaceful purposes can very well include security purposes too.

So far, the ESA has formally rejected adopting the prevailing interpretation of ‘peaceful’ as ‘non-aggressive’. However, with the participation in Galileo and GMES, the ESA is already entering the areas of military activity and cannot reject any EU policy eforts in this direction anymore. As a European agency, the ESA has to contribute to reach the overall European objective of building an ‘area of freedom, security and justice’.

Third comment: what is the meaning of OOthe ‘fair return’ principle? The principle of ‘fair return’ (also called the principle of juste retour or ‘geographical returns’) means that the proportion of contracts under a particular

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programme awarded to irms from a given country is in proportion to the funding that country has contributed to the programme, whether it is an optional or a mandatory programme. According to Article II (d) of the ESA Convention, it is one of the fundamental political tasks of the ESA to develop and implement an industrial policy that suits best the conduct of ESA programmes. Industrial policy is supposed to take the best economic beneits from the ESA’s space activities, and Member States have an interest in seeing their inancial contributions to the ESA converted into business contracts with their national industries. Therefore, investments in the ESA are supposed to ‘return’ as contracts with national irms. Details of the ‘fair return’ principle are laid down in Annex V of the ESA Convention, whereby the rules do not provide for a return of 100 %.

Fourth comment: how to conciliate the principle of OOa ‘fair return’ with EU competition law A major legal challenge is certainly the compatibility of ESA industrial policy, above all the ‘fair return’ principle, with EU competition law, in particular the provisions limiting State aids (Article 87 of the EC Treaty). Considering the integration model, the ‘fair return’ principle would not necessarily be in eternal opposition with now Article 87. Article 87 III grants certain exceptions from the general prohibition of State aids in Article 87 I. If such an exception applies, the Commission itself can decide whether it regards the respective aids as indispensable for thorough development and progress in Europe. For the ‘fair return’ principle, Article 87 III (b) may apply and allow compatibility with EU law. And it could certainly be argued that, in terms of the free movement of goods (Articles 28 and 29), the ‘fair return’ principle that efectively means a prohibited contingency of contracts can be interpreted to be a ‘cogent necessity’ in line with the Casss de Djon judgment of the European Court of Justice of 20 February 1979 (ECJ Reports 1979, 649), the necessity stemming from Europe’s independent access to space. To argue in favour of an exemption of Article 30 of the EC Treaty would however, perhaps be more diicult as the Court’s interpretation is rather conined to the exceptions explicitly mentioned there.

There are many complaints about this principle of juste retour. Any Member State industry that does not support certain programmes to a signiicant degree loses business (for example, the UK does not support the Ariane V programme to a signiicant degree). While the principle of ‘compulsory participation’ may provide a secure position for national industries, it undermines free and price-driven competition. Therefore, the incentive to modify this procedure is low on the part of the smaller countries. The larger countries cannot play a dominant role within the agency because this is prevented by the ESA Convention rule of ‘one country, one vote’ but they try to shape the European ‘space proile’ mainly by means of their national space programmes. These ambitious national programmes, however,

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enable the smaller nations to share in business opportunities on the global space market, which might not otherwise have been available to them.

It is diicult to apply this principle within a single programme as it tends to penalise projects. It is therefore preferable to aim for overall industrial return. This means that a State that puts up funding receives a inancial return on it, but not necessarily on a programme-by-programme basis. In the process of improving space capability, Europe might have to adapt this system.

D. comments on the formal aspects OOFirst comment: the problem of disparate membership The ESA and the EU do not currently have the same members. While Norway and Switzerland are ESA but non-EU Members, Luxembourg and Greece are EU but non-ESA members. A full integration of the ESA into the European treaty framework may endanger the partnership, with Norway and Switzerland especially. If those States wished to continue their active participation in European space activities, they would have to adopt EU law at least in those areas that fall under the EU’s competence after the European treaties.

If the ESA somehow came underneath the EU umbrella, those States which are EU but non-ESA members, as mentioned above, would automatically have to accept these moves and be involved in space activity as well. The same applies to other potential Member States of the EU. OOSecond comment: the problem of funding The ability to attract common funding for optional projects that require public inancial support is often seen as a test of mutual interest. Even if EU and ESA funding comes from the same basic source, namely the European taxpayer, the distinction between ESA and EU funding is not unrelated to the difering interests which that funding represents in the two organisations. The funds made available to the ESA relect the interests of space system supply, in other words they relect the composition of the industrial capabilities required to develop those systems. EU funding is demand-driven, which means it relects the distribution of the services rendered to its citizens. The worst course of action today would be to try to replace one form of funding with the other, for the replacement funding would then be pitched at the level of the lowest common denominator of the two sets of interests. Funding synergies between the ESA and the EU are what is required.

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Third comment: during the period 1960–~2000, OOthere was no structured cooperation between the ESA and the European Community

Consequently, duplication of eforts was inevitable, making the coherent and progressive development of an overall European space policy arduous and hazardous.

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CHApTEr 7: The International Telecommunication Union Convention (1973) a. introduction he domain of telecommunication and radio-communication is exten- sive. Its international aspect is regulated by the International Telecommu- nication Union (ITU). he ITU is an international organisation attached to the United Nations, responsible for international frequency allocations, worldwide telecommunication standards and telecommunication devel- opment activities. he ITU has some 193 Member States. he purpose of this section is not to explain the whole legislation or func- tioning of the communication domain but to focus on the elements related to space activities. he combination of telecommunication and space is easy to understand when we look at the use of satellites. Indeed, one of the activities of a satel- lite is to be in contact with the Earth by radio or telecommunication using allocated frequencies in orbit. In this respect, it must be underlined that, even though space is wide by deinition, the number of frequencies are in fact limited.

Many issues must be resolved with respect to telecommunication. Who will be allowed to use which frequency? How should the frequency be used? What happens when the utilisation of a frequency causes harmful interferences? Who manages the shared frequency?

Other issues have to be considered too. Telecommunication technology has developed in all countries, but, due to its character, advances in space have to be coordinated at international level.

Can the principle of ‘irst come, irst served’ be used or would another principle bring a better balance?

B. Historical overview he Union was established during the 20th century as an impartial, interna- tional organisation within which governments and the private sector could

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work together to coordinate the operation of telecommunication networks and services and advance the development of communication technology. (1) he ITU’s continuing role in managing the radio-frequency spectrum ensures that radio-based systems such as cellular phones and pagers, aircrat and maritime navigation systems, scientiic research stations, satellite communi- cation systems and radio and television broadcasting all continue to function smoothly and provide reliable wireless services to the world’s inhabitants. (2) he International Telecommunication Union was created at the 1932 Madrid Conference. It is the combination of the International Telegraph Convention (1865) and the International Radiotelegraph Convention (1906). his new Union covers all forms of wire line and wireless communi- cation. he Union became a UN specialised agency on 15 October 1947. he ITU has been confronted with the evolution of technology, particu- larly in the ield of space. Indeed, over the last 40 years, telecommunica- tion technology has entered a new sphere, and the ITU has had to include in its views the reality of space.

With the irst artiicial satellite Sputnik 1 in 1957, the Union has been in the forefront of new challenges. With this irst realisation and the irst geostationary communication satellite (Syncom 1 in 1963), it became clear that the satellite could be used for the transmission of information. he space age had begun in the ield of radio-communication.

Around the same time, an Extraordinary Administrative Conference for space communications took place in 1963 in Geneva, to decide upon which frequencies were to be allocated for space services.

In 1973, the ITU Plenipotentiary Conference introduced provisions into the new Convention governing the Union in the domain of space tele- communication. Indeed, in its Article 4-2-c the Convention lays down the need: ‘to coordinate eforts with the view to harmonising the development of telecommunications facilities, notably those using space techniques, with a view to full advantage being taken of their possibilities.’

Other aspects of space telecommunication had to be taken into account at the same conference. Among the essential duties of the International Frequency Registration Board is the obligation ‘to efect (…) an orderly recording of the positions assigned by countries to geostationary satel- lites’ and ‘to perform any additional duties concerned with (…) the utilisa-

(1) www.itu.int (2) Idem.

55 EuropEAn TrAjECTorIES In SpACE LAw — 2007 tion of the geostationary orbit’. his obligation is clearly pointed out in the Article 10-3-d of the Convention of 1973.

At the time of the new ITU Plenipotentiary Telecommunication Confer- ence (Nairobi, 1982), telecommunication technology had greatly evolved. In the domain of space, particular progress had been accomplished with satellite spotbeam coverage and inter-satellite linkage. Terrestrial net- works had been completed by domestic or regional satellite communica- tion systems.

In 1988, a World Radio Conference was held on the use of geostation- ary-satellite orbit with the adoption of a plan providing equitable rights of access to the geostationary-satellite orbit and the completion of a compre- hensive world satellite direct broadcasting plan.

In 1992, frequencies were for the irst time allocated to a new kind of space service using the non-geostationary satellite — global mobile personal communication by satellite. he last decade of the 20th century witnessed extraordinary growth in the use of wireless communications systems, from cellular and cordless phones and radio-based leet management systems to radio and television broadcasting and next-generation web-ready personal digital assistants. At the same time, radio has become a vital technology for a growing number of essential public services such as navigation and global positioning systems, environmental monitoring and even deep space research. (1) c. the concept of the itu

I. Legal framework he legal framework of the ITU comprises the basic instruments of the Union, which have treaty status and are binding on ITU Member States. • he Constitution and Convention of the International Telecommunica- tion Union signed on 22 December 1992 (Geneva) and which entered into force on 1 July 1994, as amended by the Plenipotentiary Confer- ence (Kyoto, 1994 and Minneapolis, 1998). • he administrative regulations (Radio Regulations, 1997 in Geneva and International Telecommunication Regulations, 1998 in Melbourne) which completes the Constitution and the Convention. he current International Radio Regulations in force are the 2001 additions, which

(1) www.itu.int

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relect the modiications brought by the 2000 World Radio Communi- cation Conference. he Constitution of the ITU explains its proper functions and purposes whilst the Convention only deals with its functioning. For space-related matters, principles and headlines are to be found in the Constitution rather than in the Convention.

II. Functioning of the ITU he International Telecommunication Union has three main functions (1): • to maintain and extend international cooperation between all members of the Union for the improvement and rational use of telecommunica- tion of all kinds (2); • to promote the development and eicient use of technical facilities; • to harmonise the action of nations. he objective is to promote the development and eicient operation of tel- ecommunication facilities, in order to improve the eiciency of telecom- munication services, their usefulness, and their general availability to the public. he scheme also provides for technical assistance to developing countries in the ield of telecommunications, mobilisation of the human and inancial resources needed to develop telecommunications and exten- sion of the beneits of new telecommunications’ technologies to people everywhere. he Conference of Nice in 1992 restructured the Union into three sectors in order to become more eicient with respect to an increasingly competi- tive environment. he three sectors are: • the radio-communication sector (ITU-R); • the telecommunication standardisation sector (ITU-T); • the telecommunication development sector (ITU-D).

(1) Article 1 § 1 of the Constitution. (2) Article 1 § 1 (a) of the Constitution.

57 EuropEAn TrAjECTorIES In SpACE LAw — 2007 OOThe radio-communication sector At the heart of the wireless world lies the ITU’s radio-communication sector, which is charged with determining the technical characteristics and operational procedures for a huge and growing range of wireless services. The sector also plays a vital role in the management of the radio-frequency spectrum, a inite natural resource that is increasingly in demand due to the rapid development of new radio-based services and the enormous popularity of mobile communication technologies.

In its role as global spectrum coordinator, the radio-communication sector develops and adopts the Radio Regulations, a voluminous set of rules that serve as a binding international treaty governing the use of the radio spectrum (…)

In addition, the ITU-R is responsible for coordinating eforts to ensure that the communication, broadcasting and meteorological satellites in the world’s increasingly crowded skies can co-exist without causing harmful interference to one another’s services. (1) OOThe telecommunication standardisation sector The telecommunication standardisation sector embodies ITU activity on developing internationally agreed technical and operating standards and deining tarif and accounting principles for international telecommunication services. The work of the ITU-T aims to foster seamless interconnection of the world’s communication network and systems. (…) the ITU-T is being called upon to forge new recommendations which promote the interoperability of equipment (…). (2) OOThe telecommunication development sector A lack of reliable access to basic telecommunication services currently afects around two thirds of ITU Members States. It is the vital task of the ITU telecommunication development sector to help redress this imbalance, promoting investment and fostering the expansion of the telecommunication infrastructure in developing nations throughout the world. (3)

(1) www.itu.int (2) Idem. (3) Idem.

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III. Authority of the ITU

Many legislative texts have been formulated by the Union and have the force of international treaties. Actually, the moral authority is ‘the sole authority the ITU possesses to ensure that the provisions of legislations acts are observed by all. (…) his moral authority is the watchful guardian which itself inspires respect for the legislation in force.’(1)

Non-respect of legislative acts from the Union, particularly the Radio Regulations, may cause harmful interference to the services of other coun- tries. A country which does not respect this legislation could sufer the same disagreement in turn. he regulations thus provide for internal and external balance.

he international technical standardisation boosts the interoperability of equipment. A telecommunication network in contrariety with this stand- ard could not be integrated in the world network. Its market’s access would be highly limited. OODecision-making he spirit of the Union during the discussions was always to seek a com- promise. During negotiation, all members endeavour to join the opinion of the majority, as the ultimate objective is to take into account the inter- ests of all parties.

We may consider that this decision-making process proves its eiciency because — in most cases — the decision is taken unanimously. If certain conlict situations make a vote necessary, a simple majority is enough for approving the decision.

If a delegation considers that a decision conlicts with its own interests, it can make some reservations. OOThe allocation of the radio frequencies his is a technical matter of the highest importance needing international consensus in the end to be efective.

(1) Nachszunow, G., Development of telecommunication and international organisations, part 1, Willy Nachszunow, Creteil, 1989.

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CHApTEr 8: The intergovernmental agreement (IGA) on the International Space Station (ISS) (1988)

he ISS started as a result of an invitation by the US President to allies of the USA to participate in the development and use of a permanently manned space station. he intergovernmental agreement (IGA) was signed on 29 September 1988 but this framework needed restructuring when Russia joined the partnership in 1993.

he agreement was implemented in December 1998, when construc- tion of the International Space Station started ater the crew of a space shuttle mission joined a Russian module. Aimed at human spacelight programmes, the International Space Station intergovernmental agree- ment provides for strategic cooperation at international level. Most space nations are involved — a fact which underlines the political relevance, for example, of European/Russian cooperation in space from 1992 concen- trating on human spacelight activities.

hrough its participation in the ISS project, Europe got access to its orbiting laboratory, Columbus, equipped with advanced research facilities, acces- sible 24 hours a day and under human direct and indirect supervision.

Life and physical sciences in space, carried out principally on the ISS, represent an important branch of science in space relevant for its com- bination of pure knowledge and application aspects such as research on human physiology and health, for the beneit of mankind.

he technology-driven component of the ISS programme is one of its key aspects. he European contribution focuses in particular on the auto- mated transfer vehicle (ATV), which represents one of the most demand- ing technology programmes to date.

Technology will be an essential element of the European human explora- tion programme, something which had already been set in the foundation of the Aurora programme. OOThe concept of the ISS he IGA makes a distinction between partners and partner States: there are 12 original partner States but only ive partners. he European States

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are grouped under the umbrella of ‘European partner’ and the other part- ners are the USA, Russia, Japan and Canada.

he decision-making process, for instance concerning the selection of partner States’ astronauts and light assignments, is detailed in the memo- randum of understanding, which speciies that the space station crew will operate as a single integrated team, with a single commander responsible for programme implementation and safety on board. It was agreed that an ISS code of conduct would be developed.

A number of articles in the IGA have been designated as constituting the legal regime of the cooperation respecting international law. he national- ity of diferent parts of the station (essentially modules) has been estab- lished which determines the jurisdiction exercised by the partners on their own territory(1).

At the heart of the legal regime, Article 5 of the IGA mentions that ‘each partner shall retain jurisdiction and control over the elements it registers in accordance with paragraph 1 and over personnel in or on the space station who are its nationals’. his dual basis for jurisdiction (territorial- ity and the personal basis) is developed further in other articles, the most explicit provisions being in Article 22 dealing with criminal jurisdiction. In international law, the primary basis for exercising jurisdiction is the nationality of the alleged perpetrator. In the ISS IGA, however, any part- ner State other than the one of nationality, referred to as ‘an afected part- ner State’ can exercise criminal jurisdiction in the case of misconduct that had caused damage to its light element or had been directed against the life or safety of a crew member who was a national of an afected partner State. here must be consultation with the State of nationality, however. OOComments: First comment

Independent human access to space is the next logical step for Europe’s involvement as an ‘equal partner’ in human spacelight endeavours.

Second comment

Europe’s contribution to the ISS programme is only 8 % of its total costs now. An EU–Russian collaboration in this respect could be a new element in space strategy.

(1) Farrand, A., ‘he astronaut in the space station era’, In: Outlook on space law over the next 30 years, Kluwer Law International, 1997, pp. 151–153.

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Third comment:

The partners to the ISS have agreed to cooperation and the settlement of disputes through negotiation but many issues remain unresolved such as criminal law and liability towards third parties.

Fourth comment:

The agreement is based on an analogy with maritime law in that the lag shall govern any activity conducted by nationals on the high seas. Therefore, jurisdiction relating to activities on the ISS shall be determined by the nationality of the module in which the activity took place. It is doubtful that this could be a long-term solution.

Fifth comment:

The code of conduct, which is not technically an implementing arrangement but could be seen as having a legal status somewhat similar to that of the IGA and the MoUs, is the most urgently needed document.

Sixth comment:

The development of ISS rules, including those afecting the daily life of crew members, will be a challenging task for the European partner States. It calls for an efort of harmonisation between national laws and regulations aiming at space station coordination. Maybe EU rules could facilitate the process.

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CHApTEr 9: Commercial development plans in space related to the ISS a. Historical background

On 11 February 1988, President Reagan announced a new national space policy including a 15-point commercial space initiative that provides a revised framework for US space activities. He stressed that ‘United States commercial launch operations are an integral element of a robust national space launch capability’ (1). he new space policy seeks to encourage the private sector’s role in space activities. It was declared at the time that NASA’s primary focus was and will remain on non-commercial applica- tions of the space transportation system (STS) or shuttle programme.

Two years earlier, on 28 January 1986, all of America mourned the tragic loss of the space shuttle Challenger. In the months of probing that fol- lowed problems surfaced, not the least of which were concerns over the country’s complete reliance on the space shuttle system for access to space. In 1972, the space shuttle had been singled out to be the sole provider of US civilian launch services (manned and unmanned). he loss of the space shuttle Challenger also meant the loss of all US civilian space launch services poignantly illustrating the error of an all-purpose space truck.

To focus the shuttle rebuilding eforts of NASA better, on 15 August 1986, President Reagan restricted commercial access to the space shuttle’s launch service and announced that NASA would ‘no longer be in the business of launching private satellites. his change in NASA policy opened the door for private commercial launch ventures to enter the market. Established aerospace giants such as General Dynamics, Martin Marietta and McDon- nell Douglas, followed by small start-up ventures (American Rocket Com- pany, Conatec, etc.) then entered the private space transportation market. he companies started to develop expendable launch vehicles (ELVs) to provide a cost-eicient method of launching communication satellites and performing materials experimentation in zero gravity. Programmes, how- ever, cannot be completed overnight.

Furthermore, American commercial launch companies experienced stif competition from foreign commercial launch systems. Even the Soviet

(1) he President’s space policy and commercial space initiative to begin the next century – Fact sheet, he White House oice of the press secretary, 1 (11.2.1988); ‘National space policy directives and executive charter’, NSPD-1, 2.11.1989.

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Union was ofering commercial launch services. Foreign launch alterna- tives included the Ariane (a product of the ESA marketed by Arianespace), the Soviet Proton, and the Chinese Chang Zheng.

Arianespace was the irst operational commercial space launch service in the world, launching its irst commercial payload in May 1984.

As of October 1985, the Chinese were also ofering commercial launch services via their Long March vehicle marketed by the Great Wall Indus- trial Corporation.

In 1987, Glavcosmos, the Soviet space organisation, announced that it would provide a commercial satellite launching service on its Proton, and launched their irst commercial payload, an Indian remote sensing satel- lite, on 17 March 1988.

B. an approach for iss commercialisation (1)

Due to ISS utilisation costs, a signiicant part of the available resources are made accessible from 2004 to non-scientiic and non-institutional users including: • applications using the ISS external environment (thermal, irradiative, vacuum, etc.); • microgravity applications located in the pressurised area of the ISS; • media applications.

Matra Marconi Space, a company deeply involved in the development of the European module of the ISS, has identiied possible markets for non- institutional users who are ready to invest in space utilisation for their own needs.

According to the deinition of the ISS, science remains the major goal of its utilisation, in a irst step of fundamental science on behalf of academia and research institutes. Besides this institutional science, applied indus- trial research may beneit from the tool. A irst segmentation of possible applied research ields has been identiied: • pharmaceutics by designing and testing new molecules in space (due to adequate environment);

(1) Tailhades, J. and Routier, D., An approach for ISS commercialisation, Institute of Air and Space Law, University of Cologne, 24 July–5 August 2000, pp. 81–87.

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• biotechnology by learning new processes under microgravity conditions; • materials processing by using space environment to obtain new class of alloy for developing new products on Earth.

he possible outlets are in education (by deining space lessons), public services (since the Internet marketplace has shown that people are inter- ested in quick access to science, and the ISS may support an observation instrument mounted on an Express Pallet) and entertainment related to space tourism. OOComments: To be used by industry as an opportunity for technology and commercial activities, legal issues have to be deined, including: • time to get results: this is really a major issue to guarantee the time to get results in order to compare ISS competitiveness with other methods; • conidentiality, including respect of privacy and competitive advantage; • intellectual property rights: the complication results from an international area governed by a set of memoranda of understanding (MoUs) between the diferent partners but concerning several modules with difering applicable laws; • allocation of resources: resources being limited, the planning of their allocation must be prepared and agreed upon in advance; • deinition of a charging policy: the ISS utilisation cost must be correctly deined taking into account the diferent aspects of the mission; launch cost, operation planning and implementation costs, cost of on-board resources’ utilisation; cost transparency is the only way to ensure a correct contribution by non-funding users; • selection: it is necessary to review the current system handled by a peer group at the ESA gathering scientiic objectives and making choices.

When commercial interests are involved, the choice by an appropriate selection committee will have to take into account the interest of space utilisation as well as the potential beneits for businesses. It is a challenging issue to guarantee access to the ISS under competitive and commercial conditions.

65 EuropEAn TrAjECTorIES In SpACE LAw — 2007 c. a commercial development plan for the civil international space station (iss) proposed by nasa (1998) his plan became institutional as the Commercial Space Act of 1998 (150th Congress of the USA) aimed at ‘encouraging the development of a com- mercial space industry in the United States and for other purposes’ (1).

I. Deinitions

A new series of deinitions that are useful in space law are thereby made available:

Commercial provider means any person providing space transportation services or other space-related activities, primary control of which is held by persons other than federal, State, local and foreign governments.

US commercial provider means a commercial provider, organised under the laws of the United States or of a State, which is: • more than 50 % owned by United States nationals; or • a subsidiary of a foreign company and the Secretary of Transportation inds that: (i) in the past, such a subsidiary has evidenced a substantial commit- ment to the United States market through:

° investments in the United States in long-term research, develop- ment, and manufacturing (including the manufacture of major components and subassemblies),

° signiicant contributions to employment in the United States; (ii) the country or countries in which such foreign company is incor- porated or organised, and, if appropriate, in which it principally conducts its business, afords reciprocal treatment to companies described in subparagraph (A) comparable to that aforded to such foreign company’s subsidiary in the United States, as evidenced by:

° providing comparable opportunities for companies described in subparagraph (A) to participate in government sponsored research and development similar to that authorised under this Act,

(1) Bill S.1473, introduced on 8 November 1997 by Sen. Bob Graham.

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° providing no barriers, to companies described in subparagraph (A) with respect to local investment opportunities, that are not provided to foreign companies in the United States,

° providing adequate and efective protection for the intellectual property rights of companies described in subparagraph (A).

Payload means anything that a person undertakes to transport to, from or within outer space, or in suborbital trajectory, by means of a space trans- portation vehicle, but does not include the space transportation vehicle itself except for its components, which are speciically designed or adapted for that payload.

Space-related activities include research and development, manufacturing, processing, service and other associated and support activities.

Space transportation services mean the preparation of a space transporta- tion vehicle and its payloads for transportation, to, from or within outer space or in suborbital trajectory, and the conduct of transporting a pay- load to, from or within outer space or in suborbital trajectory.

Space transportation vehicle means any vehicle constructed with the pur- pose of operating in, or transporting a payload to, from or within, outer space or in suborbital trajectory, and includes any component of such vehicle not speciically designed or adapted for a payload.

Space science data include scientiic data concerning: • the elemental and mineralogical resources of the Moon, asteroids, planets and their moons, and comets; • microgravity acceleration; • solar storm monitoring.

II. The US concept he Congress declares that a priority goal of constructing the Internation- al Space Station is the economic development of Earth orbital space. he Congress further declares that free and competitive markets create the most eicient conditions for promoting economic development and should there- fore govern the economic development of Earth orbital space. he Congress further declares that the use of free market principles in operating, servicing, allocating the use of, and adding capabilities to the space station, and the resulting fullest possible engagement of commercial providers and participa- tion of commercial users, will reduce space station operational costs for all partners and the federal government’s share of the United States’ burden to fund operations.

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he ISS building and operational abilities are thus based on the free mar- ket economy principles which aim at creating opportunities for commer- cial providers of operation, use, servicing and augmentation, potential cost savings and private sector contributions which will alleviate public spending. However, any participation is subject to the delivery of a licence within a given deadline.

III. A launch does not mean an export, a re-entry not an import A launch vehicle, re-entry vehicle or payload that is launched or re-entered is not, because of the launch or re-entry, an export or import, respectively, for purposes of a law controlling exports or imports, except that payloads launched pursuant to foreign trade zone procedures as provided for under the Foreign Trade Zones Act shall be considered exports with regard to cus- toms entry.

IV. The procurement of commercial space transportation services

hese shall be acquired from United States commercial providers, such as deined above, to the maximum extent practicable but with the exceptions of a national security issue, an unacceptable risk of loss of a unique sci- entiic opportunity, cost inefectiveness, inconsistency with international agreements for international collaborative eforts relating to science and technology or when a payload requires the unique capabilities of the space shuttle. OOComments: First comment:

A matter of conlict with the ESA concept is the exclusive promotion of United States global positioning system standards.

The potential conlict starts with the inding:

The Congress inds that the global postonng system, ncludng satelltes, sgnal equpment, ground statons, data lnks, and assocated command and control facltes, has become an essental element n cvl, scentic, and mltary space development because of the emergence of a unted States commercal ndustry whch provdes global postonng system equpment and related servces.

A potential source of protectionism in favour of the ‘unique’ American positioning system and the related US industry is hereby established, whilst the existence of

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the European Galileo positioning system means competition in a free market economy.

Second comment:

The previous comment is even reinforced by the US concept of ‘international cooperation’.

In order to support and sustan the global system n a manner that wll most efectvely contrbute to the natonal securty, publc safety, scentic and economc nterests of the unted States, the Congress encourages the presdent to: . ensure the operaton of the global postonng system on a contnuous worldwde bass free of drect user fees; 2. enter nto nternatonal agreements that promote cooperaton wth foregn governments and nternatonal organsatons to: • establsh the global postonng system and ts augmentatons as an acceptable nternatonal standard; and • elmnate any foregn barrers to applcatons of the global postonng system worldwde; and 3. provde clear drecton and adequate resources to the Assstant Secretary of Commerce for Communcatons and Informaton so that on an nternatonal bass the Assstant Secretary can: • acheve and sustan eicent management of the electromagnetc spectrum used by the global postonng system; and • protect that spectrum from dsrupton.

The danger is that national security and public safety issues would be handled inappropriately in the protectionism perspective.

Third comment:

The most positive element is the space shuttle privatisation programme taking into account safety and cost efectiveness.

nothng (...) shall prohbt nASA from studyng, desgnng, developng or fundng upgrades or modicatons essental to the safe and economcal operaton of the space shuttle leet.

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CHApTEr 0: Space-related resolutions of the United Nations General Assembly (UNGA) he role and achievements of the United Nations in the establishment of international space law as a special system within the present interna- tional law are crucial. Its purpose is to govern all activities in and relating to outer space including celestial bodies (1).

It is generally known that space legislation in the United Nations has been worked out through the Committee on the Peaceful Uses of Outer Space (Uncopuos) which was established by General Assembly Resolution 1348 (XIII) of December 1958, irst as an ad hoc body, and then transformed one year later by Resolution 1472 (XIV) of 12 December 1959 into a per- manent organ of the General Assembly. Membership of the Committee was expanded several times and has reached over 60 Member States, approximately one third of the whole UN membership.

Since the early 1960s, Uncopuos has concentrated all space-related coop- erative programmes furthered by the United Nations.

Two subcommittees were created for detailed consideration of speciic proposals and suggestions, one in the legal ield and the other concerning scientiic and technical problems, each composed of the same Member States as the parent body.

In addition, a number of international organisations, both intergovern- mental and non-governmental, have been granted the status of observers in the Committee and its subcommittees. In this way, a meaningful dis- cussion on space issues has been fostered. he ESA has been one of those actively participating.

Uncopuos became the irst UN body that started applying in its proceed- ings a principle that later became known as the rule of consensus. In its activities, Uncopuos has adopted the method of a progressive elaboration of appropriate space law instruments, step-by-step, the most urgent prob- lems being considered irst.

(1) Vladimir Kopal (University of Pilsen), ‘Existing United Nations treaties: strength and needs’, In: Proceedings of the Workshop on Space Law in the 21st Century, organised by the International Insti- tute of Space Law with the UN Oice for Outer Space Afairs at Vienna, United Nations, New York, 2000.

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It became obvious that the way for making progress was rather in conceiv- ing principles than in detailed rules.

In this way, the founding space legislative document of the UN emerged as the 1963 Declaration of Principles Governing the Activities of States in the Exploration and Use of Outer Space, later transformed into a legally bind- ing instrument, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967) (see Part 2, Chapter 1 of this document).

Whilst the OST focused on ‘the province of all mankind’ activities in gen- eral, other agreements have followed: • the Rescue Agreement (1968) — see Part 2, Chapter 2 of this document; • the Liability Convention (1972) — see Part 2, Chapter 3 of this document; • the Registration Convention (1975) — see Part 2, Chapter 4 of this document; • the Moon Agreement (1979) — see Part 2, Chapter 5 of this document.

Although the elaboration of further UN space treaties was discontinued ater 1979, the work of Uncopuos and its Legal Subcommittee was not interrupted.

Principles adopted by the General Assembly became a suitable form for regulating some special categories of space activities.

Four such sets of principles have been worked out and declared by the UN General Assembly in its respective resolutions: 1. the ‘Principles governing the use by States of artiicial earth satellites for international direct television broadcasting’, adopted by Resolution 37/92 on 10 December 1982; 2. the ‘Principles relating to remote sensing of the Earth from outer space’, adopted by Resolution 41/65 on 3 December 1986; 3. the ‘Principles relevant to the use of nuclear power sources in outer space’, adopted by Resolution 45/68 on 14 December 1992; 4. the ‘Declaration on international cooperation in the exploration and use of outer space for the beneit and the interest of all States, taking into particular account the needs of developing countries’, adopted by Resolution 51/122 on 13 December 1996.

7 EuropEAn TrAjECTorIES In SpACE LAw — 2007 OOComments: First comment: The negotiation on the use by States of artiicial Earth satellites for television broadcasting lasted for many years due to the ideological controversies of the Cold War. The vote performed on its adoption was a retreat from the rule of consensus previously set. However, it must be remembered that the decision was not made within Uncopuos nor its Legal Subcommittee, but in the General Assembly under its own rules of procedure.

Second comment: The 1986 Remote Sensing Principles were more successful, as a fair compromise was found between the interests of the sensing States i.e. States possessing the necessary space capabilities, and their needs, as well as the needs of developing countries.

Third comment: The nuclear power sources only apply to ‘nuclear power sources devoted to the generation of electric power on board space objects for non-propulsive purposes...’ Therefore, the principles are not applicable to the nuclear power sources serving other purposes, including nuclear propulsion for long-distance lights into interplanetary space and to the celestial bodies of our solar system.

Fourth comment: The above sets of principles, having been inserted in General Assembly resolutions, are not legally binding instruments. Nevertheless, they have a certain legal signiicance by either establishing a code of conduct or relecting a legal conviction of the present international community relating to these issues.

Fifth comment: A number of questions have arisen in recent years in connection with the growing volume of space activities of private enterprises. We will return to these issues in Part 3 of this document. Space law can be further developed by new legal principles, new General Assembly resolutions and new agreements. We may draft, for instance, an ‘Outer Space Environment Act’, including protection of space environment, sustainable development, interaction with other planets and space law interaction with scientiic research. Arms control for outer space is another priority problem. Methods should be sought for coordinating Uncopuos with overall UN disarmament activities.

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CHApTEr : The particular problem of space debris a. technicalities

‘What happens in the upper layers of the atmosphere also afects the underlying layers sooner or later. Since the upper atmosphere is highly rareied, any release of gases becomes relatively important and changes the density and composition in a wide neighbourhood.’ (1)

Among the most important (natural) efects is the inlux of meteoroids. hese are solid bodies of all sizes composed of minerals and metals cross- ing the atmosphere. he lower limit of the space environment is at approximately 100 km alti- tude. he outer limit of the region where Earth satellites can exist is far beyond the orbit of the Moon, at approximately 1 million km from the Earth. Objects beyond that distance do not orbit around the Earth, they orbit around the Sun.

Orbits of most satellites, including manned spacecrat, lie in low Earth orbit (LEO), between 200 and 2 000 km altitude.

In high Earth orbits (HEO), beyond 2 000 km altitude, the number of objects is considerably less. here are, however, two regions that are more populated than others are: • one is a belt favoured by navigation satellite systems at around 20 000 km; • the other is the geostationary orbital belt (GEO), at around 36 000 km.

GEO is mostly populated by telecommunication satellite systems and by meteorological satellites, about 40 % of the total number of active satel- lites, which is now around 600. here are now in orbit over 9 000 objects larger than 10 cm, over 100 000 objects between 1 and 10 cm, and tens of millions of objects smaller than 1 cm. he lifetime of satellites varies from a few days at

(1) Dr Lubos Perek (Astronautical Institute, Prague), ‘Maintaining the space environment’, In: Pro- ceedings of the Workshop on Space Law in the 21st Century, organised by the International Institute of Space Law with the UN Oice for Outer Space Afairs at Vienna, United Nations, New York, 2000, pp. 197–199.

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200 km altitude up to 30 years at 600 km. At 2 000 km, the lifetimes attain 20 000 years.

Space objects with diameters larger than 10 cm in LEO and larger than 1 m in CEO can be observed and tracked. In Earth orbit, more than 8 500 objects have been catalogued. Most of them are ‘man-made’ space debris, which pose little risk to the successful operations of about 600 active spacecrat now in Earth orbit. However, their number is steadily growing so that the risks are increasing.

B. Deinitions (1)

Meteoroids: These are solid bodies of all sizes, composed mainly of silicate minerals or iron and nickel, or both minerals and metals. (Their total mass entering the atmosphere has been estimated at 170 000 tonnes per year, including 10 000 tons of metals).

Space debris: These are ‘man-made’ objects in outer space, other than active or otherwise useful satellites (1). They may result from: • routine space operations; • orbital explosions and satellite break-ups whether intentional or accidental; • collision-generated debris; • particles and other forms of pollution ejected for example by solid rocket exhaust; • abandoned satellites.

Low Earth orbit An orbit between 200 and 2 000 km altitude. (LEO):

High Earth orbit An orbit beyond 2 000 km altitude. (HEO):

The geostationary At around 36 000 km altitude. orbital belt (GEO):

(1) Article 1 (c) of the ILA International Instrument on the Protection of the Environment from Dam- age caused by Space Debris, J.M. de Faraminan Gilbert, Space debris: technical and legal aspects, p. 309.

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c. Existing space law potentially applicable to space debris

he existing space law potentially applicable to space debris includes: • the Outer Space Treaty (OST):

° Article VI: States have international responsibility for national activities,

° Article VII: States are liable for damage caused by space objects,

° Article IX: States that have reason to believe that a planned activ- ity or experiment would cause potentially harmful interference with other space activities may request consultation on the activity or experiment; • the Liability Convention: States are liable for damage on Earth or in outer space caused by a space object; • the Registration Convention: all objects launched into space are to be registered, and nations with monitoring or tracking facilities must con- tribute to the identiication of space objects that caused damage; • the 1979 Convention on Long-Range Transboundary Air Pollution: according to this Convention, States are not allowed to cause damage to the environment of another State; • the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (1963): the purpose of this Treaty was to pre- vent the wide-ranging distribution of radioactive debris. Such radioac- tive debris could also take a less physical form, which would result in contamination pollution. OOComments: First comment:

Many issues are not addressed in the above treaties. For example: • measures to reduce the creation of new debris; • the determination of the origin of most debris objects; • clarity between the legal deinitions of space objects and space debris: the most accepted diference is whether the object is functional or not; it may be asserted that any ‘man-made’ uncontrolled piece orbiting in outer space shall be regarded as debris.

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The adoption of binding rules on these issues might be the most urgent in the short term.

Most space debris is caused by the explosion of satellites in low Earth orbit (LEO).

Leaking space reactors are another cause of nuclear debris that causes unclear clouds.

The prevention, mitigation and removal of space debris are urgently needed. Space debris can cause damage to a State, citizen, property or the general environment. It can also cause problems for ongoing space exploration. US space shuttles and even the ISS have had to move slightly from their orbit to avoid colliding with a substantial quantity of debris detected close to their orbit.

Second comment:

Both technical and legal solutions are eligible to deal with space debris.

Technical solutions include: • a better use of present instruments of control such as the registration of space objects (see Part 2, Chapter 4 of this document); • the improvement of launch techniques aimed at reducing the production of space debris; • the improvement of the cataloguing, information and tracking system of debris; • the use of ‘cemetery orbits’ at GEO altitude (around 36 000 km).

Legal solutions include: • setting of recommended minimum standards on techniques for the reduction of debris; • the terms of the Liability Convention (see Part 2, Chapter 3 of this document) should be enforced by establishing the liability of the State which produced the debris, starting with the consideration that space debris is a space object within the terms of the Convention; • a new international legal instrument would be a better solution in order to meet the huge economic importance of the problem, rather than amending the Liability Convention; • it must be possible to track a launch carried out by a State responsible according to the Registration Convention (see Part 2, Chapter 4 of this document) by an international body; • the ILA (International Law Association) instrument should be used to regulate space debris (see the 1994 ILA instrument on space debris).

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CHApTEr 2: The multiple uses of satellites he most common space activity today is the launching and operation of satellites.

Due to the GEO’s congestion, strict regulations must apply when using satellites, for example: • location: each satellite has to maintain its assigned orbit altitude and this requires station keeping; • RF frequency and polarisation: the use of the RF spectrum is interna- tionally regulated under the authority of the ITU; • radiation pattern: antennas are required to be clean meaning that sidelobes have to be restricted to avoid interference between diferent services; • de-orbiting: at the end of its lifetime, the satellite must be put into graveyard orbit. here are three main space satellite applications today: • telecommunications; • satellite navigation; • remote sensing.

However, other uses such as nuclear power and solar power sources are also to be scrutinised (1). a. telecommunications

Telecommunications are seen as the outspoken commercial utilisation of outer space. he telecommunications sector is a very sensitive issue for States because of its importance for economic, scientiic and military activities. Disturbances of frequencies are considered very damaging. herefore, there must be an international regulation for frequency alloca- tion kept under strict control of the radio spectrum. he main interna- tional organisation dealing with these issues is the ITU, which appears to be the oldest specialising agency of the UN.

(1) Diederichs-Verschoor, I. H., An introduction to space law, op. cit.

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It is in the ield of telecommunications that privatisation in space activities occurred irst. Governmental organisations enjoyed monopoly status in all ields for a while, but because of the growth of privately owned satellites and increased competition for telecommunication services, the roles of these bodies are gradually changing, taking into account the privatisation process.

Communications satellites operate on a global scale, transgressing all borders.

It is precisely this cross-border aspect that has given rise to a serious con- lict involving space law, a conlict that came into the open in the sector of direct broadcasting by satellite (DBS). his issue was hotly debated in the Legal Subcommittee of Uncopuos. he controversy focused on the princi- ple of free speech, on the one hand, and the rights of sovereignty of States wishing to protect their political, economic and cultural identity, on the other.

On 10 December 1982, the UNGA passed Resolution 37/92, the ‘Princi- ples governing the use of artiicial earth satellites for international direct television broadcasting’. hey acted merely as guidelines and recommen- dations to the international community, since national laws continued to provide the framework for DBS activities (1). he ITU was more successful in issuing regulations and allocating frequency bands afecting DBS.

B. satellite navigation

An important use of satellites is for navigation purposes, maritime, rail, road and especially in aviation. Air traic has expanded to such an extent that air traic control, in its present state of organisation and equipment, is hardly able to cope with the volume of movements in airspace. To combat this unsatisfactory state of afairs, one of the best methods proves to be using satellites for navigation control. Air traic management has been under scrutiny for some time. In 1983, the Future Air Navigation System Committee was set up by ICAO to investigate how to achieve better air traic management. It appeared that a global navigation system gives rise to some problems from a legal point of view.

Firstly, such a system will be governed by: a) rules of air law (the Chicago Convention);

(1) Diederichs-Verschoor, I. H., An introduction to space law, op. cit., p. 61.

78 pArT 2 — SpACE LAw BETwEEn 960 AnD 2000 b) rules of space law; c) rules of private international law (governing the contracts involved).

Secondly, air law still maintains the principle of sovereignty for States over their airspace whilst space law explicitly bans States’ sovereignty. hirdly, the Chicago Convention gives States ultimate responsibility and control over all air traic crossing their airspace’s territory.

Fourthly, most developing countries do not have the inancial means to participate in a future air navigation system (1).

It is not surprising that the irst satellite navigation systems were devel- oped for military purposes. • In the USA, the global positioning system (GPS) was developed by the Department of Defence and operated by the US Air Force. It consists of a constellation of 24 satellites and is being used to aid position-location, navigation and precision-timing. he system was deployed over two decades at a cost of around USD 25 billion. • GPS is now a worldwide information resource supporting a wide range of civil, scientiic and commercial functions, from air traic control to the Internet. It has drawn a substantial commercial industry with rap- idly growing markets for related services. • In the Soviet Union, Glonass was set up.

Hence, various additional systems have been created, dependent on GPS and Glonass, such as EGNOS (Europe), MSAS (Japan) and WAAS (USA). he EU’s future Galileo system will focus on civilian use. c. remote sensing

I. Applications in their historical development

Remote sensing activities have been in operation since the 1950s and started with the practice of aerial reconnaissance. his method using air- borne balloons was governed by air law.

(1) Idem, pp. 70–72.

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Today, technology has improved considerably and remote sensing of the Earth is done by special satellites orbiting the Earth, which have the capac- ity to observe large parts of the substructure of the soil thus facilitating mining and oil exploration. Although this is only a small sector of space exploration, its commercialisation is very important economically since a considerable number of activities are involved: meteorology (weather forecasting), geology (Earth resources), hydrology, irrigation, agriculture (for example, cadastre of vineyards), forestry (such as observation of the reduction of rain forests), ishery, and the monitoring of international treaties (for the example, movement of troops).

Meteorology was the irst to beneit from such satellites and technologi- cal improvements have vastly increased both the scale and accuracy of weather forecasting.

In 1960, the USA launched its TIROS 1 satellite. he USSR followed in 1967 with its Meteor system. On the European scene, the irst Meteosat satellite was launched in 1977. A new agency was created in 1986 with Eumetsat ater its convention was concluded. It is worthwhile to note that meteorological data obtained from remote sensing satellites beneit the whole of humankind for free and should continue to do so in the interest of developing countries whose national prosperity depends on them.

NASA launched the irst satellite for remote sensing of the Earth surface in 1972. It was subsequently named Landsat. he USA dominated this ield until 1977 when competitors from elsewhere started to emerge. Remote sensing of the Earth surface is an important source of development for the economy and for ecology but it is a potential source of diiculties regard- ing economic and military security.

II. International law governing remote sensing

None of the space law treaties mentions remote sensing. his issue is spe- cially governed by the 17 Principles of the UNGA dated 1986 relating to remote sensing of the Earth from space. his multilateral agreement has been followed by various bilateral agreements. he foremost exam- ple is the Landsat agreement between NASA and a number of countries. P. Gaudrat (1) is of the opinion that the UNGA principles can now be considered part of customary international law providing for a balance

(1) Gaudrat, (P.) and Tuinder (P.-H.): ‘he legal status of remote sensing data: issues of access and dis- tribution’ in Outlook on space law over the next 30 years: Essays published for the 30th anniversary of the Outer Space Treaty, Springer; irst edition (20 March 1997).

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between the freedom of observation for the sensing states and the right of having access to these data by the observed State.

III. The concept of remote sensing

he concept is based on a number of goals and functions.

he main goals of the principles are: • improvement of national resource management (Principle I); • beneit and common interest of all countries (Principle II); • concern about environmental matters (Principle X); • natural disaster prevention by the transmission of data and informa- tion as promptly as possible to the relevant States (Principle XI); • access to the data on a non-discriminatory basis and at reasonable cost (Principle XII).

Remote sensing pursues three functions: • the space segment function which includes the collecting, recording and transmitting to Earth of data concerning the Earth’s surface; • the ground segment which includes the reception, conversion and interpretation of the data; • the distribution of data. ODeinitions ‘Remote sensing is a space operation with a strong Earth-orientated bias: its end products, the data, are collected and processed on Earth, and are destined to be distributed and used on Earth.’ (1)

here is a strong commercialisation aspect involved in this issue: the pro- viding of data. At irst sight, there could be collision between two legal principles: sovereignty over national resources on the one hand, and free- dom of dissemination of information on the other.

Sovereignty over national resources

he question is whether remote sensing activities on the territories of other countries constitute a breach of that country’s national sovereignty.

(1) Diederichs-Verschoor, I. H., An introduction to space law, op. cit.

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According to Principle XIII, no prior consent is needed by the State doing the remote sensing which means there is freedom of observation. Prin- ciple XIII mentions prior ‘consultation’ and not ‘prior consent’. A State considering that it is likely to be subject to foreign remote sensing has a right, and without restriction, to request that consultations take place and that the requested State ‘shall’ enter into consultations with a State whose territory is sensed. here are, however, no guidelines as to the outcome of such consultations or whether they should take place before the beginning of the sensing (1).

Freedom of dissemination of information

here is no limitation on disseminating data from remote sensing — all States are free to access and exploit outer space. he whole ‘production chain’ of the data should enjoy adequate rights. his will ensure that eco- nomic attribution of proits will be possible. For example, the unauthorised interception of raw data and the processing thereater would give a right to the processor of the data and, as the raw data probably do not qualify for copyrights, no attribution of funds would be given to the originator of the data who is the satellite operator. he operator, however, makes the heaviest investment to enable the remote sensing process. In addition, a horizontal protection is needed, when, for example, remote sensing data is circulated through the Internet. OComments: First comment

A common comment concerns both the UNGA Principles of Resolution 37/92 passed on 10 December 1982 governing the use by states of artiicial Earth satellites for international direct television broadcasting, and those of 1986 relating to remote sensing of the Earth from space.

Although some analysts consider the UNGA principles part of customary international law, the resolution of the United Nations’ General Assembly does not represent a binding treaty. It will, however, be recognised by a judicial body.

In the light of privatisation, especially in the telecommunications sector, the principles need to be clariied and perhaps be transformed into a treaty.

(1) Idem.

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Second comment

Access to Earth observation data by private entities can be limited by a number of rights related to the observed object. Intellectual property rights can be involved, for example when observing a house, a garden or a village. One can also be confronted with privacy rights of the citizen.

In the EU, the ERS and Envisat programmes have created a precedent in Europe for the use of Earth observation data.

Does the European Community Directive 96/9/EC of 11 March 1996 on the legal protection of electronic databases ofer suicient protection?

The database directive introduces two distinctive rights: • copyright for the database when eligible under the copyright criteria; • a special sui generis right on the content irrespective of copyrights or author rights on the database.

The su geners right is more important because remote sensing consists more of transmitting a collection of data than a database, if we look at the beginning of a remote sensing activity. A large economic investment is considered as the criterion for the eligibility of su geners protection on the content of a database. The weak point in applying the directive on the whole chain of remote sensing processing is the deinition of a database. The lux of data coming from the Earth observation satellite cannot be regarded as a database in conformity with Article 1 of the directive. There will thus be no protection (1).

Third comment

In addition to the above, there are also liability/responsibility issues determined by UNGA Principle XIV of 1986 and Article VI of the Outer Space Treaty. Principle XIV determines that States operating remote sensing satellites shall bear international responsibility. What are the consequences for private companies? In accordance with Article VI of the OST, one would assume that States are responsible for the activity of private entities. Their role is to supervise the activity and guarantee access to the data.

