Billion-dollar questions? Legal aspects of commercial space activities

Billion-dollar questions? Legal aspects of commercial space activities Abstract Currently, several well-funded companies in the USA are in the process of developing long-term missions to asteroids to harvest mineral resources that are found there, including water. Other companies are getting close to flying manned missions on sub-orbital trajectories or even into low-earth orbits. Outer space, indeed, is becoming more and more a multi-billion-dollar sector. At the same time, outer space is gradually becoming a riskier environment—so-called ‘space debris’ is increasingly becoming a worry for public and private space activities alike. This raises major questions regarding the legal framework, which was developed initially in the 1960s and 1970s when commercial space activities were hardly on the horizon, yet until today remains the baseline for mitigating any negative or threatening aspects of the growing use of outer space. The present contribution aims to provide an overview of the general aspects of these questions as well as some of the current debates that are trying to move the current legal framework in the right direction. I. Introduction Back in 1957 when the Soviet Union launched Sputnik-1, the first man-made satellite, into outer space, the furore it caused was overwhelmingly political, military, and strategic in nature. In the context of the day, Sputnik-1’s unexpected flight suddenly meant that the Soviet Union could use missile technology to seriously threaten its Cold War adversary, the USA. To the extent that mankind’s entry into outer space was not driven by politico-military-strategic considerations, it was undertaken out of scientific interest in exploring outer space; not accidentally, Sputnik-1’s launch occurred in the International Geophysical Year, which was supposed to stimulate exploration of such outer-worldly areas as the polar areas and outer space.1 For a long time, this reflected the leading paradigm of space activities: too difficult, too costly, and too risky for anyone to undertake except for the two superpowers, plus a select number of their allies that, to a certain extent, were equally highly developed. In other words, outer space was a domain for State activities undertaken either for politico-military-strategic or for scientific reasons. Since neither of those categories of activities generates any money in themselves, the private sector was only interested in serving the needs of relevant governments by developing and manufacturing whatever was ordered by those governments. Even satellite communications, correctly hailed as the major commercial space sector, was very much government driven initially. So much so that the USA, the traditional champion of private enterprise and free competition, for the first four decades of the space age nevertheless ran satellite communications by way of a corporation established by a federal statute and given a statutory monopoly position.2 Only in the 1980s did this paradigm start to change fundamentally. Following the establishment in 1980 of the first commercial launch service provider in the form of Arianespace, which was private in character but legally and financially still supported by a structure involving the European Space Agency (ESA) and its Member States (most notably France), the USA also opened the door for private launch service providers in 1984.3 More or less concurrently, first and foremost in the USA, private companies started to compete with the major international satellite communication organizations, INTELSAT and INMARSAT, which triggered a push for commercialization in the sector culminating in the privatization of those organizations two decades later.4 Since then, to some extent, satellite remote sensing has also been commercialized and privatized,5 and such developments are expected to materialize soon in the areas of manned spaceflight and asteroid mining. The State-centred nature of mankind’s space adventure and the focus on politico-strategic-military and scientific activities was also reflected in the legal regime, which quickly became established, at least as to its essentials, in the 1960s and early 1970s.6 The main question, once the underlying paradigm of State-centred-ness of space activities started to erode, was consequently to what extent the up-and-coming private space sector was, and/or would need, to be accommodated in this context. Effectively, that now has become the (multi-)billion-dollar question regarding space activities and space law. II. The baseline legal framework for outer space activities The 1967 Outer Space Treaty7 was the first treaty comprehensively addressing outer space and providing the main legal framework for space activities.8 Following the State-centred nature and focus of the space endeavour, the Treaty prohibited certain military uses of outer space in an effort to prevent the arms race from spreading to outer space and declared the realm free for exploration and use by all countries, subject to an—initially at least—rather limited set of loosely formulated conditions.9 These conditions centred around international cooperation, the need for ensuring that space activities would benefit all countries, and an obligation within reasonable bounds to avoid harmful interference in other States’ legitimate space activities.10 The major follow-on treaties elaborating certain elements and aspects of the Outer Space Treaty reflected this approach equally. The 1968 Rescue Agreement,11 elaborating Articles V and VIII of the Outer Space Treaty, provided for more detailed rules on the obligations of State parties to come to the rescue when astronauts found themselves in distress and to return space objects to their respective launching State.12 Particularly with the impending private commercial spaceflight ventures, questions have now been raised as to whether private paying ‘tourists’ should be entitled to the same legal privileges as astronauts.13 The 1972 Liability Convention,14 elaborating Article VII of the Outer Space Treaty (which had already posited the general principle of third party liability for damage caused by space activities) provided for the details of the liability regime.15 Thus, for instance, a fundamental differentiation was made between absolute liability for damage caused on earth and fault liability for damage caused to other space objects in outer space.16 Joint and several liability was provided for, the right to claim was specified in some detail, and compensation was required to wipe out all consequences of the damaging act, generally understood as calling for (in principle) unlimited compensation.17 However, whether indirect or commercial loss would be included—which was of major importance for any private space operators once these came to be involved—was already another matter.18 The Liability Convention also offered a dispute settlement system to States engaged in a liability dispute by way of a Claims Commission.19 While, on the one hand, the liability regime was drafted in a victim-oriented manner in that an unwilling State could not prevent a Commission from taking on the case,20 ultimately it did not amount to true arbitration since the decision would only be final and binding if both State parties would have agreed thereto at the outset.21 It was also for this reason that the Liability Convention did not present an exclusive remedy and even allowed for priority of other juridical proceedings in case a victimized party (including private persons and entities) so preferred.22 The 1975 Registration Convention23 elaborated the concept of registration of space objects already posited by Article VIII of