Fourth comment

There is an international practice established by the Committee on Earth Observation Satellites. This Committee is seen as a lexible model for international cooperation and creates soft law. It is the focal point for international coordination or space-related Earth observation activities. Members closely follow

(1) Gaudrat, P., he legal status of remote sensing data: issues of access and distribution, op. cit., p. 358.

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the technical standards which have been decided on. This is important to ensure that everybody is able to access the data.

Fifth comment

Remote sensing is also used for veriication purposes to verify if States are keeping their various treaty obligations, especially in the environmental and military ields. If remote sensing methods are used for veriication purposes, such use is not subject to the 1986 UNGA Remote Sensing Principles since their scope is limited to natural resources and environmental management (1).

Sixth comment

The satellite navigation system is dominantly run by the USA today.

A non-competitive situation and lack of independence could mean an obstacle to trade. The UN principles ofer little protection to developing countries, private entities or individuals, as they are not binding. The EU Galileo system under preparation will be considered in a broad context in Chapter XIII.

D. solar power satellites (sps)

I. Deinition of solar energy

Scientists have deined solar energy as ‘the energy which is radiated through the electromagnetic system from the Sun’.

II. Function of solar power satellites he function of solar power satellites can be summed up as ‘convert- ing solar energy into electricity, and then transmitting it to Earth’. heir potential can be most useful when emergencies arise through lack of con- ventional energy sources.

For technical and practical reasons, solar power satellites have to be placed into GEO.

III. Legal implications • In cases where solar energy is collected and used on Earth, the laws of the State on whose territory the receiving equipment is stationed must be respected.

(1) Diederichs-Verschoor, I. H., An introduction to space law, op. cit., p. 86.

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• When solar energy is collected and used at sea, it will be subject to the law of the high seas. • When solar energy is collected, generated and used in airspace, the legal regime governing airspace will apply. • In outer space, the rules in space law will apply (1).

E. nuclear power sources (nps)

Nuclear power sources have been used since 1961 for generating energy for space objects. Ample attention is devoted in 11 UNGA principles in a resolution of 1992 to aspects of the safe use of nuclear power sources in outer space for the generation of electric power on board space objects for non-propulsive purposes.

Among the subjects covered is the notiication of re-entry to the UN Sec- retary-General in the event of space objects malfunctioning with a risk of re-entry of radioactive material falling back on the Earth. OComment: An interesting point to note in relation to this matter is the problem of the States that are not parties to the Space Treaty. The NPS principles are addressed not only to the States parties of that Treaty but also to all States (Principle I) (2).

(1) Diederichs-Verschoor, I. H., An introduction to space law, op. cit., pp. 101–102. (2) Idem, pp. 105–108.

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CHApTEr 3: Galileo, the European satellite positioning project a. History

In the late 1990s, the EU conceived an action plan on satellite communica- tions in the information society (1) published on 5 March 1997.

Building on experience gained with EGNOS, the European Geostationary Navigation Overlay Services, for the development of an augmentation sys- tem for GPS and Glonass, the respective American and Russian systems, the EU recognised the importance of having a global navigation satellite system conceived as a civil system, and launched the deinition phase of Galileo in the late 1990s.

B. concept of Galileo

As stressed in the European Commission White Paper on European trans- port policy for 2010, the EU needs an independent satellite radio naviga- tion system.

At the end of the 20th century, only two countries, the United States and Russia, had systems of this kind but they are operated by the military authorities who can block the signals whenever they deem it necessary, such as in a crisis.

Besides, the existing systems have several major shortcomings: • there is no guarantee of liability on the part of the operators. One can imagine the possible implications in the event of aviation accidents; • their technology is not totally reliable: users, for example, are not imme- diately informed of any errors; transmission is sometimes unreliable, especially towards cities and regions situated in extreme latitudes; • the degree of accuracy is poor for applications necessitating rapid positioning.

Unlike the existing systems, Galileo will be a civilian service ofering a guarantee of accuracy and continuity. Galileo is not conceived as opposing

(1) Communication on the EU action plan: Satellite communications in the information society, COM(97)91, inal, 5.3.1997.

86 pArT 2 — SpACE LAw BETwEEn 960 AnD 2000 the American GPS but as a complementary service. he availability of two services, and therefore two signals, will increase reliability and eiciency. c. technicalities around Galileo

Satellite radio navigation is an advanced technology based on the emis- sion from satellites of signals indicating the time and place with extreme precision. his enables any individual to determine his or her position or the loca- tion of any moving or stationary object (for example, a ship, a lorry or a herd of cattle) to within one metre thanks to a small cheap individual receiver.

Galileo will be based on a constellation of 30 satellites, placed in a medium Earth orbit (at an altitude of approximately 24 000 km) and ground sta- tions providing information on positioning (1). It has considerable tech- nology development potential, for example innovations concerning envi- ronmental protection.

D. the potential of applications for Galileo

Users will be found in many sectors, including: • transport: location of modes of transport, route searching, speed con- trol, guidance systems, management of traic congestion, etc.; • social services: aid for the disabled or elderly, rescue systems, direction- inding in the mountains, etc.; • judicial and customs services: location of suspects, border controls, investigation; Galileo will even make it possible to locate a stolen vehi- cle hidden in a garage, something which cannot be done with the exist- ing GPS system; • the economy in general: the improvement of geographical and meteor- ological information systems will beneit agriculture and the protection of the environment, and facilitate the monitoring of hazardous materi- als e.g. those subject to temperature variations risks.

For public works such as urban development, road and bridge building, Galileo can be a geodesic surveillance tool.

(1) Galileo will cover the entire surface of the Earth. Each satellite is a platform equipped with an atomic clock providing extremely precise time measurement.

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Galileo will ofer a new compatible system ensuring greater reliability in networks for banks, telecommunications and electricity.

E. political issues

Galileo will bring about decisive beneits in terms of Europe’s independ- ence in a strategic area. he viability of the programme will depend on a public–private partnership (PPP) with a concession holder for the deployment and operating phases. he European Commission has there- fore proposed the establishment, in conjunction with the ESA, of a Joint Undertaking with a programme development plan laying down the foun- dations for commercial operation. his Joint Undertaking (‘Galileo Joint Undertaking’ (GJU)) is now about to be replaced by the European GNSS Supervisory Authority, an agency of the European Commission, which will take over the responsibilities of the GJU in controlling the concession holder activities.

Galileo is the irst major programme bringing together the Community institutions and the European Space Agency. he foundation principles being set, we will look at the further develop- ments in Part III.

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CHApTEr 4: Industrial law in space applications

Gradually private sector investments in commercial space activities exceed State investment. Without a doubt, the concept of space law needs to be expanded because, as from the last two decades of the 20th century, there are also expanding space activities on Earth. Commercialisation on a competitive basis is necessary for rendering the products of space activi- ties available at a reasonable price. a. Deinitions

Perhaps the concepts of commercialisation and privatisation in space activities need to be deined irst: • Commercialisation: the selling or proit-making transfer of goods and services. States as well as private enterprises are the subjects of commercialisation. • Privatisation: the transition of government-owned and operated civil- ian space activities to strictly private ownership and operation; or civil- ian space activities originating through private initiative.

B. Intellectual property rights

Intellectual property in space activity is important to protect and promote the results of research and development and to encourage private indus- tries to use space for commercial exploitation. he irst time intellectual property was mentioned in a United Nations document on space activities was in Article 1 of the OST.

Copyrights and neighbouring rights are speciically mentioned further in the UN Resolution on the ‘Principles governing the use by States of artiicial Earth satellites for international direct broadcasting’ dated 10 December 1982.

Intellectual property laws are fundamentally national although there were eforts towards international harmonisation, inspired by the fact that space law is fundamentally international.

Later on, the subsidiary principle, which was irst mentioned in the Treaty of Maastricht, becomes helpful.

89 EuropEAn TrAjECTorIES In SpACE LAw — 2007 OComments: First comment

The efects of commercialisation, outside the range of intellectual property law, include: • tracking of each spacecraft (what, how, why, where): there is a need for a global institution dealing with tracking; ITU does tracking but only with respect to telecommunications; • proper liability rules; • proper licensing rules; • appropriate insurance cover (see Part 2, Chapter 15 of this document).

Looking at Article 27 of TRIPS, for example, the place of the invention is not very important. This implies that an invention made in outer space can be patented on Earth without any special problems.

The real issue is whether patents can be protected in outer space as outer space is outside any State’s sovereignty.

In EU national patent legislations, there are no provisions concerning where an invention has been conceived. This could lead one to imagine that there should be no problem obtaining a national patent on an invention conceived in outer space but the problem remains that a patent is only enforceable within territorial boundaries.

Second comment

Patent protection of inventions on board the International Space Station (ISS) is a particular case. The major questions are where iling and granting of patentable inventions should take place. Which tools are available for preventing and prosecuting infringements? What inluence will the US legislation have?

The IGA does tentatively attempt to regulate intellectual property rights on board the ISS. Article 21 establishes that ‘an activity occurring in or on a space station light element shall be deemed to have occurred only in the territory of the partner State of that element’s registry’. Because of this rule and of the particular situation of the European partner, there was a need to provide in addition that, should an infringement relating to an ESA-registered element occur, there would be no possibility for the owner of the right to recover in more than one European partner State; it was also necessary to ensure that a licence enforceable under any European partner State’s law could be recognised and complied with by all

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the other European partner States if need be (1). Article 21.2 determines that the 10 European partner States are deemed to be a single territory subject to the same legislation. Germany in its ratiication of the IGA considers that the applicability of its patent law, the work on the European module of the space station will be considered as having taken place on its own territory. Have all the ESA Member States ratiied the IGA? This is important in order to avoid diferent applications of the IGA. Further problems with the ISS are that an investor on Earth would most likely develop the experiment and the astronauts will execute commands of the investor. The investor could then be the only possible inventor. There are also further problems with joint activity by astronauts. Finally, it is important to deine which acts can constitute an infringement of a patent on board the space station.

(1) Farrand, A., he astronaut in the space station era, op. cit., p. 158.

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CHApTEr 5: Insurance of space activities a. History he history of insurance for space activities goes back to 1965 when Comsat took a pre-launch insurance for its Early Bird satellite. Historically it has been seen as a largely asset-based form of coverage, where the risk of products failure is perceived as a inancial one manageable by insurance. In other words, the market provides insurance cover for the asset value of commercial satellites (or other forms of space payload) and their launch vehicles in the event of loss, damage or malfunctioning. Satellites tend to be insured on an agreed value basis. In the case of launch vehicles, which currently comprise various forms of ELVs (expandable launch vehicles), the reality is that it is the cost of a replacement launch vehicle that is being insured (1). he insurance basis is about 60 % of the life cycle of a geostationary satel- lite programme.

B. types of insurance he types of insurance are largely inluenced by the launching phases: • pre-launch insurance: covers the building and manufacture phase, transport and delivery to launch site; • launch insurance: covers the risk of a launch failure as well as the failure of a satellite not being placed in proper orbit; • in-orbit insurance: two sub-phases possible:

° in-orbit deployment insurance,

° in-orbit operations insurance. his is mainly for technical problems and damage once the satellite is in its proper orbit. hese policies usually cover of one year, renewable. here could also be third-party liability insurance. Mindful of its obli- gations under the Liability Convention (see Part 2, Chapter 3 of this document), third-party liability cover for the launch and deployment

(1) Gimblett, R., ‘Space insurance into the next millennium’, In: Outlook on space law over the next 30 years, Kluwer, 1997, p. 163.

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phases of operation is normally a legal requirement under domestic law (such as in the UK) or licensing practice of the launching State. he USA makes use of waivers. In the USA, FAA regulations require that commercial launch licensees carry insurance to cover not only third-party liability but also insurance for government property dam- age. It is also possible to buy in-orbit liability insurance for the life- time of a satellite. Market demand for this type of cover is very limited however. • re-launch guarantees.

During the 1980s, the launch service industry, led by Arianespace, started ofering re-launches in the event of failure. his is a form of launch insur- ance in which a launch company acts as an insurance provider to its customers. c. Deinitions

New deinitions pertain to the insurance satellite launch activity: • capacity for a single satellite launch: this is the entire amount of cover- age that insurance companies are willing to underwrite for a project (high capacity and low premium rates or low capacity and high pre- mium rates); • total yearly space market capacity: this is the theoretical amount of cov- erage available for all commercial space activities in a given year; • syndicated space insurance: this means that each individual under- writer assumes a percentage of the risk. Typically, multiple insurance underwriters cover each risk for a fractional share, thereby spreading the risk throughout the global markets. While all underwriters use similar terms and conditions, commercial space insurance policies are individually crated; • re-insurance in space: this means buying participation in any insur- ance package from an underwriter, following ‘his fortunes’ referred to as ‘following on’. he participation of these additional inancial back- ers allows underwriters to spread risk throughout many layers of the insurance industry. Re-insurers do not analyse any technical informa- tion but depend on the evaluation of the underwriters to determine their level of involvement.

93 EuropEAn TrAjECTorIES In SpACE LAw — 2007 OComments: First comment

During the 20th century, there was no practice of passenger space travel, despite its inauguration by Dennis Tito (1). Passenger space travel will require operators to insure themselves against their potential liability for the death or injury of their passengers. In the early pioneering days, passengers are likely to be required to sign comprehensive waivers of liability in favour of the operator, which are enforceable except in the event of negligence by the operator. Appropriate passenger liability insurance will therefore be essential. Its cost is likely to be very great and may well act as an impediment to the growth of this part of the space industry.

Second comment

Four other causes may well increase the importance, hence the cost, of liability insurance: • collision with space debris, i.e. physical interference; • electronic interference: claims arising from electronic interference were excluded from most space liability policies during the 20th century; • the issue of re-usability of spacecraft, especially in the case of space travel; • the increase of technical complexity: this advanced technology comes with a higher associated risk of failure due to errors in manufacturing, testing and design.

Third comment

Most characteristic for the space insurance industry is that a single launch failure causes a great impact on the market. The factors causing instability in the market are the following: • large inancial means involved in a single launch can dramatically afect the cash-low position of the enterprise; • the constantly evolving technology makes risk assessment very diicult: even trivial faults can make space activities extremely vulnerable; • sending payloads with satellites, which is common practice, entails greater risk exposure for the insurance market.

It is our understanding that space insurance difers from other insurance areas signiicantly.

(1) Dennis Tito is an American multimillionaire who became famous by becoming the irst ‘space tourist’ aboard the International Space Station (Soyouz mission TM-32, 28 April 2001).

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CHApTEr 6: Dispute resolution — jurisprudence

Notwithstanding the rapidly growing use of outer space, especially with respect to satellites, little attention has been given so far to the handling of possible disputes arising out of this growing use of outer space. An increase of accidents in space probably cannot be avoided. It is clear that, apart from the inancial implications for the insurance industry, the legal implications could be enormous. a. concept

In this respect, not only the dispute settlement procedure but also the technical investigations identifying the cause of the accidents should be addressed.

One single accident could involve a signiicant number of parties, for example: • the State on which territory the damage occurs; • the State responsible for the launch; • the owner(s) of the satellite; • inlicted third parties; • insurance companies; • suppliers of components of launch sites, rockets or satellites. he interests at stake are extremely high and time for settlement is also a big factor. he use of arbitration in space law disputes suggests itself as the most preferred method of dispute settlement.

B. case law

In the period 1960–2000, a number of major incidents or accidents occurred: • 18 December 1978, Cosmos 954 Satellite disintegrated over Canada polluting the northern area with radioactive debris; • July 1979, Skylab came down over Australia; • July 1982, Columbia near missed Intercosmos 4; • 1983, the core of the 402 Cosmos reactor fell into the Indian Ocean;

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• February 1991, the USSR orbital station Salyut 7/Cosmos 1686 made an uncontrolled re-entry on Argentine soil; • 11 March 1996, a Chinese rocket came down into the southern part of the Atlantic Ocean.

he accident of Cosmos 954 in 1978 caused one of the most serious inter- national disputes; a claim from the Canadian Department of External Afairs against the USSR for damages was settled on 2 April 1981 by a protocol signed by both governments. he procedure was an arbitration process.

As shown in Part 2, Chapter 15 of this document, the insurance standard practice is that launching insurance covers the risk of satellites not reach- ing their proper position in orbit. here is already some interesting case law on the matter, as can be seen. OIntelsat v Martin Marietta Corp. In August 1987, Martin Marietta had contracted with Intelsat for the launch of two communications satellites. he irst of the two failed to reach the correct position in orbit, causing Intelsat substantial losses, including the loss of a satellite.

he contract between the litigants included so-called ‘cross-waiver’ clauses on liability, amounting to each party bearing its own risk.

Martin Marietta requested for a declaratory judgment on non-liability and counter-claimed on breach of contract and tort (alleging negligence, gross negligence and negligent representation).

In its decision, the District Court of Maryland dismissed the tort claims and liability for negligence or gross negligence, and stuck to the obliga- tions laid down in the contract. he outcome was that Intelsat could not recover its losses either way (1).

Appalachian Insurance Co & Lexington Insurance Co O separately v McDonnell Douglas In February 1984, the Westar VI Communications satellite for West- ern Union Telegraph Co. and the Indonesian Palapa B-2 satellite were

(1) Journal of Space Law, Vol. 19 (1991) pp. 173–176.

96 pArT 2 — SpACE LAw BETwEEn 960 AnD 2000

launched, following their contract with McDonnell Douglas. In both cases, the insurance companies paid the claim that subsequently arose, but sued McDonnell Douglas (1).

According to the Court, the malfunctioning, in both cases, of the rocket booster did not engage the liability of McDonnell Douglas for the loss of the satellite. OA debris-collision case A collision case occurred when the space shuttle Challenger was hit by a tiny piece of paint, originating from a Delta rocket and measuring only 0.2 mm in diameter.

In such an incident, the velocity of the debris is the principal cause of its damaging potential.

Most of the disputes are within the USA, for example: • Appalachian Insurance Co v McDonnell Douglas (1984); • Hughes Galaxy Inc v US Government (1986) (2); • American Satellite Co v US Government (1990); • Transpace Carriers v US Government (1990) (3); • Florida Coalition for Peace and Justice v George H.W. Bush (two cases from respectively 1989 and 1990); • AT & T v Martin Marietta (1995).

In one case, an international organisation (Intelsat) was sued in the USA: • Martin Marietta Corporation v Intelsat;

and in another, a European organisation (the ESA) in Germany: • Regina Döring-Kuschel and Benno Carus v Schellenberg, Ogilvy and Mather GmbH (1984).

An internal Dutch case opposed the Netherlands Antilles v Antilles Com- munications n.v. in 1983.

(1) Idem, Vol. 18 (1990) pp. 44–45. (2) Idem. Vol. 21 (1993) pp. 166–167. (3) Idem. Vol. 19 (1991) pp. 77–79.

97 EuropEAn TrAjECTorIES In SpACE LAw — 2007 c. the settlements of disputes he Outer Space Treaty (OST) of 1967, which is the fundamental instru- ment of outer space law (see Part 2, Chapter 1 of this document), refers in its Articles III and IX only to the general principles of international law for the settlement of disputes. he Liability Convention (see Part 2, Chapter 3 of this document) of 1972 has established a Claims Commission but its decisions have no binding force.

No rules concerning disputes are to be found in any other space law treaties. he UN Charter of 1945 in its Article 2, §3, provides the basis for a new branch of law that space law appeared to become but in case of disputes only ‘consultation’ was retained.

In the international judicial sphere, we can ind in general terms: • the Permanent Court of Arbitration (in he Hague); • the International Court of Justice (also in he Hague) which celebrated its 50th anniversary in 1996; • a special and unique court named the ‘International Court of Air and Space Arbitration’, established in 1994 by the Société Française de Droit Aérien et Spatial. It is designed for the swit and economical settlement by arbitration of any contentious matters related directly or indirectly to air and space activities, rather than address the Permanent Court of Arbitration.

Since extremely important activities are being carried out in space in terms of telecommunications, organisations dealing with those matters such as the International Telecommunications Union (ITU), Intelsat and Inmar- sat have, unlike the space treaties, detailed rules governing the settlement of disputes. hey failed, however, to cover all situations as was evidenced in a case involving the Kingdom of Tonga (1).

(1) Andrews (E.L.): ‘Tiny Tonga seeks satellite empire in space’ in he New York Times, 28 August 1990; ‘he island nation of Tonga has seized on a loophole in international law to lay claim to the last 16 desirable unoccupied orbital parking spaces for satellites that can link Asia, the Paciic and the United States. Control of the spaces, called “slots,” determines who can provide satellite communi- cations to a given part of the world. he number of these spaces above the earth is sharply limited by international law to prevent interference between satellites, but they can de reserved at no cost by nearly any nation on an essentially irst-come, irst-served basis.’

98 pArT 2 — SpACE LAw BETwEEn 960 AnD 2000 OComments: First comment

Proposals for a draft ‘convention of the settlement of space law disputes’ have been put forward in the framework of the International Law Association (ILA). It is doubtful, however, that such a convention will ever see the light of day. As more litigation between private enterprises, not including governmental agencies, is likely in future, arbitration rules inserted in launch contracts will make more sense.

Second comment

As American case law demonstrates, the courts’ decisions can lead to important difering interpretations not only in the sphere of the law of contract or the law of tort, but also in areas such as the law of industrial property. To remedy a situation of legal uncertainty that could occur, the establishment of a global international arbitration tribunal to promote uniformity and security has to be welcomed.

99

part 3

– Space challenges faced by Europe from a legal perspectve (2000–)

pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–)

‘A Europe without a clear space policy and a clear commitment to space as an integral part of its other policies will be a Europe that limits its own possibilities of success.’

Carl Bildt, Jean Peyrelevade and Lothar Späth, Towards a space agency for the European Union, 2000.

03 EuropEAn TrAjECTorIES In SpACE LAw — 2007

CHApTEr : Take-of of a strategic vision for space in Europe a. History

In 1988, the European Commission was clearly indicating that space is a key element of European economic security (1). he main concern was the lack of an overall policy that would incorporate economic, social, industrial and even defence matters.

Although the European Space Agency was felt as working perfectly in its dedicated ield, there was a need for better cooperation between the ESA and the Community. During the 1990s, the idea arose ‘to establish a dedi- cated Agency, within the Union, to address issues related to satellite navi- gation; to support industrial competitiveness through regulation on satel- lite licensing and frequency allocation; to possibly include a space element in the preparation of the ith framework R & D programme’ (2). Now, as the European Commission has launched its seventh framework R & D programme (FP7), we can see that this ‘space element’ has been concretely included in the R & D framework programme with tangible outputs to be further analysed from the sixth framework programme (FP6). he 1988 Commission communication was followed by two others in 1992 and 1996. hese documents, which were elaborated on a consul- tation basis within the Commission between all directorates afected by space activities, put emphasis on closer involvement from all actors con- cerned in the development of space technology in Europe (Member States, national space agencies, the ESA, space industry users and operators).

In 1998, the Council of the EU together with the ESA issued two resolu- tions ‘setting out preliminary thoughts on the evolution of the ESA and the status of the European space sector’ (3). he irst resolution stressed the need to strengthen and promote synergy and complementarity between the EU and the ESA ‘keeping to their respective spheres of competence’. he second resolution principally dealt with the establishment of an over-

(1) Communication from the European Commission to the Council and the European Parliament, ‘he European Community and space, a coherent approach’, COM(88) 417 inal, 1988. (2) Chelii, S., ‘he European Union and space’, ECSL News, No 16, Paris, 1996. (3) ‘Preparatory steps towards the Council meeting at ministerial level’, ESA Information Note No 20- 1998, 12 June 1998.

04 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) all European space policy, the evolution of the European Space Agency, the eicient use of public resources in Europe and the ESA programmes (1). he Treaty of Amsterdam (1999) brought a new dimension to R & D, among major changes, especially in terms of transfer of competences and cross-pillar competences.

As to R & D, Article 171 EC states: he Community may set up joint undertakings or any other structure neces- sary for the eicient execution of Community research, technological devel- opment and demonstration programmes. his article brought R & D competences into the Community pillar open- ing doors for true European projects in this sector, including space research and activities. he latter took the form of demonstration programmes.

NB: his would allow for the Galileo Joint Undertaking later on (21 May 2002) and also, in conjunction with Articles 170 and 300 of the EC Treaty, the EC/ESA framework agreement (7 October 2003).

Also to be mentioned is Article 169 EC which plans for deeper integration of national programmes in speciic research ields, to be implemented in the framework programme.

B. the relection time

In 1999–2002, the European Union entered a very demanding period in deining a European space policy:

7 June 1999 Commission working document ‘Towards a coherent approach for space’, SEC (1999), 7 June 1999.

2 December 1999 Council resolution of 2 December 1999 ‘Towards a coherent approach for space’, OJ C 375, 24.12.1999.

19 April 2000 Report of the European Parliament on the working document of the Commission ‘Towards a coherent approach for space’, Committee on Industry, External Trade, Research and Energy, rapporteur Konstantinos Alyssandrakis (A5-c119/2000, 19 April 2000).

18 May 2000 Resolution of the European Parliament on the Commission working document ‘Towards a coherent approach for space’, 18 May 2000.

(1) Ibid.

05 EuropEAn TrAjECTorIES In SpACE LAw — 2007

27 September 2000 communication from the European commission to the council and European parliament — ‘Europe and space: turning to a new chapter’, coM(2000)597, 27 september 2000.

23 December 2000 council resolution of 16 november 2000 on a European space strategy, oj c 371, 23.12.2000.

7 December 2001 communication from the European commission to the council and European parliament ‘towards a European space policy’, cOM(2001) 718 inal, 7 December 2001.

17 January 2002 Resolution of the European Parliament ‘Europe and space’, 17 January 2002.

July 2002 Report of the High-level European Advisory Group on Aerospace — ‘STAR21: strategic aerospace review for the 21st century’, July 2002.

06 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–)

CHApTEr 2: Eforts to achieve institutional convergence between the European Commission and the ESA he European Space Agency, confronted with legal uncertainty in some of its approaches and activities, decided to call on neutral advice on the evolution of the ESA, independently from the earlier reports. he Bildt- Peyrelevade-Späth Report was published in March 2000. a. the Bildt-peyrelevade-späth report and its inluence his ‘hree Wise Men’ report stressed the importance and urgency for Europe to develop a clear space policy and a clear commitment to space as an integral part of its other policies.

Europe will face new challenges during the next decade — namely the development of a larger Union undergoing radical economic change thanks to a knowledge-based society. he ambition is to be the irst knowl- edge-based society in the world. his Union should gradually acquire a common security and defence capability. he authors stress that: ... there is no alternative for Europe to a common space policy. he driver of such a European space policy is to make Europe independent on space infra- structure. It is a clear invitation that Europe comes to the front scene as an alternative to the US monopoly in the space-based global positioning system among others. he objective is not confrontation with the United States but a chance to increase opportunities to developing cooperation on a balanced basis that gives room also for European initiatives and interests in the ield of strategic and commercial applications associated to space systems. (1) herefore, institutional convergence between the EU and the ESA is a matter of urgency. he role of the ESA should be clariied within the treaty framework of the European Union. As a dedicated agency, the ESA’s activ- ities could be extended to defence requirements and to market-oriented applications. he Commission could be integrated as a member of the ESA Council. he European Parliament should be given the opportunity to monitor and review the European space policy ater it is duly deined.

(1) Bildt, C., Peyrelevade, J. and Späth, L. Towards a space agency for the European Union, March 2000.

07 EuropEAn TrAjECTorIES In SpACE LAw — 2007 OComments: First comment

It is not necessary to relect longer on this report since further progress and events have occurred since then, including the decision to implement such a European policy.

On 16 November 2000, the Councils of the ESA and the EU adopted parallel resolutions that accompany a joint ESA/EC document on a European strategy for space (1).

This document identiies three lines of action for the European strategy for space: • the strengthening of the foundations for space activities; • the enhancement of scientiic knowledge; • the reaping of beneits for society and markets.

The development of a cooperative structure is endorsed that will bring together the ESA Executive and the European Commission. The ESA’s role is deined as follows: the ESA would act as the implementing organisation for the development and procurement of the space and ground segments associated with the setting- up of joint programmes responding to political initiatives of the European Union.

Second comment

The Council thereby puts an end to tendencies on European policymaking, which are always a temptation with intergovernmental agencies. Eurocontrol, in the ield of aviation, has experienced the same facts and the same results.

When we look at the foundation impetus of the ESA in 1975, Article 2 of the ESA Convention states that its purpose is ‘to provide for and to promote, for exclusively peaceful purposes, cooperation among European States in space research and technology and their space applications, with a view to their being used for scientiic purposes and for operational space applications systems’.

Does this mean full independency of action for the ESA? We do not think so. The terms in Article 2 indicate clearly that the ESA was set up originally for scientiic and technological purposes and considerations:

cooperaton ... space research ... technology ... space applcatons ... for scentic purposes ... for operatonal space applcaton...

(1) ‘ESA and the European Union adopt a common strategy for space’, ESA Information Note No 74-2000, 16 November 2000. OJ C 371, 23.12.2000.

08 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–)

Present in mind too is the purpose to attain better use and management of the EU’s resources through a dedicated agency.

The Green Paper and the subsequent White Paper advocate the Union’s need for a wider framework in which Europe’s technological and industrial bases, represented by the ESA, can deploy their savoir-faire and expertises. Nevertheless, this cannot be achieved outside a stronger synergy assembling and a global policymaking institution in the EU.

B. the joint task Force Ec/Esa (2001) (1)

he Joint Task Force was created to implement and carry out the European strategy for space, as endorsed by the European Research Council and the ESA’s Council at ministerial level on 16 November 2001. he European Commission acted as the political arm and the ESA as the operational arm.

he role of the European Commission is to: • establish the right political and regulatory conditions for space activities; • catalyse joint R & D eforts in line with the objectives of a European research area; • bring together all actors around common political objectives in projects of Europe-wide interest. OComments: First comment

It still remains unclear when one looks at the EC/ESA oicial presentation what the exact role of each institution will be in the wider setting of their respective competences, especially vis-à-vis their own Member States.

Can the Commission decide the ‘right political and regulatory conditions for space activities’ even for countries that are not members of the EU? The mandate needs to be clariied.

Second comment

The Joint Task Force has played a major role in preparing an efective cooperative structure: the EC/ESA framework agreement (see hereafter).

(1) http://europa.eu.int/comm/space/themes/policy/intro_space_en.html

09 EuropEAn TrAjECTorIES In SpACE LAw — 2007 c. the Ec/Esa framework paper (1) he EC/ESA agreement of 7 October 2003 emphasises that ‘closer coop- eration between them will strengthen the peaceful use of space as an important tool to contribute to European cohesion and economic growth and will allow space-related activities to be brought to a wider political, economic, scientiic, environmental and social framework more directly at the service of European citizens’.

I. Purpose of the cooperation

Article 1 of the agreement states that the purpose of the cooperation will be the progressive development of a coherent and overall European space policy at the European Community level.

According to Article 3.1, the cooperation is articulated on common objec- tives in the ield of science, technology, earth observation, navigation, communication by satellite, human space lights, micro-gravity, launch- ers, and spectrum policy related to space. his list of cooperation ields may be extended (Article 3.2).

II. Joint initiatives with their restrictions

An interesting aspect of the agreement is the ‘joint initiatives’ option in Article 5, which supports the common participation of both institutions in joint programmes. he ESA is thereby introduced as an operating arm for the European Commission. Article 5.3, however, shows the limits of such an agreement due to the uneven distribution of States’ membership. Indeed, the ESA and European Commission do not have the same mem- bership, hence not the same precise interests. he inancial distribution among members is therefore diferent. he following phrase cannot be more explicit: ‘Under no circumstances shall the European Community be bound to apply the rule of “geographical distribution” contained in the ESA Convention and especially in Annex V thereto’.

Article 7 establishes boundaries to the external dimension of the coopera- tion. Once a speciic arrangement has been concluded, the external aspects of this joint activity must be pursued jointly by the parties vis-à-vis third parties in accordance with that speciic arrangement (Article 7.3).

(1) Framework agreement between the European Community and the European Space Agency, in Council decision on the signing of the framework agreement between the European Community and the European Space Agency, Brussels, 7 October 2003. See document in Annex.

0 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–)

For coordination and facilitation reasons, special organs have been established: • a Space Council (Article 8); • a Secretariat (Article 8.3); • the rule of advance public-relations agreements (Article 10); • arbitrary procedures (Article 11).

III. Duration of the agreement

According to Article 12, the agreement is adopted for a period of four years renewable for subsequent periods of four years.

Moreover, Article 12 gives the necessary exit door that would allow the Union to proceed outside the ESA in the development of its own space programme. OComments: First comment

The EC/ESA framework agreement is perfectly in line with the new policy impulse that would bring Europe further into space. The agreement is ‘light’ but does not envisage the same terms for the future. If today the ESA is able to subcontract and undertake projects on behalf of the EC and to subscribe to joint initiatives, it still must keep in mind that the solution is precarious in the long term. The ESA’s structure within the EU institution is now open to question.

Second comment

The EU sole participation under Article V.1.b to the ESA Convention is a step forward but it also rejects the limitation and the precariousness of the scafolding. The ideal situation would be that the EC could sit at the ESA Council as a full member replacing its own Member States. Of course, this is unthinkable as long as there is no integration of the diferent national space programmes at EU level. The same problems as experienced with the European defence and security policy arose on this point before the setting up of the European Defence Agency on 12 July 2004. It looks likely that a reorientation of the European Space Agency will become more and more necessary.

 EuropEAn TrAjECTorIES In SpACE LAw — 2007

D. the future of the Eu/Esa relationship

During the 12th EC Space Law Summer Course in Leuven in 2003, Pro- fessor Jan Wouters relected on this theme. here could be two possible directions.

I. The actual model of cooperation, through partnership, on the one hand his is not a viable solution in the long term as it heavily dulls the deci- sion-making process and weakens the eiciency of the overall structure, as neither common objectives nor interests can coincide.

II. The integration model, on the other hand he integration process is the one advocated by the ‘hree Wise Men’ (Bildt-Peyrelevade-Späth Report, 2000). According to this view, the European Council would deine European space policy and become the political arm, and the ESA would become the dedicated space agency of Europe as the operator under EC political supervision. In this perspective, a new institutional step would be needed: the EU should deine and set its own European space policy in the Treaty framework. his was partially achieved in the former text of the European Constitution (which is now on 'standby'). In this interesting text, the ESA would become an imple- menting body, which would need – if practically put into practice - a mod- iication of its charter. It is primordial that the ESA, with its expertise and large amount of knowledge, continues to exist as both a sectorial agency and vector for space progress and activities and as an intergovernmental organisation. Its structure, however, is weakened by its multiple member- ships which explain its relative limitation to answer the future European demands in sensitive matters at the political level such as defence or secu- rity. Since inancial distribution keys among members are also diferent between the EC and the ESA, this brings another problematic issue. he ESA Convention divides the Agency’s activities between mandatory and optional programmes. Contributions to these programmes are une- ven and below the actual standards found in the USA or even Japan, if taken proportionally.

It is clear that, if Europe wants to become a true space power, and cooper- ate with the United States on a balanced basis, then higher priority should

2 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) be given to space investments, as the hree Wise Men report signals (1). For the time being, the EC overall igures’ proportion vis-à-vis the USA is almost 1:3. he other problem underlying the ESA structure in the EU perspective is the ‘Member States divide’. he ESA has 16 Member States, of which two are non-EU members (Norway and Switzerland). We must add Canada, which takes part in some projects under a special cooperation agreement. Luxembourg and Portugal joined the ESA Convention on 25 March 2004. he European Union, as from 1 January 2007, has 27 Member States. Keeping the ESA ‘alive’ as it stands would mean that non-EU Member States could stay within the existing structure.

(1) Bildt, C., Peyrelevade, J. and Späth, L., op. cit., 2000, p. 8.

3 EuropEAn TrAjECTorIES In SpACE LAw — 2007

CHApTEr 3: The Green Paper initiative (21 January 2003) followed by the White Paper (11 November 2003) a. the Green paper (21 january 2003)

I. Introduction he Green Paper is a consultation document elaborated in 2002 by the European Commission, in cooperation with the European Space Agency, following a request from the European Parliament (17 January 2002) (1) to produce a White Paper on space. he purpose of the Green Paper (2) was therefore to ‘raise those questions that appear to be the most important in determining the options to be chosen in the medium and long term’. Answers from the interested parties were intended to be used in drating a White Paper accordingly. he consultation process started from the date of issue, i.e. 22 January 2003, and ended on 30 May 2003, involving the opinion of diferent groups, companies, bodies and institutions on space issues from Europe and even outside.

II. Content of the Green Paper he willingness of the European institutions to debate a set of principles must be welcomed. he following principles can only be criticised from the point of view of their actual application: • independent access to space; • maintaining scientiic excellence; • international cooperation; • contributing to the emerging knowledge society and the competitive- ness of European industry; • supporting sustainable development; • improving the security of citizens;

(1) European Parliament resolution on the Commission communication to the Council and the European Parliament on Europe and space: ‘Turning to a new chapter’ (COM(2000)597-C5- 0146/2001/2072(COS)) (2) Green Paper, ‘European space policy’, COM(2003) 17 inal, Brussels, 21 January 2003.

4 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–)

• developing space industry within a transparent and stable regulatory framework. he need to guarantee a fully independent European access to space is a long-term issue indeed. he irst fundamental question is an evolution in the sharing of responsibility between the public authorities and the private sector in the economic balance for the use of a family of Euro- pean launchers, space vehicles and satellites, and in the inancing of new developments. he new pan-European perspective including Russia and Ukraine guarantees access to space independently from the United States and other emerging space countries (such as India, China and Brazil) with the presence of the following key elements in any space project: • Ariane (since 1980) and the space centre in Guyana — the new genera- tion launcher, Ariane-5, is operational; • the use of Russian Soyuz launch vehicles from the end of the Soviet regime (1990); • widening of the range with the advent of the Vega launch vehicle planned for 2006.

Maintaining scientiic excellence is mainly based on the fact that the European scientiic community enjoys a leading position in the two main disciplines of space science: astrophysics and the exploration of the solar system. When Europe obtains the availability of independent means of launch, it could also develop a pioneering position in particular ields such as astrometry, infrared or X-ray astronomy.

International cooperation is also an important principle. he Green Paper is based on the assumption that space must, by nature, be considered at the global level, and on the premise that the efectiveness of Europe in space can drive the success of certain of its policies. Europe’s contribution to the International Space Station (ISS) only amounts to about 8 % of the total exposure. he European astronauts have access to the ISS via the American space shuttle or the Russian Soyuz vehicle. his modest image merits review.

Competitiveness of European industry in a knowledge-based society is a real need. Eforts to integrate space policy in current European policies include private business support. In the USA, NASA now strongly calls for the cooperation of private industry and its participation in satellite launching and uses. Space industry will no longer remain an exclusively governmental matter. he Green Paper considers that the European space

5 EuropEAn TrAjECTorIES In SpACE LAw — 2007 sector, in order to be competitive and credible, must enjoy an industrial structure of high quality and access to key technologies. he 2003–04 crisis in growth in the telecommunications’ satellite sector needs to be compensated by satellite navigation positioning and surveil- lance systems’ equipment.

Sustainable development is a condition sine qua non of continuous progress in space. he ESA has the right characteristics of an integrated scientiic programme in budgetary, planning and responsibility terms: • stability of the budget: the budget is adopted for ive-year periods (cur- rently at the annual level of EUR 360 million) to which the ESA Mem- ber States are obliged to contribute; • long-term planning: alternation is being organised between missions of difering scope, ensuring a balance between the disciplines and determining the choice between European autonomy or a cooperative framework; • complementarity of responsibility between the ESA and its Member States in developing platforms, selecting national laboratories and developing on-board instruments.

III. The ESA's similar programme for scientiic users

It is unthinkable that the ESA acquis would be overlooked in the event of reforms within the European institutions.

Nowadays, security of citizens has become a high-rank priority. Security of citizens also beneits from the use of space technology in many ields: • monitoring of hazardous transport operations; • border surveillance in combating terrorism; • exchange of sensitive information between administrations (Interpol, customs, cadastre, etc.); • disaster monitoring (forest ires, earthquakes, explosions, plagues, etc.); • meteorological, emissions and deforestation monitoring. he global monitoring for environment and security (GMES) initiative speciically strives to ind a range of coherent solutions, which are antici-

6 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) pated to be operational by 2008 with a view to a global approach to crisis management.

A big player in space technology applications is industry. Developing space industry within a transparent and stable regulatory framework is an important objective.

An example of the duplication of space systems in Europe lies in the ield of military space: there are ive programmes in Europe for communica- tions satellites and three for observation satellites, each based on its own technology, making interoperability a delicate issue. In practice, these sys- tems have been developed without coordination. As a result, budgetary constraints arise in Europe and a technological gap has developed between the two sides of the Atlantic. he STAR 21 report therefore rightly recommends that the EU should develop a satellite-based defence and security capability on a solely Euro- pean basis. he rapid development of the common foreign and security policy (CFSP) and European security and defence policy (ESDP) has brought the thorny question of the use of space as an instrument at the service of European policies. On that score, the Green Paper is unequivocal: ‘... the grow- ing challenges... have now also led to a complete reappraisal of the role of Europe in space (...) for this sector: it would open up a vast range of applications and users and provide possibilities of better integration of resources and a greater political resonance (...). On this level, the funda- mental question is that of European ambition’ (1).

B. the white paper (11 november 2003)

I. Introduction

Before drating the White Paper, the European Commission took the view of several organised groups during workshops (2): • the industrial view: Madrid workshop (25 March 2003); • the view of the scientiic community: Berlin workshop (8 April 2003); • the institutional view: Rome workshop (28 April 2003);

(1) Green Paper, ‘European space policy’, COM(2003) 17 inal, Brussels, 21 January 2003, op.cit., p. 4. (2) EC/ESA Joint Task Force, Report on the consultation process (Green Paper), BR-208, Octo- ber 2003.

7 EuropEAn TrAjECTorIES In SpACE LAw — 2007

• the view of the operators and service providers: London workshop (20 May 2003); • the international context: Prague workshop (2 and 3 June 2003) focus- ing on the pan-European context. OA. The industrial view he Madrid workshop (25 March 2003) provided the opportunity for an extended discussion about the current situation of European space indus- try, involving not only the satellite and launcher sectors, but also systems operators, ground-segment interests and representatives of the insurance market.

he main concerns that emerged were: • the revitalisation of the current situation for the European space industry; • the need for a wider institutional market with greater EU engagement; • the guaranteed access to space as a strategic need; • the stimulation of new vocations by new European lagship pro- grammes in space; • the need for EU regulations in a harmonisation perspective; • illing the gaps of strategic space technology. OB. The view of the scientiic community he scientiic community’s concerns were considered at the Berlin work- shop (8 April 2003). he workshop underlined the oten-underestimated contribution that this community makes to the overall space activity.

he main concerns that emerged were: • the necessity to double the budget for space sciences; • the need for a coherent data policy through harmonised dissemination; • the support to horizontal and infrastructure activities; • the support of ISS utilisation and operations.

8 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) OC. The institutional view It was at the Rome workshop (28 April 2003) that the institutional view was taken into consideration. It was aimed at registering the views and reactions of the ESA, national administrations and other public institu- tions among the EU Member States.

he major highlights retained for the White Paper were: • the need for a European space policy discussed at the highest political levels; • a legitimate role for the EU in the context of European space policy; • a legitimate role for the ESA in the context of the European institutions; • the support of the shared competence principle such as set out in the European Convention drat. OD. The view of the operators and service providers he views of the operators and service providers were heard at the London workshop (20 May 2003). his workshop brought together representatives of satellite operators, service providers, users, industry, SMEs, national space agencies and universities.

he main concerns were: • space applications as key components of European space policy bring- ing concrete beneits to European citizens; • the need for a joint EU/ESA initiative on broadband communication, bridging the digital divide; • the strategic issue of Earth observation; • the use of satellite navigation for the beneit of European citizens in daily life. OE. The international context he scope of the Prague workshop (2 and 3 June 2003) was focused on the pan-European context. International partners such as the USA, Japan, India, China and Brazil were not speciically targeted to contribute to the European debate at this stage.

9 EuropEAn TrAjECTorIES In SpACE LAw — 2007

he main points retained for the White Paper were: • space as a contributor to the success of enlargement; • Russia and Ukraine as the closest partners of the enlarged Union.

II. Content of the White Paper (1)

he Green Paper consultation had been a success and almost 400 contri- butions surfaced from all over Europe. his helped in the drating of the White Paper which focused on the following objectives. OThe objectives Europe needs an extended space policy: this means that the present ways and means are insuicient.

It must exploit the special beneits space technologies can deliver in sup- port of the Union’s policies, such as: • faster economic growth; • job creation; • industrial competitiveness; • enlargement and cohesion; • sustainable development; • security and defence; • ighting poverty and aiding developing countries. OComments: The authors of the White Paper had the opportunity, before issuing their paper, to delve into the Draft Treaty establishing a Constitution for Europe, which was presented on 18 July 2003 (of which ratiication has been put on hold after the French and Dutch negative referenda of 2005). We will come back to the future Treaty framework in Chapter 5.

(1) White Paper, ‘Space: a new European frontier for an expanding Union— an action plan for imple- menting the European space policy’, COM(2003) 673, Brussels, 11 November 2003.

20 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–)

Timing of the implementation of a European space policy

The implementation of a European space policy would come in two phases: • the irst (2004–07) would consist of implementing the activities covered by the recently agreed framework agreement between the European Community and the ESA; • the second, from 2007 onwards, should have started with the coming into force of the European Constitutional Treaty, which was expected to establish space as a shared competence between the Union and its Member States. The ESA would then be positioned within the EU framework and its Convention modiied accordingly. Although the ESA is anticipated to further contribute to launcher R & D technology and space exploration (including Aurora and the ISS), it would not contribute to European space launch base maintenance. A roadmap, including recommended actions, each one’s responsibility and a timetable have been established (see page 46 of the White Paper hereafter).

Space actions in support of the enlarged Union (the need for a strong programme)

The following speciic actions are key elements of the European growth initiative goal: • to provide Europe with a navigation and positioning alternative to the US GSP with strong commercial and job-creation prospects namely Galileo (see Part 3, Chapter 7 of this document); • to establish by 2008 (at the earliest) a European capacity for global monitoring of the environment and security, i.e. the global monitoring for the environment and security (GMES) set up jointly by the European Commission and the European Space Agency; • through its Europe 2005 action plan, the Union has set itself the objective of providing a favourable environment for private investment and for the creation of new jobs, to boost productivity, to modernise public sciences and to give everyone the opportunity to participate in the global information society. To achieve this objective, widespread availability and usage of broadband and high-speed Internet throughout the EU needs to be established (i.e. bridging the ‘digital divide’); • to supplement existing space-based capabilities in Europe and examine new ones needed for establishing a credible security capability with high EU added- value.

We will come back to this important aspect in Part 3, Chapter 4.

2 EuropEAn TrAjECTorIES In SpACE LAw — 2007

Conditions for the success of a European space policy

The strategic prerequisite for implementing any space policy in the Union is that the EU must have and maintain independent access to space. One way to reach this goal is to establish guidelines encouraging the use of European launchers by European institutional customers.

Another way is to negotiate a worldwide harmonised regulatory framework governing procurement and competition, based on transparency.

The third most incisive way is to create sustaining operational ground infrastructure conditions — a launcher basis — as an area of common European interest, notably in view of a strategic partnership with Russia.

The second strategic prerequisite is ambition: to take part in the exploration of the solar system, in ISS research and in media campaigns to attract young talents for space sciences.

The third strategic prerequisite is inancing in an appropriate way. Two phases have been identiied for the implementation of the European space policy, taking into account the current (2000–06) and future (2007–13) EU inancial perspectives (framework programmes).

First phase (2000–06), based on existing inancial perspectives

Resources during this phase will have to be managed through the existing inancial instruments and within the current budgetary constraints. Additional budgetary resources might be made available through sectorial policies on a case-by-case basis.

Second phase (2007–13), to be part of the future inancial perspectives

These are currently the subject of initial relections within the Commission that could lead to the identiication of a ‘space virtual budget line’, based on the shared competence between the EU and Member States on space theoretically granted by the draft Constitutional Treaty.

The analysis of global economic factors and the future EU growth rate suggest several possible scenarios. Three main scenarios are described, together with an estimate of the resources that they would require: • Scenario A is the ‘Green Paper’ scenario, relecting the needs identiied during the consultation. This package represents an annual expenditure growth rate of 4.6 % with respect of the overall level of funding in 2003 i.e. EUR 5 380 million. It supposes a high level of global economic growth, complies with all objectives identiied, includes space exploration and signiicant security/defence issues. It is also consistent with the ESA’s ‘Agenda 2007’ objectives.

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• Scenario B is the ‘Political Act’ scenario. It corresponds to an annual expenditure growth rate of 3.4 % and marks a new departure for space in Europe, with the hypothetical entry into force of the new Constitutional Treaty of the EU or at least an updated Treaty if the Constitutional project is deinitely abandoned. This is an ambitious scenario, with a growth rate higher than the global growth rate of the EU economy. Scenario B has the advantage of complying with the overall EU objectives. Now that the Constitutional Treaty is on standby, the situation seems less clear. • Scenario C is the ‘linear natural’ scenario, built as a linear expansion of the current level of EC expenditures. It corresponds to an annual public expenditure growth rate of 2.3 %. Scenario C does not fully guarantee independence vis-à- vis technology and access to space.

The evolution of European public expenditure on space expenditure (in million EUR) would be in 2013: • EUR 8.080 million according to Scenario A (‘Green Paper’); • EUR 7.230 million according to Scenario B (‘political act’); • EUR 6.620 million according to Scenario C (‘linear natural’).

The evolution of the diferent options is shown in Table 1 (not taking into account inlation). Table 2 indicates the additional (1) annual public expenditure in 2013 (in million EUR) according to the three scenarios.

(1) Additional to the present expenditure of EUR 5 380 million.

23 EuropEAn TrAjECTorIES In SpACE LAw — 2007

Roadmap

O Table 1 : Estimated European public annual expenditure on space activities (n mllon Eur)

Recommended actions Responsibility Timetable

Support of the enlarged EU

‘Digital divide’ setting-up a forum on digital divide Ec early 2004 reporting on the results of the forum Ec summer 2004 assessing of possible solutions Ec/Ms by the end of 2004 setting up of pilot projects Ec short/medium term

Global monitoring for environment and security communication on GMEs (2004–08 Ec january 2004 action plan) proposing scenarios for the interface Ec short/medium between civil and security usage term

Positioning, navigation and timing negotiating overall agreement for the ju/sa/c (*) short term management of the next phase undertaking further research activities ju (*) short/medium for innovative applications term Ensuring the availability of regulating ju/sa (*) continuous procedures

Security (contribution to CFSP/ESDP) Establishing a report, through an Eu Eu/Ms/(Esa) by the end of 2004 dedicated working group launching of preparatory action on Ec january 2004 security research: communication (with work programme)

International partnership Developing a strategy for international Eu/Esa 2004 space cooperation organising an international conference Ec end 2004 on space Building speciic partnership EU/ESA continuous (with countries and international organisations) Cooperating with developing countries EC/ESA continuous

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Extending and strengthening space policy Guaranteed and independent access to space contribution to European space launch Ms/(Esa)/Eu continuous base maintenance launcher r & D Esa/Ec continuous technology, network of centres Ec/Esa/Ms continuous Space technology reinforcing European space technology Eu/Esa/Ms continuous master plan promoting technology transfer Eu/Esa/Ms continuous Space exploration setting up of a wise persons group to Ec/Esa early 2004 deliver a vision for space exploration accessing/ensuring the availability of Ec/Esa continuous core capabilities Vocations, careers and education actions in support of education and Ec/Esa/Ms continuous promotion of careers organising an information and Ec/Esa/Ms short/medium promotion campaigns term Space sciences scientiic research ESA/EC continuous Supporting infrastructure for data EC continuous acquisition and archiving Creating the right environment for innovation and competitiveness Progressing towards an harmonised EU/MS continuous market for space services Ensuring the participation of SMEs EU/ESA/MS continuous Shaping guidelines for future public/ EC short-term private inancing initiatives

Governance and resources Governance First phase (implementation under the EC/ESA 2004–07 recently agreed framework agreement) First draft of the European space EC/ESA/MS end of 2004 programme Proposals for setting up networks of EC/ESA/MS by the end of 2004 technical centres (*) ju: jont undertakng; SA: supervsory authorty; C: concessonare

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Ongoing In 2006 In 2013 (projections) Scenarios (2004) ABCABC increase in comparison with 2004 — 500 400 300 2 700 1 850 1 240 annual public expenditure 5 380 5 880 5 780 5 680 8 080 7 230 6 620

NB: Scenaros for dferent annual expendture growth rates: (A) 4.6 %, (B) 3.4 %, (C) 2.3 %.

Table 2 : Additional (*) annual public expenditure in 2013 (n mllon Eur)

Scenario Scenario Scenario A (i) B (ii) C (iii) satellite communication (**) 250 250 250

GMEs (**) 340 340 340

positioning, navigation, timing (**) 220 220 220 applications security 750 250 0

international cooperation 200 70 10

access to space (**) 250 250 200

technology (**) 270 270 200

space exploration 220 100 10

Vocations 30 20 3

space science 140 65 5

legislation, regulatory aspects, standards 30 15 2

Total 2 700 1 850 1 240

() Annual expendture growth rate of 4.6 %. () Annual expendture growth rate of 3.4 %. () Annual expendture growth rate of 2.3 %. (*) Addtonal to the present expendture of Eur 5.380 mllon. (**) possble addtonal nterventon of EIB (fundng plan for Galleo was already decded). Source: whte paper on European space polcy, CoM(2003) 673, pp. 50–5, European Commsson.

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CHApTEr 4: The setting of a new treaty framework: the European Convention

On 10 July 2003, the European Convention team completed its work and presented on 18 July a drat Treaty 'establishing a Constitution for Europe'. Following a wide array of recommendations notably from various Com- mission and ESA reports but also from lobbying groups, the European Convention proposed including space in a concrete manner in the Euro- pean structures. Unfortunately, this document is now on a standby status ater the recent rejection of the text by the French and Dutch referenda (2005). Taking into consideration the rapid changes in this manner, the following references are to be considered as is and susceptible to modiica- tions in the future. a. references to space

I. The basic reference to space lied in Article 1-14, al. 3:

‘In the areas of research, technological development and space, the Union shall have competence to carry out actions, in particular to deine and implement programmes; however, the exercise of that competence may not result in Member States being prevented from exercising theirs’. his means that the European institutions shall have direct competence in space among EU membership with which direct competence shall be shared. his rule addresses the 27 Member States in the recently enlarged Europe. Non EU-members of the ESA are not concerned and, institu- tionally, the ESA regresses to an operating agency without direct political powers. It will entirely act in the future under the policymaking and politi- cal supervision of the Union. he competence of the Union and its members is clearly deined: ‘com- petence to carry out actions, in particular to deine and implement programmes’.

Until the Treaty comes into force (if it ever does), actions in space, par- ticularly to deine and implement programmes, belong to the competence of the ESA. It can be interpreted that the programme established until the end of 2006, which is based on existing inancial perspectives, will con- tinue such as foreseen under Phase 1 in the White Paper.

27 EuropEAn TrAjECTorIES In SpACE LAw — 2007

he formal acceptance of the European Constitution (or another form of Treaty) by the national parliaments of 27 Member States will take some years to be achieved, should it remain as it is or on the basis of a new drat.

Meanwhile, the ESA will have to amend its own charter in accordance with the new Treaty provisions. OComments: We must be aware that the reading of the future Treaty may be delicate. Indeed, when it speaks about the ‘Union’ it does not induce anymore that it deals with the prerogatives of intergovernmental agencies. Title III-Article 1-11-2 stipulates that ‘competences not conferred upon the Union in the Constitution remain with the Member States’. It is the principle of ‘conferral’ and the use of Union competences are thus governed by the principles of subsidiary and proportionality (Title III- Article 1-11-3).

What does it mean?

It apparently means that all competences conferred upon the Union in the Constitution are exclusive: they are provided to allow the Union to attain the objectives set out in the Constitution.

Therefore would it be legitimate to assume that space is considered in the future Treaty framework as an ‘exclusive’ competence of the Union (in French: compétence communautaire) but with a restriction ... ‘provided that the exercise of that competence may not result in Member States being prevented from exercising theirs’.

this last paragraph seems rather problematic.

What seems at irst an exclusive competence inally takes the shape of a shared competence. Without entering into deeper considerations, it noticeably means there will remain two levels of space policy guided by national interests on the one hand and by the Union’s interest on the other. At a time when we are trying to increase coherence in space policy at the European level, this may seem awkward but fully understandable in the actual status of the Union. Of course, it may have been decided so in order to better articulate existing policies and cooperation with the ESA and other European countries. This view was acceptable until 2007, but now the Union may face growing inefectiveness.

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II. The second reference he next reference to space is to be found in Article III-254(1) of the Drat Treaty, Section 9: ‘Research and technological development and space’: ‘To promote scientiic 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 eforts needed for the explora- tion and exploitation of space.’ he clearest aspect in this article is the outline of the Union’s objectives: • scientiic and technical promotion; • industrial competitiveness; • implementation of its policies. he second part of the phrase is vaguer — with whom would it promote joint initiatives, support research and technological development?

‘Coordinate the eforts needed for the exploration and exploration of space’ gives an indication for an ‘ultimate’ authority above the ESA. his impression is even consolidated by Article III-254(2): ‘To contribute to attaining the objectives 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’. he European Convention is clearly paving the way towards a true Euro- pean space institution.

III. There was an implicit reference to space also in Article 41-3-2 (1)

Article 41-3-2 reads as follows: An agency in the ield of defence capabilities development, research, acqui- sition and armaments (European Defence Agency) shall be established to identify operational requirements, to promote measures to satisfy those re- quirements, to contribute to identifying and, where appropriate, implement- ing any measure needed to strengthen the industrial and technological base of the defence sector, to participate in deining a European capabilities and armaments policy, and to assist the Council in evaluating the improvement of military capabilities.

(1) Wouters, J., he EU’s and ESA’s rapprochement in space, Leuven, 2003.

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As pointed out by Prof. Jan Wouters, this article, which is rooted in the perspective of improving Europe’s military capabilities, also refers to the defence industry. For years, experts have insisted on the need for a strong military-industrial build-up that would bear impulses for a competitive market in the ield of equipments, technological research and industrial potential in Europe.

An ‘agency in the ield of defence capabilities development, research, acquisition and armaments’ will have undeniable implications in space activities and applications. he development of programmes and initia- tives such as Galileo (see Part 3, Chapter 7) and GMES at the intergov- ernmental level is an illustration among others. Furthermore, the defence industry is deeply linked with and rooted within the aerospace and aero- nautical industry (EADS, BAE, etc.). he same situation prevails in the United States. It is therefore an aspect to keep in mind.

Chapter 5: hereater will give further detail.

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CHApTEr 5: Towards a European Defence Agency a. introduction he White Paper (1) under the heading ‘Space contributions to policy chal- lenges’ has a following subtitle: ‘Stronger security and defence for all’. his means a change in policy and the use of improved ways and means.

the union is to assume a larger role in the world through a stronger common foreign and security policy (cFsp) supported by a European security and defence policy (EsDp). in the coming years, the union will have to achieve the Helsinki goals, encompassing capabilities such as Policy the contact with rapid deployment forces and global challenge: intelligence.

to be credible and efective, any CFSP and ESDP must be based on autonomous access to reliable global information so as to foster informed decision-making. Space technologies and infrastructures ensure access to knowledge, information and military capabilities on the ground that can only be available through the capacity to launch, develop and operate satellites providing global communications, positioning and observation systems. At the same time, space-based systems can provide a higher level of security for citizens, allowing, for example, a better Space enforcement of border and coastal control and identifying tools: humanitarian crises in their early stages. he parallel development of a European security and defence policy (ESDP) in the setting of the common foreign and security policy (CFSP) brings the intervention of space activities to the foreground. It is crucial that (as recommended by the White Paper) EU decision-making be mobi- lised to ‘reinforce space technologies in support of security and defence policy requirements’.

Moreover, this evolution is deeply connected with other developments such as the military-industrial complex. he aerospace industry is indeed closely linked to the defence industry, but these segments — in terms of

(1) White Paper, ‘Space: a new European frontier for an expanding Union — an action plan for imple- menting the European space policy’, COM(2003) 673, Brussels, 11 November 2003, pp. 19–20.

3 EuropEAn TrAjECTorIES In SpACE LAw — 2007 budget and investments — are still very light and fragile compared to the US situation.

A concrete reinforcement of the European defence industries is urgently needed if Europe wants to play a consistent and global role on the inter- national stage, especially in dealing with humanitarian crises, combating terrorism and peacekeeping operations. Independent space access and multiple-use capabilities are prerequisites for Europe.

Another problematic issue concerns relations with the United States. he US remains our primary and strongest partner but, paradoxically, the Washington ‘hawks’ dislike a too-powerful Europe. Besides, the new inter- national coniguration (terrorism, ‘rogue States’, etc.) have pushed forward the USA to increase their defence budget while digging out of the dust ‘old’ armaments programmes (such as ‘Star Wars’ and other new nuclear bomb tests).

All this may result in a new and unwanted armaments race, especially among countries such as China, India, North Korea, or more recently and supposedly, Iran. Europe will most probably prefer not to be involved but could involuntarily sufer the outcomes of such escalation.

B. space, a strategic asset for Europe

Although present in space for about 40 years, Europe is now slowly real- ising the very important aspect of space as a strategic asset. he ‘hree Wise Men Report’ (1) already stressed the importance of this perception and emphasised how the USA was spending ‘80 % of the world-wide space expenditure, on both the civilian and defence sides, with the mili- tary R & D driving space developments to a large extent’. he idea of mak- ing Europe ‘not dependent on non-European space infrastructure for any strategic and commercial applications associated to space systems’ is now under way. Still, these developments cannot occult the necessary develop- ments in terms of security and defence.

A credible coherent European space policy will deinitely need to integrate defence aspects, as much as a workable European security and defence policy will obviously need to include the space component. he 2003 White Paper proposed to take some actions in order to ‘mobilise EU decision-making to reinforce space technologies in support of security

(1) Bildt, C., Peyrelevade, J. and Späth, L, op. cit., p. 3.

32 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) and defence policy requirements’. Stressing that most space systems are inherently capable of multiple uses, the European Commission empha- sised that the use of these space-based assets would not only strengthen the credibility of Europe’ policies but would overall confer a capacity for autonomous decision-making.

Of course, the future European decisions in terms of security, defence and their space component will have a concrete impact on NATO and the transatlantic relationships. But as the European Union Institute for Secu- rity Studies (EUISS) underlines, it will also ‘help to deine Europe’s role in the world (and the future of Europe’s defence industrial base)’ (1). c. a need for a strong and coherent industry

In order to sustain a European security and defence policy, Europe needs to maintain a technological and industrial base or it will lack the auton- omy required for strategic decision. his base needs today to be cleared from nationalistic views. Article 296 of the original European Community Treaty is completely in contradiction with later developments.

European Community Treaty — Article 296: 1. he provisions of this Treaty shall not preclude the application of the fol- lowing rules: (a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security; (b) any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are con- nected with the production of or trade in arms, munitions and war mate- rial; such measures shall not adversely afect the conditions of competi- tion in the common market regarding products which are not intended for speciically military purposes. 2. he Council may, acting unanimously on a proposal from the Commis- sion, make changes to the list, which it drew up on 15 April 1958, of the products to which the provisions of paragraph 1(b) apply.

With this article everything that is connected to armaments (production, trade, supplying) has been deliberately excluded from the Communitarian pillar and, consequently, from the European integration process. Indeed, Member States have preferred to keep an exclusive national control on this issue. In this way, Article 296 of the EC Treaty allows Member States

(1) Silvestri, S., ‘Space and security policy in Europe’, Occasional Paper, No 48, Institute for Security Studies, December 2003, p. 5.

33 EuropEAn TrAjECTorIES In SpACE LAw — 2007 to deviate from the Treaty whenever they can demonstrate that their inter- ests in terms of national security are at stake. Looking back, this is nothing but a lure since it allows Member States to act outside the Community framework.

With Article 17.1, al. 3 of the Amsterdam Treaty an additional step is con- cretised since this article stipulates that ‘the progressive framing of a com- mon defence policy will be supported, as Member States consider appro- priate, by cooperation between them in the ield of armaments’. he question of armaments and the development of a noteworthy mili- tary industry, however, became a crucial element in the development of a European security and defence policy (ESDP). Defence budgets under- went regular and drastic abatements in the early 2000s. In continuing to do so, Europe runs the risk of missing once again the train of progress.

However, the idea of a European defence agency is not new: it was already considered in the Treaty of Maastricht. It was only in 2002, through the European Convention debates, that the question was seriously examined. Fortunately, the consensus that emerged between Member States, partic- ularly following the propositions of the Convention, has stimulated the project for a European Defence Agency.

On 20 June 2003, the European Council at hessaloniki decided to cre- ate, in the course of 2004, an intergovernmental agency in the ield of defence capabilities encompassing development, research, acquisition and armament. his agency was oicially created by Council Joint Action 2004/551/CFS of 12 July 2004 on the establishment of the European Defence Agency, published in OJ L 245, 17.7.2004, p. 17.

Council Joint Action 2004/551 explicitly refers to the common foreign and security policy in which the ESDP participates. he curious thing is the form: an Act adopted in July 2004 under Title V of the Treaty on European Union. he drat Treaty establishing a Constitution for Europe already intended to tackle this issue by providing the legal bases, namely Article 207 of the EU Treaty principally, but also Articles 3 and 47, to Council Joint Action 2004/551. he Treaty establishing a Constitution for Europe was signed three months later by the representatives of the 25 Member States on 29 October 2004, to coming into force on 1 November 2004, but fell short and is now on

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standby ater the referendum rejections of France and the Netherlands in 2005.

he Council authority is unquestionable, however, as there is full agree- ment on the objectives: the establishment of a defence agency as an impor- tant element towards the development of more lexible and eicient Euro- pean military resources. his agency will aim at: • developing defence capabilities in the ield of crisis management; • promoting and enhancing European armaments cooperation; • strengthening the European defence industrial and technological base (DTIB); • creating a competitive European defence equipment market; • promoting, in liaison with the Community’s research activities where appropriate, research aimed at leadership in strategic technologies for future defence and security capabilities, thereby strengthening Europe’s industrial potential in this domain. OComments: First comment

The current issues are more a question of eiciency, cost-management and structural efectiveness. S. Silvestri (1) wrote the fundamental comment: ‘There is no structure in place today (NB: 2003) in Europe that can cross-reference all space- related activities and provide an overarching approach for generating the needed assets and capabilities, also with recourse to commercial or public dual-use opportunities and public-private partnership solutions’.

The European Defence Agency could ofer timely solutions indeed if the right policy impulses are given in the near future.

Second comment

The European defence agency could also establish good working conditions with the European armaments groups. Leadership in strategic technologies for future defence and security capabilities largely depends on eicient working relations including coordination with both Community and national authorities.

An ambitious goal has been set for Europe: competition, not confrontation, with the United States on a level playing ield. As regards NATO, this Atlantic defence

(1) Ibid.

35 EuropEAn TrAjECTorIES In SpACE LAw — 2007

structure is not questioned qualitate qua but it will not be the sole defence and security structure in the future. The Council Joint Action 2004/551 does not mention NATO except in Article 8 under Steering Board, point 7: ‘The Steering Board may decide to invite, on matters of common interest: the NATO Secretary- General, etc.’

Third comment

The Commission is a member of the Steering Board without voting rights but fully associated with the work of the agency. This guarantees neutrality and eiciency through coordination.

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CHApTEr 6: The European military-industrial complex a. introduction

When the hessaloniki summit decided to create, in the course of 2004, an intergovernmental agency in the ield of defence capabilities, European industry was already well prepared. It is true that the American exam- ple was stimulating. he US military-industrial complex is in irst place worldwide, way ahead of its closest competitors. A. Barrau (1) observes: ‘he superiority of the US industrial tool in terms of armaments results from three main factors: the existence of a vast internal market, the atten- tion paid to research and a policy of wide-scale industrial restructuring.’ he advance taken by the United States concerning armament is probably not retrievable in the short term, but it must not restrain Europe from developing its own market in order to ill up its own needs. he irst tran- snational regrouping in the ield of armaments and defence industry in Europe started in 1999 with EADS, the European Aeronautic Defence and Space Company concept.

B. the French-German-British-spanish-italian regrouping (july 2000): EaDs

Today EADS is the world’s number two irm in the aeronautic and defence industry. he group employs around 100 000 people, principally in France, Germany, the UK, Spain and Italy. Its top programmes beneit from a wide- spread notoriety while being outstandingly positioned on their markets (Eurocopter, Euroighter, Ariane, Airbus and MBDA’s missiles system). EADS also occupies irst-class positions on several other markets such as satellites and transport aircrats. he group was created in July 2000 from the merger of Aerospatiale-Matra, DaimlerChrysler Aerospace AG (DASA) and Construcciones Aeronauticas SA (CASA). he group organ- ised itself around ive divisions: Airbus, military transport aircrat, aero- nautics, defence and civil systems, and aerospace.

Today, the European landscape for the armament industry articulates around two poles:

(1) Barrau, A., Politique étrangère, sécurité et défense, où en est l’Europe?, 2003, p. 58.

37 EuropEAn TrAjECTorIES In SpACE LAw — 2007

• on the one hand, BAE Systems, a British group (ex BAe) which is verti- cally integrated and specialised in military programmes; • on the other hand, EADS which is horizontally integrated with strong competences in civil areas. here are also some less important independent operators in Europe such as Dassault Aviation and hales (France), SAAB (Sweden), etc.

Alcatel, the French telecommunications equipment company, and Fin- meccanica, the Italian defence group, agreed on 18 June 2004 to merge their space activities to create Europe’s largest satellite group, ater two years of tortuous negotiations. Restructuring has been made necessary as the satellite industry has gone through several years of declining com- mercial demand.

EADS, the second largest satellite company in Europe won a EUR 3 bil- lion contract from Arianespace in May 2004 (30 ‘Ariane V’ rockets) just ater another contract worth up to EUR 4 billion from NATO was won in April 2004.

It will be interesting to watch the policy followed by BAE Systems. he group is currently working with EADS and Alenia on the Euroighter project but has also been approached by US armament companies. If a major Atlantic merger happens, an independent European defence and security policy could be jeopardised. Raytheon, the strong US defence group, Northrop Grumman, Boeing, and Lockheed are already large con- tributors to Europe’s defence equipment. he big groups, both US and EU, have hundreds of subcontractors on both sides of the Atlantic.

EADS annual results 2002–05 (n mllon Eur)

Changes 2002 2003 2004 2005 2002/05 Revenues 29.90 30.10 31.70 34.20 + 14 % Order intake 31.00 61.20 44,10 92.50 + 198 % Order book 168.30 179.30 184.30 253.20 + 50 % Earnings before IT 1.40 1.50 2.40 2.80 + 100 % Net cash position 2.37 3.10 3.96 5.48 + 131 % Net income (299) 152 1.203 1.676 + 460 % Source: EADS.

38 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) c. Fragmentation of the European defence market (1) he Commission STAR 21 report concerning defence deplores the frag- mentation of the market, which is due to the fact that defence lies at the very heart of States’ sovereignty and to the particular features of the sector (conidentiality, security of supplies, political criteria in purchase deci- sions, etc.). It stresses that Europe spends less on defence than the USA, and that market fragmentation makes it impossible to get the most out of investments.

For the future, it recommends that this fragmentation of demand be com- bated, since it is impossible to achieve proitable production levels with programmes that are speciic to only one State.

It proposes that military requirements be harmonised. he European Economic and Social Committee (2) notes the diference between what the European civil aircrat industry has been able to achieve with Airbus and the relative weakness of the military aircrat industry due to the fragmentary nature of the market. An overall political plan for Europe’s defence is therefore needed. he aerospace industry, its space seg- ment included, is a concentration of the strategic technologies that deter- mine future economic growth, even in other sectors. It is well-known, for instance, that the automotive sector beneits from innovations regarding materials in space vehicles.

D. us–Eu competition in defence contracts

In July 2004, the United States proposed legislation that would restrict the Pentagon’s ability to buy from foreign companies. Geof Hoon, the British defence secretary, warned Donald Rumsfeld, his American counterpart, that the UK would retaliate against US defence companies by steering mil- itary contracts away from them if protectionist policies in the USA were not reversed — especially between close historical partners. he good news for Europe is a new era of European defence cooperation between France, Germany and the UK.

(1) Opinion of the European Economic and Social Committee, ‘A coherent framework for aerospace — a response to the STAR 21 report’, (COM(2003) 600 inal. OJ C 112, 30.04.2004, p. 15. (2) Idem, p. 16.

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On the other side of the Atlantic, President Bush set a goal of returning humans to the Moon by 2020 and then going on to Mars (1). NASA has not launched people into space since the Columbia shuttle disaster in early 2003, which killed seven astronauts. It strongly wants the private sector to play a role, i.e. in space tourism. Civil budgets for space programmes in Europe only reach one third of the US amount in this category. In the military ield, the gap is even worse.

(1) ‘President Bush announces new vision for space exploration program’, Fact sheet: a renewed spirit of discovery, Oice of the Press Secretary, 14 January 2004.

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CHApTEr 7: Galileo and GNSS challenges during the 21st century a. the Galileo joint undertaking

I. Introduction to the development phase — historical background (1)

On 13 January 1999, the European Parliament adopted a resolution on the communication from the Commission to the Council and the European Parliament, ‘Towards a trans-European positioning and navigation net- work: including a European strategy for global navigation satellite systems (GNSS)’ (OJ C 104, 14.4.1999, p. 73).

On 10 February 1999, the Commission adopted the communication ‘Galileo — involving Europe in a new generation of satellite navigation services’. he conclusions of the European Councils in Cologne (3 and 4 June 1999), Feira (19 and 20 June 2000), Nice (7 to 11 December 2000), Stockholm (23 and 24 March 2001), Laeken (14 and 15 December 2001) and Barce- lona (15 and 16 March 2002) refer to Galileo.

On 19 July 1999, the Council adopted a resolution on the involvement of Europe in a new generation of satellite navigation services — Galileo — Deinition phase (OJ C 221, 3.8.1999, p. 1).

On 22 November 2000, the Commission adopted a communication to the European Parliament and the Council on Galileo. he Council adopted a resolution on Galileo on 5 April 2001(OJ C 157, 30.5.2001, p. 1.).

On 26 March 2002, the Council adopted conclusions on Galileo. he irst research contracts and feasibility studies were funded under the fourth and ith framework programmes for research and development. he technological development phase was funded from the appropriations assigned to the trans-European transport networks based on Article 4(g)

(1) As provided by the irst 11 recitals of Council Regulation (EC) No 876/2002 of 21 May 2002 setting up the Galileo Joint Undertaking.

4 EuropEAn TrAjECTorIES In SpACE LAw — 2007 of Decision No 1692/96/EC of the European Parliament and of the Coun- cil of 23 July 1996 on Community guidelines for the development of the trans-European transport network (OJ L 228, 9.9.1996, p. 1. Decision as amended by Decision No 1346/2001/EC (OJ L 185, 6.7.2001, p.1)), which provides for the possibility of funding for research and development, and Article 17 of Council Regulation (EC) No 2236/95 of 18 September 1995 laying down general rules for the granting of Community inancial aid in the ield of trans-European networks (OJ L 228, 23.9.1995, p. 1. Regula- tion as amended by Regulation (EC) No 1655/1999 of the European Par- liament and of the Council (OJ L 197, 29.7.1999, p. 1)).

At the beginning of 2001, the management of the Galileo satellite radio- navigation programme, hereinater referred to as the ‘Galileo programme’, entered its development phase aimed at verifying and testing the assump- tions made during the deinition phase, in particular with regard to the various components of the architecture of the system. he development phase should be followed by the deployment phase con- sisting of the production of satellites and terrestrial components, satel- lite launching and the installation of terrestrial stations and equipment in order to enable the system to be operational in 2008.

II. Motivation for the creation of the Galileo Joint Undertaking (1)

Taking into account the number of players who will need to be involved in this process, and the inancial resources and technical expertise needed, it is vital to set up a legal entity capable of ensuring the coordinated management of the funds assigned to the Galileo programme during its development phase. For reasons of legal certainty, it should be speci- ied that this entity, which is not designed to fulil an economic purpose and is responsible for managing a public research programme of Euro- pean interest, must be considered as an international organisation within the meaning of the second indent of Article 15(10) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (OJ L 145, 13.6.1977, p. 1. Directive as last amended by Directive 2001/115/EC (OJ L 15, 17.1.2002, p. 24)) and the second indent of Article 23(1) of Council Directive 92/12/ EEC of 25 February 1992 on the general arrangements for products sub- ject to excise duty and on the holding, movement and monitoring of such

(1) As provided by recitals (12) and (13) of Council Regulation (EC) No 876/2002 of 21 May 2002 set- ting up the Galileo Joint Undertaking.

42 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) products (OJ L 76, 23.3.1992, p. 1. Directive as last amended by Directive 2000/47/EC (OJ L 193, 29.7.2000, p. 73)). he Stockholm European Council noted that ‘the private sector is ready to supplement the public budgets for the development phase’. he represent- atives of the main industries concerned signed a Memorandum of Under- standing in March 2001 whereby they committed themselves to indicating their contribution to the total amount of EUR 200 million for the develop- ment phase of the Galileo programme by subscribing to the capital of the Joint Undertaking or contributing in some other form.

III. Legal bases for the Galileo Joint Undertaking

According to Article 1, the setting up of the Galileo Joint Undertaking is governed within the meaning of Article 171 of the Treaty: • for a period of four years; • since it involves a major research and development component justify- ing the use of funds assigned to the research and development frame- work programmes; • since it contributes to considerable progress in the development of sat- ellite navigation technologies by combining public and private sector funding which needs unity of administration and inancial control.

Furthermore, according to Article 1, the Joint Undertaking shall be ‘treated’ as an international organisation within the meaning of the second indent of Article 15 (10) of Directive 77/388/EEC and the second indent of Article 23 (1) of Directive 92/12/EEC, but only with regard to VAT and other indirect taxes. Its seat shall be located in Brussels. Consequently, according to Article 22 of the statutes of the Joint Undertaking, the law of Belgium shall apply in any matter not covered by the statutes.

IV. Introduction to the operational phase

EGNOS (European Geostationary Navigation Overlay Service), the irst European satellite navigation system, acted as the precursor to Galileo, the full global satellite navigation system under development in Europe. Completed at the end of 2004, EGNOS consists of three geostationary sat- ellites and a network of nearly 40 ground stations. hese stations transmit information on the reliability and accuracy of the positioning signals sent out by the systems currently in operation, the US global positioning sys- tem (GPS) and the Russian Glonass.

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In its current form, the American GPS system designed for military uses is neither accurate nor reliable enough for the tasks in hand, while EGNOS, operational as of summer 2004, provides the accuracy and continuity required to show positions with precision. By 2009, this level of perform- ance will have been given a further boost with the deployment of Galileo, the irst civil global satellite navigation system to be funded by the Euro- pean Space Agency (ESA) and the European Commission.

EGNOS will allow users in Europe and elsewhere to determine their posi- tion within two metres compared to about 20 metres with GPS.

V. System potentialities

Ater certiication, EGNOS will be used for safety-critical applications such as: • lying aircrat through narrow corridors; • navigating ships through narrow channels (e.g. Suez-Panama-Corinth canals); • bus-, taxi- and truck-leet driving management; • or speciic uses, such as: • assistance to blind pedestrians; • telemedicine; • tracking the position and speed of each rider e.g. in the Tour de France or car racing, providing useful information for team directors and event organisers, notably for security reasons — riders or racers are itted with receivers making it possible to monitor their exact positions; the accuracy of EGNOS is such that the position of any moving object equipped with a receiver can be pinpointed to within one metre; the information made available will be an invaluable addition to television broadcasts, which are unable to show all the competitors at once; • motorway tolls; • law enforcement (surveillance of suspects, measures to combat crime); • customs and excise operations (investigations on the ground, etc.); • agriculture (grain, fertilisers or pesticide dose adjustments depending on the terrain, climate, soil, etc.); • isheries (monitoring of boat movements).

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B. strategic nature of the European satellite radio-navigation programmes and establishment of structures for its management: the Gnss supervisory authority

Council Regulation (EC) No 1321/2004 of 12 July 2004 (OJ L 246, 20.7.2004, p. 1) refers to the strategic nature of the European satellite radio-navigation programmes in its recital (5) as follows: Given the strategic nature of the European satellite radio-navigation pro- grammes and the need to ensure that essential public interests are adequately defended and represented, it is imperative to supervise the next phases of the system and the use of Community funds allocated to the programmes in ac- cordance with the relevant political orientations of the Council and inancial decisions of the budgetary authorities; a European global navigation satellite system (GNSS) Supervisory Authority (hereinater referred to as the Author- ity) should therefore be set up. he importance of the programmes referred to makes it necessary, in the Council views, to: • supervise the next phases of the system and the use of Community funds, and thereto • create a European global navigation satellite system (GNSS) Supervi- sory Authority entitled to:

° conclude a concession contract — recital (7),

° be the sole interlocutor on the matter of frequencies — recital (8),

° be responsible for managing and controlling the use of the funds speciically allocated — recital (10),

° assist the Commission — recital (11),

° cooperate with the ESA — recital (12),

° protect and valorise Community investment on space — recital (13),

° act as a legal person in the discharge of its tasks — recital (15).

Taking into account that the European satellite radio-navigation policy is presently implemented through the EGNOS and Galileo programmes, Council Regulation (EC) No 1321/2004 of 12 July 2004 sets up a new Community agency, called the European GNSS Supervisory Authority, to manage the public interests involved, and to be the regulatory authority for the European GNSS programmes (Articles 1).

45 EuropEAn TrAjECTorIES In SpACE LAw — 2007 he principle already retained by recital (6) is the ‘substantial private sec- tor participation as a fundamental element for the success of Galileo in its deployment and operational phases’. Recital (7) speciies that a concession contract is anticipated on the basis of selection between consortium pro- posals that have to take into account public service obligations. herefore, the principal task of the Supervisory Authority shall be, accord- ing to Article 2.1.(a), to be the licensing authority vis-à-vis the private con- cession holder responsible for implementing and managing the Galileo deployment and operating phases, with the obligation to ensure that the concession holder complies with the concession contract and the specii- cations attached thereto. he other tasks include: • management of the funds speciically allocated and monitoring of the overall inancial management (Article 2.1.(b)); • management of the agreement with the economic operator charged with operating EGNOS (Article 2.1.(c)); • coordination of Member States’ actions in respect of the frequencies (Article 2.1.(d)); • assistance to the Commission in preparing proposals for the European GNSS programmes to be presented to the European Parliament and to the Council and in drating the implementation rules (Article 2.1.(e)); • responsibility for the modernisation and development of new genera- tions of the system (Article 2.1.(f)); • budgetary monitoring (Article 2.1.(g)); • certiication monitoring (Article 2.1.(h)); • management of all aspects relating to the safety and security of the sys- tem (Article 2.1.(j)).

Article 2.2 deals with the future role for the ESA, the existing body in the space policy domain, in the framework of the European GNSS. he ESA is now oicially accredited as the expertise holder, which ‘shall be requested to provide the Authority with technical and scientiic support’.

According to Article 3, the Galileo Joint Undertaking, however, transfers all the tangible and intangible assets to the new Authority in full owner- ship. he transfers of property are to be set out in the course of winding- up proceedings.

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Article 4 confers the legal personality to the Authority, which becomes a body of the Community entitled to exert legal capacity in each Member State and establish local oices there. he Executive Director represents and manages the Authority but has no vote at the Administrative Board meeting. he Administrative Board appoints and dismisses the Executive Director (Articles 6 and 7), may set up a Scientiic and Technological Com- mittee and appoint its members and chairperson from among acknowl- edged experts from Member States and the Commission (Article 9).

Compulsory however is the establishment of a System Safety and Security Committee (‘he Administrative Board shall ...’). See Article 10.

he budgetary equilibrium is ensured by Article 11. he Community has to supply the diference between the ‘other sources’ and expenditure, by ‘a subsidy entered in the general budget of the European Union in order to ensure a balance between revenue and expenditure’.

It is the task of the Executive Director to implement the budget of the Authority. Article 12 also provides for rules of control of the budget, whilst Article 13 establishes budgetary limits and Article 14 takes into account anti-fraud measures.

Recently, the Commission has proposed that ‘the activities of the Galileo Joint Undertaking are transferred to the Supervisory Author- ity and that the Joint Undertaking should wind up its operations by 31 December 2006.’ (1) OComments: First comment:

Similarity with European air law

The creation of a GNSS Supervisory Authority recalls a similar approach by the Community in the air law sector, although the ‘strategic nature’ as such has not been mentioned but is present nevertheless.

Eurocontrol appears to correspond to the ESA in management of technological expertise. The Community, however, was unable to extend their legal capacity beyond technical matters in their respective areas.

(1) COM (2006) IP/06/744.

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To ensure a high level of safety and security in civil aviation has always been considered deserving high-rank priority by the Community. It successively appears clearly in Eurocontrol, EASA and single European sky documents.

The international safety standards always remain the same, however: those contained in the Chicago Convention and its annexes.

Since the European Aviation Safety Agency was established by European Parliament and Council Regulation (EC) No 1592/2002 of 15 July 2002 (OJ L 24, 7.9.2002), EASA’s role in civil aviation safety policy is constantly conirmed. See for instance Directive 2004/36/EC of the European Parliament and of the Council of 21 April 2004 on the safety of third-country aircraft using Community airports (OJ L 14,3f, 30.4.2004, p. 7).

Eurocontrol in the air law sector, and the ESA in the space law sector, collect membership independently from EU membership.

The Community recognises this has become ‘an important component in the creation of a pan-European airspace’ but does not allow both organisations to initiate negotiations with third countries beyond technical matters.

The need to ensure that essential public interests in both sectors are adequately defended and represented has determined the creation of both the European Air Space Agency and the GNSS Supervisory Authority, with implementation powers compared respectively to Eurocontrol and the ESA.

Second comment:

Diplomatic reparation?

The founding document of the European Aviation Safety Agency did not directly refer to Eurocontrol dealing with safety matters (albeit restricted to traic management in the civil aviation domain). Recital (11) of Regulation (EC) No 1592/2002 indeed reads as follows:

There s a need for better arrangements n all the ields covered by ths regulaton, so that certan tasks currently performed at Communty or natonal level should be carred out by a sngle specalsed expert body. There s, therefore, a need wthn the Communty’s exstng nsttutonal structure and balance of powers to establsh a European Avaton Safety Agency that s ndependent n relaton to techncal matters and has legal, admnstratve and inancal autonomy. To that end, t s necessary and approprate that t should be a Communty body havng legal personalty and exercsng the mplementng powers whch are conferred on t by ths regulaton.

The European Aviation Safety Agency thus proves its necessity because of its neutrality in relation to technical matters.

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Regulation (EC) No 549 to 552/2004, establishing the single European sky, gives a feeling of a diplomatic rectiication vis-à-vis Eurocontrol when recital (14) of the framework regulation states:

In the process of creatng the sngle European sky, the Communty should, where approprate, develop the hghest level of cooperaton wth Eurocontrol n order to ensure regulatory synerges and consstent approaches and to avod any duplcaton between the two sdes.

A similar recognition, this time of the ESA’s merits, appears in Council Regulation (EC) No 1321/2004 of 12 July 2004 on the establishment of structures for the management of the European satellite radio-navigation programmes (OJ L 246, 20.7.2004, p.1) of which Recital (12) states:

The Authorty should utlse ongong research, development and technologcal assessment actvtes, n partcular those carred out by the ESA. Takng nto account Councl resoluton of 6 november 2000 on a European space strategy, cooperaton wth the ESA should explot to the fullest the possbltes ofered by the framework agreement between the European Communty and the ESA, where relevant.

Third comment:

The creation of a single European sky, also a useful step in European space policy?

The single European sky has become a reality from 20 April 2004 with a number of regulations, which are interrelated and known as • the framework regulation: Regulation (EC) No 549/2004 of 10 March 2004 (OJ L 96, 3.3.2004, p. 1); • the service provision regulation: Regulation (EC) No 550/2004 of 10 March 2004 (OJ L 96, 31.3.2004, p. 10); • the airspace regulation: Regulation (EC) No 551/2004 of 10 March 2004 (OJ L 96, 31.3.2004, p. 20); • the interoperability regulation: Regulation (EC) No 552/2004 of 10 March 2004 – OJ L 96, 31.3. 2004, p. 26).

This could also be an important development in the future space policy context. Indeed, space travel starts and ends up in airspace. A portion of air traic management involving space vehicles would belong to Eurocontrol’s direct responsibility therefore when launching takes place in one of its Member States.

49 EuropEAn TrAjECTorIES In SpACE LAw — 2007 c. the Eu–us dispute and compromise he spat between the EU and the USA was over a fundamental choice between open and closed models of technological innovation. While the US global positioning system (GPS) was designed as a closed, military sys- tem, Galileo on the other hand will be a civilian-controlled system, with civilian users in mind, grounded in the values of peace, prosperity and freedom, with a strong commitment to international development i.e. in favour of developing countries and environmental protection. he EU and the US also argued for three years over the frequency to be used by Galileo. he US feared that the European system could interfere with its planned M-code military signal. Ater that lapse of talks, an agree- ment was eventually reached and signed on 26 June 2004.

A common baseline signal structure was agreed on for the EU and the US open services. As a result, it creates the optional conditions for the development of the European system, fully independent and nevertheless compatible with the US GPS.

Both systems can be improved their own way in the future.

All users can use both systems, in complement, with the same receiver as the agreement creates the world standard of radio navigation by satellite.

On the technical level, the irst two experimental Galileo satellites have been ordered and should be operational by summer 2006. GIOVE-A, the irst test-satellite of the Galileo constellation, was launched on 28 Decem- ber 2005 and successfully transmitted its irst signal in January 2006.

On 6 February 2004, three consortia were shortlisted for the Galileo project: • one led by Eutelsat, joined by Hispasat, Logica CMG and Aena; • one led by Inmarsat, joined by EADS and hales; • one led by Alcatel, joined by VINCI and Finmeccanica.

Finally, the three consortia ‘merged’ and, since the beginning of 2006, negotiations for the system concession contract have entered a decisive phase which is still ongoing as of today (2007). he candidate for the con- cession is now a consortium gathering the following members: Aena (ES), Alcatel (FR), EADS (FR/D), Finmeccanica (I), Hispasat (ES), Inmarsat (UK), hales (FR) and TeleOp (D).

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In a recent communication, the European Commission stated that ‘the critical aspects of the negotiations should be decided by the end of the year. his will be followed by the procedure of budgetary authority approval and inancial veriication (‘due diligence’). he contract is expected to be inalised in the course of 2007’ (1). As of today, no contract has been signed yet and several political issues seem to hinder the global process. he Concession was to be awarded in the course of 2006–07 in view of a 30-satellite system being operational from 2010 on. he Galileo Joint Undertaking has already signed several cooperation agreements. he one with China opens the way to facilitating Chinese group tourism to Europe.

Other cooperation agreements were signed with Israel (March 2004), the United States, Ukraine, India, Morocco and South Korea. Others are in preparation.

Meanwhile, the EGNOS system (European Geostationary Navigation Overlay Service) will continue its role. A new control centre was opened on 13 July 2004 in Ciampino, near Rome.

D. other legal aspects to watch in the future implementation of Gnss and Galileo he legal issues related to the implementation of the new European global navigation satellite system, Galileo, are a crucial step for the success of the project and should deserve maximal attention.

Already many of these legal aspects have been discussed at ICAO (Interna- tional Civil Aviation Organisation) level regarding GNSS, taken globally: • sovereignty of States; • certiication; • liabilities; • universal access; • quality/continuity of the services; • inancial aspects, etc.

As regards Galileo, as for other future space-related legal aspects, it would be strongly recommended that the European institutions (ESA, EC, etc.)

(1) COM (2006) IP/06/744.

5 EuropEAn TrAjECTorIES In SpACE LAw — 2007 increase their eforts in setting up a dedicated body, or bodies, which would specialise in dealing with these legal matters. he ECSL (European Centre for Space Law) initiative is already a start in this direction but is not suicient. It lacks interaction with the European Parliament and the European Commission’s services, especially the legal department, and is actually more focused on research in the ield of space law.

It would be crucial that in this new branch of law, where everything is to be created concerning outer space, European actors take concrete deci- sions and decide to invest the appropriate resources so has to gain time, credibility and weight when negotiations will arise in today’s fast-paced environment. his is also true for all other aspects of the space segment.

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CHApTEr 8: EU cooperation with third countries on space issues

a. General scope

Space activities are developing in the context of a multitude of interna- tional issues, including:

(i) cooperative scientiic space missions (the International Space Station (ISS));

(ii) aspects of international trade (‘fair competition’) and market access through the regulatory environment (WTO, export controls, licens- ing, allocations of frequencies and orbital slots within the Interna- tional Telecommunications Union;

(iii) coordination of a common European/United Nations position on the political, legal and technological components of space afairs.

Europe has a long tradition of cooperation and collaboration on the inter- national stage. Until now, however, countries seeking cooperation in many ields, including space activities, have tended to address the US super- power. It is necessary that Europe evolve and build itself as a strong and lexible alternative to the United States while remaining its closest partner. It is even more true at a time when the United States has announced its intention to go back to the Moon, and further on to Mars, in order to prepare exploratory manned and unmanned space lights that would go beyond our planetary orbit. OComments: President Bush delivered a message on 7 February 2005 announcing spending cuts in his 2006 budget for NASA, and casting doubt on plans for manned missions to the Moon and Mars.

For a long time, international cooperation in Europe has been based at a national level. The EU institution as such has recently developed competences in space capabilities and put itself in a position of equal partnership with the USA. This situation will ease the overall framework of cooperation, not only with the USA but also with Russia/Ukraine, China, India, Japan, Brazil, Canada, etc.

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B. the European dimension of cooperation in space afairs

International cooperation at the EU level is articulated on questions that are in close connections to Community policies. Indeed, the EU is most concerned, as far as international relations are focused on, by issues such as cooperative scientiic space missions (ISS), aspects of international trade with a view of fair competition and market access through the regulatory environment (WTO including TRIPS, export controls, licensing, alloca- tions of frequencies and orbital slots within the International Telecom- munications Union), and coordination of a common EU–UN line on the political, legal and technological components of space afairs (1).

Speciic cooperation frameworks have been established with two space countries, Russia and Ukraine, where undeniable potentials and necessi- ties show the need to strengthen ties.

I. Cooperation with Russia

In some ways, Russia seemed to have been forgotten by the USA and the EU during the irst years of its regime change. Ater the end of the Cold War, the Soviet space programme became troubled but today’s Russia still keeps a strong technological and scientiic base as well as a true opera- tional capability through its Soyuz launchers. he irst to come back to abandoned resources was the USA, principally through joint ventures. In fact, the EU has been let behind in terms of cooperation with Russia. Since 1994, Europe has been trying to catch up through the ‘Europe–Rus- sia dialogue on space’.

EU–Russia cooperation on space has its legal grounds in the partnership and cooperation agreement of 1994, which entered into force in 1997. his agreement establishes the institutional framework for bilateral relations and sets the principal objectives (2). he irst mention of space in the agreement lies in Article 41: Cooperation shall ensure fair, balanced and competitive conditions for the space launching and transportation market based on sound economic fac- tors and, in particular, steps will be taken to promote the negotiation and implementation of multilateral rules regarding international trade in space launching and transportation services.

(1) http://europa.eu.int/comm/space themes/coop/inter_cooperation_en.html (2) Agreement on partnership and cooperation, establishing a partnership between the European Communities and their Member States, of the one part, and the Russian Federation, of the other part, OJ L 327, 27.11.1997.

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During the transitional period to the year 2000, conditions for the supply of space launch services shall be agreed.

It is not surprising that terms refer to ‘fair, balanced and competitive con- ditions for the space launching and transportation market’ since both par- ties are basic competitors on this segment even though the conditions are in an increasing process of harmonisation.

Article 67 establishes the perspective of long-term cooperation on space matters, which is naturally a condition sine qua non for success. his arti- cle is to be read in an ‘economic cooperation’ sense, which covers both technological and scientiic progress (Articles 56 and 62). Without prejudice to Article 41, the parties shall promote long-term coop- eration as appropriate in the areas of civil space research, development and commercial application. hey shall pay particular attention to initiatives on a mutual beneicial basis that make full use of the complementarity of their respective activities.

his 1994 agreement, which came into force in 1997, is not the sole basis for collaboration between the EU and Russia. he Europe–Russia dialogue on space constitutes a complementary platform through which both sides seek to improve their relations at political, scientiic and technological levels.

he sixth and seventh framework programmes for research and techno- logical development provide an interesting opportunity to invite Russian researchers to participate: ‘In addition to Russian involvement in inte- grated projects, networks and centres of excellence, speciic international activities are being promoted on the basis of common interests and objec- tives as well as the particular economic and social needs of Russia.’ (1) OSatellite navigation A number of EU–Russian activities performed during the deinition phase of Galileo have demonstrated the potential for mutual beneits in the sat- ellite navigation sector, with several speciic areas of cooperation having been identiied. Russia’s experience in operating a highly accurate navi- gation system and the European Union’s strength in providing the tech- nologies required for both space- and ground-based segments create the conditions for a very fruitful collaboration.

(1) http://europa.eu.int/comm/space/russia/about_en.html

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he development phase of the Galileo programme ran from 2001 to 2005. A new political agreement will include a deinition of the nature and modalities of Russian participation. here are a number of other currently existing initiatives at national and European levels, including the Euro- pean EGNOS programme, France’s INES/KEOPS and Germany’s Prop- nass/NAFIX. hese projects are complementary to each other in some areas, while competing in others. A robust dialogue is therefore neces- sary to ensure that the diferent actors work together, that these initiatives complement and reinforce each other and that the integrity of the strategic choices made by both Russia and the European Union are ensured. OGlobal monitoring for environment and security (GMES) An analysis of existing opportunities for cooperation in space-based monitoring, including joint activities, has aimed at identifying the starting points for a long-term partnership. Due attention is being paid to those speciic features of the programme which will allow both Europe and Rus- sia to take full advantage of their respective capabilities and to make the best possible use of all available resources. GMES, which is now in its ini- tial stage, could thus become a pillar of future collaboration. OSpace transport In addition to cooperative research on existing launch vehicles, both in Rus- sia and in the EU, major elements of the next generation of transport vehi- cles are being developed within the scope of cooperative programmes.

In the commercial area, joint ventures such as Starsem, Eurockot, and Cosmos, as well as a number of other projects, have performed remark- ably, with European and Russian enterprises sharing the inancial risks and rewards in the global space transport market.

All of the major Russian space transport enterprises are currently partici- pating in some form of cooperation with European partners. With aware- ness of the possibilities for joint space activities now having been raised at the highest political levels, this trend looks set to become even more irmly established, implying substantial opportunities for Russian partici- pation under the European Commission’s new framework programmes (FP6) and (FP7).

56 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) OSpace-based research here have been numerous examples of successful collaboration between European and Russian space researchers, including joint missions to/on the former Russian space station Mir and experiments on Russian satel- lites. With the advent of the International Space Station (ISS), a new plat- form has been established for such work, with several programmes having been initiated and frequent exchanges taking place between Rosaviakos- mos and the ESA. A signiicant number of Russian investigators have par- ticipated in the ESA experiments while European scientists use Russian facilities on the ISS or on other Russian spacecrat.

In the area of life sciences, a framework agreement for cooperation is in its inal stage of negotiations, while medical data on astronauts is already shared extensively for scientiic purposes. As discussions continue on the principles of expanded cooperation in space research, the following themes have already been outlined: • luid sciences, combustion and plasma physics; • materials sciences, including crystallisation processes; • astrophysics and geophysics; human physiology and medical research; • biotechnology and microbiology; • psychological research related to long-term human spacelight. OComments: First comment

Exchange constitutes the ideal situation of partnership. Europe is the requesting party with respect to Starsem, the European-Russian organisation dedicated to providing commercial launch services with the reliable and proven Soyuz family of launch vehicles. Starsem beneits from the commercial and technological capabilities inherited from the Ariane programme and launches up to 10 Soyuz a year from Baïkonur in Kazakhstan. Nevertheless, Russia can also use the facilities of Kourou in French Guyana to launch its own Soyuz.

A further opportunity that could motivate Russia to increase its cooperation with Europe certainly lies in the Galileo issue, which will free Europe from dependency on the US GPS system for many applications including all modes of transport and environmental monitoring (see Part 3, Chapter 7). The only present alternative to the GPS is Russia’s Glonass system. However, Glonass has sufered from its weakness from the very beginning. Indeed, the Russian system is an old solution

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without any concrete civil application. The Galileo system could therefore be extended to Russia and other countries. Both the European Space Agency and the Russian Aviation and Space Agency have identiied global satellite navigation as ‘an area of immediate mutual interest with scope for reinforcing Euro-Russian space collaboration’ (1).

Second comment

The idea of a Russian participation in the Galileo programme is not new. Indeed, a closer look at the ‘Russian Federation middle term strategy towards the European Union (2000–10)’ (2) reveals the concrete will of Russia to participate in the global satellite navigation system that Europe is now establishing, and even in the GMES initiative.

Third comment

The Russian involvement with European space programmes does not exclude partnership with the United States for other programmes such as ISS. The same observation is valid for the Europe–US relations with respect to space, including the ISS programme.

This is clearly expressed in Article 7.3 of the Russian strategy outline:

To take measures wth a vew to mplementng large-scale jont projects n the area of the outer space exploraton, n partcular, by means of partcpaton n the global navgaton system that the Eu s now establshng, the new systems of satellte communcaton and remote sensng of the envronment of Europe.

In the light of international polarisation, even partial integration of the scientiic and technological potentials of Russia and the EU are anticipated which could help European science and industry to be increasingly competitive with the USA. This is what Article 7.4 of the same outline perfectly indicates:

To examne, n cooperaton wth the Eu, the opportuntes for draftng and launchng a programme on convergence and partal ntegraton of the scentic and technologcal potentals of russa and Eu, enhancement of the nternatonal compettveness of the European scence and ndustry through the ntroducton of russan advanced patents and developments, ncludng converson r & D, n exchange for the Eu’s support of russan scence.

(1) http://europa.eu.int/comm/space/russia/sector/satellite_navigation_en.html (2) http://europa.eu.int/comm/space/russia/sector/satellite_navigation_en.html

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II. Cooperation with Ukraine

Ukraine does not have any concrete launching capabilities even though it possesses some launchers (the Cyclone and Zenith families). It is relatively discreet on the space scene but remains a very important actor whom Europe should not put aside in its cooperation framework.

he legal framework for EU–Ukraine cooperation in the space sector is the partnership and cooperation agreement (PCA) of 1994, which entered into force in 1998 (1). his agreement difers slightly from the Russian one since it contains only one article on space, namely Article 65: Bearing in mind the respective competences of the Community, its Member States and the European Space Agency the parties shall promote, where ap- propriate, long-term cooperation in the areas of civil space research, develop- ment and commercial applications. he parties will pay particular attention to initiatives making full use of the complementarity of their respective space activities.

One can discern two objectives: • long-term cooperation in the areas of civil space research, develop- ment and commercial applications: military space research is thereby avoided; • making full use of the complementarity of their respective space activities. OThe diicult triangle Europe–NATO–Russia Talk of integrating Ukraine with the EU just ater the Union has enlarged by 10 countries, including neighbours, might sound irresponsible. For numerous Ukrainian intellectuals, the alliance with western Europe is a decisive factor in their country’s future. hey say that only integration in NATO and the EU will guarantee their country’s independence.

However, recent opinion polls have indicated that half of the population support closer relations with Russia and the other half are in favour of more intense links with the EU. he question of NATO is even more delicate. An experimental poll on integration with NATO has demonstrated that only 17 % of Ukrainians answered ‘yes’, but when asked whether it should join the North Atlantic Treaty Organisation, 58 % agreed. he short name

(1) Partnership and cooperation agreement between the European Communities and their Member States, and Ukraine, OJ L 49, 19.2.1998.

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stirred up bad connotations from the time of Soviet anti-NATO propa- ganda, while the full name of the Alliance inspired more trust (1).

Science and technology development Othrough cooperation with the EU Ukraine has declared it will try to reach science and technology develop- ment through cooperation with the EU and focus on their need for space data on the environment (2).

he Ukrainian national space programme 2003–07, approved by the Ukrainian Parliament on 27 October 2002, traces the following objectives (3): • national system for Earth monitoring; • State satellite communications; • fundamental scientiic research; • space transportation systems; • perspective research; • innovative development of the space industry.

In addition, Ukraine highlights as possible future cooperation areas (4): • scientiic research:

° astrophysics and astronomy,

° ionosphere and magnetosphere research,

° microgravity and life sciences; • remote sensing (GMES); • navigation (Galileo); • new launchers; • development and commercialisation of new technologies.

It should be noted that the overall aim of the partnership and cooperation agreement is ‘to contribute to the process of economic reform and to the

(1) Horabik, W., ‘Torn between Russia and the West, Ukraine must make crucial choice’, European Voice, 29 July 2004. (2) ‘he Ukrainian space programme and opportunities for cooperation with Europe’, Prague, 2 and 3 June 2003. (3) ‘he Ukrainian space programme and opportunities for cooperation with Europe, 2003–07’, Ukrainian Parliament, Kiev 27 October 2002. (4) ‘he Ukrainian space programme and opportunities for cooperation with Europe’, idem.

60 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) recovery and sustainable development of Ukraine’s economy, taking into account the need to address social and environmental problems’ (1). he space industry as well as science and technology are, of course, central areas focused upon. But there is a feeling that much more could be done. For this reason, ‘the Cooperation Council shall make recommendations as to how cooperation can be further developed in all areas’. It should also be noted that the EU is heavily inancing this cooperation having allocated more than EUR 1 billion to Ukraine between 1991 and 2003. Kiev was also assigned credits from Euratom for the modernisation of its nuclear power plants in Chmielnitzky and Rovne, as well as funds from the TACIS programme for former Soviet Union countries.

An international Earth Observation Partnership Conference took place in Brussels on 15 October 2004. he Conference was organised by the European Commission to promote international cooperation in global monitoring of the Earth. Representatives of the National Space Agency of Ukraine (NSAU) and of the permanent mission of Ukraine to the EU were taking part in the event. here was a presentation of several international programmes during the Forum, including the European initiative on glo- bal monitoring for environment and security (GMES), results achieved by the International Group on Earth Observation, and other projects. he discussion was focused on the designing of an international mechanism for Earth observation systems management and providing equal partici- pation for all countries concerned in sustainable development.

A meeting of EU and ESA experts with representatives of NSAU, the Ukraine Ministry of Transport and Ministry of Industrial Policy, the country’s State Communication Committee, the National Academy of Sciences and also research and development institutions and enterprises of Ukraine took place in Kiev on 21 June 2004. he necessity to hold such a meeting was agreed during negotiations between the Deputy Prime Minister of Ukraine, Andrey Klyuev, and the Director-General for Energy and Transport of the European Commission, Francois Lamoureux, in February 2004. he European expert team was led by Olivier Onidi, heading the unit responsible for Galileo and for intelligent transport within the Directo- rate-General for Energy and Transport. He was accompanied by Galileo unit administrator, Johan Kreher, ESA system engineer, Yorg Khan and the representative of Galileo Joint Undertaking, Mario Musmecci. he

(1) ‘What is the agreement on partnership and cooperation? A brief guide to the agreement signed in Luxembourg on 16 June 1994 between the European Union and Ukraine’, Delegation of the Euro- pean Commission in Ukraine, 1998, p. 12.

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Ukrainian party was headed by the NSAU First Deputy Director-General, Valeriy Komarov. A presentation of Europe’s global satellite navigation system Galileo took place during the meeting.

Simultaneously with deployment of orbital satellite constellation, a net- work of ground stations and control centres will be created. Management, development of the programme and deployment of the system is entrusted to Galileo Joint Undertaking established by the EU and the ESA. he joint venture by-laws foresee participation of third countries and private com- panies. One of the Galileo Joint Undertaking missions is the preparation of the market to forthcoming operation of the Galileo system. he Galileo system which was initially planned to start operating in 2008–10, and this year the European Geostationary Navigation Overlay Service (EGNOS), which will extend GPS and Glonass coverage, will inally be deployed. Operation of EGNOS started in September 2004. Representatives of Ukrainian science and industry familiarised themselves with the current situation of EGNOS and Galileo programmes and presented their own developments in the ield of satellite navigation.

A senior staf scientist at the Main Astronautic Observatory, Oleg Khoda, presented the existing network of eight permanent GPS stations that oper- ate on the territory of Ukraine and are utilised in international scientiic programmes. he deputy Director-General of the State Enterprise Aer- orukh, Dmitriy Babeychuk, shared the experience of regional cooperation of Ukraviatrans in the ield of utilisation of satellite navigation for air traf- ic control and described the prospects appearing with the beginning of operation of EGNOS system and deployment of the Galileo system. he Deputy Director of Radmir (Kharkov), Evgeniy Malafeyev, described the condition of development of the State network for monitoring of glo- bal navigation systems in Ukraine and the opportunity to utilise it in the framework of EGNOS and Galileo. A network of ground stations has been developed on NSAU’s order within the national space programme of Ukraine and is meant for increase of objects position determination accuracy on Ukrainian territory by transmission of additional adjusting information from ground stations. Ukrainian stations allow increasing accuracy of position determination on Ukrainian territory for the EGNOS system by 40 %. A test channel connection will be held between Kharkov ground station and the EGNOS information-processing centre in Norway. Another two Ukrainian global navigation systems monitoring stations are being maintained at the moment.

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he General Designer of Orizon-Navigatsiya, Nikolay Lukyanenko, reported on equipment for navigation systems developed by the enter- prise: GPS receivers, interface modules, global navigation systems signal imitators and sotware. his equipment is destined for Glonass and GPS users and enterprises designers are ready to update this equipment for EGNOS and Galileo.

he Deputy Director of the Central Scientiic and Research Institute of Navigation and Control of the Ministry of Industrial Policy of Ukraine (Kvant-Navigatsiya), Georgiy Baranov, shared the experience of devel- opment of integrated satellite and information technologies for moving objects control systems using global navigation satellite systems infor- mation. During a bilateral exchange of views, Ukrainian and European experts considered possible participation of Ukrainian enterprises and organisations in European projects on the development of the Euro- pean global navigation satellite system and discussed a drat agreement between Ukraine and the EU on cooperation in the EGNOS and Gali- leo programmes (1). Eventually, an agreement was reached and signed on 1 December 2005. OComments: The volume of trade between Ukraine and the EU has increased by 25 % between 2002 and 2003.

In November 2002, the Highest Council of Ukraine adopted a bill on the harmonisation of the country’s laws with EU legislation. Appropriate units were established in almost all ministries and considerable progress was made in competition, inancial services, banking and intellectual property rights.

In practice, Ukraine with its 50 million inhabitants still has a bad record: a deprived infrastructure, a poor human rights record and widespread corruption. Citizens have limited access to free media. Cable television is still at a nascent stage; it is expensive and operates only in large cities. The inhabitants of villages and small towns only watch public television, which is controlled by the government. The country is still strongly dependent on cooperation with Moscow and, during the spring of 2004, it signed an agreement on intensifying economic ties with the Russian Federation. The newly elected President (winter 2004) announced he will fare a more western course but keep strong ties with Russia.

(1) National Space Agency of Ukraine, ‘Integration into EU’, 8 February 2005. (http://www.nsau.gov. ua)

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Perspectives

A joint report in 2003 on the implementation of the partnership and cooperation agreement between the EU and Ukraine noted that ‘there have been noteworthy results of cooperation on space technology commercialisation and Ukraine’s space industry restructuring in the framework of the TACIS programme.’ The sixth framework programme and the creation of a working group on space under the EU–Ukraine PCA Subcommittee on Energy, Nuclear Issues, Environment, Networks, Science and Technology, Transport and Space were bringing new impulses to this cooperation. It was further agreed to establish a Joint Ad Hoc Working Group on Space under the PCA. ‘This working group will reinforce the dialogue between the EU and Ukraine on space matters to identify areas of mutual interest and to support relevant actions relating to space-related science and technology cooperation.’

Outside the sixth and seventh framework programmes, the EU also provides its inancial support under the multilateral Science and Technology Centre in Ukraine and through the International Association for the Promotion of Cooperation with Scientists from the Countries of the former USSR.

Today’s Ukraine’s priorities are: • an EU–Ukraine agreement on peaceful use and exploration of space; • the possibility for Ukraine’s associate membership in the ESA; • participation in the GMES initiative, with the creation of a ‘GMES regional service centre’ in Ukraine.

III. Cooperation with other non-EU countries of Europe

Of course, the European Union does not only focus on Russia and Ukraine. It is equally important for the Union to take into account Norway, Switzer- land as well as other east European countries. It is essential to allow them to participate in the shaping of the European space policy. hese countries have scientiic knowledge and sometimes even some space expertise but not the concrete means to undertake space programmes. It was therefore proposed by the European Commission in its 2002 report to use scientiic cooperation as a means of associating eastern European countries to space programmes without involving a heavy inancial bur- den. here is consistency in using these countries’ brains since there are many high-level scientists in those countries and it would be a shame not to involve them in certain programmes where their competence could be a milestone towards progress.

64 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) c. the extra-European dimension of cooperation in space afairs he European Union has also decided to use the science and technology basis for cooperation in other regions of the world.

In a speech delivered at Tsinghua University in Beijing on 8 April 2004, Research Commissioner Philippe Busquin pointed out that China was the irst country in Asia with which the EU had concluded a joint S & T agreement.

I. The special issue of space cooperation between the People’s Republic of China and the European Union

A high-level EU–China Workshop on Space Cooperation took place in Beijing on 7 April 2004. Commissioner Busquin recalled that all the instruments of the sixth framework programme had been opened to Chinese scientists with the aim of boosting cooperation: In just four years, between 2000 and 2003, funding for research projects with Chinese participation in the framework programme increased from EUR 10 to EUR 200 million, totalling EUR 250 million over the four years. (...) As we move towards the preparation of the seventh framework programme for research, the EU and China should join forces to cooperate more, and in a strategic way. (1)

He welcomed China’s participation in the Galileo satellite navigation project and indicated other themes of mutual interest such as Earth observation, satellite telecommunication, space technology and space exploration.

China’s space industry is developing increasingly and, like the USA, is inti- mately connected to defence issues and industry. China’s ambitions are without ambiguities: international prestige and space excellence. China might develop its space-based defence in order to ensure its supremacy in Asia. here is a danger in this respect as the development of new mili- tary strategies into space could bring space and armaments races back on track. On the other hand, one cannot imagine China sufering from pos- sible sanctions regarding its activities so that friendly relationships will also be crucial.

(1) ‘Busquin uses Beijing speech to promote EU–China S & T cooperation’, Cordis Focus, No 243, 19 April 2004, p. 14.

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II. Cooperation with India

On 9 January 2002, the Indian Space Research Organisation (ISRO) signed a cooperative agreement with the European Space Agency (ESA) that renews the arrangements for cooperation between the two agencies in the peaceful use of outer space for mutual beneit. Dr K Kasturiran- gan, Chairman of the ISRO, signed the cooperative agreement on behalf of the ISRO while Jean-Pol Poncelet, Director Strategy and External Rela- tions of the ESA signed the agreement on behalf of Prof Antonio Rodota, Director-General of the ESA. his umbrella agreement enables both the ISRO and the ESA to carry out programmes of common interest in space science and applications including communication, remote sensing for monitoring of the environment and corresponding data processing, mete- orology and navigation, and life and material sciences under microgravity conditions.

It may be noted that the ISRO and ESA have a long-standing coopera- tion. he ISRO’s irst experimental communication satellite (APPLE) was launched on board the ESA’s Ariane launch vehicle in 1981. Ariane has also launched several INSATs of the ISRO. Many ISRO scientists have received training in the ESA’s laboratories. he ISRO receives microwave remote sensing data from the ESA’s ERS-1 and ERS-2 satellites, which is used for several applications. ISRO has launched the ESA’s PROBA satel- lite on board its PSLV in October 2001. he cooperative agreement will renew these cooperative activities (1).

III. Cooperation with Brazil he Department for Institutional Relations Coordination (CRI) in the Instituto Nacional de Pesquisas Espacias (INPE) participates in the preparation and discussion of agreements, organisation of meetings and international presentations, besides promoting the scientiic partnership between the INPE and the main space agencies in the world, including the ESA. he CRI has participated in the discussion of the agreement terms, which resulted on the Brazilian participation in the International Space Station, an enterprise that involves United States, Canada, Russia, Japan and the European countries (2).

(1) Indian Space Research Organisation (http://www.isro.org) (2) CRI: international cooperation. Brasilia: INPE. (http://www.inpe.br/cri2/english/en_cri_home. html)

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IV. Cooperation with Japan he Japan Aerospace Exploration Agency (JAXA) was established on 1 October 2003, merging the Institute of Space and Astronautical Sci- ence (ISAS), the National Aerospace Laboratory of Japan (NAL) and the National Space Development Agency of Japan (NASDA). JAXA is linked with the ESA and the Japanese participate in the International Space Sta- tion (ISS) (1).

V. Cooperation with Canada

Since 1978, a far-reaching cooperation agreement has existed between Canada and the ESA. hus, Canada and the Canadian space industry have actively participated in many ESA programmes, especially in satellite communications, Earth observation and the development of generic space technology.

Canada participates directly in ESA programmes, activities and deci- sion-making. Canadian companies bid for and receive contracts on the same basis as their European counterparts. In June 2000, this cooperation agreement was renewed for 10 years. As a cooperating State, Canada par- ticipates in ESA deliberative bodies and decision-making and takes part in ESA programmes and activities. Canadian irms can bid for and receive contracts to work on programmes of interest to them. he agreement con- tains a speciic provision ensuring a fair industrial return to Canada. In addition to Canada’s participation in ESA programmes, and as a new fea- ture of this cooperation, the new agreement makes provision for the ESA to take part in Canadian programmes.

Canadian companies are expanding their links with European irms in Earth observation and satellite navigation, and in building the next gener- ation of satellites to provide access to faster and cheaper high-speed com- munications, multimedia and Internet services. Over the past 20 years, through successive cooperation agreements, the ESA has awarded con- tracts to space companies throughout Canada, which have led to the crea- tion of jobs, the acquisition of knowledge and expertise, and the develop- ment of industrial alliances with European contractors.

(1) Japan Aerospace Exploration Agency. (http://www.jaxa.jp/index_e.html)

67 EuropEAn TrAjECTorIES In SpACE LAw — 2007 OA partnership in satellite navigation he European Union and Canada have developed close contacts in glo- bal satellite navigation in order to ensure the compatibility of the Gali- leo programme with existing systems in the perspective of a global GNSS service.

To this end, a joint Working Group on Satellite Navigation was set up in 1999 by the European Commission with Canada. Canada has recently participated in the deinition phase studies of Galileo, providing expertise and funding. Canada has also been associated with ESA work on satellite navigation.

he European Commission and Canada recognise what large potential lies in extending this cooperation to future phases of Galileo in areas such as search and rescue (SAR) activities, industrial cooperation, and the crea- tion of a regional service. hey agree that such cooperation would need to take fully into account rules governing intellectual property rights and the security of the system.

hey will also explore the scope of an agreement intended to deine and guide future Canadian participation in the development and validation phases of Galileo, further promoting satellite navigation technology in an eicient and coherent manner. OInternational Space Station Europe and Canada are also partners in the International Space Station (ISS) project, along with the USA, Japan and Russia. Canada’s main con- tribution to the ISS is the mobile servicing system (MSS). Canadarm2, the space station remote manipulator system (SSRMS), is a sophisticated space ‘arm’ that has played a key role in the construction of the station in orbit, as well as in its continuing operation during the planned 10-year life cycle of the facility (1).

(1) See http://www.space.gc.ca/asc/eng/iss/canadarm2/ for more information.

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CHApTEr 9: A need to clarify the role assigned to ISS he ith European Space Policy Workshop (1) assembled a number of scien- tists specialising in space science, who addressed the balance of the Inter- national Space Station among other progress items such as astronomy.

Used as a scientiic tool, lessons have been learned from this international ISS cooperation, sometimes very bitterly.

On the positive side, the ISS has proved itself as the largest international collaboration ever. It represents a site where great possibilities are present for research and it constitutes the only human outpost in space. One has to turn the clock back 20 years to appreciate what has been achieved since.

On the negative side, the modest European contribution — 8 % of the budget (which had been hard to collect at that time) — does not properly relect Europe’s capabilities. Russia, today, can hardly honour its commit- ment signed in Soviet times. Consequently, the ISS project struggles with under-funding.

Nobody, however, questions the necessity to guarantee ISS’s agreed life- time until 2015. he scientiic society wants the contracting parties to avoid discontinuity in the ongoing programmes. he long-term dimension is felt as an important asset, notably by ensuring international cooperation on a global basis. here are many opportunities to use the ISS further. a. the need to reconsider the operational bases for the iss here is a general conviction among scientists that the USA would not accept a contractual modiication to the ISS agreement. he NASA repre- sentative nevertheless agreed with his European colleagues of the ESA that the role assigned to the ISS deserves to be clariied and even rethought.

A discussion on a coordination roadmap among all partners could pos- sibly lead to a new understanding whereby each and everyone’s role could be established on a non-binding basis and every overlapping avoided.

(1) Fith European Space Policy Workshop, ‘Space science and exploration’, K.U. Leuven, 30 Septem- ber 2004, Prof. Jan Wouters.

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NASA has the big advantage in speaking with a single voice for the United States. he European Scientiic Society esteems there is a need for a unique ‘European Research Centre’ too. However, in establishing its statute, the ISS agreement is not a good model for other agreements. What counts irst is deining the goals and with respect to the functioning, everyone must be aware that when one partner fails, the whole structure collapses. he model to invent is systems-oriented cooperation, i.e. cooperation based on lexible collaboration among appropriate and complementary partners for each programme. his idea is also retained for future ISS cooperation, which would avoid exclusion.

B. the growing importance of Europe in the scientiic area here is a general consciousness among scientists that Europe is the out- spoken No 2 in the scientiic ield, just behind the USA. In some areas, Europe appears even to be No 1. Space exploration is a huge challenge with the USA. he Americans beneit from support at the highest level, however: i.e. presidential support. he Europeans now feel that their posi- tion is not necessarily one of perpetual subcontractor. Since the Lisbon summit, there is a strong commitment to become a prime contractor in many areas.

Both the USA and Europe have planned landings of humans on the Moon and Mars. he Moon is thereby considered as a test bed for a Mars land- ing for humans. NASA has an objective of a new Moon landing in 2020 and a irst Mars-landing around 2025. he ESA is committed to analyse further life conditions as from the ISS, to look for autonomous access to space with the help of the Russians (Soyuz launching from Kourou), to seek early cooperation with China which will become a big competitor in the future, to plan a Mars landing in 2033. A European launcher would be a commercial activity (private sector). he three European priorities in space are thus: • security; • telecommunication; • exploration.

70 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) OComments: First comment

In order to improve Europe’s new image, its contribution to the ISS funding should dramatically increase in the period 2005–15. In our opinion, gradual steps to increasing the budget could be a fair goal. This inancial efort should be accompanied by establishing new research items inspired by European scientists.

Second comment

Europe must speak with a single voice in the scientiic ield during future meetings. A unique ‘European Research Centre’ to be created, which guarantees systems- oriented cooperation and lexible proceedings, must therefore be welcomed.

c. international relection on the future of ISS he heads of space agencies from the USA, Russia, Japan, Europe and Can- ada met in Montreal, on 26 January 2005 to review and further advance ISS cooperation (1). he partners reairmed their agencies’ commitment to meet their ISS obligations and to complete ISS assembly by the end of the decade. NASA announced that the space shuttle will return to light, which will give an opportunity to increase the crew on the station, also thanks to the support of Russian Soyuz spacecrat and the automated logistics re-supply capa- bilities by Russian Progress vehicles, the ATV and HTV spacecrat to be provided by Europe and Japan respectively, as well as the capabilities from potential future commercial providers. he ESA has used the ISS platform to initiate several programmes with Russia’s Rosaviakosmos. he Japanese Aerospace Exploration Agency (JAXA) is also linked up with the ESA, participating in research on board the ISS, as does Canada, whose main contribution is the mobile servicing system (MSS). his partnership enables the safe maintenance of a human presence on- orbit and keeps the ISS in a productive state of operations and utilisation, not forgetting the continued use of Canadarm2 during the hiatus in space shuttle lights. he ISS is planned to be operational during a 10-year life cycle from 2005.

(1) ESA, Press Release No 6-2005 of 27 January 2005.

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CHApTEr 0: Space travel in a privatisation perspective a. Feasibility studies from the 1990s

Japan, the USA and the Russian Federation have all three contributed to building the foundations of space tourism.

Studies aimed at establishing commercial space tourism services for the general public started in 1992 within the space tourism study pro- gramme of the Japanese Rocket Society and reports have been published (in Japanese) on the economics of the development, manufacturing and commercial operation of the ‘Kankoh-maru’, a reusable passenger launch vehicle (1).

It was accepted that civil aviation is the appropriate model for a future pas- senger space travel industry. Space tourism can only be conceived realisti- cally today as the provision of pleasure trips in low Earth orbit (LEO). he Japanese Rocket Society held a series of symposiums as from 1996 to 1997.

From 1995 to 1998, the Space Transportation Association (STA) and NASA conducted a joint study of space tourism of which the inal report ‘General public space travel and tourism’ (2) was published in March 1998.

On 9 August 2001, the Russian space agency Rosaviakosmos and the nation’s top three space companies signed an agreement to pool resources and work together on the commercialisation of Russia’s segment of the International Space Station (ISS) (3). his station was visited by space tourist Dennis Tito who paid USD 20 million for the trip, earlier in same year.

Space tourism was becoming a reality, albeit under a strain in relations between NASA and the Russians.

(1) Collins, P. and Yonemoto, K., ‘Legal and regulatory issues for passenger space travel’, presented at the 49th IAF Congress, 20 September to 2 October 1998, Melbourne, Australia. (2) NASA, NP-1998-3-11-MSFC, www.spacefuture.cm/archive/generalpublicspacetravelandtourism. shtm) (3) http://www.space.com/spacenews/europe/rosaviakosmos.081301.html

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B. First legal framework for space tourism

A Space Tourism Promotion Act of 2001 was introduced at the irst ses- sion of the 107th Congress under No HR 2443, on 10 July 2001 (1). his bill is interesting since it contains an oicial deinition for ‘space tourism’. he term space tourism means travel to, from, or within outer space, or to the surface of a body in space other than Earth, or habitation in outer space, for the purpose of recreation. he key elements are: • travel is related to outer space; • or to a body in space other than Earth — in practical terms of today: the Moon or the ISS; • or habitation in outer space: the idea of installing hotel accommodation in space was already retained by the Japanese and US studies; • for the purpose of recreation: this means that it difers from the sci- ence-oriented space lights carried out by ‘envoys of mankind’. he drat recognises the potentialities of space travel for the beneit of the private sector and the citizens, the role of the Federal Aviation Adminis- tration, and in particular its Oice of Commercial Space Transportation, in establishing the regulatory structure necessary to ensure the safety of US space tourism, the role of NASA in conducting research and develop- ment related to new space technologies and systems, and in facilitating their transfer to the private sector. he view is that the taxpayer should not pay for developing the space tour- ism industry and tourists may not use federal government facilities, except in emergencies.

Furthermore, a special provision prohibits visits to the US portion of the ISS by tourists, in contradiction with Russian behaviour vis-à-vis Dennis Tito and Mark Shuttleworth (2).

With the development of space tourism and its exposure to orbital debris, regulations to avoid the growth of orbital debris should be issued. his problem is one that draws the particular attention of the ILA activities. he Space Law Committee decided at its Berlin Conference (16–21 August

(1) http://thomas.loc.gov/cgi-bin/query (2) Mark Shuttleworth is a South African entrepreneur who became famous as the second ‘space tour- ist’ aboard the International Space Station (Soyuz mission TM-34).

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2004) to continue the review decided on the basis of the ILA International Instrument on Space Debris adopted in 1994.

Finally yet importantly, the Space Tourism Promotion Act of 2001 strongly conirms the obligation to proceed to a privatisation process in space tour- ism, which was already decided in general by the Commercial Space Act of 1998. c. space privatisation principles he USA thus started the privatisation process in space by the Commer- cial Space Act of 1998 (1).

A new progress in legal matters was made when the term ‘payload’ was deined for the carriage of goods by a space transportation vehicle. he term ‘payload’ means anything that a person undertakes to transport to, from or within outer space, or in suborbital trajectory, by means of a space transportation vehicle, but does not include the space transportation vehicle itself except for its components which are speciically designed or adapted for that payload. he Commercial Space Act of 1998 aims at promoting commercial space transportation services by means of space transportation vehicles.

One of the present opportunities is commercialisation of the International Space Station (ISS) under free market principles, having in mind that the space station’s operational costs could so be reduced for all partners including the federal government’s share through NASA.

Payloads thus transported are not exports/imports. he existing legisla- tion, Chapter 701 of Title 49, United States Code, was amended in its Sec- tion 70117, subsection (f) to read as follows: (f) LAUNCH NOT AN EXPORT; REENTRY NOT AN IMPORT: ‘A launch vehicle, re-entry vehicle, or payload that is launched or re-entered is not, because of the launch or re-entry, an export or import, respectively, for pur- poses of a law controlling exports or imports, except that payloads launched pursuant to foreign trade zone procedures as provided for under the Foreign Trade Zone Act (19 USC 81a-81u) shall be considered exports with regard to customs entry.’

(1) Commercial Space Act of 1998, 50th Congress of the United States of America, second session, HR 1702, Washington DC.

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It is our understanding that space transportation vehicles transporting minerals from celestial bodies should direct their payloads to foreign trade zones for processing.

Treatment of space science data such as collected by ISS is considered by the US legislation being commercial items.

Sec. 105 (c) of the US Code provides the following deinition: he term ‘space science data’ includes scientiic data concerning 1) the elemental and mineralogical resources of the Moon, asteroids, planets and their moons, and comets; 2) microgravity acceleration; 3) solar storm monitoring.

Sec. 107 of the US Code indicates sources of Earth science data. hey include remote sensing (f).

An important element of privatisation is shuttle privatisation.

Sec. 204 of the US Code prepares such evolution: (a) POLICY AND PREPARATION — he administrator (note: of NASA) shall prepare for an orderly transition from the federal operation, or fed- eral management of contracted operation, of space transportation systems to the federal purchase of commercial space transportation services for all non-emergency space transportation requirements for transportation to and from Earth orbit, including human, cargo, and mixed payloads. In those preparations, the Administrator shall take into account the need for short- term economies, as well as the goal of restoring the NASA’s research focus and its mandate to promote the fullest possible commercial use of space. As part of those preparations, the administrator shall plan for the potential privatisa- tion of the space shuttle programme. Such plan shall keep safety and cost efectiveness as high priorities ... OComments: First comment

The above legislation is purely American. The EU legislation should be updated as similar developments are now open for European launches.

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The European space strategy was supported by Council resolution of 16 November 2000 (1) which takes note under (5) of the

... growng nvolvement of the prvate sector n the development and operaton of space actvtes and ndustral restructurng; CALLS on the Commsson, together wth the ESA, to look nto condtons for stmulatng prvate nvestment n the space ndustry n Europe, n partcular by strengthenng publc-prvate partnershp; HIGHLIGHTS to ths end the specal mportance to be attached to small and medum-ssed busnesses, equpment manufacturers and subcontractors n general.

Sir Richard Branson launched his new space transportation company in October 2004. He has already received a large number of booking intentions of people who are ready to travel on board the irst Virgin Galactic spaceship that he hopes will be in service during 2009.

On the side of manufacturers, a report called STAR 21 from the European Advisory Group on Aerospace outlines the ways forward for industry. It was presented on 16 July 2002 to the President of the European Commission, at that time, Romano Prodi and advocates a consolidated European space policy with adequate funding aimed at maintaining an independent and competitive access to space, in an operating perspective of 20–30 years, and backed up by European security and defence capabilities.

Second comment

It is the task of the EU to make up the legal framework for space manufacturing and transport industries in all their aspects, including insurance cover for product liability in space manufacture and premium limitations in space transportation.

D. aviation regulation, a model for space carriage?

A space carriage regime could take some of its inspiration from the Con- vention for the Uniication of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, which entered into force on 4 November 2003 (2). he substantive diference between air transport/air travel, on the one hand, and space transport/space travel, on the other is that the national sovereignty principle prevails in aviation and the principle of liberty in outer space activities.

(1) Council resolution of 16 November 2000 on a European space strategy (2000/C 171/02), OJ C 371, 23.12.2000. (2) Montreal Convention 1999, European Transport Law, vol XXXIX, No 6, 2004, pp 765–773.

76 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) he second diference, which is formal, concerns the magnitude of expenditure between aircrat and spacecrat manufacture, the huge difer- entiation in operating costs, including light preparation, and in premium levels for insurance coverage between both sectors.

In wishful thinking, the rules on the liability of the carrier (see Chapter III) could easily be transposed with a number of adaptations however. One cannot deny there is similarity between air and space carriage, both regarding travel of passengers and carriage of cargo (e.g. minerals in the case of space cargo).

In principle, Articles 17 and 18 of the Montreal Convention 1999 regard- ing liability of the carrier could read as follows in the case of the space carrier:

E. Death and injury of passengers — damage to payload 1. he space carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the spacecrat or in the course of any of the operations of embarking, transfer or disembarking. 2. he space carrier is liable for damage sustained in case of destruction or loss of, or of damage to, payload belonging to the passenger upon condi- tion only that the event which caused the destruction, loss or damage took place on board the spacecrat or during any period within which the per- sonal payload was in the charge of the space carrier. However, the space carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the personal payload.

F. Damage to cargo (e.g. minerals, rare stones) 1. he space carrier is liable for damage sustained in the event of the destruc- tion or loss of, or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage in space or on board a spacecrat. 2. However, the space carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following: (a) inherent cause of that cargo; (b) an act of war or an armed conlict; (c) an act of public authority carried out in connection with the entry of the cargo.

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3. he carriage in space within the meaning of paragraph 1 of this article comprises the period during which the cargo is in the charge of the space carrier. he compensation regime of Articles 21 and 22 applicable to carriage by air could also provide some ideas for a future regime of carriage in space, taking into account the magnitude of expenditure, on the one hand, and the necessity to ix limits, on the other.

With respect to principles, the following could be taken over: • compensation expressed in special drawing rights; • no compensation due by the space carrier in the event of negligence or other wrongful act or omission of the passenger himself or of a third party.

So far, the temptation is to use the Montreal Convention basis.

G. the problem of insuring a space passenger

It will not be easy to introduce a legal framework for covering a space pas- senger against his/her own risks. As long as there are no statistics available on the safety of private space travel, it will be diicult to ind underwriters prepared to fully cover space carriage risks.

Space passengers will therefore be required to sign waivers shielding the authorities as well as private tourism operators from any damage claims.

What kind of insurance will be necessary? It could go along with stand- ards on the physical condition of the passenger as ater reporting on the preparatory training to space light.

Public authorities — such as the US government has already declared — will deny any liability in space tourism risks, as space travel belongs to private business.

On the other hand, they will foster new business. In early 2004, the US government announced for instance that a new licensing system is being drated by the FAA that would let entrepreneurs start ofering sightseeing lights, for paying passengers. he FAA permits are also sought to start testing reusable spacecrat, since proitability is the real challenge for all concerned.

78 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) OComments: First comment There is a fundamental diference in views between the European Union and third countries, mainly the USA. The EU wants to become a full member of the Montreal Convention, which has been ratiied by most EC members. At the end of 2004, the overall membership was 29 after ratiication by Qatar. The EU considers the Montreal Convention as a ‘regional organisation’, whilst most third countries share the opinion that this convention, like the Chicago and Warsaw conventions, is an ‘international institution dealing with sovereign States’ in the same manner as the IATA and ICAO. The USA, for its part, has never abandoned its full sovereignty rights whatever membership, albeit to ‘regional’ or ‘international organisations’. The EU argues that many aspects treated in the Montreal Convention are subject to EU-wide jurisdiction, the European Court of Justice, while the Commission’s Competition DG has competence in matters of competition (State aids, dominant positions, etc.). As space travel must be organised in a sphere of liberty, reference to the Montreal Convention would not be helpful for the EU.

Second comment European agencies with pan-European membership such as Eurocontrol and the ESA have recently accepted membership of the EC. On 8 October 2002 indeed, the Eurocontrol Member States (i.e. with Norway and Switzerland) signed a protocol on the accession of the EC to the revised Eurocontrol Convention. Pending its entry into force after ratiication by all parties, certain provisions of the protocol are already provisionally applicable. This constitutes, in a European perspective, a further step to breaking absolute State sovereignty.

Third comment For non-Americans it is not possible to approve recent US legislation known as the ‘ifth jurisdiction’ in air carriage. This jurisdiction is only applicable to US citizens, on a worldwide basis, with respect to passenger claims. When looking at the US Space Tourism Promotion Act of 2001, although the subject is of international interest, the provisions are only taken in a purely American perspective (loans, protection, administration, space tourism corporations, licences and laws of the United States, etc.).

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CHApTEr : Developments in the International Telecommunications Union (ITU)

a. Historical background

I. First commitments in international telecommunications

Commitments in telecommunications services were irst made during the Uruguay Round (1986–94), mostly in value-added services. In extended negotiations thereater (1994–97), members negotiated on basic telecom- munications services. Since then, new commitments have been made either by new members, upon accession, or in a unilateral fashion by an existing member.

he post-Uruguay round of negotiations was aimed at more liberalisation. he negotiations began in May 1994. During these negotiations, concerns related to establishing a regulatory environment conductive to market entry were discussed at length.

II. Reference paper

A set of principles covering matters such as competition safeguards, inter- connection guarantees, transparent licensing processes and the independ- ence of regulators were elaborated in a commonly negotiated text called the ‘reference paper’ (1996).

his paper contains deinitions and principles on the regulatory frame- work for the basic telecommunications services.

Deinitions (1) O• Users: service consumers and service suppliers. • Essential facilities: the facilities of a public telecommunications trans- port network or service that: (a) are exclusively or predominantly provided by a single or limited number of suppliers; and

(1) www.wto.org

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(b) cannot feasibly be economically or technically substituted in order to provide a service. • Major supplier: a supplier which has the ability to materially afect the terms of participation (having regard to price and supply) in the rel- evant market for basic telecommunications services as a result of: (a) control over essential facilities; or (b) use of its position in the market. • Basic telecommunications services: include all telecommunication services, both public and private that involve end-to-end transmission of customer supplier information. • Value-added telecommunication services: telecommunications for which suppliers add value to the customer’s information by enhancing its form or content or by providing for its storage and retrieval. OPrinciples (1) Various principles govern the basic telecommunications services, such as competitive safeguards, interconnection, universal service allocation and use of scarce resources. he most important is the principle of competitive safeguards.

Principle of competitive safeguards

he competitive safeguards include the prevention of anti-competitive practices in telecommunications. To ensure this prevention, ‘appropriate measures shall be maintained for the purpose of preventing suppliers who, alone or together, are a major supplier, from engaging in or continuing anti-competitive practices’ (2).

Among anti-competitive practices, the following have been speciically underlined (3):

(a) engaging in anti-competitive cross-subsidisation;

(b) using information obtained from competitors with anti-competitive results;

(1) www.wto.org (2) Reference paper on www.wto.org (3) Idem.

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(c) not making available to other services suppliers on a timely basis tech- nical information about essential facilities and commercially relevant information that are necessary for them to provide services.

Principle of interconnection his principle ‘applies to linking with suppliers providing public telecom- munications transport networks or services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier, where speciic commitments are undertaken’ (1).

Principle of universal service

Any member has the right to deine the kind of universal service obli- gation it wishes to maintain. Such obligations will not be regarded as anti-competitive per se, provided they are administered in a transparent, non-discriminatory and competitively neutral manner and are not more burdensome than necessary for the kind of universal service deined by the member.

Principle of allocation and use of scarce resources

Any procedures for the allocation and use of scarce resources, including frequencies, numbers and rights of way, will be carried out in an objective, timely, transparent and non-discriminatory manner. he current state of allocated frequency bands will be made publicly available, but detailed identiication of frequencies allocated for speciic government uses is not required.

Other general principles were included in this paper such as: • public availability of the procedures for interconnection negotiations; • transparency of interconnection arrangements; • dispute settlement; • public availability of licensing criteria; • independent regulators.

(1) Reference paper on www.wto.org.

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III. The new negotiations

In the GATS, the Member States of the WTO were engaged to liberalise the services market progressively. hey had to begin the new negotiations in 2000.

Currently, telecommunications, like all services, are included in the new services negotiations (1), which actually began in January 2000. Several members or groups of members have submitted negotiating proposals in telecommunications services.

Negotiations on services were incorporated into the new Doha agenda. he WTO General Agreement on Trade in Services (GATS) commits members’ governments to undertake negotiations on speciic issues and to enter into successive rounds of negotiations to progressively liberalise trade in services. he irst round had to start no later than ive years from 1995.

Accordingly, the services negotiations started oicially in early 2000 under the Council for Trade in Services. In March 2001, the Services Council fulilled a key element in the negotiating mandate by establishing the negotiating guidelines and procedures. he Doha Declaration endorses the work already done, reairms the negotiating guidelines and procedures, and establishes some key elements of the timetable including, most importantly, the deadline for the conclu- sion of the negotiations as part of a single undertaking.

B. american dominance

Analysing the 50 biggest world manufacturers in the telecommunications industry in 1997, the lion’s share in revenue was American:

Sales Share

US: 24 enterprises usD 32.2 billion 76 %

Europe: 15 enterprises usD 8.4 billion 18.5 %

Asia: 9 enterprises usD 2.5 billion 5.5 %

(1) http://www.wto.org/english/tratop_e/serv_e/s_negs_e.htm

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Europe had to challenge a number of disadvantages (1): • the price-ixing mechanisms for the international quotations are expressed in USD; • the US competitors get four times more public subsidies for R & D; • the domestic market place for European industry was restricted for a long time, but the Treaty of Maastricht (1991) has created broader per- spectives from November 1993:

° Article 3: integration process of the industrial economic actors,

° Article 129 B: interconnection and interoperability of the national networks, as well as access to them,

° Article 130: endeavours to accelerate the industry’s adaptation to structural changes.

As from 1 January 1998, the telecommunications market has been totally liberalised in Europe.

Under the growing inluence of deregulation, telecommunication net- works are becoming increasingly global with a view to addressing world- wide markets.

Aside from regulatory consideration, technological progress in the ield of satellite communication has reached a level of maturity allowing deploy- ing global systems with capability to serve millions of inexpensive user terminals. he space segment, which is the only one of interest in our con- text, is heavily involved by the deployment of high-capacity global con- stellations of satellites supported by new technology (2).

Consequently, the terminal and service markets are moving towards mass markets for consumer equipment. Multimedia services are provided by satellite. Concepts towards global systems were made possible through exploitation of R & D work carried out over the period 1980–2000 and having primarily concentrated on the development of new technologies, in particular on board the spacecrat. he USA is certainly the most aggressive player in proposing new global systems.

(1) Salin, P., Les agents économiques européens face à l’intégration, McGill University (Space Law), Montreal. (2) European Commission, Research DG, Advanced Communications Technologies and Services, Sat- ellite Working Group, Report on Research and Development, 30 April 1998.

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On the European side, the Skybridge system of Alcatel also allows to ofer multimedia interactive services to small user dishes. c. space segment requirements

Requirements related to space today include: • high-capacity satellites; • extensive use of advanced antenna systems, capable of generating tens if not hundreds of spot beams; • extensive use of on-board digital technologies and components; • highly reconigurable systems, capable of allocating power where the traic is; • use of low Earth orbit (LEO) or medium Earth orbit (MEO) systems, although GEO remains a possible and eicient option; • integration with terrestrial telecommunication networks, and adoption of terrestrial standards where feasible.

Networking/interoperability requirements are becoming increasingly important as the systems are growing global and designed to support user application seamlessly with terrestrial infrastructure.

With prospects of limited volume of production for space compared to terrestrial networks, there is a commercial handicap. he availability of European space-related technology, however, should be considered as strategic to keep European industry in competition.

Good reasons are higher costs in obtaining (if possible) some key tech- nologies from US procurement sources, as the commercial conditions imposed by US companies to non-US manufacturers are sometimes discriminatory.

Limited availability from the USA is oten inspired by ‘national security’: leading edge technology will not be exported for reason of military con- straints, hence giving European manufacturers access only to second-class technology.

In order to maintain its capability to play a role, European industry must remain capable of mastering all major technologies required in the satel- lite communication value chain. his has a cost which en connaissance de cause cannot be compensated by a suicient level of return but must be accepted for strategic reasons in an overall policy perspective.

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D. three diferent approaches: the USA, Japan, the ESA... and newcomers appear

I. The US (NASA) perspective

Reports by NASA and the National Science Foundation indicate the future prospects for the US space industry look bright, as a consequence of a long lasting R & D efort. To maintain its leading position, however, it is con- sidered vital to continue investments in a number of key areas. NASA has both military and civil programmes that give a better competitive position to the US industry and the US budgets remain four times higher than European budgets.

II. The Japanese perspective

In Japan, the situation is more visible thanks to the fact that satellite com- munication programmes are not directly coupled with military activities. In its ‘Vision 21’ document, policies in the ield of telecommunication for the current century are highlighted.

In particular, developments leading to implementation of second genera- tion LEO systems by 2010 are considered essential as well as developments for deployment of a ixed service very high capacity space infrastructure. Japanese budgets are comparable to those of Europe but the more united situation favours much more ambitious plans.

III. The European (ESA) perspective

If the US and Japan are still relying on space demonstrators, Europe has limited ambitions in this ield. he ESA was moving to a shorter-term approach over the past years. European budgets are fragmented twice: on a national basis and on a civilian-military basis. his means a double handicap. he European Commission has taken the challenge of develop- ing the competitiveness of the European economy. With such an objective, regulatory steps must be taken, and in the space and telecommunications satellite sectors too. he White Paper on European space policy (adopted in late 2003) suggests an action plan for implementing the European space policy. he observa- tion ‘Europe needs to be better equipped’ means a broader technological base, including space segment communication technology.

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IV. Other international developments

he ith, sixth and future seventh framework programmes for research have introduced great interest for EU information and communication technology (ICT).

he two big trends that have been identiied are the increasing global competition and the increasing complexity of systems. We are no longer talking of three poles of competition, namely the USA, Japan and the EU. Now the emerging economies (China, India, Brazil, etc.) are becoming a challenge too, both in terms of quality and production costs.

he EU must increase its competitiveness and bring in skilled researchers from all over the world. Space research will be one of the new axes of the seventh framework programme (1). OComments: It will be imperative not to invest solely in basic research at university. Basic research must have clear connections with industrial developments.

(1) ‘FP7 will address new global paradigm, says Acting Head of Unit Khalil Rouhana’, Cordis Focus, No 247, 14 June 2004.

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CHApTEr 2: Multilateral solutions against increasing environmental damage originating in space a. the environmental problem globally: from rio to Kyoto

A basic legal text is still Decision 94/69/EC of 15 December 1993 (OJ L 33, 7.2.1994, p. 11) which approves the conclusion of the United Nations Framework Convention on Climate Change.

During the UN Conference on Environment and Development in Rio de Janeiro from 3 to 14 June 1992, the European Community and all its Member States signed the United Nations Framework Convention on Cli- mate Change. he ultimate objective of the Convention (see its Article 2) is to achieve ‘stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system, within a time frame suicient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threat- ened and to enable economic development to proceed in a sustainable manner’. he principle being established, the Kyoto Climate Protocol was unani- mously adopted, ater lengthy negotiations, on 10 December 1997, at the third session of the Conference of the Parties. For the irst time, the Protocol, signed by the 160 parties, places a legally binding obligation on industrialised countries to achieve concrete reductions in their emissions of greenhouse gases: between 2008 and 2012, they must reduce their emis- sion of carbon dioxide (CO2), methane (CH4) and nitrous oxide (N2O), the CFC substitutes HFC and PFC, as well as SF6 (sulphur hexaluoride) by at least 5 % compared with 1990 levels.

B. signiicance of the Kyoto Climate Protocol he EU obtained a number of points. • Joint implementation of climate protection projects: he instrument of joint implementation allows existing cost diferences between coun- tries to be exploited for reduction measures. he Protocol states that

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initially only industrialised countries are able to ofset emission reduc- tions achieved abroad against their own national reduction targets. he Protocol did not include developing countries in view of the pilot phase for projects of this kind adopted in Berlin in 1995, which is set to con- tinue until the year 2000. • Joint target achievement: he industrialised countries may achieve their reduction commitments either individually or jointly. his was important for the EU, since its 15 Member States intend to redistribute their joint target on the basis of a code. his will permit selected States to increase their emissions, which must then be compensated by above- average reductions in other States, including Germany. he provisional breakdown within the EU adopted by the EU Council of Ministers in March 1997 needs to be adjusted in line with the Kyoto outcome. • Trading with emission rights: A country’s reduction target is deined as the level of emissions it must comply with over a ive-year period. Reductions, which exceed the target in a given period (over-compli- ance), may be ofset against subsequent periods. However, they may also be sold to States that are unable to achieve their targets by any other means. At the EU’s insistence, the Protocol speciies that such trading with emission certiicates may only be implemented in addition to national measures. However, the EU has thus far failed to achieve a percentile limitation on trading. Regulations that are more detailed were formulated by the next Conference of the Parties in Buenos Aires in November 1998. • Policies and measures: he EU, with the support of the States associ- ated with it as well as of Switzerland, has been successful in anchoring a list of key climate protection policies and measures in the Protocol. However, ierce resistance from other industrialised countries and the developing countries prevented these from being made binding. • Inclusion of sinks (particularly forests): Changes in carbon levels since 1990, attributable to human activities such as forestation, reforestation and deforestation, will be taken into account when evaluating compli- ance with reduction commitments. he Fourth Conference of the Par- ties is to decide on guidelines for the subsequent inclusion of additional sinks. • Inclusion of developing countries: he industrialised nations had hoped to agree on concrete reduction obligations for developing countries as well, but this was only achieved to a limited extent in Kyoto. he Pro- tocol states that all parties should formulate national programmes for climate protection and adjustment measures, draw up policies and pro-

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grammes for the efective transfer of environmental technology along with data and models for national emission inventories, and improve education and training programmes. Citing the Berlin Mandate, the developing countries not only blocked fresh negotiations on their future commitments, but also prevented a ruling on the voluntary adoption of concrete obligations to limit or reduce greenhouse gas emissions. OComments: First comment

There was no precision with respect to the entry into force of the Protocol, as it was conditional on • ratiication by at least 55 parties; • representation of the industrialised countries amongst the parties by a

proportion equivalent to 55 % of the CO2 emissions caused by them in 1990.

Second comment

Before the trading system could be set in motion, it was necessary to formulate guidelines on the of-setting and monitoring of such transactions, so that it would be impossible to use this instrument as a means of circumventing reduction obligations. These guidelines were only formulated in 2004 (1).

Third comment

It needs to be stressed that we cannot stand still with the Kyoto achievements, in particular from the research point of view. In the longer term, the obligations of the parties must be stepped up via the envisaged regular review mechanism (2).

Fourth comment

The EU is committed to reducing its collective emissions of greenhouse gases by 8 % below its emissions level in 1990 in the 2008–12 period. However, in 2004 total greenhouse gas emissions in the EU were expected to fall by 4.7 % from 1990 to 2010 assuming adoption and implementation of current measures, leaving a shortfall of 3.3 % compared with the target of 8 % reduction. If the EU is to achieve its Kyoto target, substantial further action and additional policies are needed.

(1) Commission decision of 29 January 2004 establishing guidelines for the monitoring and reporting of greenhouse gas emissions pursuant to Directive 2003/87/EC of the European Parliament and of the Council, OJ L 59, 26.2.2004.

(2)Council decision amending Decision 93/389/EEC for a monitoring mechanism of Community CO2 and other greenhouse gas emissions.

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Fifth comment

The largest polluting country is the USA, which so far has not agreed to join the Kyoto Climate Protocol. During his visit in Brussels on 22 February 2005, President Bush received a strong signal from the EU Member States and the Commission to participate. What is in the interest of the USA (by not joining Kyoto) is not necessarily in the interest of the Earth. The Russian Federation joined the Kyoto Protocol in 2004, which meant a big step forwards in the multilateral relationship. c. the environmental liability with regards to the prevention and remedying of environmental damage

One of the recitals of Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (1) mentions airborne elements: Recital (4): ‘Environmental damage also includes damage caused by airborne elements as far as they cause damage to water, land or protected species or natural habitats.’ he link with ‘damage’ in this case is rather indirect, by contributing to additional greenhouse efects and global warming.

Because of the principles involved, i.e. liability based on the ‘polluter-pays’ principle, indicated in the Treaty establishing a Constitution for Europe , to prevent and remedy environmental damage, on the one hand, and the principle of sustainable development, on the other, it will be necessary to look carefully at what will happen next, taking into account that Directive 2004/35/EC shall only be efective from 30 April 2007 (Article 19 – Imple- mentation) and research could meanwhile inluence future legislation.

D. protection of the environment, a key policy element for the Eu

‘Preserving, protecting and improving the quality of the environment ... promoting measures at international level to deal with regional or world- wide environmental problems’ are objectives which stand central in the

(1) Recital (4) in Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004, OJ L 143, 30.4.2004.

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Treaty and would probably remain in future Treaty updates (1). hey devote to a long tradition going back as far as the Treaty of Rome (1957). he general principles to be respected (2) are the following: • that the policy shall be based on the precautionary principle; • that preventive action should be taken; • that environmental damage should as a priority be rectiied at source; • that the polluter should pay. he EU legislator is conscious that global pollution can only be addressed by collaborating with international organisations, irst and foremost the United Nations.

But Europe also has its own responsibilities.

At the Gothenburg Summit in June 2001, the European Council called for ‘establishing by 2008 a European capacity for global monitoring for environment and security’. As a response, the global monitoring for the environment and security (GMES) was set up jointly by the European Commission and the European Space Agency. his is where space comes in.

GMES ensures Europe’s interest to be an actor on the global scene.

In February 2004, it was announced that GMES was ready for the imple- mentation phase, ater a three-year exploratory period. he signature on 25 November 2003 between the EC and the ESA of a cooperation agreement has laid the basis for joint projects and common management structures (see Annex: the ESA Convention in full) (3).

Eight ields of cooperation were identiied (Article 3): • science (i.e. astronomy, astrophysics); • technology (i.e. space technologies); • Earth observation (notably environmental protection); • navigation (transport);

(1) Treaty establishing a Constitution for Europe, OJ C 310, 16.12.2004, Volume 47, p. 103, Section 5 Environment, Article III-233, 1 a) and d). (2) Idem, Article III-233, 2. (3) ESA/C (2003)125 — Framework agreement between the European Community and the European Space Agency.

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• communication by satellites (information society); • human space light and micro-gravity; • launchers; • radio spectrum policy related to space.

However, the parties may identify and develop new ields for cooperation.

GMES appears as a irst joint initiative and this is fully a space-related activity.

E. implementing GMEs

Over the past two decades, considerable progress has been made in sup- plying data from satellites. Observation from orbiting satellites is a glo- bal tool that can continuously observe every corner of the Earth, provide global assessments and monitor speciic locations. he GMES means a capacity of sustainable services and networks. It has the potential to cover a wide range of policies in support of: • land management: agricultural policies, sustainable development of crops, early warning for food security, soil protection, management of natural resources, watching of bio-diversity, cadastre, urban planning; • ocean monitoring: management of ishery resources, climate change, maritime navigation safety, hurricane formation; • atmosphere monitoring: understanding of climate change, analysis of weather conditions, measurement of pollutants in space; • water resources management: a priority at the Johannesburg World Summit on sustainable development in 2002 as access to clean water is still a problem in the developing world; • risk management: information on industrial hazards, loods, storms, earthquakes, forest ires, landslides and drought; tools for security policies. he Kyoto Summit has established environmental goals. GMES will con- tribute as a support of Europe’s environmental commitments. In Febru- ary 2004, it was announced GMES was ready for the implementation phase ater a three-year exploratory period. It means support of Europe’s environmental commitments such as monitoring atmospheric processes, oceanic conditions and coastal zones.

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F. pollution of the outer space environment

I. Debris

Man’s irresponsibility and lack of foresight about nature’s possibilities to regenerate itself has not been limited to the boundaries of the Earth, but has begun to pollute outer space (1).

A high level of contamination can be detected in speciic orbits round the Earth between 500 km and 2 000 km, in LEO, and in the geostationary orbit (GEO) at 35 786 km. Since the beginning of the space age, objects have been launched into space, and when they become inactive, volun- tarily or through accident or technical failure, they have increased the number of space debris. his increase gives rise to collisions with active space objects. Exceptionally, some of these pieces may fall on the surface of the Earth. he most dramatic case was in 1978 when the satellite Cos- mos 954 polluted the northern area of Canada with radioactive debris. he ESA has studied the problem and, in April 1993, it organised the irst European Conference on Space Debris in Darmstadt, Germany. Its space debris research programme contains studies about technical evaluations and solutions.

II. Emissions

Aviation and space rockets/shuttles are a small but growing source of greenhouse gas emissions.

Pressure is growing within the European Union to push the aviation indus- try, which is the most concerned, to limit the amount of carbon dioxide it produces (2).

III. Contrails

Contrails (condensation trails caused by aviation and space vehicles) were not considered likely to cause environmental damage according to the state of scientiic and technical knowledge at the time of the Rio and Kyoto conferences.

(1) Outlook on space law over the next 30 years: essays published for the 30th anniversary of the Outer Space Treaty, Kluwer Law International, 1997. (2) Statement of Mr Peter Vis, acting Head of Unit at the European Commission, in London on 22 No- vember 2004, reported by the Financial Times, 23 November 2004.

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But with the latest developments in atmospheric research — the joint research of the ESA and Eurocontrol on contrails and cirrus clouds — it now appears that contrails are a much bigger problem for the environment than the emission gases by aviation and space vehicles and a bigger con- tribution to global climate warming. Contrail avoidance to the maximum possible level has become a major environmental objective and driver. herefore, the ESA and Eurocontrol decided in June 2002 to start a joint research project from September 2002 which originally was to last for two years but which was prolonged for another year up to 2005. he ESA is the funding party whilst Eurocontrol is the principal data provider.

Both agencies aim at improving the quality of research on reliable detec- tion from space of contrail-induced cirrus, establishing correlation with air and space traic density and estimating cirrus-related global warming.

Eurocontrol thereby intends to validate a contrail prediction model and the feasibility of a contrail/cirrus prediction service.

It is obvious that new research results in modiied basic elements and their appreciation in the global picture (1).

G. Kyoto celebrations On 16 February 2005, celebrations across the globe marked the coming into force of the Kyoto Protocol on Global Warming. From that date, 35 industrialised countries are legally bound to reduce their emissions of greenhouse gases below 1990 levels by 2012. But the US, which accounts for a quarter of all greenhouse gas emissions, has rejected the Pro- tocol, while rapidly developing countries such as China and India are not subject to restraints. (2) OComments: First comment

Need for illing in certain lacunae in space law

Solutions to the problem of the pollution of outer space as a result of space debris must combine the technical aspects with the appropriate legal framework. Legal aspects include the international responsibility for the situation, the lack of

(1) Eurontrol Press Open Day — ‘ATM and the environment’, Andrew Watt, 20 September 2004. (2) Financial Times, 14 February 2005.

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deinition of certain basic concepts and, consequently, legal lacunae concerning speciic space activities.

For example, there is the lack of a deinition of ‘extra-atmospheric’ space, the deinition of a ‘space object’ is very vague and the notion of ‘launch’ deserves to be clariied. There is no exact distinction between the terms ‘space object’ and ‘space debris’ either. How can the international community organise ‘preventive action’ in such circumstances?

Second comment

The need for a catalogue of space debris

Such a catalogue is necessary in order to organise the destruction of space debris and diminish the risk of collision in space. The collision hazard in the LEO is of a magnitude hundreds of times greater than that in the GEO. Technical solutions are either creating a ‘cemetery orbit’ above GEO or pushing debris towards Earth from LEO for disintegrating on re-entry into the Earth’s atmosphere. From a legal point of view, such a catalogue could also pinpoint the country of origin of debris when it comes to damage, taking into account the Constitution’s principle that ‘the polluter should pay’.

Third comment

Drafting of a code of conduct

Using the framework of the United Nations to bring together the greatest number of States that wish to combat the deterioration of the space environment, the drafting of a code of conduct could contain both corrective and preventive rules by: • determining the number of satellites eligible for launching per year with the goal of stopping the increase of space debris; this corresponds to the Treaty establishing a Constitution for Europe, Article III-233 which provides: ‘environmental damage should as a priority be rectiied at source’; • establishing technical conditions and categories of satellites; • envisaging for each satellite a reserve of fuel and its own propulsion system to enable it to remove itself into a ‘cemetery orbit’ at the end of its active lifetime; • providing a narrow band in LEO within the conines of the atmosphere starting approximately at 300 km above the Earth, below which there would be a system for self-cleaning debris.

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H. sustainable spatial development

Important European initiatives include: • the European Environment Agency; • Eumetsat, Europe’s Meteorological Satellite Organisation; • Research DG’s Space Conferences and Exhibition in Brussels (12–20 February 2005).

I. The European Environment Agency (1) OHistory he regulation establishing the EEA was adopted by the EU in 1990. It came into force in late 1993 immediately ater the decision was taken to locate the EEA in Copenhagen. Real work started in 1994. he regulation also established the European Environment Information and Observation Network (Eionet). he present multiannual work programme is the EEA strategy 2004–08. OMission he European Environment Agency is the EU body dedicated to provid- ing sound, independent information on the environment. It constitutes a major information source for those involved in developing, adopting, implementing and evaluating environmental policy, and for the public.

he information provided by the EEA comes from a wide range of sources. One major source is the European environment information and obser- vation network (Eionet). he EEA is responsible for developing the net- work and coordinating its activities. To do this, it works closely together with the national focal points, essentially national environment agencies or environment ministries in the member countries (Member States of the EU and some others). hey are responsible for coordinating national networks involving many institutions (about 300 in total).

he main tasks of the national focal points are to help identify information needs, to capture and channel data and information from monitoring and other activities in the member countries to the EEA, to support the EEA

(1) he European Environment Agency: who we are/what we do/how we do it, Publications Oice, Lux- embourg. www.eea.eu.int

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in the analysis and use of information, and to assist in communicating the EEA information to end users in the member countries.

To support data collection, management and analysis it has established and works closely with ive European topic centres covering water, air and climate change, biological diversity, resource and waste management, and the terrestrial environment.

Other important sources of information are European and international organisations such as: • the Statistical Oice (Eurostat) and the Joint Research Centre (JRC) of the European Commission; • the Organisation for Economic Cooperation and Development (OECD); • the United Nations Environment Programme (UNEP); • the Food and Agriculture Organisation of the United Nations (FAO); • the World Health Organisation (WHO).

As well as using their information, it also cooperates with these and other organisations in producing information for clients and a wide range of users.

he main clients are the European Commission, the European Parliament, the Council — especially through the changing presidencies — and the member countries. In addition to this central group of users, it also serves other EU institutions such as the European Economic and Social Commit- tee, the Committee of the Regions and the European Investment Bank.

Outside the EU institutions, the business community, academics, non-gov- ernmental organisations and other parts of civil society are also important users of its information. OMembership All Member States of the EU are members. Membership is also open to European countries who are not Member States of the EU. In early 2005, the EEA had 31 member countries: 27 EU Member States together with Iceland, Liechtenstein, Norway, and Turkey. Switzerland is set to be the next to join. Albania, Bosnia-Herzegovina, Croatia, the former Yugoslav Republic of Macedonia, Serbia and Montenegro have also applied for membership.

98 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) OLinks with space activities A satellite-imaging programme undertaken jointly by the Joint Research Centre of the European Commission and the EEA, called IMAGE2000, transmits a number of data, which are processed by Corine Land Cover 2000 (CLC2000) in the framework of EEA and Eionet.

A selection of Corine Land Cover applications includes (1): • tackling of climate change, which is a global problem; • sustainable spatial development, in a European perspective; • halting loss of biodiversity, which is of interest to all member countries; • protecting human health and quality of life, afecting each locality in member countries.

Corine Land Cover 2000 is an update for the reference year 2000 of the irst database under the same name, which was inalised in the early 1990s as part of the European Commission programme to COoRdinate INfor- mation on the Environment. It provides consistent information on land cover and land cover changes during the past decade across Europe.

CLC2000 is based on the photo-interpretation of satellite images by the national teams of the participating countries. he resulting national land cover inventories are further integrated into a seamless land cover map of Europe. he resulting European database is based on standard methodol- ogy and nomenclature.

CLC2000 shows the land cover changes in ecosystems such as forests, lakes, pastures, etc. and the impact of human activities (such as dams, urbanisation, transport, etc.) on land use. Forty-four land cover classes are used to map changes over time, all of which tell their own story of how decisions made across Europe have led to alternations in the landscape. OImpact of Corine he crucial importance of CLC2000 results from the processing of sat- ellite data to environmental information and its subsequent network dissemination.

(1) European Environment Agency, Corine Land Cover 2000: mapping a decade of change, Publica- tions Oice, Luxembourg, 1994. www.eea.eu.int

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Application examples include: • most European glaciers are retreating and losing mass and extent: gla- cier retreat might have adverse impacts on regional water resources; • CLC2000 constitutes a tool for assessing the efectiveness of agricul- tural policy, measuring deforestation or variation in biodiversity, con- tributing to the development of green networks, and establishing crop cadastres; • CLC2000 enables the mapping of the impact of environmental disas- ters for example the Prestige disaster in 2002 which covered more than 1 000 beaches in Spain with oil tides.

II. Europe’s Meteorological Satellite Organisation: Eumetsat (1) OHistory Eumetsat is an international organisation founded in 1986. It is one of the global players in the meteorological community contributing to interna- tional cooperation projects.

With the 2002 launch of the llite Meteosat-8 (advanced second genera- tion of meteo-satellites), images are now delivered every 15 minutes in 12 spectral channels. OMission Eumetsat is able to reliably predict the weather, especially extreme weather conditions. A signiicant contribution to this achievement is provided by satellites.

Eumetsat is committed to exploitingropean operational systems of mete- orological satellites, providing high-uality data for weather observations from space.

he second mission consists of analysing the observation data to aid the global monitoring of climate and detect global climatic changes.

(1) Eumetsat, Europe’s Meteorological Satellite Organisation, www.eumetsat.de January 2005.

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III. DG Research’s Space Conferences and Exhibitions in Brussels (12–20 February 2005) (1)

Addressing the theme ‘Celebrating our planet while reaching for the stars’, a number of events were organised with a view to the hird Earth Obser- vation Summit on 16 February 2005 in Brussels.

‘his summit will help shape future Earth observation capabilities and applications, and increase cooperation in space, especially vis-à-vis the developing world.’

‘Better-coordinated observation systems could save lives and preserve resources. he recent Asian tsunami [on 26 December 2004], which spread devastation across 12 countries and led to the loss of hundreds of thousands lives, tragically underlines the increasing importance of antici- pation, planning and response.’ (2)

On 17 and 18 February 2005, experts from all space-faring agencies attended an International Conference on Cooperation in Space, address- ing the theme ‘Winning through cooperation: sharing the beneits of space’.

A live link-up with the astronauts on board the ISS, key speeches by the ESA Director-General Jean-Jacques Dordain and EC Vice-President Günter Verheugen, a workshop on ‘ISS and beyond’, as well as an Earth and Space Exhibition were media highlights.

IV. Recent analysis of the ITU environment (3)

Telecommunications and information and communication technologies (ICT) are the driving forces in the evolution towards worldwide networks, which also command ITU’s strategies. he worldwide use of the principal means of telecommunication increased dramatically between 1991 and 2002.

(1) Earth and Space Week, 12–20 February 2005, Brussels, sponsored by European Commission, ESA and FNAC. (2) ESA, Press Release, No 07-2005, Paris, 1 February 2005. (3) ITU, International Telecommunications Union, World Conference on telecommunication devel- opment (WC TD-02), Document 2.F, 29 December 2001, Turkey, 18-27 March 2002.

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Table 3: Indicators of utilisation of worldwide means of telecommunication

In millions 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 Fixed telephone 564 574 606 645 691 741 795 849 907 972 1040 1115 lines GSM users (cellular) 16 23 34 56 91 144 215 319 491 736 1030 1390 Internet users 4 7 9 16 34 58 96 155 241 359 505 655 Personal computers 130 150 170 190 230 260 320 370 430 500 550 605 Source: ITu.

Although infrastructures of ixed telephone lines have been increased through regulation, the growth in the number of mobile telephone and Internet users has been spectacular, based on recent IC technology developments.

While the market for ixed telephone lines doubled between 1991 and 2002, the market for PCs more than quadrupled in the same period. he rapid expansion of the Internet is probably the most important phe- nomenon observed recently in the communications’ industry.

ICTs are powerful instruments. hanks to them, it will be possible to antic- ipate an integrated development, with a number of social and economical advantages in the long term. In many countries, it has been noticed that the development of telecommunications has contributed to economic growth. i. consequences for itu • he Internet, which allows the multiplication of the potential for tele- phone connections, ofers, together with all ICTs, numerous advantages, which are subject to reaching an enormous reservoir of customers geo- graphically spread. At the micro-economic level, the Internet provides new ways of marketing which allow cost reduction and market devel- opment for enterprises, and facilitates scale and dimension economies. Consequently, ITU members are drastically beneiting from increases in equipment and services. • he ICTs beneit both the rich and the least developed countries pro- vided that the tools are properly used. Networks without boundaries

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can be built up in every domain. For the least developed countries, the use of ICTs means the acceleration of social and economic develop- ment and a better integration within world markets. • he new technologies boost the ongoing move to globalisation where the WTO (World Trade Organisation) takes care of GATS arrange- ments, trade rules and dispute settlements, whilst the ITU provides the regulatory framework for all technical matters, which is eligible for adoption by Member States. Since the early 1990s, more than 150 coun- tries have adopted the new ITU rules or modiied the existing ones accordingly. OComments: First comment

The European Union is not a member organisation to ITU directly, but indirectly it has links with it through its recognition as a group of contracting parties in WTO, which organisation is in charge of the administration of the General Agreement on Trade of Services (GATS) and of the agreement on basic telecommunications.

Second comment

The ITU has always shown its commitment to the interests of least developed countries (which are also represented as a Group in WTO) (1).

j. itu partnership with inmarsat in support of the least developed countries

he ITU is collaborating with Inmarsat Ltd to help promote rural telecom- munication and support emergency communications in least developed countries (LDCs), in a project that was initiated in early 2003. Inmarsat, the London-based satellite consortium, will make a EUR 105 000 inan- cial contribution towards the purchase of 15 global area network (GAN) satellite terminals in beneiciary countries. Inmarsat will participate in the ITU’s inclusive, technology-neutral and technology-independent frame- work for cost-efective and global deployment of technologies to beneit LDCs worldwide. he ITU will select the beneiciary countries and will contribute an amount not less than the value of the donated Inmarsat

(1) Aaditya Matto, Developing countries in the new round of GATS negotiations: from a defensive to a proactive role, http://www.wtowatch.org/library/admin/uploadediles/DevelopingCountriesin- theNewRoundofGATS.htm

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GAN terminals. his amount will be used to pay for airtime and for other expenses associated with the execution of the project.

‘Disasters are increasing at a dramatic rate, with particularly severe conse- quences in least developed countries,’ said Cosmas Zavazava, Coordinator for the Special Unit for LDCs and Focal Point for Emergency Telecom- munications in ITU’s Telecommunication Development Bureau (BDT). ‘In such a scenario, reliable and lexible telecommunication resources are a must for humanitarian relief and assistance agencies to perform vital tasks.’ he project will assist least developed countries in stimulating development of their telecommunication infrastructures in order to enjoy the beneits of participation in the global information society.

‘To leverage the potential of information and communication technologies for sustainable universal access, all measures should be taken to partner with like-minded organisations as we are doing now with Inmarsat Ltd to bring services to where they are most needed’, said Hamadoun Touré, Director of BDT. ‘he least developed countries with their high vulner- ability are particularly deserving of every help from the international community as called for by the various resolutions and recommendations passed by ITU’s membership.’

‘Inmarsat is pleased to make new technologies and capabilities available to least developed countries who oten lack basic landline infrastructure, and BDT, as a globally-recognised intermediary in telecommunication devel- opment assistance, is the ideal partner for us to deliver these technolo- gies’, said Raja Gopalan, Inmarsat’s Director for Land Mobile and Special Services. Inmarsat GAN terminals are powered by a lithium-ion battery and include a built-in base station that allows up to 12 cordless phones to be connected to form a cordless local phone network. In addition to the external line, up to ive handsets can be used simultaneously for free-of- charge internal calling (1).

K. Eu legislation in telecommunication he EU legislation is, in particular, based on three directives: • the ‘satellite directive’: Commission Directive of 13 October 1994 amending Directive 88/301/EEC and Directive 90/388/EEC dealing in particular with satellite communications (2);

(1) N (2003). ITU partnership to provide satellite services for disaster management. ITU Newsroom: 6 January 2003. (2) Commission Directive 94/46/EEC: OJ L 268/15, 19.10.1994.

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• the ‘full competition directive’: Commission directive of 28 Febru- ary 1996 amending Directive 90/388/ECC concerning the implemen- tation of full competition in the telecommunications markets (1); • the ‘licensing directive’: directive of the European Parliament and of the Council of 10 April 1997 establishing a common framework for general authorisations and individual licences in the ield of telecommunica- tions services (2).

I. The ‘satellite directive’ his deals in principle with all liberalised satellite telecommunications such as data transmissions, video conferencing and broadcasting. here are exceptions, however, the principal one being voice telephony.

II. The ‘full competition directive’ his directive includes all networks, whether terrestrial or via satellite, even voice telephony, which are now fully liberalised from 1998. he ITU excludes membership of regional organisations such as the EU. herefore, the EU has had to ensure that all EU Member States have with- drawn all those measures that grant exclusive or special rights for the pro- vision of satellite communication services and satellite network services and, in the interest of the single market, should have adopted measures to ensure that any operator is entitled to provide such services.

Before liberalisation, national operators held the monopoly on the domes- tic market. his situation could result in higher prices, poor service, lack of quality, ineicient organisation and less incentive for innovation. Dis- crepancies between Member States were very high in application proce- dures, pricing, delays to issuing a licence and services (3). he big advantages of liberalisation are facilitation of interconnection between networks and harmonisation of access and utilisation of net- works and services.

(1) Commission Directive 96/19/EC: OJ L 47/13, 22.3.1996. (2) EP and Council Directive 97/13/EC: OJ L 117, 7.5.1997. (3) Roelandt, R., ‘Legal aspects of GMPCS: global mobile personal communication by satellite’, in Luxembourg.

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III. The ‘licensing directive’ he three basic points in the ‘licensing directive’ are the following. • Some form of authorisation may still be required in each Member State as the European Commission was unsuccessful in establishing a mutual recognition of licences or a ‘one-stop-shop. • An independent regulatory authority has to be established. • Supply of telecom services, whether establishment or provision of tel- ecom networks, may be subject to a general authorisation or an indi- vidual licence. he general rule is that only a general authorisation is required, which is supposed to be simple, informal, fast and inexpensive. he individual licence is required in limited instances, as exceptions to the general rule, namely: • access to frequencies; • provision of voice telephony services; • provision of public telecommunications networks.

From the legal point of view, a number of infringements could arise, as the procedure should be objective, non-discriminatory, proportionate and transparent, include motivation of refusal and possibility of appealing against any refusal. l. what has been done at an international level to facilitate the obtaining of necessary authorisations? here are three multilateral bodies to deal with facilitation of authorisations: • the World Trade Organisation (WTO); • the International Telecommunications Union (ITU); • the Conference of European Posts and Telecommunications Adminis- trations (CEPT). he WTO relevant documents are: • the Annex on Telecommunications, General Agreement on Trade in Services (GATS); • the fourth Protocol to the General Agreement on Trade in Services (GATS); • the reference paper of the negotiating group on basic tele- communications.

206 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) he commitments contained in Annex on Telecommunications (GATS) relate to market access (cross-border supply of telecommunications, serv- ices provided through foreign companies, and provision of services what- ever technology used. he reference paper covers the following issues: • prevention of anti-competitive behaviour; • interconnection; • public availability of licensing criteria; • the presence of an independent regulator; • liberal access to frequencies. he most technical issues are naturally treated by the ITU while the CEPT is a diplomatic platform between European regulators (1). he relevant documents with ITU are: • ITU Radio Regulations; • global mobile personal communications by satellite memorandum of understanding (GMPCS-MoU) regulations; • arrangements to facilitate the introduction and development of GMPCS; • implementation of same; • terms of reference for the task force on the implementation of the GMPCS arrangements. he ITU plays an essential role in the allocation, registration and coordi- nation of frequencies. he purpose of the GMPCS-MoU is to establish a regime that allows for free international circulation of satellite terminals through: • type approval of terminals; • licensing of terminals; • marking of terminals; • customs arrangements; • access to traic data.

(1) he CEPT (Conference of European Posts and Telecommunications Administrations) is located in Copenhagen, Denmark. It was created by ETSI (European Telecommunications Standard Insti- tute) which established a European forum for discussions on regulatory issues in the ield of post and telecommunications. It is a diplomatic platform which promotes and facilitates relations, such as through personal contacts between European regulators. Its mission is to bring, through com- mon positions, developments within ITU in accordance with European objectives.

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CHApTEr 3: Future insurance of space activities

a. insurance requirements for space carriers and space travel operators from the Eu

In aviation, the insurance requirements for air carriers and aircrat opera- tors are regulated by: • Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers (OJ L 240, 24.8.1992); • Regulation (EC) No 758/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircrat operators (OJ L 138, 30.4.2004).

Both regulations could serve as models in space transportation provided that a ‘Convention for the Uniication of Certain Rules Relating to Inter- national Carriage in Space’ can be agreed under the auspices of the United Nations, following the example of the Montreal Convention agreed on 28 May 1999, which lays down new rules on liability in respect of the international carriage by air of persons, baggage and cargo. hese rules are expected to replace those of the Warsaw Convention of 1929 and its subsequent amendments.

A similar structure as of Regulation (EC) No 785/2004 could be adopted (personal exercise). ODraft Article 1 — Objective

he objective of this regulation is to establish minimum insurance require- ments for space carriers and spacecrat operators in respect of passengers, baggage, cargo and third parties.

Article 2 — Scope

1. his regulation shall apply to all space carriers and to all spacecrat operators of the EU lying into, out of Earth.

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2. his regulation shall not apply to scientiic space programmes organised by space agencies from the EU and from its Member States.

Article 3 — Deinitions

For the purposes of this regulation: (a) ‘space carrier’ means a space transport undertaking with a valid oper- ating licence; (b) ‘Community space carrier’ means a space carrier with a valid operat- ing licence granted by a Member State in accordance with Regulation EC No ... of ... on licensing of space carriers; (c) ‘spacecrat operator’ means the person or entity, not being a space car- rier, who has continual efective disposal of the use or operation of the spacecrat; the natural or legal person in whose name the spacecrat is registered shall be presumed to be the operator, unless that person can prove that another natural or legal person is the operator; (d) ‘space light’ means: • with regard to passengers and unchecked baggage, the period of transport of the passengers by spacecrat:

° either from Earth to Earth,

° either from Earth to the ISS landing and disembarkation back to Earth,

° either from Earth to a celestial body landing and disembarka- tion back to Earth; • with regard to cargo and checked baggage, the period of transport of baggage and cargo from the moment the baggage or cargo is handed over to the space carrier until the moment of delivery to the entitled recipient; • with regard to third parties, the use of a spacecrat from the moment when power is applied to its (engines) for actual take-of until the moment when it is at destination and its (engines) have come to a complete stop; (e) ‘SDR’ means a special drawing right as deined by the International Monetary Fund; (f) ‘MTOM’ means the maximum take of mass, which corresponds to a certiied amount speciic to all spacecrat types, as states in the certii- cate of spacelight worthiness of the spacecrat;

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(g) ‘space passenger’ means any person who is on a space light with the consent of the space carrier or the spacecrat operator, excluding on- duty members of the spacelight crew;

(h) ‘third party’ means any legal or natural person, excluding passengers and on-duty members of the spacelight crew;

(i) ‘commercial operation’ means an operation for remuneration and/or hire.

Article 4 — Principles of insurance

1. Space carriers and spacecrat operators referred to in Article 2 shall be insured in accordance with this regulation as regards their space transport speciic liability in respect of passengers, baggage, cargo and third parties. he insured risks shall include acts of war, terrorism, acts of sabotage and deviation of orbit.

2. Space carriers and spacecrat operators shall ensure that insurance cover exists for each and every spacelight, regardless of whether the spacecrat operated is at their disposal through ownership or any form of lease agreement, or through joint or franchise operations, or any other agreement of same nature.

3. his regulation is without prejudice on the rules on liability as arising from: • international Conventions to which the Member States and/or the Community are parties; • Community law; • national law of the Member States.

Article 5 — Compliance

1. Space carriers and, when so required, spacecrat operators, as referred to in Article 2, shall demonstrate compliance with the insurance require- ments set out in this regulation by providing the competent authorities of the Member State concerned with a deposit of an insurance certiicate or other evidence of valid insurance.

2. For the purpose of this article ‘Member State concerned’ shall mean the Member State which has granted the operating licence to the Community space carrier or the Member State where the spacecrat of the spacecrat operator is registered. For non-Community space carriers and spacecrat

20 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) operators using spacecrat registered outside the Community, ‘Member State concerned ‘ shall mean the State to or from which the space lights are operated.

3. With regard to Community space carriers and spacecrat operators using spacecrat registered in the Community, the deposit of evidence of insurance in the Member State referred to in paragraph 2 is suicient for all Member States, without prejudice to the application of Article 8 (6).

4. In exceptional cases of insurance-market failure, the Commission may determine, in accordance with the procedure referred to in Article 9 (2), the appropriate measures for the application of paragraph 1.

Article 6 — Insurance in respect of liability for passengers, baggage and cargo

1. For liability in respect of passengers, the minimum insurance cover shall be (1 000 000) SDRs per passenger.

2. For liability in respect of baggage, the minimum insurance cover shall be (2 000) SDRs per passenger in commercial operations.

3. For liability in respect of cargo, the minimum insurance cover shall be (34) SDRs per kilogram in commercial operations.

4. he values referred to in this article may be amended, as appropri- ate, where amendments in the relevant international treaties indicate the necessity thereof, in accordance with the procedure referred to in Article 9 (2).

Article 7 — Insurance in respect of liability for third parties

1. In respect of liability for third parties, the minimum insurance cover per accident, for each and every spacecrat, shall be the minimum take of mass of the spacecrat from each and every departure:

Minimum insurance category MtoM (kg) (million sDrs) 1 (< 25 000) (800) 2 (< 50 000) (1 500) 3 (< 200 000) (3 000) 4 (< 500 000) (5 000) 5 (≥ 500 000) (7 000)

2 EuropEAn TrAjECTorIES In SpACE LAw — 2007

If at any time insurance cover for damage to third parties due to risks of war or terrorism is not available to any space carrier or spacecrat opera- tor on a per-accident basis, such space carrier or spacecrat operator may satisfy its obligation to insure such risks by insuring on an aggregate basis. he Commission shall closely monitor the application of this provision in order to ensure that such aggregate is at least equivalent to the relevant amount set out in the table.

2. he values referred to in this article may be amended as appropri- ate, where amendments in the relevant international treaties indicate the necessity thereof, in accordance with the procedure referred to in Article 9 (2).

Article 8 — Enforcement and sanctions

1. Member States shall ensure that space carriers and spacecrat opera- tors referred to in Article 2 comply with this regulation.

2. For the purpose of paragraph 1, the Member State concerned may request evidence of compliance with the insurance requirements laid down in this regulation.

3. Where necessary, Member States may request additional evidence from the space carrier, the spacecrat operator or the insurer concerned.

4. Sanctions for infringement of this regulation shall be efective, propor- tional and dissuasive.

5. With regard to Community space carriers, these sanctions may include the withdrawal of the operating licence, subject to and in accordance with the relevant provisions of Community law.

6. With regard to non-Community space carriers and to spacecrat opera- tors using spacecrat registered outside the Community, the sanctions may include refusal of the right to land on the territory of a Member State.

7. Where Member States are not satisied that the conditions of this reg- ulation are met, they shall not allow a spacecrat to take of, before the space carrier or spacecrat operator concerned has produced evidence of adequate insurance cover in accordance with this regulation.

Article 9 — Committee procedure

1. he Commission shall be assisted by the Committee set up by...

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2. Where reference is made to this paragraph, Article 5 and 7 of Deci- sion 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof. he period laid down in Article 5 (6) of Decision 1999/468/EC shall be set at three months.

3. he Commission shall adopt its rules of procedure.

5. he Committee may furthermore be consulted by the Commission on any other matter concerning the application of this regulation.

Article 10 — Report and cooperation

1. he Commission shall submit a report to the European Parliament and the Council on the operation of this regulation by ...

2. Upon request, Member States shall submit information on the applica- tion of this Regulation to the Commission.

Article 11 — Entry into force

his regulation shall enter into force 12 months following the date of its publication in the Oicial Journal of the European Union.

his regulation shall be binding in its entirety and directly applicable in all Member States. OComments: First comment

General considerations are as follows:

1. There are many similarities between lights in aviation and lights in space: the means of transport is light and a small part of the space light also takes place in the atmosphere.

2. Spacecraft is the corresponding transport to aircraft.

3. Space carriers are the corresponding actors to air carriers and Community space carriers to Community air carriers.

4. Spacecraft operators correspond to aircraft operation.

5. Space worthiness corresponds to airworthiness.

23 EuropEAn TrAjECTorIES In SpACE LAw — 2007

6. Notions of SDRs, MTOM, passenger, third party, commercial operation can be shared with aviation.

7. Departure is a take-of in both cases.

8. In both cases, there will be presence of baggage and, possibly, cargo. Regarding space travel, cargo could consist of transport of goods destined to the ISS or other future stations or, on return, of celestial minerals.

Second comment

Space travel could ind its place albeit small in the framework of the common transport policy and needs consumer protection, hence a proper minimum level of insurance to cover liability of space carriers in respect of passengers, baggage, cargo and third parties.

Third comment

In the Community aviation market, the distinction between national and international air transport has been eliminated and it is, therefore, appropriate to establish minimum insurance requirements for Community air carriers. The same reasoning can logically be adopted for the space transport market so as to ensure a level playing ield with space carriers from third countries.

Fourth comment

There is a need for an international Convention in space transport such as established by the Montreal Convention, subsequently to the Warsaw Convention, for aviation.

Fifth comment

Common risks to be covered are loss of life, personal injuries, loss of baggage and personal belongings, terrorist attacks.

Furthermore, there are speciic risks in space such as risk of collision with space objects and debris, the risk of failure in the breathing systems, accidents due to weightlessness and increased health hazards.

Sixth comment

Member States have the possibility to introduce further rules as is the case in aviation-speciic liability on points that are not covered by this regulation. As for the internal aviation market, reductions of distortions of competition cannot be suiciently achieved by the Member States and require measures at Community

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level, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty and with the principle of proportionality, as set out in that article.

Seventh comment

The minimum insurance cover per accident that is indicated in Article 6 and 7 is purely formal, just for the sake of expressing some ideas.

Article 6: Insurance in respect of liability for passengers, baggage and cargo: • liability in respect of passenger: 1 million SDRs = a tenfold criterion as from the Montreal basis was taken into account due to the price of the ticket (Branson’s plan: EUR 155 000 just for a jump into space) and the risks taken; • liability in respect of baggage: baggage will be reduced in volume but could be high-value: a multiple criterion as from the Montreal basis was taken into account, i.e. 200 SDRs; • liability in respect of cargo: little cargo can be envisaged; a doubling of the minimum insurance cover from the Montreal basis, i.e. 34 SDRs instead of 17 sounds logical.

Article 7: Insurance in respect of liability for third parties: • we reduced the categories from 10 to ive; • the minimum insurance cover per accident will difer from the composition of the vehicle after each separation, the quantity of fuel and the duration of the spacelight. We have multiplied the Montreal bases by 10.

B. the space insurance market

I. Recent evolution in the space insurance market

Until 2004, being an astronaut was considered one of the most danger- ous jobs. When it comes to space exploration, only the best educated and prepared will do. Astronauts nevertheless did not get any extra life insur- ance than any other employees or military. he perspective of ‘envoys of mankind’ — national heroes so to say — was placed high in the approach, including by the insurers until 2005.

From 2004 on, further considerations come into the picture. At the end of September 2004, the world’s irst private spacecrat zoomed into sub- orbit, moving to capturing a coveted EUR 8 million Civilian Space Prize. he White Knight launcher crat carried SpaceShipOne towards the outer reaches of Earth from the Mojave ‘spaceport’ in California. A logo for Vir- gin, the group controlled by British entrepreneur Sir Richard Branson,

25 EuropEAn TrAjECTorIES In SpACE LAw — 2007 was visible at take-of. Sir Richard immediately reacted that he plans to use the SpaceShipOne concept to form a new space transport leet, expected to carry its irst passengers probably not before 2010 (1).

Microsot’s Paul Allen inanced the crat which was built by aviation pio- neer Burt Rutan’s company Scaled Composites. According to the rules of the Ansari X Prize competition, the rocket had to reach an altitude of 62 miles above the Earth twice within two weeks (2).

Few people could be more appropriate to set out to create the world’s irst commercial space travel business than Sir Richard Branson, already known for his ballooning and powerboat exploits as for his Virgin group.

However, the current model of USD 20 million-a-go visits to the Interna- tional Space Station have come to a halt since US businessman Dennis Tito in 2001 and South African Mark Shuttleworth in 2002 led the way (3).

Sir Richard’s new company, Virgin Galactic, plans a leet of ive sub- orbital spacecrat. At a more afordable USD 190 000 (EUR 155 000) for a ticket, the company expresses its conidence about attracting its target of 3 000 passengers during the irst ive years. For that, they would get just ive minutes in space, at a height half that reached by NASA’s space shuttles in orbit (max 130 km). he views, however, would be magniicent. Plenty are expected to be interested at that sort of price and jump into orbit ater three days of training and preparation. hey may need strong stomachs, although the special seats will be tilted to reduce nausea: comfort will be a big point for the designers.

Virgin will license its technology from Mohave Aerospace Ventures, a company owned by Paul Allen, the co-founder of Microsot, which funded the development of SpaceShipOne. Virgin expects to spend USD 100 mil- lion of its own funds over ive years to develop the spacecrat and their ground infrastructure.

In the future (within two decades), afordable trips to the Moon could come next, as well as a resort hotel in orbit.

(1) Financial Times. (2) Idem. (3) Idem.

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II. Personal risks to be covered

Of course, no signiicant health damages are anticipated with short-time space travel. But life and health hazards must legally be covered, if similar- ity with air travel is respected.

For longer stays in space, the risks will be higher.

Research funded by NASA has found new evidence that space light is bad for the health. A study of 25 astronauts who lew on space shuttle missions lasting from ive to 11 days between 1999 and 2002 shows a reduction in the body’s ability to ight of disease. he decrease in immunity may con- tinue for some time ater the astronaut has returned to Earth.

he military gives hazard pay to those people who take on the most dan- gerous assignments, including astronauts. Civilian astronauts, on duty, have the risk increase built into their salaries as well.

Nevertheless, astronauts should be given additional compensation to buy supplemental life insurance from private sector companies. Life insurance will be an even bigger issue for of-duty astronauts.

Up to 2003, over 700 people had lown on space shuttles. With respect to American missions only, out of 113 times, the shuttle has failed to return safely home only twice. Fourteen people lost their lives when Challenger exploded ater take-of and Columbia broke apart during re-entry. Nine others have died in space programme training accidents. A less than 2 % death risk, however, is something drastically higher than in civil aviation.

he life insurance industry therefore considers an astronaut is such a unique risk and one that is so unpredictable, that the typical insurance company would have no strong basis for underwriting the insurance and very little data to determine the risk.

A response to that would be that the beginning of aviation also registered more casualties than today and increase of security comes with techno- logical improvements over time. OComments: First comment

From the legal point of view, there is a problem for the European Commission: on the one hand, there would be an obligation for an astronaut to be fully insured

27 EuropEAn TrAjECTorIES In SpACE LAw — 2007

and, on the other hand, no private insurance company would be found ready to insure his life risk!

However, an astronaut should not be considered an uninsurable risk..

Satellites and spacecraft risks to be covered

The rest of the space insurance industry is a little bit better of, although the situation is worsening on the marketplace.

The satellites that orbit the globe, providing clear calls and hundreds of TV channels, are protected with insurance that pays their owners if they malfunction or explode. Most commercial satellites and the rockets used to launch them are worth approximately USD 200 million, and it costs between 18 and 25 % of their value to insure them. In addition to Lloyd’s of London, AIG in New York, Munich Re of Germany, AXA of France and Generali of Italy provide satellite coverage.

Over the period of 1997–2003, insurers have been losing money in the market because too many satellites are failing when they get to space. For this reason, premium negotiations are becoming tougher in a hardening market.

‘The space insurance industry is sufering’, says Benito Pagnanelli, ‘The market is a lot smaller than it was before. With capacity shrinking, rates will increase. But underwriters still feel that the premiums are not a true relection of the risk. If this trend persists, the future of the space insurance market could be in peril’ (1).

Second comment

There is a need for rewriting the law. New rules are needed for space assets. The International Institute for the Uniication of Private Law (Unidroit) is an intergovernmental organisation that drafts uniform law conventions in the case of transnational matters. Unidroit has been working on creating a legal convention to govern space interests. With the creation of an international regime to cover space assets, there is a new opportunity for the inancing of commercial space activities. Unidroit proposes an international system by which space assets would be registered in a registry, stating the asset, the name of the debtor and the creditor and other information that would enable the identiication of a speciic space asset. This will make it possible for creditors or potential creditors to identify the competing interests in a single asset (2).

(1) Pagnanelli Risk Solutions Ltd, http://www.pagnanellirs.com August 2002, Reactions Magazine. (2) Idem.

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c. linkage with the aerospace industry

he crisis in the aerospace industry has obviously had its impact on the insurance market. With a slowdown in satellite construction and launch- ing activities, the underwriting activity has decreased dramatically.

In the decade 1991–2000, premiums surpassed claims seven times and the overall situation with an average annual launching of 80 satellites brought a fair balance. However, with an average launching of 60 satellites in the period of 2001–03 a near-collapse situation occurred in the marketplace. he year 2002 even began with nearly no new insurance contracts signed. he year 2001 had been a nightmare odyssey for the space insurance sec- tor. he last quarter had turned out to be apocalyptic with the turmoil following the 11 September events. At the same time, Boeing Satellite Sys- tem’s new workhorse, the BSS-702 series, experienced an epidemic of in- orbit failures leading to insurance claims worth more than USD 2 billion. Some reinsurance companies could no longer cover the claims and went out of business, undermining the very foundation of the system.

he negotiations regarding the reinsurance capacity assigned to the space sector traditionally renew on 1 January. However, several players such as Australia’s GIO and Belgium’s Aviabel decided to exit the business. Most of the remaining insurance groups, such as Italy’s Generali, the traditional largest operator in the ield, decided to reduce their own exposure. As a result, the theoretical insurance capacity available on the worldwide market plummeted from well above USD 1 billion to less than USD 800 million.

he actual available capacity that can be engaged on a single space launch was reduced to an estimated USD 450 million.

Boeing had to modify the BSS-GEM satellite platform following the BSS- 702 failures, thus changing the satellite technical speciications. he origi- nal insurance coverage, valued at USD 800 million, was the largest ever placed on a single launch. OSpeciic risks in the space insurance market One of the major topics now being questioned is the threshold for ‘con- structive total loss’ of a satellite (CTL) beyond which insurers have to repay the whole amount covered to the operator.

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CHApTEr 4: Space competition, claims and dispute resolution a. Bases in European competition law he legal bases in European competition law are now Council Regula- tion (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003, as amended by Regulation (EC) No 411/2004 (OJ L 68, 6.3.2004).

As from 1 May 2004, the new enforcement system for Articles 81 and 82 of the Treaty is fully applicable, repealing previous legislation and provid- ing direct application of Article 81 (3) of the Treaty. he new regulation represents a great step forward in terms of establishing a level playing ield for agreements in the internal market. he most sig- niicant element of this regulation is that it applies to all cases where trade between Member States may be afected. Aeronautics and space industries are no exceptions.

Article 81 is established as the single common standard for the assessment of agreements by all enforcers in the European Union. he new regulation also paves the way for a greater role of Member States’ courts and competition authorities in the enforcement of Articles 81 and 82. At the same time, it introduces mechanisms of cooperation between the Commission and the national competition authorities. A European competition network now acts as a platform for close cooperation.

Regulation (EC) No 1/2003 has been complemented by Commission Reg- ulation (EC) No 773/2004 of 7 April 2004, which contains detailed rules regarding in particular, the initiation and the conduct of proceedings, access to the ile and handling of conidential information in antitrust procedures introduced by the Commission. he Institute für Lut- und Weltraumrecht of Cologne has focused on a Convention Drat on the Settlement of Disputes related to Space Activities taking into account amendments suggested at the 68th ILA Conference 1998 (1).

(1) http://www.uni-koeln.de/jur-fak/instlut/drat4.html Prof. Böckstiegel und Prof. Hobe.

220 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) he main provisions are as follows: he Convention applies to all activities in outer space and all activities car- ried out by States, nationals thereof and international organisations with efects in outer space.

When disputes arise regarding these activities, there are two successive phases of settlement procedures.

Firstly, non-binding procedures including an obligation to exchange views and conciliation endeavour.

Secondly, when no settlement has been reached by recourse to the non- binding procedures, the claim may be submitted, at the request of any party to the dispute, to the court or tribunal having jurisdiction on bind- ing settlement procedures, namely: • the International Tribunal for Space Law, if and when such a Tribunal has been established; • the International Court of Justice; • an arbitral tribunal, if and when such a Tribunal has been established. he competence of the court or tribunal is related to space activities. Par- ties may be assisted by experts in any dispute involving scientiic or tech- nical matters, no fewer than two to sit with the court or tribunal but with- out the right to vote.

Any decision rendered by a court or tribunal mentioned above shall be inal and shall be complied with by all the parties to the dispute. Any such decision shall have no binding force except between the parties and in respect of that particular dispute.

Space insurers, re-insurers, underwriters and brokers gathered in Lon- don, in early July 2002 to discuss the CTL threshold, which establishes at 50 % of the satellite capacity. ‘his level means that if a satellite loses 50 % of its transponder, or of its electrical power, over its lifetime, a full value claim is issued ... and usually paid. he claim usually covers the total cost of the satellite manufacturing as well as its launch and part of its opera- tions. However, this payment does not prevent the operator from operat- ing the damaged satellite at half of its capacity. With a satellite carrying 48 or 60 transponders and designed for 16 years of lifetime, this still repre- sents a high-value asset. In addition, to make things worse, many policies

22 EuropEAn TrAjECTorIES In SpACE LAw — 2007 did not take into account the satellite depreciation ater several years of operations’ (1). he insurance world is most worried about the fact that well-known launch systems (e.g. Ariane 4, Atlas 2, Proton K) are being replaced with new vehicles (Arianespace’s Ariane 5-ECA, Boeing’s Delta 4 and Lockheed Martin’s Atlas 5) which have yet to prove their reliability levels claimed by the manufacturers. he underwriters are also complaining about the lack of efective guarantees provided by the space industry and the absence of technical risk appreciation by some operators. Moreover, this techni- cal appreciation is made even more diicult by the strict US regulations regarding technology transfers (see TAR). Sometimes, it is simply impos- sible for a non-US underwriter to get the minimum information needed to prepare a risk management evaluation. Due to the slow launch rates, the uncertainties regarding the proven reliability of the new vehicles will last for a while and this will make the behaviour of the premiums rates — between 20 and 25 % from 2002 — hardly predictable. he introduction of very large satellite platforms, weighing more than 8 or even 10 tonnes at launch, will be a major challenge as the space insurance sector might not be able to survive more than one loss of this kind.

B. which solutions could be envisaged?

One option would be to reinstate a ‘right of recourse’ in favour of the insurer allowing him to ask for compensation if he can link a failure to poor design or manufacturing process. his technical opacity is advantageous for the manufacturers, however, since it prevents objective comparisons.

Another option for underwriters would be to practise a selective approach and simply refuse to participate in some categories of placements. Such a strategy would reduce their market, however, and increase their inancial vulnerability in the event of failure. Selectivity inside the contracts is being explored with some recent insurance coverage contracts simply excluding some equipment or other known likely sources of failures.

A third solution would be more upfront R & D eforts by the manufac- turers. he previous market situation has pushed some of them into tak- ing more risks, leading to a number of failures. To support the insurance sector, Arianespace has already announced that it is exploring inancial

(1) Prandini, E., ‘Space insurance on bumpy road to recovery’, Interavia, 4 October 2002, pp. 14–16.

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solutions on its own to reinsure its launches outside the space insurance sector.

c. the problem of insuring humans in space

Most insurers refuse to cover humans in space, even when they are skilled astronauts. In being an astronaut, you have to be physically it and men- tally acute to do one of the most dangerous jobs in the world. When it comes to space exploration, only the best and brightest will do. herefore, one would think that astronauts might get a little extra life insurance than would other employees.

he fact is, however, that their families collect the same beneits given to the families of soldiers or police oicers killed during training or duty accidents. he solution for a better treatment would be to seek additional compensation by buying supplementary life insurance from private sector companies.

he point of view of the life insurance industry is not very receptive to such an idea. One reaction was: ‘An astronaut is such a unique risk and one that is so unpredictable, that the typical insurance company would have no basis for underwriting the insurance. here are very little data to determine the risk’ (1).

Solutions must be found, as an astronaut should not be considered an uninsurable risk, any more than a US president is. Four out of 43 presidents have been assassinated, and that does not make a president uninsurable.

he problem will become even more acute at such a time that space travel eventually starts. OComments: First comment

It has been suggested that an astronaut should beneit extra life insurance coverage of USD 1 million. The Italian astronaut Umberto Guidini was insured under a USD 1 million policy provided by Generali. Is this disproportionate when most commercial satellites and the rockets used to launch them are worth about USD 250 million, and it costs between 18 and 25 % of the value to insure them.

New rules are needed to address the problem.

(1) Shannon Buggs, Houston Chronicle, 9 February 2003.

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Second comment

Another thought should be given on third-party liability arising from activities in space. When the defunct Soviet-age MIR space station re-entered terrestrial atmosphere, out of the 143 tonnes that made up the original craft, only 10 tonnes of scrap fell on earth, safely guided into the ocean. However, it was disclosed that the Russians had bought a USD 1 million TPL insurance policy, with a inancial limit of USD 200 million, just in case... (1).

Third comment

Competition: a helpful reform of competition rules

With the adoption of Regulation (EC) No 1/2003 in December 2003, the EU took a major step towards adapting the 40-year-old antitrust procedural rules to the demands of a Union of 25 Member States or more (2).

The modernisation of the antitrust procedural rules and the reform of the merger rules are helpful in putting a new approach to competition in the space industry sector as to any other sector of economy into perspective.

As the new rules apply since 1 May 2004, they are already beginning to have an impact on our handling of cases and setting of priorities. The space industry sector is no exception in this respect. The main diference that companies dealing with manufacture or (future) transport will notice is that it will no longer be possible for them to ile restrictive agreements with the Commission with a view to obtaining an individual exemption. Instead, companies have to make their own assessment of whether their intended agreement fulils the conditions in Article 81(3) of the Treaty. This leaves the Commission free to devote its resources to a more vigorous pursuit of cartels and to other anti-competitive behaviour.

At its 16th annual conference on 5 November 2004 in Berlin, the European Air Law Association took the view of Trevor Soames, Partner, Howrey Simon Arnold & White in Brussels. Soames compared the new legal situation with respect to the competition regime with a modern ishing net that permits small and useless ish to escape through the wide-mesh net. Article 81(3) must be seen in combination with Article 81(1). Indeed, a key aspect of this reform is to intensify cooperation between the Commission and the national competition authorities. Together, these form the present network of competition regulators. The idea is to beneit from their knowledge and experience, to prepare the ground for a shared understanding of enforcement issues and ultimately to ensure a consistent and

(1) Generali, May 2001, Expertise, ‘Man in space: insurance at the crossroads’, ref. to the 11th Interna- tional Conference on insurance of space activities. (2) Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81and 82 of the Treaty, OJ L 1, 4.1.2003.

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coherent application of EC competition rules. Therefore, the European competition network is intended to be a forum of exchange of ideas not only for case-related matters but also for policy issues.

Fourth comment

Signiicance of the modernisation of EU competition rules

Within this new era of competition in Europe, case allocation between the Commission and the national competition Authorities as well as among the latter will be a fundamental tool of enforcement of competition law. Speciic rules for case allocation are provided for in the framework of Regulation (EC) No 1/2003 (1).

Fifth comment

In practice, however, we foresee that in relation to highly concentrated industry, such as EADS, the Commission will remain in most cases the best placed authority to deal with its operations since this industry has a very wide European impact. The situation of EADS is comparable to the situation of alliances in aviation.

In the merger ield, eforts of the Commission have been directed to reining and improving the previous merger control system, both on substance and on procedure. On substance, a discussion at Council level took place on how to clarify the test to ensure that it covers all types of anti-competitive mergers, notably with third-country companies.

On procedure, the Commission has proposed that the timetable of merger cases be made somewhat more lexible, in order to allow for suicient consideration of remedy proposals and for investigation in complex cases. It has also built in rules to simplify and render more lexible the provisions governing the allocation of merger cases between the Commission and the national competition authorities.

Trevor Soames (2) stresses the substantive changes since the application date of Regulation (EC) No 1/2003 on 1 May 2004.

Firstly, 10 new Member States have joined the Union.

Secondly, the above regulation puts an end to any geographic limitation with respect to competence. The new rules are now applicable beyond the territory of the 27 Member States. All space operations therefore now fall under EC competition rules.

(1) Ibid. (2) European Air Law Association, 16th Annual Conference, Berlin, 5 November 2004.

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Thirdly, 1 May 2004 marks the end of the notiication system. Operators must now proceed to self-assessment on what the relevant markets are.

Fourthly, economics become important today: the Commission concentrates on ‘the big ish’ only.

Sixth comment

The change of the geographical scope of competence brings along a lack of legal certainty. The extraterritorial application of the competition rules makes self- assessment fundamental. This self-assessment can of course get the support of outside experts. Some problems remain, however: there are no precedents yet and we have to face 76 courts in the sole EU!

D. recent consolidation in space markets and industry structure

Both US and EU industries have undergone substantial consolidation, assisted by respective public policies. his has let one major space integra- tor in Europe, EADS (European Aerospace and Defence System) and two in the US, Lockheed Martin and Boeing. he three industrial groups vir- tually control the commercial markets for expendable launch services and telecommunications satellites, the two major commercial space markets. his is achieved by the fact that the substantial Russian and Ukrainian launch services, which carry a high level of reliability and low cost are marketed by Arianespace (directly controlled by EADS) and the respec- tive US irms.

I. Market situation of the ‘big three’

European and American regrouping irms encounter almost no domes- tic competition in their relevant domestic space industry markets. How- ever, they do encounter competition in commercial space markets such as launching services, telecommunication satellites and remote sensing products. As a result, each group is considered to behave as a monopolist in the domestic space market it is faced with, and as a duopolist, in com- petition with the other group in the commercial space market.

Policymakers in the US and Europe make use of procurement and indus- trial policies in international relations to enhance the competitiveness of their domestic space industries in commercial markets. Some of the actions they take to achieve these goals include:

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• promoting consolidation which has resulted in a domestic monopoly or duopoly; • raising entry barriers for foreign irms, for example the Buy American Act in the USA and juste retour compensation in the European Union.

Where possible, national governments also implement policies to improve the competitive position of their domestic space industries in commercial markets. he Buy American Act means that US companies can reckon on a suicient number of orders, mostly from federal defence authorities in a sector where national security can be invoked. Package orders mean that costs are lower in the USA than disparate orders on the European market.

In Europe the major areas of activity in the aerospace sector revolve around three consortia: • hales heads the electronics branch, and • EADS and British Aerospace (BAe) are the leaders in the aeronautics ield.

II. Restructuring in the satellite building and launcher industries

In order to preserve a competitive position on international markets, smaller irms (SMEs) have no option other than to focus their activities on state of the art technologies or ‘niche’ activities. his has oten led to tech- nological successes but little commercial beneits are making the SMEs vulnerable to take-overs.

In practice, the result of mergers and acquisitions has been to reduce the number of satellite orders because the number of operators has decreased. he sector is sufering from over-capacity and this has had a direct impact on satellite construction companies, which were forced to bring prices down and shed staf. here is general agreement on both sides of the Atlantic that there is not suicient business to sustain the current ive major satellite-building companies: • Boeing • Lockheed Martin • Loral • Astrium (belongs to the EADS group) • Alcatel.

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Discussions of strategic alliances, mergers, or acquisitions aim at reducing the number of competing irms and transatlantic combinations are not out of question in these discussions. Alcatel (France) and Finmeccanica (Italy) agreed on 18 June 2004 to merge their space activities to create Europe’s largest satellite group.

In addition to the problems the satellite industry has faced, due in part to its restructuring at European level, the launcher industry has also been badly hit by the sectorial recession sufering from over-capacity too. Acquiring an autonomous launcher capability is considered high prior- ity and all space nations think irst about access to space before they start worrying about whether their investment can be made to pay by penetrat- ing the commercial launch market. he crisis in the telecommunications sector started suddenly in late 2001, bringing with it a big drop in satellite orders and a slowdown in the number of launches that took place over the following years. In the period 1995–99, the annual average launch number was 78. Ater 2000, the downturn was as follows: • 2000: 82 • 2001: 58 • 2002: 62 • 2003: 60.

Arianespace needs six launches a year to make a proit and therefore the slowdown of orders was endangering the European launcher industry. his situation appears to result from a structural problem, the over-investment into launch vehicle capacity, which took place in the second half of the 1990s following optimistic anticipations of the launch market volume.

In order to reverse the tendency, cooperation with Russian and Ukrainian launchers, whose prices are particularly low, and European research and development related to reusable launch vehicles may bring solutions.

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E. Judicial diferentiation between the satellite market and the market for launch services

he most recent case law under the Merger Procedure, namely the Boe- ing/Hughes Merger Procedure case, diferentiates between the satellite market and the market for launch services (1).

I. Case No COMP/M.1879 — Boeing/Hughes — October 2000 OSatellites Relevant product markets

he results of the Commission enquiry generally conirm: • that satellites used for communications, navigations, observation and scientiic purposes belong to distinct product markets; • that the conditions of competing for commercial satellites, civil govern- ments satellites and military satellites are diferent; • that a distinction should be made between GEP and NGSO satellites, although this segmentation may be more relevant in the case of com- munication satellites than in observation or scientiic or scientiic satel- lites (because most observation and scientiic satellites are NGSO, and also probably because, in view of the speciicity of each observation and scientiic satellite, having existing designs or past experience within a given orbit type may be less important than in ‘mass produced’ com- munication products).

Relevant geographic market

he Commission conirmed that the markets for commercial satellites are worldwide. he Commission suggested further geographical market dei- nitions but decided that, in all of these, efective competition would not be signiicantly impeded.

(1) Case No COMP/M.1879 — Boeing/Hughes — Commission decision of 29 October 2000 referring to Regulation (EEC) No 4064/89, Merger Procedure.

229 EuropEAn TrAjECTorIES In SpACE LAw — 2007 OLaunch services Relevant product markets

In general, two types of launchers can be distinguished: expendable launch vehicles (ELVs) and partially or fully reusable launchers. In practice, how- ever, launch services are conducted almost exclusively by ELVs.

ELVs may be categorised into various product groups, depending on the payload mass that the launcher is able to deliver to orbit. he Commission broadly supports the view that heavy lit launchers are part of a speciic product market because only they are capable of launching larger satellites into GEO. hus, there would be two product markets: a market for launch services of all satellites but intermediate/heavy GEO satellites; and a mar- ket for intermediate/heavy GEO satellite launch services.

Other alternative market deinitions were suggested by the parties but the Commission decided that in none of the alternatives would efective com- petition be signiicantly impeded in the EEA or any substantial part of it.

Relevant geographic market

he Commission accepted that government and commercial launches belong to diferent geographical markets. he geographical market for launch services are worldwide in the case of commercial applications, but are national or regional in the case of government (civil or military) launches.

II. Case No COMP/M.1636 — MMS/DASA/Astrium — March 2000

Space systems generally comprise two main segments: a space segment and a ground segment, which either commands and controls the space segment or provides interface with the space segment. he space seg- ment can further be categorised into satellites, space infrastructure and launchers.

he MMS/DASA/Astrium case permitted to identify the relevant prod- ucts markets and the relevant geographic market for each of these three categories (1).

(1) Case No COMP/M.1636, Commission decision of 21 March 2000, referring to Regulation (EEC) No 4064/89 — Merger Procedure.

230 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) OSatellites Relevant product markets

A distinction is made between communication satellites and observation satellites and scientiic satellites, because they do not involve the same technological skills and do not address the same customers. he condi- tions of competition are diferent between the commercial and the insti- tutional segments.

Commercial communication satellites include either GEO, MEO, or LEO satellites. Observation and scientiic satellites and space probes (collec- tively called ‘institutional satellites’) can be combined into a single prod- uct market. here appears to be substantial supply-side substitutability between these product categories as European-based satellite prime con- tractors are usually active in all segments; and by the fact that the condi- tions of competition within institutional markets are essentially similar, with all products being purchased by the same customers and through similar procurement procedures.

here is also a distinct market for military applications.

Relevant geographic market

Conditions of competition in the communication satellite sector are suf- iciently homogenous for the geographic market to be considered world- wide, as customers request quotations from, and place orders with, a variety of suppliers in Europe and the USA. In answer to the parties, the Commission stated that the US International Traic in Arms Regulation (ITAR) could not be considered an efective barrier to trade between Europe and the USA (except for certain sensitive technologies).

It follows from the ESA juste retour principle that there appears to be a European market for observation and scientiic satellites and space probes, as well as for the related equipment markets.

Depending on the equipment concerned, the geographic markets for mili- tary satellite equipment would appear to be either national or worldwide.

23 EuropEAn TrAjECTorIES In SpACE LAw — 2007 OSpace infrastructure Relevant product markets

Customers for space infrastructure are essentially space agencies. It can be broken down into ive main categories: • unmanned reusable platforms; • manned or man-tended laboratories or habitats; • servicing systems; • payload facilities; • outpost infrastructure.

Relevant geographic market

Customers for space infrastructure are space agencies. Procurement of it is therefore subject to the juste retour principle and competition between suppliers is organised on the basis of Europe-wide programmes. It appears then that the markets for space infrastructure are European. OLaunchers and launch services Relevant product markets

Distinction is drawn between ELVs and RLVs depending on the payload mass that the launcher is able to deliver in orbit.

Launcher systems, sub-systems and equipment do not have a separate market on the grounds that these products are designed speciically for Ariane and there is no open market for them.

Relevant geographic market

he supply of commercial launch services is carried out on a global basis. Consequently, the markets for commercial launch services are worldwide.

he selection of suppliers of sub-systems and equipment for Ariane launch- ers usually takes place during the development phase, and is governed by juste retour. It therefore appears that competition for these products takes place at European level.

232 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) OGround segment Relevant product markets

Customers procuring both the space segment and the ground segment may select diferent suppliers for each segment. Consequently, it appears that the ground segment and the space segment belong to diferent prod- uct markets. Ground stations fall into two categories: those for the com- mand and control of spacecrat and those providing an interface (trans- mission of voice and data) with the space segment.

Relevant geographic market

he main categories for customers for civil ground systems are the national or international space agencies and organisation, as well as pri- vate operators, and the main customers for military ground stations are national ministries of defence. While space agencies and organisations and military customers usually procure ground systems from domestic prime contractors, commercial operators tend to source their systems on a worldwide basis.

F. Questions about space transport emergence

I. What will happen when space transport comes in?

here will be a very speciic situation with only a few launching stations worldwide, in contrast with the airport situation for aviation. Neverthe- less, the decision in 1989 taken by the European Court of Justice in the Ahmed Saeed Flugreisen judgment recognised the application of Articles 81 and 82 of the EC Treaty to air transport between intra-Community airports as well as to routes from the EU to third countries. his judgment may give inspiration with regard to travel from Earth to the International Space Station or a future space hotel.

It looks, however, as if the Commission will have only limited enforce- ment powers to apply competition rules to space transport. Not only does it have to rely on Member States but also on third countries (for example, Russia and the USA) to take the necessary enforcement measures and, if necessary, to impose sanctions. Space travel will be global in nature. Industry as well as consumers will only beneit from a global enforcement system. he competence of any national competition authority looks irrel-

233 EuropEAn TrAjECTorIES In SpACE LAw — 2007 evant and the European Commission only seems to be the interlocutor for part of the Earth.

It is obvious that a fully integrated and liberalised market needs to be cre- ated. If this is to be achieved, competition policy on a global basis will be crucial in ensuring fair competition between space operators, as well as protection of consumers. here is no efective enforcement of competition policy without efective enforcement powers. An international convention should establish the rules. he overall objective must be to avoid conlict- ing or incoherent approaches, this means action is pragmatic and must attain a degree of legal certainty.

II. Will space transport one day be part of the common transport policy? he level playing ield being global, one can express doubts about such a question. he regulatory framework in aviation — only comparable to space travel — has been ‘Europeanised’ in recent history but European airlines are being confronted with changes in the sector, which is leading in the long term to an increase in the number of airline mergers. he question of space transport nationality is irrelevant and so are owner- ship limitations and control provisions for space operators. he relevant market is global per se and operators can only work efectively in a glo- balised economy with respect to pricing.

III. Are bilateral space services agreements possible?

On 5 November 2002, the European Court of Justice ruled that the bilat- eral air services agreements between eight EU member States and the United States were not in conformity with EC law (1).

Although the ECJ judgments referred speciically to bilateral agreements with the United States, there is a common understanding that all other bilateral air services agreements between EU Member States and third countries face the same legal problems (2).

(1) Cases C-466/98, C-467/98, C-468/98, C-469/98, C-471/98, C-472/98, C-475/98 and C-476/98. (2) van Hasselt, L., Head of Unit, Air Transport Agreements, European Commission, Energy and Transport DG, In: ‘he atermath of the ECJ open skies judgments — impact on the regulatory environment’, 15th annual conference of the European Air Law Association, Brussels, 6 Novem- ber 2003.

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IV. What is interesting about the Court’s decision?

Firstly, nationality clauses in all the agreements infringed the right of establishment (Article 43 of the EC Treaty) as they were discriminating on grounds of nationality. Furthermore, the agreements infringed the exclu- sive competence of the EU. Both arguments are relevant in the sector of space services agreements too. he Court’s ruling created a legal vacuum that must now be overcome, as the result was legal uncertainty for the air- lines that are operating under existing bilateral air services agreements. OComments: Space services agreements will come soon. The EU must be prepared for them. We would advise the European Commission to take the lead from now on in conducting international negotiations on a global regulatory framework regarding space services agreements. The Commission should look for a mandate from the Council to negotiate a comprehensive agreement with the third countries interested in space services.

G. liability regarding space services, necessarily subject to be limited

As with air travel, passenger travel services in space will certainly need insurance, and insurance companies’ conidence concerning the risks involved in the new services will fundamentally depend on statistical data. In its early stages, the small scale of the space travel industry and the limited statistical base will not be suicient to permit insurance cal- culation with high conidence. hus, it has been proposed that limits on liability for the owners and operators of space facilities and vehicles will be needed. However, this remains unclear. Much will depend on the venture companies that are currently developing piloted reusable space vehicles in negotiating with space authorities and insurance companies (1).

It should be noted that limiting space carriers’ liability for death or injuries, as under the Montreal Convention, need not deter customers. Risks will in any case have to be objectively small or passenger space travel will not be acceptable. he need for limitation of spacelines’ liability will decline as operating statistics accumulate and risks can be assessed with greater conidence, as has happened in aviation.

(1) Collins, P. and Yonemoto, K., ‘Legal and regulatory issues for passenger space travel’, op. cit.

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he scope of damage to personal belongings occurring during space lights has only limited signiicance in the framework of space carrier liability.

H. liability regarding exploitation of space resources

A new approach would be the case of a private irm carrying out exploita- tive activity. his is a problem of implementation of the ‘common heritage of mankind’ principle since appropriation, totally or partly, of the Moon and other celestial bodies is legally out of question.

Professor Carl Q. Christol (1) suggests when a private irm has engaged in the Moon or any other celestial body and has realised a net proit on its investment in such activities for a period of seven successive years, it shall thereater pay a certain percentage (for example, 25 %) of its net proit to the United Nations. Such funds are to be used by the United Nations to promote the human rights and human needs particularly of the peoples of developing countries. In any year in which a private irm realises no net proit there shall be no duty to make this payment. he form does not matter but such an idea, or similar, deserves attention.

When exploitative activity is carried on by a State, a group of States, or by a public international organisation on the Moon or any other celes- tial body and this State, etc. has realised a net proit on its investment in such activities for a period of ive successive years, it shall thereater pay a certain percentage — for example, 30 % of its net proit to the United Nations, subject to the same goals and condition as set forth in the above proposal. he idea is to make obligations a little more stringent for public authorities. OComments: The 1972 Liability Convention leaves a number of questions outstanding such as appropriate deinition of damage. The deinition could be improved so as to cover damage caused by space debris. There is an urgent need for a new legal instrument considering the economic implications of the risk of colliding. The risk of collision with space debris is made more relevant taking into account the rapidly expanding market of telecommunications, which will possibly include up to 20 satellite constellations with up to 2 000 satellites together in the low orbits. Perhaps the adoption of a speciic instrument on space debris would be a better idea rather than just amending the 1972 Liability Convention.

(1) International Law Association, 70th Conference, New Delhi 2–6 April 2002, Space Law Commit- tee, Final report, Prof. Carl Q. Christol viewing commercial space activities.

236 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) i. Dispute settlement he New Delhi Conference (in 2002) (1) of the International Law Asso- ciation mentioned that its Space Law Committee kept under permanent study the question of dispute settlement. Given the sharp increase in com- mercial space activities in recent times, disputes on the interpretation and application of the outer space treaties are more likely to occur. he forego- ing thinking, for example, applies to the Moon Agreement. Some people in the USA or elsewhere are planning exploitation in terms of appropriation of part of the Moon. his means that terms must be clariied in the space law treaties to make them more consistent with the commercial aspects of space activities.

With respect to the Moon Agreement, it must be made clear that the explo- ration and use of the Moon (Article 4.1) includes commercial exploitation and use, which, however, are only allowable in conformity with the provi- sions of Article 11. he international regime of commercial exploitation by non-governmental entities must include a licensing obligation, guide- lines for licensing requirements, a fair and comprehensive monitoring system in respect of activities thus licensed, an international registration system of activities on the Moon licensed in accordance with its regime and the insurance that other’s economic interests and the environment in general are not put substantially at risk. he protection of the ozone layer is, without a doubt, a common concern of all humankind. And so is the Moon and its resources. he ILA 1998 Conference introduced a drat Convention on the settle- ment of disputes related to space activities. Consensus appears to be grow- ing on the consistency of this drat with the present reality of commercial activities, particularly with respect to its Article 10, which leaves the door open for private entities to be parties to the dispute settlement procedures laid down for sovereign States.

(1) International Law Association, 70th Conference, New Delhi, 2–6 April 2002, Space Law Commit- tee, ‘Final report on the review of space law treaties in view of commercial space activities — con- crete proposals’.

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CHApTEr 5: Space and security — concentration in the aerospace industry a. introduction he concentration in the aerospace industry with internationals started in the USA with the absorption of McDonnell Douglas by Boeing, leaving only two other big players on the aerospace market: Lockheed Martin and Northrop Grumman.

In Europe, in 2000, ater three years of negotiations, Aerospatiale Matra, DaimlerChrysler Aerospace (DASA) and CASA (Construcciones Aer- onáuticas SA) also merged to form EADS, the European Aeronautic Defence and Space Company. he major areas of activity in the aerospace sector revolve around three consortia: hales heads the electronics branch and EADS and BAE (British Aerospace) are the leaders in the aeronautics ield. he only European counterpart to several American companies in the space system is Alcatel.

In the ield of aero-engines, there are only three big worldwide manufacturers: • the joint venture between General Electric (US) and Snecma (France) which is in an ongoing privatisation process and obtained a landing gear contract for the Boeing 7E7; • Pratt Whitney, of which United Technologies (US) is parent company; • Rolls-Royce (UK). he ierce competition among them was relected by the fact that Rolls- Royce knocked General Electric out of top spot in 2004. Rolls-Royce got a 40 % part of the USD 13 billion market in aero-engines against 34 % for General Electric. he major players know how much depends on their competitiveness. herefore, it is interesting to follow their recent acquisitions, mergers and group-formations vis-à-vis huge space projects like Galileo.

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30.1.2003 EaDs became a satellite manufacturer in acquiring 25 % interest in astrium n.V., Europe’s leading satellite manufacturer owned by BaE systems. control of astrium transferred to EaDs at that time. EaDs and BaE each made a capital injection of usD 84 million afterwards and the entity was rebranded EaDs atrium.

18.9.2003 novotel networks and EaDs restructured their joint telecommunications in France and Germany. as a result, EaDs holds 100 % of the shares of EaDs telecom France sas.

21.10.2003 through its subsidiary DaDc’s purchase of 17.7 % of the shares in Dornier GmbH, EaDs now holds 94 % in this company.

31.12.2003 EaDs obtained control of asl aircraft services lemwerder GmbH. the EaDs Group restructured by transfer of the military aircraft business unit from the aeronautics division to the defence and security division.

2004 in late 2004, there was speculation about a take-over by EaDs of the French defence electronics irm Thales. Such a merger would challenge US rival Boeing. But the basics are rather complicated. The French government owns 15 % of EADS and 31 % of Thales. The British Ministry of Defence is one of Thales’ biggest customers, with two aircraft carriers ordered for the Royal Navy. Outside a British view, a German view is also important. The proposed deal was fought of.

2004 The Gallileo Concession perspective has pat the EADS-led group in competition with Eurely, a consortium formed by Alcatel, Finmeccanica, AENA and Hispasat (1).

() Eurely’s presentaton paper, january 2005.

Eurely core members:

Alcatel Fixed and mobile TLC networks, space systems, train and (France) subway signalling, governmental solutions, enterprise

Finmeccanica Aerospace and defence, transportation and signalling, (Italy) energy, information technology

AENA (Spain) Air traic management, airports operations, concessions

Hispasat TLCs, satellite operator (Spain)

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Alcatel: Alcatel is a worldwide company, incorporated in France, leader in communications and broadband solutions for telecommunication serv- ices providers, as well as transport, government, health, education, oil and gas. With sales of EUR 12.5 billion in 2003, Alcatel operates in over 130 countries. It main activities are: • ixed communication solutions : designing and building networks with the choice of a full array of turnkey solutions, both for telephony and broadband applications; • mobile communication solutions : both in ground networks and in mobile handset, preparing the happening of the 3G (UTMS); • private communication solutions: enterprise, railways / urban trans- port, and space developing complete solutions in telecommunication, navigation, radar and optical observation, meteorological and scien- tiic satellites for dual use. Alcatel Space is also the prime contractor of EGNOS, the precursor to the Galileo system.

Finmeccanica: Finmeccanica is the Italian leader in high technology and plays key roles in every main programme and project in the aerospace and defence sectors, contributing its own exclusive design, development and production competencies. Aerospace and defence activities accounted for 75 % of EUR 8.6 billion, consolidated Group turnover in 2003. Its main activities are: • aeronautics: aircrat (transport, combat, trainers, components, maintenance and operations) and helicopters (military and commercial); • space: design, development and production of civil and military satel- lites, space infrastructures and equipment; LEOP services and opera- tion of GEO leets and non-GEO constellations; satellite-based serv- ices (TLC, Earth observation, etc.); unique capabilities in constellation manufacturing and operations; • defence electronics: avionics, radar, land and sea C3 air traic and com- munication systems; • defence system: vehicles and artillery, underwater systems and missiles systems and missiles systems; • energy and transportation: (power generation and related services, urban transportation systems, rail signalling systems and trains).

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AENA: AENA is a public business entity entrusted with the planning, development, building, installation, operation and managing of the 47 Spanish civil airports and the air navigation system for all airspace under Spanish responsibility, with ive area control centres covering four light information regions (FIR/UIR). Arena also manages 15 airports in Central and South America. AENA integrates all Spanish civil aeronauti- cal infrastructure activities in one single organisation stafed by qualiied professionals, with a business philosophy towards its customers (airline companies and air transport users in general) whilst keeping the best of public service spirit, technological innovation and safety management.

As for the GNSS ield of activities, AENA has signiicantly contributed to EGNOS, the precursor to the Galileo system, from its outset in the frame- work of a bilateral agreement with the ESA, and is founder of the Euro- pean satellite services provider (ESSP) set to become the EGNOS system operator and EGNOS service provider for safety of life applications.

Hispasat: Hispasat is a Spanish group of companies that started in 1989 as satellite system operator for commercial and governmental/military communication services, provision of engineering solutions and new advanced projects. Its satellite leet is located at 30 W and 61 W orbital positions to provide all types of communication services at both sides of the Atlantic. he footprints illuminate Europe, North Africa and Amer- ica, with special emphasis on Brazil and other Latin American countries through the recently launched Amazonas satellite. he commercial pres- ence in America is steered from Brazil by Hispamar, a subsidiary company of the group.

Hispasat has proven experience in satellite engineering, procurement, launch, testing and operations, with satellite ground control and monitor- ing premises in Spain, Brazil, Argentina and Mexico as well as appropriate knowledge in Security. Hispasat has been cleared by the Spanish Ministry of Defence (SMOD) since 1990.

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September 2004 Eurely’s ofer for Galileo was submitted to the European Commission.

25.1.2005 Further details and binding commitments to manage the services of the new satellites based on the European navigation system were provided to the European Commission. The Eurely consortium has acquired expertise in high-precision navigation systems through its EGNOS activities under the leadership of Alcatel Space as prime contractor to the ESA.

End January 2005 Finmeccanica agreed with Alcatel to form a joint venture in satellites. Under the deal, Alcatel will own 67 % and Finmeccanica 33 % of Alcatel Alenia Spezio, a satellite manufacturer. Conversely, Finmeccanica will own 67 % and Alcatel 33 % of Telespazio, a satellite services company.

25.1.2005 The Eurely consortium has put Boeing and Lockheed Martin of the USA, and CASC of China on the list among about 40 companies that are expected to provide equipment and services. The EADS-led consortium competing for the EUR 3 billion Galileo concession, made alliance with Thales of France and Inmarsat, the UK-based global satellite communications provider. It indicated that Boeing and other non-European partners could become stakeholders in the operator, should it win the bidding (1)

7.2.2005 The Commission received a notiication of a proposed concentration by which Finmeccanica acquires control of AMS, Italy, jointly-controlled by BAE Systems and Finmeccanica (2). AMS is active in defence electronics, in air traic control and air traic management systems.

19.2.2005 Thales has held exploratory talks with Italy’s Finmeccanica about combining the two companies’ defence electronics businesses (3).

() Financial Times, 26 january 2005, ‘EADS open to Boeng role n Galleo’ by raphael Mnder n Brussels. (2) Case CoMp/M. 3735 Fnmeccanca/AMS, oj C38/0- of 5.2.2005. (3) Financial Times, 9 February 2005, ‘Thales n talks wth Italan rval’, by peggy Hollnger n pars and Tony Barber n rome.

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B. legal interpretation of defence procurement rules in the Eu

I. Background: Article 296 of the EC Treaty

With respect to defence procurement, the EU Member States tend to rely on the defence derogation laid down in Article 296 of the EC Treaty. he provision does not provide for a general automatic exemption for defence equipment but this exemption can be invoked on a case-by-case basis, including the necessity of its use. As a derogation from the general Treaty, it has to be interpreted narrowly.

II. The need for a European independent, common defence procurement (1) he Commission’s Green Paper on defence procurement (2) is a signii- cant step towards common defence procurement. It aims at creating an appropriate regulatory framework for defence procurement in the EU. he ultimate goals are a better allocation of defence resources, avoiding overlapping of research in Member States, and using the seventh research framework programme, an increase in the economic sectorial eiciency and the gradual creation of a European defence equipment market.

A new directive in order to take the speciics of defence procurement into account would be welcome as an interpretative instrument in relation to Article 296 of the EC Treaty. he ield of applications should be deter- mined on the basis of an abstract deinition completed by a negative list taking the special nature of defence procurement into account. he abstract deinition should be based on the concept of ‘essential secu- rity interests’ which does not yet exist in Community law. he European Council of 12 December 2003 has put in place the European Defence Agenda (EDA), which, by the way, should be the irst authority to apply the common procurement rules. he security interests can no longer be limited to purely national rules but should be widened so as to include overall security interests of the EU and make harmonisation possible.

(1) Rapp, B., MEP, Comments on the Commission’s Green Paper on defence procurement —‘Towards an EU defence equipment policy’, Legal Forum held by the Kangaroo Group on 12 October 2004. (2) COM (2004) 608.

243 EuropEAn TrAjECTorIES In SpACE LAw — 2007 c. Eu procurement rules in relation to space policy he New Defence Agenda organised a roundtable on 6 December 2004 in Brussels on two essential themes: • What will be the defence applications of Europe’s space efort? • What is the future for EU–US cooperation? (1)

I. What will be the defence applications of Europe’s space efort? he basics were clearly expressed by Gerhard Brauer, Head of the ESA Security Oice: Space has a security dimension and security has a space dimension. Space has become a medium similar to land, sea and air. It has an inluence on our daily life. he information we receive from space is the basis for our decisions and actions. Space services have become indispensable for a diverse user community. Meeting these users’ needs to the widest extent is of utmost importance. he security of European citizens is ‘a must’.

Space is a major enabler for gathering information, providing commu- nication systems and ofering positioning and navigation systems and Europe will soon cover the full spectrum of major space applications. All these systems were developed with a civil perspective. However, they have potential security and defence applications. he EU has to be a global actor including a whole spectrum of crisis man- agement operations covered by the Treaty of the European Union. his might also include joint disarmament or anti-terrorism operations. here could be beneits in using satellites for worldwide reconnaissance and this is where space comes in.

However, there can be no joint EU space applications in the short term, as there is so far no consolidated EU defence procurement policy. he use of space has to be seen as part of the EU’s wider foreign policy. Such use of space has a cost. Europe stands far behind the USA in terms of expendi- ture in space. he ratio of expenditure in space for Europe versus the US in 2004 was 1:7 (EUR 5.5 billion versus USD 40 billion). Half of the US expenditure was on military applications with Europe spending approxi- mately EUR 500 million. In the event of a space war, satellites would be

(1) New Defence Agenda, ‘Space and security in Europe’, 6 December 2004, Bibliothèque Solvay, Brus- sels.

244 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–) targets. herefore, to be militarily self-suicient means for Europe to be able to survive in space: the key point is the protection of existing Euro- pean satellite services.

Europe should triple expenditure in space, i.e. EUR 16–17 billion/year, of which EUR 2 billion should go to military uses (four times the 2004 basis). he fundamental need for Europe in defence-related space activities is the development of launcher autonomy (1).

Autonomy in the ield of space implies not having to depend on a third party to decide what Europe’s future in space is to be (2).

An efective presence in space means having not only communications, observation and navigation capabilities but launch vehicles as well. As a space power, Europe must be able to draw on an autonomous and suf- iciently reliable own-launch capability. Although this is available in the civilian sector, it is also indispensable in the military sector.

Luc Tytgat, Head of the European Commission Unit for Space Research Policy and Coordination, thereby stressed the urgent need regarding launcher programmes for reusable launchers. Such development concerns experimental vehicles for future RLVs (reusable launch vehicles).

Fortunately, the disastrous launch failure on 11 December 2002 of the new 10-tonne version of Ariane 5 was followed on 12 February 2005 by a successful launch from Kourou (French Guyana), avoiding the risk of the Ariane launch business collapsing.

Under the new European launcher policy, the ESA hopes to complete development work on the Ariane 5/ESC-B version and the Soyuz and Vega launch vehicles for heavy, medium and small payloads respectively.

VEGA is a launcher that complements Ariane and Soyuz.

II. What is the future for EU–US space cooperation?

Constructive work has been achieved with the US GPS and the EU Galileo interoperability agreement. See Annex.

(1) Assembly of the Western European Union, he Interparliamentary European Security and De- fence Assembly, Document A/1822, 4 June 2003, 49th session, ‘European defence-related space activities and the development of launcher autonomy’, Paris. (2) See Recommendation 729 in Annex (pp. 3–5).

245 EuropEAn TrAjECTorIES In SpACE LAw — 2007 he present problem is that the inclusion of countries such as China, India, Russia, etc. causes great concern in the USA. China has committed EUR 200 million to the Galileo navigation system.

Other collaboration with the US has developed in topics such as the ISS back-up agreement.

For satellite launchers, image exchange, etc., On the bad side (the mili- tary), export controls are still causing problems (technology transfer bar- riers of trade — higher export prices by US industry). hese constitute, of course, incentives to go other ways, notably its own, in the absence of a level-playing ield.

D. De facto competitiveness in the aerospace industry depends on military orders

It is obvious that facts from order books conirm this shocking heading:

January 2004 EaDs won against Boeing to build a new leet of tankers for the RAF. However, contest was not awarded.

April 2004 AWACS deal signed for NATO to the amount of USD 524 million by Boeing = NATO airborne warning and control system contract for the US Air Force.

15.06.2004 Boeing signs a USD 4 billion contract to supply submarine hunting aircraft to the US Navy (multi- mission maritime aircraft contract)

June 2004 Air-to-air refuelling tankers contract still under discussion by the Americans

September 2004 BAE Systems intends to purchase DigitalNet Holdings, based in Washington = computer networks for defence and security industries and agencies — this circumvents US rules of technology transfer or high costs of sales

December 2004 BAE Systems announces plans to cut its stake in the Swedish Company SAAB from 35 % to 20 %

December 2004 Airbus ‘Airbus Military’ signs USD 1 billion military aircraft deal with South Africa but provisional under certain conditions. The idea of this A400 M type is to play a large gap in Europe’s lack of strategic airlift capability.

246 pArT 3 — SpACE CHALLEnGES FACED BY EuropE FroM A LEGAL pErSpECTIVE (2000–)

January 2005 pentagon budget-cut proposals in procurement are feared by us industry (spending cuts of about usD 30 billion over six years)and with military budgets under pressure in washington, there is big concern

February 2005 announcement by Engineering Group GKn that it made a GBp 652 million proit on the sale of its 50 % stake in helicopter maker Agusta Westland to joint venture partner Finmeccanica

February BAE systems announced a good 2004 year thanks to military orders i.e. from the Pentagon which enabled the company to completely wipe out GBP 870 million in debt

February 2005 Airbus parent EADS has inally won the battle to secure ‘preferred bidder’ status for a contract to supply a EUR 18.8 billion leet of air-to-air refuelling tankers to the Royal Air Force. This deal is critical to break Boeing’s global monopoly on military refuelling aircraft.

247

Eplogue

scientii c advance and EU space policy

EpILoGuE he seventh framework programme (2007–13) now takes into account research and development in the areas of security and space. he objectives set out for security research in FP7 are: developing the technologies and knowledge necessary to ensure the secu- rity of citizens from threats such as terrorism and organised crime, while respecting fundamental human rights; • ensuring the best use of available technologies in civil and defence- related areas; • stimulating cooperation between providers and users in security solutions. he rapporteur on the European security strategy in the European Parlia- ment stressed the need for European security research to contribute to the development of telecommunications systems on the basis of common standards (1). he objectives set out by the FP7 relect the evolution in European space policy. his policy has taken a giant step forward with the adoption of a new EC and ESA framework agreement. his accord between the Euro- pean Community and the European Space Agency lays the groundwork for joint projects, common management structures and a variety of other shared activities. It was signed in Brussels on 25 November 2003 by Euro- pean Research Commissioner Philippe Busquin, the ESA Director-Gen- eral Jean-Jacques Dordain and the Italian presidency.

Commissioner Busquin has stressed the need for Europe to develop its own launcher technology as a matter of competitiveness. Wishful thinking would be to have a team of only European astronauts in space... However, his support for an EU space policy to be included in the drat Conven- tion materialised aterwards. He also advocated a better funding for space research and in this ield alas much remains to be done...

As a matter of fact, the objective now set out in the Lisbon strategy of mak- ing Europe the world’s leading economy calls for a substantial increase in R & D investment. Europe is competing in this respect not only with countries such as the USA, Japan and Korea but also with China, India and Brazil.

(1) ‘MEP [Karl von Wogau] calls for more money for security research on satellites and telecommuni- cations’, Cordis Focus, No 267, June 2006, p.13. http://cordis.europa.eu

25 EuropEAn TrAjECTorIES In SpACE LAw — 2007 he USA and Japan in particular have made R & D investment a national priority for assessing their international competitiveness (1). he objective of investing 3 % of EU’s gross domestic product in R & D was set by the Barcelona European Council in support of the Lisbon strategy. Late achievement of this target means that the EU is still lagging behind.

However, the positive fact is that the Commission started thinking in terms of new research themes such as space and security. Both themes now call for speciic programmes within the seventh framework pro- gramme (2007–13). he fact remains that public spending in Europe currently runs at a ith of the annual US government outlay on space-related projects of more than USD 35 billion: so greater eforts are needed to reach at least one third of the American outlay! here is a feeling in Europe that public spending should not meet the American standards, by making a better use of the available funding.

Anyway, the approach of space policy is diferent between the USA and the EU.

For the USA, space is an instrument of leadership, in the irst place of information domination and this has its cost.

For Europe, space remains a public good. his diference in approach results in a fundamental choice between open and closed models of innovation. While the US GPS was designed as a closed, military system, Galileo instead was set up as a civilian-controlled system with civilian access in mind. he importance for Europe of having independent access to space is fully demonstrated by its autonomous space transportation system based on: • a heavy launcher Ariane 5; • the ESA’s new launcher Vega to place small satellites into space (irst light at the end of 2007 from Guiana); • cooperation with Russia on the medium-size Soyuz launcher, also to be launched from Europe’s spaceport in Guyana.

O

(1) http://www.epp-ed.eu/Press 10 May 2006.

252 EpILoGuE

European research in astronomy is not lagging behind the US as demon- strated by the ongoing planetary missions orbiting the Moon, Mars, Venus, Saturn currently and Mercury soon (March 2011). he missions have been opened up to the new EU Member States and accession countries.

SMART 1 is currently in orbit around the Moon. Since mid-January 2005, it has been lying at altitudes between 300 and 3 000 km starting its sci- entiic observations and gravity-assist manoeuvres. Its journey started on 27 September 2003, on board an Ariane 5, from Kourou, Guyana.

Mars Express arrived in the vicinity or Mars. It will explore this planet by means of the Exomars rover destined for launch in mid-2011. he model of the rover was exhibited at Farnborough during 17–23 July 2006.

Venus Express was launched on 9 November 2005. It was successfully brought into orbit around Venus on 11 April 2006 ater a delicate orbit insertion manoeuvre allowing the spacecrat to reduce its speed relative to Venus, so that it can be captured by the planet’s gravitation.

Spacecrat Huygens was launched into space on 15 October 1997. Ater almost a seven-year journey through the solar system, Huygens success- fully landed on Saturn’s mysterious moon Titan during 2005.

Messenger was launched on 3 August 2004 to probe Mercury, a planet which is only slightly larger than the Earth’s Moon. It will be in Mercury’s orbit in March 2011.

O

Among future missions already decided, we specially mention the Cryosat 2 mission. Ater the launch of the Cryosat spacecrat aborted on 8 Octo- ber 2005 due to malfunctioning of its launcher, a new Cryosat mission has been planned, i.e. Cryosat 2 expected to be launched in March 2009.

Its objectives include monitoring during a three-year mission the thick- ness of land ice (glaciers) and sea ice. Moreover, melting ice from the poles and the mountain glaciers will be subject to closer scrutiny thanks to satel- lite-based sensors. In another meteorological sector, improved lood data will allow a more accurate prediction.

On 17 July 2006, Europe’s irst polar-orbiting weather satellite was launched from Baikonur, Kazakhstan. It complements a series of Meteosat

253 EuropEAn TrAjECTorIES In SpACE LAw — 2007 satellites in geostationary orbit and forms part of an integrated system to be run with the USA to provide better weather and climate information.

In the communication’s sector, the launch of the innovative lexible broadband satellite HYLAS is planned for late 2008. HYLAS will have an expected lifetime of 15 years and Europe-wide coverage. he satellite will be used mainly to provide broadband Internet access and to distribute and broadcast high deinition television (HDTV).

EADS received public backing in April 2006 (1) for its plan to create a sin- gle European satellite maker.

Launch is planned of the Bepicolombo mission to Mercury in 2013, thus completing the survey of our celestial neighbour planets.

O

As regards international cooperation, the ISS is the best example of sustain- ability. Ater the launches during 2006, major assembly work will resume, adding items to the spaceport truss structure. he Columbus laboratory is Europe’s cornerstone contribution to the space station. Ater been shipped to Cape Canaveral, it will be lown on a space shuttle to the ISS in the sec- ond half of 2007. Its expected operational lifetime is 10 years. he space shuttle Discovery (2), two days ater its lit-of from Canaveral, docked with the ISS on 6 July 2006. he ESA astronaut homas Reiter, among the shuttle’s seven crew members, will stay aboard the ISS for six months ensuring the simultaneous presence of a crew of three for the irst time since February 2003 (Columbia’s accident). ESA astronaut Reiter made his third spacewalk for extra-vehicular activity (EVA), install- ing items of hardware in preparation for future ISS assembly work and deployment of a number of instruments and experiments mounted on the outside of the station. Before his third spacewalk on 28 July 2008, Reiter had already carried out two spacewalks during the Russian Euromir 95 mission in 1995.

Among the ESA’s latest performances, we mention the launch in Novem- ber 2007 of an 11-metre long robotic arm (ERA) that will perform a vari- ety of tasks outside the ISS, contributing to its continued construction,

(1) Financial Times, 28 April 2006. (2) http://spacelight.nasa.gov

254 EpILoGuE to the movements of the astronauts and cosmonauts during spacewalks, allowing video cameras to carry out inspections.

O

A number of challenges, among them legal ones, are now waiting for solutions. • Environment in space is subject to orbiting objects (comets, debris, asteroids, etc.) which constitute a danger for spacecrat and humans aboard. Technical solutions for moving their orbit are a irst important challenge. herefore, the ESA has decided to develop a mission to actu- ally move an asteroid by altering its orbit ater provoking a collision. • he USA has already carried out an explosion on a comet. he tempta- tion is big to bring in nuclear power which use is formally forbidden by the UN Treaty. Another challenge for industrialists is mining of pre- cious metals in space which will also need explosions and robotics. • To land on a comet is a irst step. he ESA’s Rosetta spacecrat was launched from Kourou (Guyana) on 2 March 2004 to both chase and land on a comet in 2014. he comet Churyumov-Gerasimenko has been chosen. • Safety in space is as big a problem for spacecrat as is safety of air navi- gation for civil aviation. herefore, there is a need for an international organisation for the Safety of Space Navigation and Europe should take the lead according to the model of Eurocontrol International Con- vention relating to Cooperation for the Safety of Air Navigation of 13 December 1960, as variously amended and as consolidated by the protocol of 27 June 1977. • he impact of space journeys on climate change on Earth also deserves a new piece of international legislation through the United Nations, similar to what the ICAO did in civil aviation. • Europeans are not fully aware that space tourism on a broader scale than just individual is coming next. It would be a mistake to let the sole USA beginning outline rules on space tourism. • In the USA, Germany, Belgium, etc. it has been noticed that dubious estate agents have started ‘selling’ areas of the Moon, Mars or Venus, giving them names. Only the International Astronomical Union is authorised to attribute names for celestial bodies and, according to the United Nations, space remains 'unprivatised'.

255 EuropEAn TrAjECTorIES In SpACE LAw — 2007

• A new challenge: the Scientiic Council of the European Research Council which will support innovation and excellence in research. With the creation in 2005 of a European Research Council (ERC), due to precede scientiic progress and innovation within the seventh frame- work programme (FP7 2007–13), a new hope has arisen for Europe. he EU was taking a major step towards the realisation of a European research area by supporting scientiic research in the wider Europe, foster- ing excellence and creativity in all research sectors.

A budget of EUR 7.5 billion has been allocated and operations coincide with the FP7 from 2007.

Let them be fruitful.

September 2006

256 Annexes

AnnEXES

ACronYMS

AAA american arbitration association ACRV rescue vehicle AECMA European association of aerospace industries (Brussels) ASI italian space agency ATV automated transfer vehicle BDT telecommunication Development Bureau BOL beginning of life orbit CEPT conference of European posts and telecommunications administrations CLC2000 corine land cover 2000 (from coordinate information on the Environment) CNES French space agency (centre national d’Etudes spatiales) CNSA chinese space agency CSA canadian space agency DBS direct broadcasting by satellite DLR German aerospace centre DRA Defence research agency of the united Kingdom ECSL European centre for space law EEA European Environment agency EGNOS European Geostationary navigation overlay service (the European system ensuring full operational capability of Gnss-1) EIB European investment Bank EIONET European Environment information and observation network (1990) ELVs expandable launch vehicles ENMOD Convention convention of Environment Modiication (18 May 1977) EO Earth orbit (transportation) EOL end of life in orbit ESA European Space Agency EUMETSAT European Organisation for the Exploitation of Meteorological Satellites (1986), supporting National Meteorological Services EuTEF European Technology Exposure Facility ETSI European Telecommunications Standard Institute Eumetsat European Meteorological Satellite Organisation

259 EuropEAn TrAjECTorIES In SpACE LAw — 2007

Eutelsat European telecommunication satellite organisation (paris convention of 15 july 1982, entered into force on 1 september 1985). the fourth satellite operator worldwide and irst in Europe EVA extra vehicular activities (e.g. space walks) ExPA express pallet adapter FAO Food and Agriculture Organisation FCC Federal Communications Commission (USA) GAN global area network GATS General Agreement on Trade Services (in the framework of the WTO — World Trade Organisation) GCA ground control authorities GEO geostationary orbit (orbit at almost 36 000 km distance from the Earth, perpendicular to the equator) GMPCS global mobile personal communication by satellite, arrangements adopted in March 1998 by ITU GNSS global navigation satellite systems and services GOJ Japan’s Space Cooperating Agency GTO geostationary transfer orbit HEO high orbit elliptical (at 40 000 km at its highest, and less than 1 000 km at its lowest) HRST highly reusable space transportation HST Hubble space telescope IAA International Academy of Astronautics IADC Inter-Agency Space Debris Coordinating Committee (April 1993) IAF International Astronautical Federation (1951) IATA International Air Transport Association IBA International Bar Association ICAO International Civil Aviation Organisation ICC International Chamber of Commerce (Paris) ICJ International Court of Justice ICTs Information and Communications Technologies IGA inter-governmental agreement IISL International Institute of Space Law ILA International Law Association IMO International Maritime Organisation Inmarsat Organisation for International Telecommunication by Satellite (Washington Agreement of 20 August 1971, entered into force on 12 February 1973) INPE Instituto Nacional de Pesquisas Especias (Brazil’s Space Agency)

260 AnnEXES

Intelsat international Mobile satellite organisation Intersputnik international organisation of space communication (1971) challenging intelsat ISOs international satellite organisations ISRO indian space research organisation ISS international space station ITAR us international traic in Arms Regulation ITU International Telecommunication Union JAXA Japanese Aerospace Exploration Agency (1 October 2003) JEM Japanese Experiments Module JRC Joint Research Centre of the European Commission JRS Japanese Rocket Society LCIA London Court of International Arbitration LEO low-Earth orbit (between 200 and 5 500 km above the Earth’s surface) LOS Convention United Nations Convention on the Law of the Sea MCB Multilateral Coordination Board MCOP Multilateral Coordination Board MEO medium Earth orbit (between 1 000 and 20 000 km above the Earth’s surface) MMOWG Multilateral Medical Operations Working Group MMPB Multilateral Medical Policy Board MSMB Multilateral Space Medicine Board MSS mobile satellite service or mobile servicing systems (Canada’s contribution to the ISS) MOU memorandum of understanding NASA National Aeronautics and Space Administration (USA) NASDA National Space Development Agency of Japan NEOs near Earth objects NGOs non-governmental organisation NGSO non-geosynchronous orbit satellites NSAU National Space Agency of Ukraine OECD Organisation for Economic Cooperation and Development OST Outer Space Treaty PCA Permanent Court of Arbitration (The Hague 1899, revised 1907) PPP public–private partnership RKA Russian Space Agency (also RSA) RMS remote manipulation system RSA See RKA SAFs satellite applications facilities

26 EuropEAn TrAjECTorIES In SpACE LAw — 2007

SHF super-high frequency SOP space station system operations panel SS spin stabilisation SSCC space station code of conduct SSRMS space station remote Manipulator system STA space transportation association (usa) STS space transportation system (oicial name for the ‘Shuttle’) Tas three axis stabilisation UAVs unmanned air vehicles UHF ultra-high frequencies Uncitral United Nations Commission on International Trade Law Uncopuos United Nations Committee for the Peaceful Uses of Outer Space UNEP United Nations Environment Programme UNGA United Nations General Assembly Unidroit International Institute for the Uniication of Private Law UOP User Operations Panel USOCs User Support and Operations Centre WHO World Health Organisation WSO World Space Organisation (project suggest in 1968 in Vienna at the irst Unispace Conference)

262 AnnEXES

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International Law Association, London Conference (2000), Space Law Committee, ‘Review of space law treaties in view of commercial space activities’, p.5 Prof M . Williams and p. 13, Dr N. Jasentuliyana.

International Law Association, London Conference (2000), Space Law Committee, ‘Review of space law treaties in view of commercial activities’.

International Law Association, New Delhi Conference (2002), Space Law Committee, ‘Final report on the review of space law treaties in view of commercial space activities’.

International Law Association, New Delhi Conference, (2002), Space Law Committee, ‘Final report on the review of space law treaties in view of commercial space activities — concrete proposals’.

Journal of Space Law, Vol. 18 (1990) pp 44–45.

Journal of Space Law, Vol. 19 (1991) pp 173–176.

Journal of Space Law, Vol. 21 (1993) pp 166–167.

‘Montreal Convention 1999’, European Transport Law, Vol. XXXIX, No 6, 2004, pp. 765–773.

269 EuropEAn TrAjECTorIES In SpACE LAw — 2007

N(2003). ‘ITU partnership to provide satellite services for disaster man- agement’, ITU Newsroom: 6 January 2003.

National Space Agency of Ukraine: ‘he Ukrainian space programme and opportunities for cooperation with Europe’, Prague 2 and 3 June 2003.

New Defence Agenda, ‘Space and security in Europe’, 6 December 2004, Bibliothèque Solvay, Brussels.

Opinion of the European Economic and Social Committee — ‘A coherent framework for aerospace — a response to the STAR 21 report’, (COM(2003) 600 inal OJ C 112 ,30.4.2004, p. 15.

Outlook on space law over the next 30 years: essays published for the 30th anniversary of the Outer Space Treaty, Kluwer Law International, 1997.

Pagnanelli Risk Solutions Ltd, http://www.pagnanellirs.com August 2002, Reactions Magazine.

Recital (4) in Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004, OJ L 143, 30.4.2004, p. 56.

Report of the European Parliament on the working document of the Com- mission, ‘Toward a coherent European approach for space’, Committee on Industry, External Trade, Research and Energy, Rapporteur Konstantinos Alyssandrakis (A5-0119/2000), 19 April 2000.

Report of the High-Level European Advisory Group on Aerospace, ‘STAR 21: strategic aerospace review for the 21st century’, July 2002.

Resolution of the European Parliament on the Commission working doc- ument, ‘Toward a coherent European approach for space’, 18 May 2000.

Resolution of the European Parliament, ‘Europe and space’, COM(2000)597-C5-0146/2001/2072(COS), 17 January 2002.

Statement of Mr Peter Vis, acting Head of Unit at the European Commis- sion, in London on 22 November 2004, reported by Financial Times of November 23, 2004. he European Environment Agency: who we are/what we do/how we do it, Publications Oice, Luxembourg. www.eea.eu.int ‘.

270 AnnEXES he European Environment Agency, Corine Land Cover 2000 — mapping a decade of change, Publications Oice, Luxembourg, 1994. www.eea.eu.int

Treaty establishing a Constitution for Europe, 2004/C 310, OJEU 16 December 2004, Volume 47, p. 103, Section 5 Environment, Article III-233, 1 a) and d).

ITU, International Telecommunications Union, World Conference on telecommunication development (WC TD-02), document 2.F, 29 Decem- ber 2001, Turkey, 18-27 March 2002.

White Paper, ‘Space: a new European frontier for an expanding union: an action plan for implementing the space policy’, European Commission, COM(2003) 673, Brussels, 11 November 2003. http://cordis.europa.eu http://europa.eu.int/comm/research/fp6/index_en.html; http://europa.eu.int/comm/space themes/coop/inter_cooperation_ en.html http://europa.eu.int/comm/space/russia/about_en.html http://europa.eu.int/comm/space/russia/sector/satellite_navigation_ en.html http://europa.eu.int/comm/space/themes/policy/coord/taskforce_ en.html; http://europa.eu.int/comm/space/themes/policy/intro_space_en.html; http://spacelight.nasa.gov http://thomas.loc.gov/cgi-bin/query http://www.epp-ed.eu/Press http://www.euractiv.com/Article?tcmuri=tcm:29-133348-16&type=News http://www.fas.org/spp/guide/ukraine/agency/mark0125.htm; http://www.inpe.br/cri2/english/en_cri_home.html http://www.isro.org http://www.jaxa.jp/index_e.html

27 EuropEAn TrAjECTorIES In SpACE LAw — 2007 http://www.nsau.gov.ua http://www.oosa.unvienna.org/COPUOS/copuod.html; http://www.space.com/spacenews/europe/rosaviakosmos.081301.html http://www.uni-koeln.de/jur-fak/instlut/drat4.html, Prof. Böckstiegel und Prof. Hobe http://www.wto.org/english/tratop_e/serv_e/s_negs_e.htm http://www.wtowatch.org/library/admin/uploadedfiles/Developing- CountriesintheNewRoundofGATS.htm www.eumetsat.de www.itu.int www.spacefuture.cm/archive/generalpublicspacetravelandtourism.shtm www.wto.org

272 AnnEXES

ITu HISTorICAL rEVIEw

1837 Invention of the electric telegraph 1865 17 May: founding of the International Telegraph Union in Paris by 20 European countries with the adoption of irst ITU Con- vention. First Telegraph Regulations put in place 1868 Vienna — First Telegraph Conference. Decision to establish the headquarters of the Union in Bern 1869 Publication of the Telegraph Journal begins. Renamed Telecom- munication Journal in 1934, it is now published under the name ITU News 1876 Alexander Graham Bell patents his invention of the telephone 1885 Berlin — Telegraph Conference. First provisions for interna- tional telephone service 1895 First signals transmitted by radio-relay system 1902 First radio transmissions of the human voice 1906 Berlin — International Radiotelegraph Conference (Plenipo- tentiary). First Radiotelegraph Convention. Worldwide adop- tion of the SOS emergency distress signal. First trials of broad- casting (voice and music) using radiotelephony 1920 Birth of sound-broadcasting in the improvised studios of the Marconi company 1924 Creation of International Telephone Consultative Committee (CCIF) 1925 Creation of International Telegraph Consultative Committee (CCIT) 1927 Washington — Radiotelegraph Conference (Plenipotentiary). Creation of the International Radio Consultative Committee (CCIR) 1932 Madrid — Plenipotentiary Conference. Telegraph and Radio- telegraph Conventions are merged to form single International Telecommunication Convention. he organisation changes its name from International Telegraph Union to International Tel- ecommunication Union

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1947 Atlantic City — Plenipotentiary Conference. Creation of the International Frequency Registration Board (IFRB). ITU becomes a specialised agency of the United Nations 1948 ITU headquarters transferred to Geneva 1952 Buenos Aires — Plenipotentiary Conference. ITU commences its programme of technical cooperation 1956 Geneva — CCIF and CCIT are merged to form CCITT (Inter- national Telegraph and Telephone Consultative Committee) 1957 Launch of Sputnik 1, the Earth’s irst artiicial satellite 1959 For the irst time, the Radio Regulations are entirely revised by the Geneva Administrative Radio Conference 1963 Launch of the world’s irst telecommunication satellite, Syn- com-1, in geostationary orbit. Geneva irst World Space Radio- communication Conference 1965 Montreux — Plenipotentiary Conference. Centenary of the Union, culminating in a commemorative ceremony in Paris 1971 ITU launches its irst world telecommunication exhibition and forum — Telecom 71 1973 Malaga-Torremolinos — Plenipotentiary Conference 1982 Nairobi — Plenipotentiary Conference. he Independent Com- mission for Worldwide Telecommunications Development is established 1983 UN declared World Communications Year with ITU as the lead agency 1985 ITU’s irst regional telecommunication exhibition in the Asia- Paciic region — Asia Telecom 85 1986 ITU’s irst regional telecommunication exhibition in the Africa region — Africa Telecom 86 1987 Geneva — HF Broadcasting Conference. Revision of the use of high-frequency bands allocated to the broadcasting service and adoption of technical standards and procedures for single- sideband radio services

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1988 ITU’s irst regional telecommunication exhibition in the Amer- icas region — Americas Telecom 88 Geneva — World Radio Conference on the use of geostation- ary-satellite orbit (ORB-88). Adoption of plan providing equi- table rights of access to the geostationary-satellite orbit. Com- pletion of a comprehensive world satellite direct broadcasting plan. 1989 Nice — Plenipotentiary Conference. Creation of the High Level Committee to carry out an in-depth review of the structure and functioning of the Union 1990 125th anniversary of ITU 1992 Geneva — Additional Plenipotentiary Conference adopts struc- tural reforms following the recommendations of the High Level Committee. Creation of three Sectors (Radiocommunication, Telecommunication Standardisation and Telecommunication Development) which integrate the functions carried out by the former IFRB, CCIR, CCITT and BDT 1993 Helsinki — First World Telecommunication Standardisation Conference. First World Radiocommunication Conference (WRC-93) and Assembly (RA-93), held in Geneva 1994 Buenos Aires — First World Telecommunication Development Conference Kyoto — Plenipotentiary Conference 1996 First World Telecommunication Policy Forum in Geneva, on global mobile personal communications by satellite (GMPCS) systems. Adoption of the irst international standard for uni- versal international freephone numbers (UIFN) 1997 Establishment of the GMPCS MoU and adoption of the irst set of arrangements for transborder use of GMPCS terminals Adoption in Geneva of the irst memorandum of understand- ing to restructure the Internet ITU’s irst interactive media exhibition and forum — Telecom Interactive 97 1998 Minneapolis — Plenipotentiary Conference introduces single category of sector membership according wider rights and obli- gations to private sector members. Decision to hold a World Summit on the information society taken. First Emergency Tel- ecommunications Convention adopted in Tampere, Finland

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1999 ITU becomes founding member of the Protocol Supporting Organisation of the Internet Corporation for Assigned Names and Numbers (ICANN PSO) 2000 Istanbul — Landmark decision on the approval of the radio interface speciications for third-generation mobile communi- cations (IMT-2000) and on additional frequency bands for its worldwide operation. Geneva — First worldwide standard on digital sound broadcasting 2001 Geneva — First Universal Personal Telecommunication Number allocated, opening the way to global number portabil- ity. New York — United Nations General Assembly endorses the organisation of the World Summit on the Information Society 2002 Marrakech — Plenipotentiary Conference 2003 ITU’s irst global index to rank some 180 economies on access indicators for the information society. Holding of the irst phase of the World Summit on the Infor- mation Society, the irst summit of this kind aimed to bring the tools of the information revolution to the service of global development

Source: http://www.itu.int/aboutitu/overview/landmarks.html

276 AnnEXES

EXTrACTS FroM THE rADIo rEGuLATIonS Internatonal Telecommuncaton unon – ITu 4 1.2 Telecommunication: any transmission, emission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic sys- tems (CONV.). 6 1.4 Radio waves or Hertzian waves: electromagnetic waves of fre- quencies arbitrarily lower than 3 000 GHz, propagated in space without artiicial guide. 7 1.5 Radiocommunication: telecommunication by means of radio waves (CONV.). 22 3.3 Fixed-satellite service: A radiocommunication service between earth stations at given positions, when one or more satellites are used; the given position may be a speciied ixed point or any ixed point within speciied areas; in some cases this serv- ice includes satellite-to-satellite links, which may also be oper- ated in the inter-satellite service; the ixed-satellite service may also include feeder links for other space radiocommunication services. 36 3.17 Broadcasting service: a radiocommunication service in which the transmissions are intended for direct reception by the gen- eral public. his service may include sound transmissions, tel- evision transmissions or other types of transmission (CONV.). 37 3.18 Broadcasting-satellite service: a radiocommunication service in which signals transmitted or retransmitted by space sta- tions are intended for direct reception by the general public. In the broadcasting-satellite service, the term "direct reception" shall encompass both individual reception and community reception. 106 4.49 Satellite network: a satellite system or a part of a satellite sys- tem, consisting of only one satellite and the cooperating earth stations. 107 4.50 Satellite link: a radio link between a transmitting earth station and a receiving earth station through one satellite. A satellite link comprises one up-link and one down-link.

277 EuropEAn TrAjECTorIES In SpACE LAw — 2007

122 5.13 Television: a form of telecommunication for the transmission of transient images of ixed or moving objects. 123 5.14 Individual reception (in the broadcasting-satellite service): the reception of emissions from a space station in the broadcast- ing-satellite service by simple domestic installations and in par- ticular those possessing small antennae. 124 5.15 Community reception (in the broadcasting-satellite service): the reception of emissions from a space station in the broad- casting-satellite service by receiving equipment, which in some cases may be complex and have antennae larger than those used for individual reception, and intended for use: • by a group of the general public at one location; or • through a distribution system covering a limited area.

278 AnnEXES

FrAMEworK AGrEEMEnT BETwEEn THE EuropEAn CoMMunITY AnD THE EuropEAn SpACE AGEnCY ESA/C(2003)25

THE EUROPEAN COMMUNITY, and

THE EUROPEAN SPACE AGENCY,

(Hereater also collectively referred to as ‘the Parties’)

WHEREAS the European Community and the European Space Agency (‘ESA’) consider that closer cooperation between them will strengthen the peaceful use of space as an important tool to contribute to European cohesion and economic growth and will allow space-related activities to be brought to a wider political, economic, scientiic, environmental and social framework more directly at the service of European citizens;

WHEREAS each Party is conident that such cooperation will create added value for the beneit of European citizens;

WHEREAS the Parties recognise that they have speciic complementary and mutually reinforcing strengths and are committed to cooperating in an eicient and mutually beneicial manner and to avoiding any unneces- sary duplication of efort;

WHEREAS space technology has become a unique and critical technol- ogy enabling the Community to address and achieve a large number of the goals of its policies, notably related to information society, transport and environmental protection;

HAVING REGARD TO the various resolutions adopted by the EU Council (1) and by the ESA Council (2) and to the EU Council conclusions of 10 December 2001, the said two Councils have encouraged the estab-

(1) he EU Council resolutions of 22 June 1998 (OJ C 224, p. 1), 2 December 1999 (OJ C 375, p. 1), 16 November 2000, (OJ C 371, p. 2). (2) he ESA resolutions of: 23 June 1998: ESA/C/CXXXVI/Res.1 (inal), 11 May 1999: ESA/C-M/ CXLI/Res. 1 (inal); ESA/C(2000)67; ESA/C-M/CXLVIII/Res. 1 (inal), 16.11.2000, referring to the European strategy for space; ESA/C-M/CLIV/Res. 1 (inal), 15.11.2001; ESA/C-M/CLXV/Res.3 (i- nal), 27.5.2003.

279 EuropEAn TrAjECTorIES In SpACE LAw — 2007 lishment of a framework for cooperation between the Parties, while main- taining their respective distinct tasks and responsibilities;

WHEREAS Decision No 676/2002 of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (‘Radio Spectrum Decision’) is rel- evant, given that any space systems or applications will depend on the availability of radio frequencies,

HAVE AGREED AS FOLLOWS:

ARTICLE 1 - Purpose of the cooperation he aim of this framework agreement is to address the following issues:

1. he coherent and progressive development of an overall European space policy. Speciically, this policy shall seek to link demand for services and applications using space systems in support of the Community poli- cies with the supply of space systems and infrastructure necessary to meet that demand.

2. he establishment of a framework providing a common basis and appropriate operational arrangements for an eicient and mutually ben- eicial cooperation between the Parties with regard to space activities in accordance with their respective tasks and responsibilities and fully respecting their institutional settings and operational frameworks. he cooperation under this framework agreement between the Parties aims at:

(a) securing Europe’s independent and cost-efective access to space and the development of other ields of strategic interest necessary for the inde- pendent use and application of space technologies in Europe;

(b) ensuring that the overall European space policy takes into particular account the general policies pursued by the European Community;

(c) supporting Community policies by using space technologies and space infrastructures where appropriate and promoting the use of space systems in support of sustainable development, economic growth and employment;

(d) optimising the use of expertise and available resources and contribut- ing to the consolidation of the close cooperation between the European Community and ESA, thereby linking the demand and supply of space systems within a strategic partnership;

280 AnnEXES

(e) achieving greater coherence and synergy of research and development in order to optimise the use of resources available in Europe, including the network of technical centres.

ARTICLE 2 - Principles of cooperation

1. he cooperation between the Parties shall be pursued in the light of the common objectives as deined under Article 1, with due regard to their respective tasks and responsibilities and their respective institutional settings and operational frameworks.

2. Each Party shall take the decisions necessary for the implementation of this agreement, as described in Article 4, in accordance with its own internal procedures.

3. Bearing in mind the nature of space technologies and infrastructures, both Parties, in implementing this agreement, shall take into account their security dimension.

ARTICLE 3 - Fields of cooperation

1. he Parties have identiied the following speciic ields of cooperation: • science • technology • earth observation • navigation • communication by satellite • human space light and micro-gravity • launchers spectrum policy related to space.

2. he Parties may identify and develop new ields for cooperation.

ARTICLE 4 - Implementation

1. For the implementation of this agreement each Party shall undertake, in compliance with its own prerogatives, legal instruments and proce- dures, such actions as are required to achieve the purpose of the coopera- tion provided for in Article 1.

2. Such actions shall aim at fostering the utilisation of space research and development and space applications in the public and private sectors, the

28 EuropEAn TrAjECTorIES In SpACE LAw — 2007 promotion of the adoption of legislative, regulatory and standardisation measures in this sector, the funding and carrying out of joint initiatives pursuant to Article 5.

3. Each Party shall refer to the competencies and capabilities of the other, whenever an action is necessary, to pursue the purpose of the cooperation, and shall provide the other Party with expertise and support in its own speciic ields of competence.

ARTICLE 5 - Joint initiatives

1. Subject to paragraph 3, the joint initiatives to be carried out by the Par- ties may take, without being limited to, the following forms:

(a) the management by the ESA of European Community space-related activities in accordance with the rules of the European Community;

(b) the participation by the European Community in an optional pro- gramme of the European Space Agency, in accordance with Article V.I.b of the ESA Convention;

(c) the carrying out of activities which are coordinated, implemented and funded by both Parties;

(d) the creation by the Parties of bodies charged with pursuing initiatives complementary to research and development activities, such as the provi- sion of services, the promotion of operators formation and the manage- ment of infrastructures;

(e) the carrying out of studies, the organisation of scientiic seminars, con- ferences, symposia and workshops, the training of scientists and technical experts, the exchange or sharing of equipment and materials, the access to facilities, and the support of visits and exchanges of scientists, engineers or other specialists.

2. When the implementation of a joint initiative requires a detailed dei- nition, it shall be provided for in speciic arrangements to be entered into between the Parties. Whenever applicable, such speciic arrangements should include at least:

(a) the overall mission deinition;

(b) a description of the objectives;

(c) a consolidated set of user requirements;

282 AnnEXES

(d) a work plan;

(e) an appropriate management scheme;

(f) the role and inancial implications of the Parties;

(g) an industrial policy scheme;

(h) budgetary aspects;

(i) rules of intellectual property rights, rules of ownership including the transfer of ownership, the implementation principles including voting rights, and the participation by third Parties.

Both Parties shall work out guiding principles in addition to these speciic arrangements as soon as possible.

3. Any inancial contribution made by one Party in accordance with a speciic arrangement shall be governed by the inancial provisions applica- ble to that Party. Under no circumstances shall the European Community be bound to apply the rule of ‘geographical distribution’ contained in the ESA Convention and especially in Annex V thereto. Compliance with the rules relating to inancial control and auditing of the Party contributing to the joint initiatives, or of both Parties in the case of joint contribution, shall apply to any joint activity.

ARTICLE 6 - Consultation and information

1. he Parties shall consult each other regularly in order to coordinate their activities to the fullest extent. Each Party shall inform the other of any initiatives within its own decision-making process, in the ields of cooperation under Article 3, which may be of interest to the other Party.

2. he Parties shall exchange all information at their disposal which may be required for the implementation of this agreement, subject to their respective rules.

3. Except when otherwise provided, the Parties shall not disclose any information exchanged in connection with this agreement to any persons other than those employed by them or oicially entitled to handle such information nor shall they use it for commercial purposes. Such disclo- sure shall extend only so far as may be necessary for the purpose of this agreement set out in Article 1 and shall be in strict conidence.

283 EuropEAn TrAjECTorIES In SpACE LAw — 2007

ARTICLE 7 - External dimension of the cooperation

1. Each Party shall inform the other of its activities of an international dimension which may be of interest to the other Party.

2. Whenever appropriate a Party may, in relation to any matters relevant to its international activities, consult the other Party.

3. Once a speciic arrangement has been concluded between the parties in accordance with Article 5, the external aspects of this joint activity vis- à-vis third parties shall be pursued jointly by the parties in accordance with that speciic arrangement.

ARTICLE 8 - Coordination and facilitation of cooperative activities

1. he coordination and facilitation of cooperative activities under this agreement shall be accomplished by regular joint and concomitant meet- ings of the Council of the European Union and of the Council of ESA at ministerial level (‘Space Council’).

2. he objectives of the joint and concomitant meetings shall include the following:

(a) providing orientations supporting the achievement of the objectives of this agreement and identifying actions required;

(b) making recommendations, in particular related to the main elements of the speciic arrangements;

(c) advising the parties on ways to enhance cooperation consistent with the principles set out in this Agreement;

(d) reviewing the efective and eicient functioning of this agreement.

3. A secretariat shall assist the concomitant meetings and shall elaborate the initiatives deriving from the implementation of this agreement. he secretariat shall implement the guidelines provided by the concomitant meetings of the two Councils. he secretariat shall establish its own rules of procedure and be composed of oicials of the Commission of the Euro- pean Communities and of the ESA Executive. he Parties shall undertake, in accordance with their respective rules and procedures, to contribute to the required administrative support.

4. Without prejudice to the Parties’ internal decision-making procedures, the Secretariat shall consult on a regular and informal basis high-level rep-

284 AnnEXES resentatives of the Member States of the European Community and of the European Space Agency, with the purpose of reaching common under- standing on issues related to the implementation of this agreement.

ARTICLE 9 - Exchange of personnel

1. he Parties may second members of their staf to each other for speciied periods in order to share expertise and develop mutual understanding.

2. Rules for the implementation of this Article shall be established by the Secretariat, as referred to in Article 8, and be agreed to in the form of a speciic arrangement under this framework agreement.

ARTICLE 10 - Public relations

1. he Parties undertake to coordinate in advance their public-relations, press and media activities concerning any joint public activities relating to subjects covered by this agreement.

2. In all relevant media activities, the role of each Party in this agreement shall be clearly identiied and mentioned.

3. he detailed arrangements for implementing public relations activities provided for in this Article shall be adopted jointly.

ARTICLE 11 - Settlement of disputes

1. Any disputes which may arise between the Parties relating to the inter- pretation or application of this agreement shall be submitted for direct negotiations within the secretariat.

2. If it is not possible to settle the dispute in accordance with paragraph 1, either of the two Parties may notify the other of the appointment of an arbitrator. he other Party shall then appoint its own arbitrator within a period of two months. he arbitrators shall then appoint a third arbitrator within one month.

3. he arbitrators’ decisions shall be taken by majority vote.

4. he award of the Arbitration Tribunal shall be inal and binding on the Parties.

5. Each Party to the dispute shall take the appropriate steps required to implement the arbitrators' decisions.

285 EuropEAn TrAjECTorIES In SpACE LAw — 2007

ARTICLE 12 - Entry into force, duration, amendments and termination

1. his agreement shall enter into force on the date of the last written communication by which the Parties notify each other that their respec- tive internal procedures necessary for its entry into force have been completed.

2. his agreement shall remain in force for four years from the date of its entry into force. It shall be automatically extended for subsequent periods of four years unless either of the Parties notiies the other Party in writing, at least one year before the expiry of any of its periods of duration, of its intention to terminate it. his agreement shall terminate upon the expiry of 12 months ater the receipt of written notiication by one Party sent by the other Party.

3. he termination or expiry of this agreement shall not afect the validity of the speciic arrangements entered into between the Parties in accord- ance with Article 5, which shall remain in full force and efect until the terms for their execution or termination take place.

4. his agreement shall be amended only by written agreement between the Parties.

5. his agreement is not intended to modify or supersede any previous agreements entered into between the Parties, which shall remain in full force and efect in accordance with their own terms and provisions.

ARTICLE 13 - Signature and authenticity his agreement shall be drawn up in duplicate in the Danish, Dutch, English, Finnish, French, German, Greek, Italian, Norwegian, Portu- guese, Spanish and Swedish languages, each of these texts being equally authentic.

286 AnnEXES

STATuS oF InTErnATIonAL AGrEEMEnTS rELATInG To ACTIVITIES In ouTEr SpACE AS AT  jAnuArY 2006 a. united nations treaties

1. 1967 OST Treaty on principles governing the activities of States in the exploration and use of outer space, including the Moon and other celestial bodies (outer Space Treaty) adoption by the General 19 December 1966 (resolution 2222 (XXi)) assembly: opened for signature: 27 january 1967 in london, Moscow and washington, Dc

Entry into force: 10 october 1967

Depositaries: russian Federation, united Kingdom of Great Britain and northern ireland and united states of america

Sources: 8 uST () 240; TIAS (2) 6347; 60 unTS (3) 205.

2. 1968 ARRA Agreement on the rescue of astronauts, the return of astronauts and the return of objects launched into outer space (rescue Agreement) adoption by the General 19 December 1967 (resolution 2345 (XXii)) assembly: opened for signature: 22 april 1968 in london, Moscow and washington, D.c.

Entry into force: 3 December 968

Depositaries: russian Federation, united Kingdom of Great Britain and northern ireland and united states of america

Sources: 9 uST 7570; TIAS 6599; 672 unTS 9.

(1) United States treaties and other international agreements. (2) Treaties and other international acts series. (3) United Nations treaty series.

287 EuropEAn TrAjECTorIES In SpACE LAw — 2007

3. 1972 LIAB Convention on international liability for damage caused by space objects (Lablty Conventon)

adoption by the General 29 november 1971 (resolution 2777 (XXVi)) assembly:

opened for signature: 29 March 1972 in london, Moscow and washington, D.c.

Entry into force: 1 september 1972

Depositaries: russian Federation, united Kingdom of Great Britain and northern ireland and united states of america

Sources: 24 uST 2389; TIAS 7762; 96 unTS 87.

4. 1975 REG Convention on registration of objects launched into outer space (regstraton Conventon)

adoption by the General 12 november 1974 (resolution 3235 (XXiX)) assembly:

opened for signature: 14 january 1975 in new York

Entry into force: 15 september 1976

Depositaries: secretary-General of the united nations

Sources: 28 uST 695; TIAS 8480; 023 unTS 5).

5. 1979 MOON Agreement governing the activities of states on the Moon and other celestial bodies (Moon Agreement)

adoption by the General 5 December 1979 (resolution 34/68) assembly:

opened for signature: 18 December 1979 in new York

Entry into force: 11 july 1984

Depositaries: secretary-General of the united nations

Sources: 8 ILM () 434; 363 unTS 3.

(1) International legal materials.

288 AnnEXES

B. other agreements

General

6. 1963 NTB Treaty banning nuclear weapon tests in the atmosphere, in outer space and under water opened for signature: 5 august 1963 in Moscow

Entry into force: 10 october 1963

Depositaries: russian Federation, united Kingdom of Great Britain and northern ireland and united states of america

Sources: 4 uST 33; TIAS 5433; 480 unTS 43

7. 1974 BRS Convention relating to the distribution of programme-carrying signals transmitted by satellite opened for signature: 21 May 1974 in Brussels

Entry into force: 25 august 1979

Depositaries: secretary-General of the united nations

Source: 44 unTS 3

Institutions

8. 1971 ITSO Agreement relating to the International Telecommunications Satellite Organisation (ITSO), with annexes opened for signature: 20 august 1971 in washington, D.c.

Entry into force: 12 February 1973

Depositaries: united states of america

Sources: 23 uST 383 and 409; TIAS 7532

289 EuropEAn TrAjECTorIES In SpACE LAw — 2007

9. 1971 INTR Agreement on the establishment of the Intersputnik international system and organisation of space communications

opened for signature: 15 november 1971 in Moscow

Entry into force: 12 july 1972

Depositaries: russian Federation

Source: 862 unTS 3

10. 1975 ESA Convention for the establishment of a European Space Agency (ESA), with annexes

opened for signature: 30 May 1975 in paris

Entry into force: 30 october 1980

Depositaries: France

Source: 4 ILM 864

11. 1976 ARB Agreement of the Arab Corporation for Space Communications (Arabsat) (amended in May 1990)

opened for signature: 14 april 1976 (14 rabi’ ii 1396 H) in cairo

Entry into force: 16 july 1976

Depositaries: league of arab states

Source: Space law and related documents, uS Senate, 0st Congress, 2nd Sesson, 395 (990)

12. 1976 INTC Agreement on cooperation in the exploration and use of outer space for peaceful purposes (Intercosmos)

opened for signature: 13 july 1976 in Moscow

Entry into force: 25 March 1977

Depositaries: russian Federation

Source: 6 ILM 

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13. 1976 IMSO Convention on the International Mobile Satellite Organisation, with annex (amended in April 1998 to provide for the restructuring of Inmarsat; the amendments entered into force on 31 July 2001) opened for signature: 3 september 1976 in london

Entry into force: 16 july 1979

Depositaries: secretary-General of the international Maritime organisation

Sources: 3 uST ; TIAS 9605

14. 1982 EUTL Convention establishing the European Telecommunications Satellite Organisation (Eutelsat) (amended in accordance with decisions taken by the Eutelsat parties in May 1999 to provide for the restructuring of Eutelsat) opened for signature: 15 july 1982 in paris

Entry into force: 1 september 1985

Depositaries: France

Source: uK Msc. no. 4, Cmnd. 954 (984)

15. 1983 EUM Convention for the establishment of a European Organisation for the Exploitation of Meteorological Satellites (Eumetsat) (amended in June 1991 to broaden its objectives to include climate monitoring and to allow for the execution of optional programmes; the amendments entered into force on 19 November 2000) opened for signature: 24 May 1983 in Geneva

Entry into force: 19 june 1986

Depositaries: switzerland

Sources: Germany, Bundesgesetzblatt, jahrgang 987, Tel II (987), p. 256. Ths conventon has been pub- lshed n the natonal bulletns of the ratfyng States.

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16. 1992 ITU International Telecommunication Constitution and Convention

opened for signature: 22 December 1992 in Geneva

Entry into force: 1 july 1994

Depositaries: secretary-General of the international telecommunication union and convention

Source: ITu Secretarat, place des natons, 2 Geneva 20, Swtzerland.

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Source: http://www.unoosa.org/oosa/COPUOS/copuos.html

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SpACE LAw InSTruMEnTS AnD rEGuLATIonS

Multlateral legal nstruments

Principal United Nations legal instruments

• Charter of the United Nations, 26 June 1945. • United Nations Resolution 1721 (XVI) B establishing the United Nations registry of launchings, adopted 20 December 1961. • United Nations Resolution 1962 (XVIII), declaration of legal principles governing the activities of States in the exploration and use of outer space, adopted 13 December 1963. • Treaty on principles governing the activities of States in the exploration and use of outer space, including the Moon and other celestial bodies, 10 October 1967. • Agreement on the rescue of astronauts, the return of astronauts and the return of objects launched into outer space, 3 December 1968. • Convention on international liability for damage caused by space objects, 1 September 1972. • Convention on registration of objects launched into outer space, 15 September 1976. • Agreement governing the activities of States on the Moon and other celestial bodies, 11 July 1984. • United Nations Resolution 37/92, principles governing the use by States of artiicial Earth satellites for international direct television broadcast- ing, adopted 10 December 1982. • United Nations Resolution 41/65, principles relating to remote sensing of the Earth from outer space, adopted without a vote, 3 December 1986. • United Nations Resolution 47/68, principles relevant to the use of nuclear power sources in outer space, adopted 14 December 1992 • United Nations Resolution 51/122, declaration on international coop- eration in the exploration and use of outer space for the beneit and in the interest of all States, taking into particular account the needs of developing countries, adopted 13 December 1996.

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Establishment and membership of the Committee on the Peaceful Uses of Outer Space

• United Nations Resolution 1348 (XIII), establishing the Ad Hoc Commit- tee on the Peaceful Uses of Outer Space, adopted 13 December 1958. • United Nations Resolution 1472 (XIV), establishing the Committee on the Peaceful Uses of Outer Space, adopted 12 December 1959. • United Nations Resolution 1721 (XVI), increases membership of the Committee to 28 States, adopted 20 December 1961. • United Nations Resolution 3182 (XXVIII), increases membership of Committee to 37 States, adopted 18 December 1973. • United Nations Resolution 32/196, increases membership of Commit- tee to 47 States, adopted 20 December 1977. • United Nations Resolution 35/16, increases membership of Committee to 53 States, adopted 3 November 1980. • United Nations Resolution 49/33, increases membership of Committee to 61 States, adopted 9 December 1994.

The use of outer space for peaceful purposes / disarmament

• Treaty banning nuclear weapon tests in the atmosphere, in outer space and under water, 5 August 1963. • United Nations Resolution 1884 (XVIII), question of general and com- plete disarmament, adopted 17 October 1963. • Convention on the prohibition of military or any other hostile use of environmental modiication techniques, 18 May 1977. • United Nations Resolution 36/97 C, prevention of an arms race in outer space, adopted 9 December 1981. • Unispace Report 1982 Vienna 9–21 August 1982 Recommendations 426 and 427 on the prevention of an arms race in outer space. • United Nations Resolution 37/83, prevention of an arms race in outer space, adopted 9 December 1982. • United Nations Resolution 37/99, general and complete disarmament, Section D: prevention of an arms race in outer space and the prohibi- tion of anti-satellite systems, adopted 13 December 1982.

304 AnnEXES

• North Atlantic Assembly Resolution 145 on ballistic missile defence, adopted 27 October 1983. • United Nations Resolution 38/70, prevention of an arms race in outer space, adopted 15 December 1983. • Western European Union Recommendation 410 on the military use of space of 21 June 1984. • Western European Union Recommendation 413 on the military use of space (Part II) of 4 December 1984. • United Nations Resolution 39/59, prevention of an arms race in outer space, adopted 12 December 1984. • North Atlantic Assembly Resolution 170 on strategic defence and the alliance adopted in November 1985. • Western European Union Recommendation 428 on the Western Euro- pean Union and the strategic defence initiative — the strategic defence initiative (defence aspects) of 4 December 1985. • Western European Union Recommendation 429 on the Western Euro- pean Union and the strategic defence initiative — the European pillar of the Atlantic Alliance of 4 December 1985. • Western European Union Recommendation 430 on the Western Euro- pean Union and the strategic defence initiative — guidelines drawn from the colloquy on the space challenge for Europe (proposals) of 4 December 1985. • United Nations Resolution 40/87, prevention of an arms race in outer space, adopted 12 December 1985. • North Atlantic Assembly Resolution 182 on the ABM Treaty and the participation in the strategic defence initiative, adopted in 1986. • United Nations Resolution 41/53, prevention of an arms race in outer space, adopted 3 December 1986. • North Atlantic Assembly Resolution 193 on the military use of space adopted in 1987. • Western European Union Recommendation 448 on European space policy until 2000, of October 1987. • United Nations Resolution 42/33, prevention of an arms race in outer space, adopted 30 November 1987. • Western European Union Recommendation 466 on scientiic and techni- cal aspects of arms control veriication by satellite of December 1988.

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• United Nations Resolution 43/70, prevention of an arms race in outer space, adopted 7 December 1988. • United Nations Resolution 44/46, prevention of an arms race in outer space, adopted 8 December 1989. • United Nations Resolution 44/112, prevention of an arms race in outer space, adopted 15 December 1989. • United Nations Resolution 45/55, prevention of an arms race in outer space and conidence building measures in outer space, adopted 4 December 1990. • United Nations Resolution 45/72, prevention of an arms race in outer space, adopted 11 December 1990. • United Nations Resolution 46/33, prevention of an arms race in outer space, adopted 6 December 1991. • United Nations Resolution 46/45, prevention of an arms race in outer space, adopted 9 December 1991. • United Nations Resolution 47/51, prevention of an arms race in outer space, adopted 9 December 1992. • United Nations Resolution 48/74, prevention of an arms race in outer space, adopted 16 December 1993. • United Nations Resolution 49/74, prevention of an arms race in outer space, adopted 15 December 1994 • United Nations Resolution 50/69, prevention of an arms race in outer space, adopted 12 December 1995. • Comprehensive Nuclear-Test-Ban Treaty (not yet in force), United Nations Resolution 50/245 • Comprehensive Nuclear-Test-Ban Treaty, adopted 10 September 1996, (CTBTO) • United Nations Resolution 51/44, prevention of an arms race in outer space, adopted 10 December 1996.

International cooperation in the peaceful uses of outer space

• United Nations Resolution 2915 (XXVII), international cooperation in the peaceful uses of outer space, adopted 9 November 1972. • United Nations Resolution 3182 (XXVIII), international cooperation in the peaceful uses of outer space, adopted 18 December 1973.

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• United Nations Resolution 3234 (XXIX), international cooperation in the peaceful uses of outer space, adopted 12 November 1974. • United Nations Resolution 3388 (XXX), international cooperation in the peaceful uses of outer space, adopted 18 November 1975. • United Nations Resolution 31/8, international cooperation in the peaceful uses of outer space, adopted 8 November 1976. • United Nations Resolution 32/196, international cooperation in the peaceful uses of outer space, adopted 20 December 1977. • United Nations Resolution 33/16, international cooperation in the peaceful uses of outer space, adopted 10 November 1978. • United Nations Resolution 34/66, international cooperation in the peaceful uses of outer space, adopted 5 December 1979. • United Nations Resolution 35/14, international cooperation in the peaceful uses of outer space, adopted 3 November 1980. • United Nations Resolution 36/35, international cooperation in the peaceful uses of outer space, adopted 18 November 1981. • United Nations Resolution 37/89, international cooperation in the peaceful uses of outer space, adopted 10 December 1982. • United Nations Resolution 38/80, international cooperation in the peaceful uses of outer space, adopted 15 December 1983. • United Nations Resolution 39/96, international cooperation in the peaceful uses of outer space, adopted 14 December 1984. • United Nations Resolution 40/162, international cooperation in the peaceful uses of outer space, Adopted 16 December 1985. • United Nations Resolution 41/64, international cooperation in the peaceful uses of outer space, adopted 3 December 1986. • United Nations Resolution 42/68, international cooperation in the peaceful uses of outer space, adopted 2 December 1987. • United Nations Resolution 43/56, international cooperation in the peaceful uses of outer space, adopted 6 December 1988. • United Nations Resolution 44/46, international cooperation in the peaceful uses of outer space, adopted 8 December 1989. • United Nations Resolution 45/72, international cooperation in the peaceful uses of outer space, adopted 11 December 1990. • United Nations Resolution 46/45, international cooperation in the peaceful uses of outer space, adopted 9 December 1991.

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• United Nations Resolution 47/67, international cooperation in the peaceful uses of outer space, adopted 14 December 1992. • United Nations Resolution 48/39, international cooperation in the peaceful uses of outer space, adopted 10 December 1993. • United Nations Resolution 49/34, international cooperation in the peaceful uses of outer space, including the question of the review of the agreement governing the activities of States on the Moon and other celestial bodies, adopted 9 December 1994. • United Nations Resolution 50/27, international cooperation in the peaceful uses of outer space, adopted 6 December 1995. • United Nations Resolution 51/122, declaration on international coop- eration in the exploration and use of outer space for the beneit and in the interest of all States, taking into particular account the needs of developing countries, adopted 13 December 1996. • United Nations Resolution 51/123, international cooperation in the peaceful uses of outer space, adopted 13 December 1996. • United Nations Resolution 52/56, international cooperation in the peaceful uses of outer space, adopted 10 December 1997. • United Nations Resolution 53/45, international cooperation in the peaceful uses of outer space, adopted 3 December 1998.

Telecommunications and direct broadcasting by satellite

• International convention concerning the use of broadcasting in the cause of peace, 23 September 1936. • Unesco declaration of guiding principles on the use of satellite broad- casting for the free low of information, the spread of education and greater cultural exchange, adopted 15 November 1972. • Agreement on the implementation of a European telecommunications project on the topic ‘aerial network with phase control’. • Convention relating to the distribution of programme-carrying signals transmitted by satellite, 21 May 1974. • Constitution of the Asia–Paciic Telecommunity, adopted by the United Nations Economic and Social Commission for Asia and the Paciic on 27 March 1976 and amended in 1981 and 1991. • Agreement establishing the Asia–Paciic Institute for Broadcasting Development, 12 August 1977.

308 AnnEXES

• United Nations Resolution 37/92, principles governing the use by states of artiicial Earth satellites for international direct television broadcast- ing, adopted 10 December 1982. • Tampere Convention on the provision of telecommunications resources for disaster mitigation and relief operations, adopted • European Convention on trans-frontier television, 5 May 1989. • Observation and remote sensing of the Earth from outer space • Agreement concerning the formation of a European organisation for experimental photogrammetric research. • Convention establishing the European Centre for Medium-Range Weather Forecasts. • Convention on the transfer and use of data of remote sensing of the earth from outer space, 19 May 1978. • United Nations Resolution 41/65, principles relating to remote sensing of the Earth from outer space, adopted without a vote, 3 December 1986. • Western European Union Recommendation 555 on the development of a European space-based observation system (Part II) of December 1993. • Western European Union Recommendation 570 on the develop- ment of a European space-based observation system (Part III), 30 November 1994.

Protection of the environment / the use of nuclear power sources in outer space

• 18 June 1998, Declaration of the United Nations Conference on the human environment (Stockholm, 1972). • United Nations Resolution 33/16 No 9, relating to information to be furnished by States about malfunctioning nuclear power sources in outer space, adopted 10 November 1978. • Vienna Convention for the protection of the ozone layer, 22 March 1985. • Convention on early notiication of a nuclear accident, 26 September 1986. • Convention on assistance in the case of a nuclear accident or radiologi- cal emergency, 26 September 1986. • UNEP: environmental perspective to the year 2000 and beyond (1987), (UN Doc A/42/25 and Corr. 1)

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• United Nations Resolution 42/186, environmental perspective to the year 2000 and beyond, adopted without a vote, 11 December 1987. • United Nations Resolution 42/187, report of the World Commis- sion on Environment and Development, adopted without a vote, 11 December 1987. • United Nations Resolution 44/228, United Nations Conference on environment and development, adopted without a vote, 22 • Convention on conservation of nature in the South Paciic, 26 June 1990. • Report of the United Nations Conference on environment and develop- ment 3–14 June 1992, Rio de Janeiro, Brazil, A/Conf.151/26, 12 August 1992. • Rio declaration on environment and development, 12 August 1992. • Agenda 21, 12 August 1992. • United Nations Resolution 47/68, principles relevant to the use of nuclear power sources in outer space, adopted 14 December 1992. • Convention for the protection of the natural resources and environ- ment of the south Paciic region, 22 August 1990. • Montreal Protocol on substances that deplete the ozone layer, 16 Sep- tember 1987 (adjusted and amended 1990 and 1992). • Agreement establishing the South Paciic Regional Environment Pro- gramme [as an intergovernmental organisation], 31 August 1995. • Convention on nuclear safety, 24 October 1996.

Geostationary orbit

• Declaration of the irst meeting of equatorial countries (‘Bogota Decla- ration’) of 3 December 1975. • Letter dated 16 October 1985 from the Secretary-General of the Inter- national Telecommunication Union addressed to the Secretary-Gen- eral (of the United Nations).

Unispace conferences

• United Nations Resolution 2221(XXI), General Assembly decision to convene a United Nations Conference on the exploration and peaceful uses of outer space, adopted 19 December 1966.

30 AnnEXES

• United Nations Resolution 33/16, General Assembly decision to con- vene a second United Nations Conference on the exploration and peaceful uses of outer space, adopted 10 November 1978. • United Nations and Austria: agreement regarding the arrangements for the United Nations Conference on the exploration and peaceful uses of outer space, 25 May 1968. • United Nations and Austria: exchange of notes constituting an agree- ment concerning the arrangements for the second United Nations Conference on the exploration and peaceful uses of outer space (Unis- pace ’82), 10 May 1982. • Report of the second United Nations Conference on the exploration and peaceful uses of outer space, Vienna, 9–21 August 1982. • United Nations Resolution 52/56, General Assembly decision to con- vene a third United Nations Conference on the exploration and peace- ful uses of outer space as a special session of the Committee on the Peaceful Uses of Outer Space, open to all States members of the United Nations, adopted 10 December 1997.

Insttutonal regulatons

European Union / Community level

• European Communities, Court of Justice, judgment of 30 April 1974 (Giuseppe Sacchi). • European Communities, Court of Justice, judgment of 18 March 1980 (Procureur du Roi v Marc I.V.C, Debauve and others). • European Communities, Court of Justice, judgment of 18 March 1980 (S.A. Compagnie Générale pour la Difusion de la Television, Coditel, and others). • Council of Europe, Recommendation 957 of the Parliamentary Assem- bly on the proposal for an international satellite monitoring agency, 24 January 1983. • Council Directive 86/529/EEC, he adoption of common technical speciications of the MAC/packet family of standards for direct satellite television broadcasting, 3 November 1986. • European Communities, Court of Justice, judgment of 26 April 1988 (Bond van Adverteerders and others v he Netherlands State).

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• Commission Directive 88/301/EEC of 16 May 1988 on competition in the markets in telecommunications terminal equipment, (OJ L 131, 27.5.1988). • European Communities, Council directive on the coordination of cer- tain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activi- ties, 3 October 1989. • Council directive 90/387/EEC, of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision, (OJ L 192, 24.7.1990). • Commission directive 90/388/EEC of 28 June 1990 on the competition in the markets of telecommunications services, (OJ L 192, 24.7.1990). • Council Directive 91/263/EEC of 29 April 1991 on the approximation of the laws of the Member States concerning telecommunications termi- nal equipment, including the mutual recognition of their conformity. • Council Resolution 92/C 8/01 of 19 December 1991on the develop- ment of the common market for satellite communications services and equipment. • Council Directive 92/38/EEC of 11 May 1992 on the adoption of stand- ards for satellite broadcasting of television signals. • Council Directive 93/83/EEC on the coordination of certain rules con- cerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, (OJ L 248, 6.10.1993). • Council Directive 93/97/EEC of 29 October 1993, supplementing Directive 91/263/EEC in respect of satellite Earth station equipment. • he introduction of satellite personal communication services in the Community, European Union Council Resolution 93/C 339/01, 7 December 1993. • European Parliament resolution on the Community and space, adopted 6 May 1994. • European Parliament report on the Community and space — Part B: explanatory statement, adopted 16 May 1994. • Commission Directive 94/46/EC of 13 October 1994 amending Direc- tive 88/301/EEC and Directive 90/388/EEC in particular with regard to satellite communications, (OJ L 268, 19.10.1994). • Commission Decision 94/895/EC of 15 December 1994 relating to a proceeding pursuant to Article 85 of the EC Treaty and Article 53 of

32 AnnEXES

the EEA Agreement (IV/34.768 — International Private Satellite Part- ners), (OJ L 354, 31.12.1994). • Council Resolution 94/C 379/04 of 22 December 1994 on further development of the Community’s satellite communications policy. • Commission Directive 96/19/EC of 13 March 1996 amending Direc- tive 90/388/EEC with regard to the implementation of full competition in telecommunications markets, (OJ L 74, 22.3.1996). • Decision No 710/97/EC of the European Parliament and of the Council of 24 March 1997 on a coordinated authorisation approach in the ield of satellite personal communications systems in the Community, (OJ L 105, 23.4.1997). • Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licenses in the ield of telecommunications services, (OJ L 117, 7.5.1997). • Directive 97133/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of open network provision, (OJ L 199, 26.7.1997). • European Union Council resolution on the European Union and Space — Council conclusions, adopted 22 September 1997.

European Space Agency Level

• Convention for the establishment of a European Space Agency, 30 May 1975. • Agreement on social security between the European Space Agency and the Government of the French Republic, 1 January 1979. • Agreement between the Government of the Federal Republic of Ger- many and the European Space Agency on the application of Article 20 of the Protocol of 31 October 1963 on Privileges and Immunities, signed 25/29 January 1979 with retroactive efect from 14 June 1962. • Agreement between the Republic of Austria and the European Space Agency concerning the association of Austria, 17 October 1979. • Memorandum of understanding between the Commission of the European Communities and the European Space Agency, 14 November 1979.

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• Association agreement between Norway and the European Space Agency, 1 November 1981. • European Space Agency: agreement concerning the revision of the association agreement between the Agency and the Republic of Aus- tria, 12 April 1984. • European Space Agency: protocol amending the association agreement of 2 April 1981 between Norway and the Agency, 24 October 1985. • Agreement between the Republic of Austria and the European Space Agency on the Republic of Austria’s accession to the Convention of the European Space Agency and related terms and conditions, 1 April 1986. • Agreement between the Government of the Kingdom of Norway and the European Space Agency concerning the accession of Norway to the Convention of the European Space Agency and related terms and con- ditions, 1 November 1986. • Association agreement between Finland and the European Space Agency, 1 January 1987. • Agreement between the Federal Government of Austria and the Euro- pean Space Agency on national income tax exemption. • Cooperation agreement between the Government of Canada and the European Space Agency, 1 January 1989, (CSA) • Agreement between the Federal Republic of Germany and the Euro- pean Space Agency concerning the European Astronauts Centre (EAC), 10 May 1990. • European Space Agency: agreement on the extension of the participa- tion of Finland in the science programme of the Agency, 31 May 1991. • Extension of the association agreement between Finland and the Euro- pean Space Agency, 31 May 1991. • Agreement between the Government of Finland and the European Space Agency concerning the Accession of Finland to the Conven- tion of the European Space Agency and related terms and conditions, 14 December 1994. • Agreement between the European Space Agency and the Government of the Russian Federation on the establishment of the European Space Agency permanent mission, and its status, in the Russian Federation, 10 April 1995.

34 AnnEXES

• Protocol to the agreement between the European Space Agency and the Government of the Russian Federation on the establishment of the European Space Agency permanent mission, 29 July 1996. • European Space Agency Council Resolution C-M/CXXII/Res. 1 con- cerning decisions on Agency programmes and inances, adopted 20 October 1996. • European Space Agency Council Resolution C-M/CXII/Res. 2 on directions for the Agency’s policy and future programmes, adopted 20 October 1996. • European Space Agency Council Resolution C-M/CXXIX/Res. 1 on the European Space Agency’s industrial policy, adopted 4 March 1997. • European Space Agency Council Resolution C-M/CXXIX/Res. 2 on the review of the Agency’s system for calculating the scale of contribu- tions for mandatory activities, adopted 4 March 1997.

European Space Research Organisation (ESRO)

• Convention for the establishment of a European Space Research Organ- isation (with annexed Financial Protocol) and Protocol concerning the inancing of the European Space Research Organisation during its irst eight years of existence, 20 March 1964. • Special understanding between the Governments of the Nether- lands and Italy on the meaning of Article XXI of the Convention for the Establishment of a European Space Research Organisation, 8/18 March 1964. • France and European Space Research Organisation: agreement relating to social security regulations applicable to staf employed by the Euro- pean Space Research Organisation, 8 October 1965. • Agreement between the Kingdom of the Netherlands and European Space Research Organisation on the establishment and operation of a European Space Technology Centre (with annexes, map and exchange of letters), 31 July 1967. • Protocol on privileges and immunities of the European Space Research Organisation, 23 February 1968. • Sweden and European Space Research Organisation: exchange of let- ters constituting an agreement complementing the Protocol of 31 Octo- ber 1963 on privileges and immunities of the European Space Research Organisation, 22 April 1970.

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• Belgium and European Space Research Organisation: exchange of let- ters constituting an agreement concerning the application in Belgium of the Protocol of 31 October 1963 on privileges and immunities of the European Space Research Organisation, 13 January/15 February 1972.

European Organisation for the Development and Construction of Space Vehicle Launchers (ELDO)

• Australia, Belgium, France, Netherlands, United Kingdom of Great Britain and Northern Ireland, Federal Republic of Germany and Italy: Protocol (with agreements supplementary thereto) establishing a pre- paratory group with a view to the creation of a European Organisation for the Development and Construction of Space Vehicle Launchers, 9 May 1962. • Australia, United Kingdom of Great Britain and Northern Ireland, Neth- erlands, France, Federal Republic of Germany, Italy and Spain: Conven- tion for the Establishment of a European Organisation for the Devel- opment and Construction of Space Vehicle Launchers (With Annexes, Financial Protocol and Protocol Concerning Certain Responsibilities in Connection with the Initial Programme), 29 February 1964. • Australia, United Kingdom of Great Britain and Northern Ireland and European Organisation for the Development and Construction of Space Vehicle Launchers. • Protocol on privileges and immunities of the European Organisation for the Development and Construction of Space Vehicle Launchers, 29 June 1964. • Supplementary agreement to the interim agreement between United Kingdom of Great Britain and Northern Ireland, Australia and the European Organisation for the Development and Construction of Space Vehicle Launchers for the conduct of the Phase I irings of the initial programme of the Organisation, 13 July 1965. • France and European Space Vehicle Launcher Development Organisa- tion: exchange of letters constituting an agreement relating to social security regulations applicable to staf employed by the Organisation, 4 May 1966. • Belgium and European Space Vehicle Launcher Development Organi- sation: agreement with a view to the use, maintenance, administration and disposal of property and facilities, 29 September 1969.

36 AnnEXES

European Telecommunications Satellite Organisation (Eutelsat)

• Agreement on the establishment of the Interim Eutelsat Telecommuni- cations Satellite Organisation (Interim Eutelsat), 30 June 1977. • Final act of the conference to establish the maritime system of the interim European Telecommunications Satellite Organisation (Interim Eutelsat-Marots), 22 October 1977. • Final act of the conference to establish the European telecommuni- cations satellite system for the ixed service of the Interim Eutelsat Telecommunications Satellite Organisation (Interim Eutelsat-ECS), 14 September 1978. • Convention establishing the European Telecommunications Satellite Organisation (Eutelsat), 15 July 1982 (as amended in 1995) (NedTrb 1983, 96) • Operating agreement relating to the European Telecommunications Satellite Organisation (Eutelsat), 15 July 1982 (as amended in 1995). • Protocol on the privileges and immunities of the European Telecom- munications Satellite Organisation (Eutelsat).

European Organisation for the exploitation of meteorological satellites (Eumetsat)

• Convention for the establishment of a European Organisation for the Exploitation of Meteorological Satellites (Eumetsat), 24 May 1983. • Protocol on the privileges and immunities of the Organisation for the Exploitation of Meteorological Satellites (Eumetsat).

Global navigation satellite system

• Agreement between European Community, the European Space Agency and Eurocontrol on a European contribution to the develop- ment of a global navigation satellite system, 18 June 1998.

International Mobile Satellite Organisation (Inmarsat)

• Convention on the International Mobile Satellite Organisation (Inmar- sat), 3 September 1976 (as amended in 1985, 1989 and 1994).

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• Operating agreement on the International Mobile Satellite Organisation (Inmarsat), 3 September 1976 (as amended in 1985, 1989 and 1994). • Protocol on the privileges and immunities of the International Mobile Satellite Organisation (Inmarsat), 1 December 1981. • International agreement on the use of Inmarsat ship Earth stations within the territorial sea and ports, 12 September 1993.

International Telecommunications Satellite Organisation (Intelsat)

• Agreement relating to the International Telecommunications Satellite Organisation (Intelsat), 20 August 1971. • Operating agreement relating to the International Telecommunications Satellite Organisation (Intelsat), 20 August 1971. • United States of America and International Telecommunications Satel- lite Organisation: Headquarters Agreement, 22–24 November 1976. • Protocol on Intelsat privileges, exemptions and immunities.

Intercosmos

• Agreement on cooperation in the exploration and use of outer space for peaceful purposes (Intercosmos Agreement), 13 July 1976. • Bilateral legal instruments

Satellite broadcasting and telecommunications

• Arrangement between Interim Eutelsat and the European Space Agency concerning the European communication satellite system for the ixed service, 15 May 1979. • Arrangement between Interim Eutelsat and the European Space Agency concerning the European Telecommunications Satellite System for the Fixed Service, 14 November 1983. • Arrangement between the Government of Norway and the European Space Agency concerning the participation of Norway in the prepara- tory programme for the future communication satellite programme, 10 May 1984. • Agreement between the European Space Agency and Radiotelevisione Italiana (RAI) concerning the utilisation of an Olympus transponder, 23 November 1984.

38 AnnEXES

• Agreement between the European Space Agency and the Euro- pean Broadcasting Union (EBU) on the use of the Olympus satellite, 28 May 1985. • Arrangement between the European Telecommunications Satellite Organisation (Eutelsat) and the European Space Agency concerning the European telecommunications satellite system for the ixed service, 12 March 1986. • Agreement between the Federal Government of Austria and the Euro- pean Space Agency on the participation of Austria in the preparatory programme for a data relay satellite system, 28 November 1986. • Memorandum of understanding between certain Member States of the European Space Agency and the European Space Agency concerning the execution of the Mercure project, 25 November 1994. • Agreement between the European Space Agency and the United Nations concerning the procurement, installation and testing of the Mercure communication system, 25 November 1994.

Space-based observation/monitoring/remote sensing

• European Space Agency: arrangement concerning the participation of Norway in Phase B of the remote sensing programme of the Agency, 23 February 1983. • Arrangement concerning the participation of Norway in the prepara- tory European remote sensing satellite programme of the European Space Agency, 13 March 1981. • European Space Agency: memorandum of understanding between the Agency and Telespazio concerning the use of the facilities at Fucino for the reception and preprocessing of data from remote sensing of the Earth by satellite, 22 April 1982. • European Space Agency: arrangement concerning the participation of Canada in Phase B of the remote sensing programme of the Agency, 7 February 1983. • European Space Agency: arrangement concerning the Canadian Gov- ernment’s participation in the European preparatory remote sensing satellite programme, 31 March 1980. • European Space Agency: arrangement concerning the participation of Norway in Phase B of the remote sensing programme of the Agency, 23 February 1983.

39 EuropEAn TrAjECTorIES In SpACE LAw — 2007

• Arrangement concerning the participation of Norway in the prepara- tory European remote sensing satellite programme of the European Space Agency, 13 March 1981. • European Space Agency: memorandum of understanding between the Agency and Telespazio concerning the use of the facilities at Fucino for the reception and preprocessing of data from remote sensing of the Earth by satellite, 22 April 1982. • European Space Agency: arrangement concerning the participation of Canada in Phase B of the remote sensing programme of the Agency, 7 February 1983. • European Space Agency: arrangement concerning the Canadian gov- ernment’s participation in the European preparatory remote sensing satellite programme, 31 March 1980. • Memorandum of understanding between the European Space Agency and the United States National Aeronautics and Space Administra- tion (NASA) concerning ERS-1 SAR data acquisition at Fairbanks, 14 January 1986. • Memorandum of understanding between the National Space Develop- ment Agency of Japan (NASDA) and the European Space Agency for the direct reception and distribution of MOS-1 data, 3 February 1987. • Arrangement between the Government of Canada and the European Space Agency concerning the participation of the Government of Can- ada in the Earth Observation preparatory programme, 15 May 1987. • Agreement between the European Space Agency and Instituto Nacional de Técnica Aérospacial (INTA) concerning the use of the Maspalo- mas station for the handling of data from remote sensing missions, 21 November 1988. • Agreement concerning Finland’s participation in the DRTM pro- gramme of the European Space Agency, 18 January 1991. • Agreement concerning Finland’s participation in the ASTP 4 pro- gramme of the European Space Agency, 18 January 1991. • European Space Agency: arrangement concerning the participa- tion of Canada in the preparatory programme of the irst polar orbit Earth observation mission (POEM 1) using the polar platform, 21 March 1991 • Memorandum of understanding between the European Space Agency and the National Space Development Agency of Japan (NASDA) con-

320 AnnEXES

cerning mutual access to data from the Japanese ERS-1 and the Euro- pean ERS-1 missions, 20 June 1991. • Agreement between the European Space Agency and NRSA (India) concerning the direct reception, archiving. processing and distribution of ERS-1 SAR data, 25 June 1991. • Agreement between the European Space Agency and Norwegian Space Centre concerning the direct reception, archiving, processing and dis- tribution of ERS-1 data, 19 July 1991. • Arrangement between the European Space Agency and Department of Energy, Mines and Resources (Canada) concerning the direct recep- tion, archiving, processing and distribution of ERS-1 data, 5 August 1991. • Agreement between the European Space Agency and Australia con- cerning the direct reception, archiving, processing and distribution of ERS-1 SAR data, 26 August 1991. • Agreement between the European Space Agency and the British National Space Centre (BNSC) concerning the direct reception, archiv- ing, processing and distribution of ERS-1 data, 30 August 1991. • Memorandum of understanding between the European Space Agency and United States National Oceanic and Atmospheric Administra- tion (NOAA) concerning access to low-bit rate fast delivery data and cooperation in the ERS-1 mission of the European Space Agency, 14 February 1992. • Agreement between the European Space Agency and Centro de Levan- tamientos Integrados de Recursos Naturales por Sensores Remotos (Clirsen) concerning the direct reception, archiving, processing and distribution of ERS-1 SAR data, 29 November 1991. • Agreement between the European Space Agency and the Italian Space Agency (ASI) for processing and archiving facilities, 14 March 1992. • Agreement between the European Space Agency and the German Aer- ospace Centre (DLR) for processing and archiving facilities, 10 April 1992. • Arrangement concerning the participation of Canada in the POEM-1 programme of the European Space Agency, 25 June 1992. • Agreement between the European Space Agency and the Institut français de recherche pour l'exploitation de la mer (Ifremer) for processing and archiving facilities, 29 July 1992.

32 EuropEAn TrAjECTorIES In SpACE LAw — 2007

• Agreement concerning Finland’s participation in the POEM-1 pro- gramme of the European Space Agency, 4 September 1992. • Agreement between the European Space Agency and the National Institute of Space Research (INPE) concerning the direct recep- tion, archiving, processing and distribution of ERS-1 SAR data, 16 November 1993. • Agreement between the European Space Agency and the Council for Scientiic and Industrial Research (CSIR) of South Africa concerning the direct reception, archiving, processing and distribution of ERS-1 SAR data, 10 March 1994. • Memorandum of understanding between the European Space Agency and the Institute of Space and Astronautical Science of Japan concern- ing cooperation on the Infrared space observatory satellite programme, 27 September 1994. • Agreement between the European Space Agency and the Chinese Acad- emy of Sciences concerning the direct reception, archiving, processing and distribution of ERS-1 SAR data, 2 May 1995. • Agreement between the European Space Agency and the Indonesian National Institute of Aeronautics and Space concerning the direct reception, archiving, processing and distribution of ERS-1 SAR data, 1 February 1995, (LAPAN) • Agreement between the European Space Agency and the Earth Obser- vation Satellite Company (EOSAT) concerning the direct recep- tion, archiving, processing and distribution of ERS-1 SAR data, 26 January 1995. • Memorandum of understanding between the United States National Oceanic and Atmospheric Administration (NOAA) and the European Space Agency concerning access to low-bit rate fast delivery data and cooperation in the ERS-2 mission, 17 August 1995. • Agreement between the European Space Agency and the Israel Space Agency concerning the direct reception, archiving, processing and dis- tribution of ERS-1 and ERS-2 SAR data, 27 January 1997. • Agreement between the European Space Agency and the German Aer- ospace Centre (DLR) concerning the direct reception and distribution of ERS-1 data and modiication for ERS-2, 19 October 1995. • Agreement between the European Space Agency and National Univer- sity of Singapore for direct reception, archiving, processing and distri- bution of ERS-1 and ERS-2 SAR data, 3 March 1996.

322 AnnEXES

• Agreement between the European Space Agency and the National Research Council of hailand concerning the direct reception, archiv- ing, processing and distribution of ERS-1 and ERS-2 SAR data, 22 May 1996. • SAR data, 1 April 1997. • Agreement between the European Space Agency and the National Space Development Agency of Japan (NASDA) concerning the direct reception, archiving, processing and distribution of ERS-2. • Agreement between the United States National Aeronautics and Space Administration (NASA) and the European Space Agency concerning the direct reception, archiving, processing and distribution of ERS-2 SAR data, 28 August 1995 SAR data, 1 April 1997.

Observation, tracking, telemetry, communications and other ground-based facilities

• European Space Research Organisation and Norway: agree- ment concerning the Kongsjord telemetry station on Svalbard, 21 September 1965. • France and European Organisation for the Development and Con- struction of Space Vehicle Launchers: exchange of letters constituting an agreement concerning the installation of a telemetry station at For- taleza, 28 May/11 June 1968. • United Kingdom of Great Britain and Northern Ireland and European Space Research Organisation: exchange of letters constituting an agree- ment concerning the use by the United Kingdom of the ESRO tracking and telemetry network (Estrack) for a special project, 29 June 1971. • Brazil And the European Space Agency: agreement on the establish- ment and use of tracking and telemetry equipment to be installed in the Brazilian territory (with implementing Protocols of 19 Septem- ber 1977), 4 July 1980. • Australia and the European Space Agency: agreement for a cooperative space vehicle tracking programme, 15 June 1979. • Agreement between the European Space Agency and the Centre National d'Etudes Spatiales (CNES) on the making available to the Agency and the operation of the CNES telemetry and tracking station at Kourou, 1 January 1978. • Agreement between the Instituto Nacional de Tecnica Aerospacial ‘Esteban Terradas’ (INTA) and the European Space Agency on the

323 EuropEAn TrAjECTorIES In SpACE LAw — 2007

maintenance and operation of the ground station at Villafranca del Castillo, 2 January 1981. • European Space Agency: memorandum of understanding between the Agency and the Swedish Board for Space Activities concerning use of the Kiruna Landsat station, 5 October 1982. • European Space Agency: agreement between the Agency and the Cen- tre National d'Etudes Spatiales (CNES) on use of the facilities of the CNES 2 Ghz network station in Guyana, 17 July 1985. • European Space Agency: agreement on tracking, telemetry and tel- ecommand facilities and stations for the acquisition, processing and distribution of data at Kiruna (Sweden), 15 April 1986. • European Space Agency: agreement on Finland’s participation in the Earth Observation preparatory programme, 19 September 1986. • Exchange of letters constituting an agreement between the Government of Australia and the European Space Agency to amend the agreement for a cooperative space vehicle tracking programme of 15 June 1979, 21 January 1987. (Aus) • Memorandum of understanding between the European Space Agency and the Department of Industry, Science and Commerce Concerning the modalities for the establishment and operation of certain space vehicle tracking and communication facilities at Gnangara (Perth), Western Australia, 7 June 1988. (Aus) • Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the European Space Agency con- cerning the establishment and use of an Ariane Down Range Station on Ascension Island with exchange of letters, 11 December 1989. • Agreement between the European Space Agency and the Instituto de Astroisica de Canarias (IAC) concerning the Optical Ground Station Centre for optical data relay connections, 29 April 1994. • Agreement between the Brazilian Government and the European Space Agency on the setting up and use of tracking and telemetry facilities in Brazil, 3 May 1994.

International cooperation agreements

• Agreement concerning cooperation between the Government of Can- ada and the European Space Agency, 1 January 1979.

324 AnnEXES

• Agreement between the provisional European satellite telecommunica- tions Organisation, Interim Eutelsat, and the European Space Agency concerning use of the OTS satellite, 11 January 1979. • Earthnet, 27 April 1979. • Agreement between the French Direction de la Météorologie Nationale and the European Space Agency on the insertion of the Lannion sta- tion (HCMM-Nimbus-G) into the European network, memorandum of understanding between the United States National Aeronautics and Space Administration (NASA) and the European Space Agency on the international solar/polar mission, 29 March 1979. • Memorandum of understanding between the European Space Agency and the Comision Nacional de Investigacion del Espacio concerning the integration of the facilities of Maspalomas in the Earthnet system for the reception of Seasat-A and Nimbus-G data, 25 July 1979. • European Space Agency: arrangement concerning the participation of the Government of Canada in the L-SAT programme, 26 July 1979. • European Space Agency: cooperation agreement with the National Commission for Science and Technology of the People’s Republic of China, 11 July 1980. • Protocol extending the agreement between the Government of the French Republic and the European Space Agency on the use of the French Guyana Space Centre, 1 January 1981. • Agreement between the Republic of Austria and the European Space Agency concerning participation in the SIRIO-2 programme, 1 August 1981. • European Space Agency: agreement concerning the participation of Norway in the Agency’s advanced systems and technology programme (ASTP) and the extension thereof, 11 February 1982. • European Space Agency: arrangement concerning the participation of the Government of Canada in the development phase of the L-SAT programme, 25 June 1982. • European Space Agency: agreement concerning the participation of the Austrian Federal Government in the development phase of the L-SAT programme, 21 September 1982. • European Space Agency: agreement concerning the participation of the Austrian Federal Government in the SIRIO-2 (exploitation) pro- gramme, 21 September 1982.

325 EuropEAn TrAjECTorIES In SpACE LAw — 2007

• European Space Agency: agreement concerning the participation of Austria in the Agency’s advanced systems and technology programme (ASTP), 13 December 1982. • Memorandum of understanding between the European Space Agency and the National Oceanic and Atmospheric Administration (NOAA), 1 February 1983. • Agreement between the European Space Agency and the European Space Research Organisation (ESRO) on the establishment and opera- tion of the Space Telescope European Coordinating Facility (ST/ECF), 23 February 1983. • European Space Agency: arrangement concerning the participation of Norway in the Prosat programme, 23 February 1983. • Arrangement between the Government of Portugal and the European Space Agency concerning the participation of Portugal in the Meteosat operational programme, 24 March 1983. • Arrangement between the Government of Finland and the European Space Agency concerning the participation of Finland in the Meteosat operational programme, 24 May 1983. • Arrangement between the Government of Norway and the European Space Agency concerning the participation of Norway in the Meteosat operational programme, 24 May 1983. • Arrangement between the Government of Turkey and the European Space Agency concerning the participation of Turkey in the Meteosat operational programme, 24 May 1983. • Agreement between Canada and the European Space Agency concern- ing cooperation, 1 January 1984. • Agreement between the French Government and the European Space Agency on the French Guyana Space Centre (period 1984–86), 1 January 1984. • Protocol for the implementation of the Agreement between the French government and the European Space Agency on the use of the French Guyana Space Centre, 1 January 1984. • European Space Agency: agreement between the Government of Nor- way and the Agency on Norway’s participation in the Columbus pre- paratory programme, 24 October 1985. • Agreement between the Government of Canada and the European Space Agency concerning the participation of Canada in the development and exploitation phases of the ERS-1 programme, 8 January 1985.

326 AnnEXES

• Agreement between the European Economic Community and the European Space Agency on cooperation in the framework of the — Apollo activities, 31 July 1985. • Cooperation agreement between the Pan-African Telecommunications Union (PATU) and the European Space Agency, 16 September 1985. • Arrangement between the Government of Norway and the European Space Agency concerning Norway’s participation in the Apollo pro- gramme, 19 October 1984. • European Space Agency: agreement between the Federal Government of Austria and the Agency on the participation of Austria in the ASTP- 3, 28 November 1986. • Protocol for the implementation of the agreement between the French Government and the European Space Agency on the Guyana Space Centre (CSG), 1 January 1987. • European Space Agency: agreement on Finland’s participation in the Agency’s science programme, 1 January 1987. • Agreement between the French Government and the European Space Agency on the Guyana Space Centre (CSG), 1 January 1987. • Agreement between the European Space Agency and the European Organisation for the Exploitation (Eumetsat) of Meteorological Satel- lites on the Meteosat operational programme, 1 January 1987. • Agreement between the European Space Agency and the European Tel- ecommunications Satellite Organisation (Eutelsat) on the utilisation of Olympus, 25 February 1987. • Agreement between the European Space Agency and the Centre National d'Etudes Spatiales (CNES) on the execution of the Hermes preparatory programme, 16 April 1987. • Arrangement between the Government of Canada and the Euro- pean Space Agency concerning the participation of the Government of Canada in the Hermes preparatory programme of the Agency, 23 November 1987. • Agreement between the Industrieanlagen-Betriebsgesellschat (IABG) and the European Space Agency on the putting at the disposal of and utilisation by the European Space Agency of the IABG coordinated facilities, 1 January 1988. • European Space Agency: agreement concerning Finland’s participation in the ASTP 3 programme of the Agency, 28 April 1988.

327 EuropEAn TrAjECTorIES In SpACE LAw — 2007

• Agreement between the Deutsche Forschungs-und Versuchsanstalt für Lut-und Raumfahrt (DFVLR) and the European Space Agency con- cerning the utilisation of certain assets located at Lampoldshausen, 7 July 1988. • European Space Agency: agreement concerning the participation of the Government of Finland in the additional slice to the Apollo pro- gramme (the Diana project), 21 December 1988. • Supplementary agreement between the European Organisation for the Exploitation of Meteorological Satellites (Eumetsat) and the Euro- pean Space Agency concerning the Meteosat operational programme, 1 February 1989. • Agreement between the European Space Agency and the Food and Agriculture Organisation on Apollo/Diana cooperation, 16 June 1989. • Agreement between the European Space Agency and the Government of the Union of Soviet Socialist Republics concerning cooperation in the ield of the exploration and use of outer space for peaceful pur- poses, 25 April 1990. • Agreement concerning Finland’s participation in Phase E of the ERS-2 programme of the European Space Agency, 18 January 1991. • Agreement concerning Finland’s participation in the POEM-1 prepara- tory programme of the European Space Agency, 18 January 1991. • European Space Agency: arrangement concerning the participation of Canada in the advanced systems and technology programme (ASTP- 4), 21 March 1991. • European Space Agency: arrangement concerning the participation of Canada in the data relay and technology mission (DRTM) programme, 21 March 1991. • Arrangement between the Government of Canada and the European Space Agency on participation by Canada in the Hermes development programme of the Agency, 21 March 1991. • Agreement between the European Space Agency and the Government of the Republic of Hungary concerning cooperation in the ield of the exploration and use of outer space for peaceful purposes, 10 April 1991. • Joint statement on space cooperation by the Director-General of the European Space Agency and the Director-General of the Russian Space Agency, 12 October 1992.

328 AnnEXES

• Agreement between the European Space Agency and the Govern- ment of Romania concerning space cooperation for peaceful purposes, 11 December 1992. • Agreement between the Government of France and the European Space Agency concerning Centre Spatial Guyanais (CSG) (1993–2000), 1 January 1993. • Agreement between the European Space Agency and the Government of the Union of Soviet Socialist Republics concerning cooperation in the ield of the exploration and use of outer space for peaceful pur- poses, 25 April 1990. • Agreement concerning Finland’s participation in Phase E of the ERS-2 programme of the European Space Agency, 18 January 1991. • Agreement concerning Finland’s participation in the POEM-1 prepara- tory programme of the European Space Agency, 18 January 1991. • European Space Agency: arrangement concerning the participation of Canada in the advanced systems and technology programme (ASTP-4), 21 March 1991. • European Space Agency: arrangement concerning the participation of Canada in the data relay and technology mission (DRTM) programme, 21 March 1991. • Arrangement between the Government of Canada and the European Space Agency on participation by Canada in the Hermes development programme of the Agency, 21 March 1991. • Agreement between the European Space Agency and the Government of the Republic of Hungary concerning cooperation in the ield of the exploration and use of outer space for peaceful purposes, 10 April 1991. • Agreement between the Government of France and the European Space Agency concerning Centre Spatial Guyanais (CSG) (1993–2000), 1 January 1993. • Joint statement on space cooperation by the Director-General of the European Space Agency and Director-General of the Russian Space Agency, 12 October 1992. • Agreement between the European Space Agency and the Govern- ment of Romania concerning space cooperation for peaceful purposes, 11 December 1992.

329 EuropEAn TrAjECTorIES In SpACE LAw — 2007

• Agreement between the German Aerospace Centre (DLR) and the European Space Agency concerning installation and utilisation of cer- tain assets located at Lampoldshausen, 1 January 1993. • Agreement concerning Finland’s participation in the Phase 1 of the general support technology programme (GSTP) of the European Space Agency, 25 August 1993. • Cooperative agreement between the Indian Space Research Organisa- tion and the European Space Agency, 11 November 1993. • Agreement between the European Space Agency and the Government of the Republic of Poland concerning space cooperation for peaceful purposes, 28 January 1994. • Agreement between the European Space Agency and the Government of the Hellenic Republic concerning space cooperation for peaceful purposes, 4 July 1994. • Agreement on cooperation between the European Space Agency and the Russian Space Agency on the manned space infrastructure and space transport systems during the period 1993–95, 5 October 1994. • Rider to the agreement between the European Space Agency and Euro- propulsion regarding the installation and utilisation of certain agency assets in Kourou, 11 July 1995. • Protocol between the European Space Agency and the Government of the Republic of Italy and the Government of the Republic of Kenya on the setting up and operation of the European Space Agency equipment within the perimeter of the San Marco satellites tracking and launching station in Malindi, Kenya, and on the cooperation between the Gov- ernment of the Republic of Kenya and the European Space Agency for peaceful purposes, 13 September 1995. • European Space Agency: arrangement concerning Canada’s partici- pation in the Phase 1 of the general support technology programme, 10 July 1996. • Arrangement between the Government of Canada and the European Space Agency concerning participation by the Government of Canada in the advanced research in telecommunications systems (ARTES) pro- gramme, 10 July 1996. • Agreement between the Government of the Portuguese Republic and the European Space Agency concerning space cooperation for peaceful purposes, 24 July 1996.

330 AnnEXES

• Agreement between the European Organisation for the Exploitation of Meteorological Satellites (Eumetsat) and the European Space Agency concerning the MSG, second and third satellites, 16 October 1996. • Agreement between the European Space Agency and the Government of the Czech Republic concerning cooperation in the exploration and use of outer space for peaceful purposes, 7 November 1996. • Memorandum of understanding between the European Space Agency and the National Space Development Agency of Japan (NASDA) con- cerning the launch of Artemis, 18 April 1997.

International cooperation in space science research, testing education

• Italy, Netherlands, Norway, Spain, Sweden, Belgium, Denmark, Federal Republic of Germany, Norway, Netherlands, Sweden, United Kingdom of Great Britain and Northern Ireland, France, Switzerland, Spain and Italy: agreement (with annex) setting up a preparatory commission to study the possibilities of European collaboration in the ield of space research, 1 December 1960. • Protocol prolonging the agreement setting up a preparatory commis- sion to study the possibilities of European collaboration in the ield of space research, 21 February 1962. • Second protocol prolonging the agreement setting up a preparatory commission to study the possibilities of European collaboration in the ield of space research, 19 April 1963. • hird protocol prolonging the agreement setting up a preparatory com- mission to study the possibilities of European collaboration in the ield of space research, 21 June 1963. • Fourth protocol prolonging the agreement setting up a preparatory commission to study the possibilities of European collaboration in the ield of space research, 13 December 1963. • European Space Research Organisation and Italy: agreement concern- ing the cooperation between the European Space Research Organisa- tion and Italy, 23 May 1964. • European Space Research Organisation and Sweden: agreement con- cerning the Kiruna launching range (with annexes), 29 July 1964. • European Space Research Organisation and France: exchange of let- ters constituting an agreement for the iring of rockets from the Ile

33 EuropEAn TrAjECTorIES In SpACE LAw — 2007

Du Levant by the European Space Research Organisation, 15 August 1964. • European Space Research Organisation and Norway: agreement con- cerning the launching of sounding rockets from the Andoya range in Norway, 31 January 1966. • European Space Research Organisation and Italy: agreement concern- ing the launching of sounding rockets from the Salto-di Quirra range in Sardinia (with annexes), 31 May 1967. • Arrangement between certain Member States of the European Space Research Organisation and the European Space Research Organisa- tion concerning the execution of a special TD project (with annexes), 9 October 1968. • European Space Research Organisation and Australia: agreement for the provision and operation of trials facilities at Woomera for launch- ing Skylark rockets, 13 October 1970. • Arrangement between certain Member States of the European Space Research Organisation and the European Space Research Organisation concerning the execution of an aeronautical satellite programme (with annexes), 9 December 1971. • Arrangement between certain Member States of the European Space Research Organisation and the European Space Research Organisa- tion concerning the execution of a meteorological satellite programme, 29 September 1972. • Agreement between Sweden, other Member States of the European Space Research Organisation and the European Space Research Organ- isation on a special project concerning the launching of sounding rock- ets [with annexes], 26 January 1973. • Arrangement between certain Member States of the European Space Research Organisation and the European Space Research Organisa- tion concerning the execution of the Spacelab programme, 10 August 1973. • Agreement between the Government of the United States of America and certain Governments, Members of the European Space Research Organisation, for a cooperative programme concerning the develop- ment, procurement and use of a space laboratory in conjunction with the space shuttle system, 14 August 1973. • Arrangement between certain Member States of the European Space Research Organisation and the European Space Research Organisation

332 AnnEXES

concerning the execution of a communication satellite programme, 21 September 1973. • Arrangement between certain Members States of the European Space Research Organisation and the European Space Research Organisa- tion concerning the execution of a maritime satellite programme, 27 November 1973. • Netherlands and European Space Research Organisation: exchange of letters constituting an agreement concerning the use of certain facili- ties and services of the European Space Research Organisation for the design, the development and the operation of the astronomical Nether- lands satellite, 5/7 December 1973. • Protocol introducing amendments to the arrangements between cer- tain Member States of the European Space Research Organisation and the European Space Research Organisation concerning the execution of an aeronautical satellite programme, 20 November 1975. • European Space Agency: agreement on the participation of Austria in the ASTP and the H-SAT studies, 9 October 1978. • Agreement between the Centre National d'Etudes Spatiales (CNES) and the European Space Agency concerning the making available to and use by the Agency of the CNES coordinated test facilities, 1 January 1979. • European Space Agency: memorandum of understanding for the implementation of a European research project on inluence of the atmosphere on radio propagation on satellite-earth paths at frequen- cies above 10 GHz (COST project 205), 24 July 1980. • Additional Protocol to the agreement between Sweden, other Member States of the European Space Agency and the European Space Agency on a special project concerning the launching of sounding rocket, 1 October 1980. • European Space Agency: memorandum of understanding for the imple- mentation of a European research project on phased array antennas and their novel applications (COST project 204), 6 September 1982. • European Space Agency: agreement concerning Austria’s participa- tion in the study programme in preparation for the Spacelab follow-on development programme, 21 September 1982. • Agreement between the Norwegian Government and the European Space Agency concerning the participation of Norway in the develop- ment and exploitation phases of the ERS-1 programme, 24 April 1985.

333 EuropEAn TrAjECTorIES In SpACE LAw — 2007

• European Space Agency: agreement between the Agency and the Cen- tre National d'Etudes Spatiales (CNES) on the execution of the large cryogenic engine (HM 60) preparatory development programme, 17 July 1985. • Arrangement between the Government of Canada and the European Space Agency concerning the participation of the Government of Can- ada in the payload and spacecrat development and experimentation programme (PSDE), 15 May 1987. • Agreement between the Centre National d'Etudes Spatiales (CNES) and the European Space Agency on the putting at the disposal of and the utilisation by the European Space Agency of the CNES coordinated test facilities, 1 January 1988. • Agreement between the Republic of Austria and the European Space Agency on the participation of Austria in the development and exploi- tation phases of the ERS-1 programme, 1 June 1989. • Agreement between the European Space Agency and the Centre National d'Etudes Spatiales (CNES) concerning the in-orbit experimen- tation of optical data relay connections (SILEX), 20 November 1989. • European Space Agency: arrangement concerning the participation of Canada in the Development and Exploitation Phases of the ERS-2 Pro- gramme, 21 March 1991. • Agreement between the Industrieanlagen-Betriebsgesellschat (IABG) and the European Space Agency on the putting at the disposal of and the utilisation by the European Space Agency of the IABG coordinated test facilities, 1 January 1992. • Agreement between the (Philippine) Department of Science and Tech- nology (DOST) and the European Space Agency on the implementa- tion of the CES/ESA-ASEAN Natural Resources and Environment Management Project, 11 August 1992, (Philippines) • Agreement between the Centre National d'Etudes Spatiales (CNES) and the European Space Agency on the putting at the disposal of and the utilisation by the European Space Agency of the CNES/Intespace coordinated facilities, 1 January 1992. • Agreement between the European Space Agency and the Italian Repub- lic on the European Space Research Institute, 14 January 1993. • Memorandum of understanding between the European Space Agency and the National Space Development Agency of Japan (NASDA) con- cerning an optical link and S-band experiment between the Artemis

334 AnnEXES

and the Optical Inter-orbit Communications Engineering Test Satellite, 7 December 1994. • Agreement between the Industrieanlagen-Betriebsgesellschat (IABG) and the European Space Agency on the putting at the disposal of and the utilisation by the European Space Agency of the IABG coordinated test facilities, 1 January 1996. • Agreement between the Intespace and the European Space Agency on the putting at the disposal of and the utilisation by the European Space Agency of the Intespace coordinated test facilities, 1 January 1996.

Certan specic nternatonal projects

The Ariane launcher programme

• Arrangement between certain European governments and the Euro- pean Space Research Organisation concerning the execution of the Ariane launcher programme, 21 September 1973. • Agreement between the European Space Research Organisation (ESRO) and the Centre National d'Etudes Spatiales (CNES) concerning the execution of the Ariane launcher programme, 7 February 1974. • Agreement between the Centre National d'Etudes Spatiales (CNES) and the European Space Agency concerning the arrangements for the provision of Ariane launchers and launches, 23 August 1979. • Declaration by certain European governments on the production phase of the Ariane launchers, 14 July 1980. • Convention between the European Space Agency and Arianespace, 15 May 1981. • Agreement between the Government of the Ivory Coast and the Euro- pean Space Agency on the setting-up and use of monitoring facilities for the purposes of the Ariane launcher programme, 23 April 1982. • European Space Agency: agreement between the Agency and the Cen- tre National d'Etudes Spatiales (CNES) concerning the execution of the Ariane launcher follow-on development programme (Ariane 2-3), 5 August 1983. • European Space Agency: agreement between the Agency and the Cen- tre National d'Etudes Spatiales (CNES) concerning the execution of the programme for the development of an up-rated version of the Ariane launcher (Ariane 4 programme), 5 August 1983.

335 EuropEAn TrAjECTorIES In SpACE LAw — 2007

• European Space Agency: agreement between the Agency and the Cen- tre National d'Etudes Spatiales (CNES) concerning the execution of the programme for the construction of a second Ariane launch site (ELA 2), 5 August 1983. • Rider No 3 to the Convention between the European Space Agency and the Arianespace Company concerning the second Ariane launch site (ELA-2), 15 January 1985. • European Space Agency: agreement between the Gabon Government and the Agency on the setting-up and use of an Ariane downrange sta- tion at Libreville, 6 October 1986. • Agreement between the European Space Agency and the Centre National d'Etudes Spatiales (CNES) on the execution of the Ariane 5 preparatory programme, 17 October 1986. • Agreement between the European Space Agency and the Centre National d'Etudes Spatiales (CNES) on the execution of the Ariane 5 development programme, 3 October 1989. • Agreement between the European Space Agency and the Government of the United Kingdom of Great Britain and Northern Ireland con- cerning the establishment and use of an Ariane downrange station on Ascension Island, 27 November 1989. • Convention between the European Space Agency and Arianespace con- cerning the production phase of Ariane launchers, 24 September 1992.

International Space Station

• Agreement on the association of certain national bodies with the Agency’s management and execution of the Columbus preparatory programme, 1 February 1985. • Memorandum of understanding between the United States National Aeronautics and Space Administration (NASA) and the European Space Agency for the conduct of parallel detailed deinition and pre- liminary design studies (Phase B) leading toward further cooperation in the development, operation and utilisation of a permanently manned space station, 3 June 1985. • Agreement between the Federal Government of Austria and the Euro- pean Space Agency on Austria’s participation in the Columbus prepara- tory programme, 25 September 1986. • Manned Civil Space Station, 26 September 1988, (NedTrb 1989, 5).

336 AnnEXES

• Agreement among the Government of the United States of America, Government of Member States of the European Space Agency, the Gov- ernment of Japan, and the Government of Canada on cooperation in the detailed design, development, operation, and utilisation of the per- manently manned civil space station. • Memorandum of understanding between the United States National Aeronautics and Space Administration (NASA) and the European Space Agency on Cooperation in the detailed design, development, operation and utilisation of the permanently manned civil space sta- tion, 26 September 1988. • Arrangement concerning application of the space station intergovern- mental agreement pending its entry into force, 26 September 1988. • Agreement between the European Space Agency and the Russian Space Agency concerning cooperation in the development and operations of the service module data management system (DMS) for the Russian segment of the International Space Station (ISS), and of the space vehi- cle docking system, 1 March 1996. • Space Agency concerning cooperation in the development and opera- tions of the European Robotic Arm (ERA) for the Russian segment of the International Space Station (ISS), 29 July 1996. • Arrangement between the European Space Agency and the Italian Space Agency (ASI) on the exploitation of common features of the pressurised modules developed by the parties, 17 April 1997. • Agreement among the Government of Canada, the 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, 29 January 1998. (CSA) • Arrangement concerning application of the International Space Station intergovernmental agreement pending its entry into force, 29 Janu- ary 1998. (CSA) • Memorandum of understanding between the national aeronautics and space administration of the United States of America and the European Space Agency concerning cooperation of the Civil International Space Station, 29 January 1998.

337 European commission

European trajectories in space law luxembourg: oice for Oicial Publications of the European Communities

2008 – xxxiv, 337 pp. – 15,8 x 24 cm

ISBN 92-78-40348-2

Price (excluding VAT) in Luxembourg: 65 EUR