the Outer Space Treaty as providing for a right of the registering State to (continue to) exercise jurisdiction over the space object so registered by way of a two-pronged system.24 The Convention, on the one hand, required launching States to establish a national register and to ensure that in the case of multiple launching States for a single space object only one of those was to register and exercise primary jurisdiction.25 On the other hand, such launching States were required to provide the UN Secretary-General (in actual fact, the UN Office for Outer Space Affairs) with a certain minimum set of data concerning the space object launched for inclusion in an international and openly accessible register, mainly for the purpose of identifying specific space objects with a view to responsibilities and liabilities of the launching State.26 As such, the treaties did not deal with space debris; in those days, this issue was not high on the agenda, while it was generally recognized that ‘space debris’ would qualify as ‘space objects’ for the purpose of triggering the application of the Liability Convention in given cases.27 Tackling this vexing problem started with major space agencies in the context of the Inter-Agency Space Debris Coordination Committee (IADC) agreeing in 2002 on a political/practical level to start conducting their respective space operations in a manner less conducive to the generation of harmful space debris.28 As a next step, the United Nations (UN), almost as the official representative of the international community of States, officially recognized the validity and value of the IADC document in UN General Assembly Resolution 62/217 of 2007 and thereby elevated these practical guidelines to what should probably be called ‘soft law’—highly authoritative, politically speaking, but not yet enforceable hard law in the normal sense of the word.29 Similarly, the treaties did not deal with such typical commercial and private law issues as the international financing schemes for space activities and the legal security rights and collateral to be held in that respect. A first effort to address such issues resulted in the recent Space Assets Protocol,30 which would apply the more general international regime of the Cape Town Convention31 to international mobile assets in the space sector, but which has so far carried very little support and is at least for the foreseeable future unlikely to enter into force.32 As a consequence, the register that is to be developed under the Protocol is not yet operative, and any possible issue with a view to concurrent registration of space objects under the Registration Convention is moot. III. From international to national law: handling private space activities Since private space activities at the time were neither expected nor, consequently, required to be dealt with in any detail, the Outer Space Treaty crucially provided only for the international responsibility and liability of States for any such private activities, should they ever become a reality; private operators had no formal standing under any of the space treaties discussed. Thus, Article VI of the Outer Space Treaty provides: States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. Although the precise scope of ‘national activities in outer space’ has never been fully clarified,33 the clause fully equates activities of non-governmental entities, including, notably, private companies, with activities of State-run agencies for the purpose of responsibility and calls for ‘authorization and supervision’ of the former, preferably by means of a national space law including a licensing system.34 Complementing to some extent Article VI, Article VII of the Outer Space Treaty provides for State liability, also in case of private involvement in the relevant activities, as follows: Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies. The details of the applicable liability regime are provided by the Liability Convention discussed in section II. In other words, pursuant to the foregoing at the most general level, the privatization of space activities has been addressed by relevant States enunciating national space legislation. As of today, some two dozen States have done so, including major space-faring nations such as the USA, the Russian Federation, Ukraine, France, the United Kingdom (UK), Germany, Canada, Australia, South Korea, and Brazil. All of these national laws crucially provide for licensing systems. In addition, the space debris problem is currently being addressed along these lines. Following the 2002 IADC Guidelines and UN General Assembly Resolution 62/217, the process has now reached a third phase, where the major States involved have chosen to start applying the relevant aspects of these guidelines as license requirements for private space operators;35 in other words, only on a domestic level so far, which, without question, has resulted in legally binding obligations resting upon licensees. If, somewhere down the road, these processes would indeed spread to all space-faring nations in a more or less consistent fashion—read, for example, faithfully following the IADC Guidelines and UN General Assembly Resolution 62/217—clearly a State practice with attendant opinio juris amounting to customary international law would emerge: ‘[T]hou shalt not leave thy junk in outer space, and either safely de-orbit, re-orbit or boost into deep space, as well as minimize intentional break-up and take other preventive measures.’36 Although not formally required to do so, in view of the liability burden for privately caused damage resting upon the State as far as the Liability Convention is concerned,37 it will be obvious that those States having established national licensing regimes have also usually and explicitly included mechanisms for reimbursement by licensees of any compensation thus paid out.38 Summarily speaking, three generic models for national space legislation can be discerned: (i) a complex multi-act regime; (ii) a single framework law covering in principle all space activities; and (iii) a single framework law essentially covering only a single specific type of space activity such as launching, remote sensing, or space resource utilization. For the sake of the present overview, only the first two categories will be briefly scrutinized in the following discussion, as to how they approach licensing, and within that context, liability with a view to claims involving the Liability Convention, since they fundamentally cover, for the countries concerned, the complete gamut of space activities (at least in principle). As for the third category, for the sake of reference, it may be noted that so far four national laws exist focusing exclusively on launching (in view of the focus of international liability on the launch39): the 1969 Act on launching objects from Norwegian territory into outer space;40 the 1998 Australian Space Activities Act;41 the 2001 Brazilian Administrative Edict no. 27 enclosing a regulation on procedures and on the definition of necessary requirements for the request, evaluation, issuance, follow-up, and supervision of licenses for carrying out launching space activities on Brazilian territory;42 and the 2005 South Korean Space Development Promotion Act.43 Two more existing laws focus exclusively on remote sensing in view of specific security concerns regarding very high resolution remote-sensing data: the 2005 Canadian Remote Sensing Space Systems Act44 and the 2007 German Act on Satellite Data Security.45 Finally, at the time of this writing, one national law exclusively dealing with the mining of space resources in view of their novel, yet complex, legal characteristics is soon to enter into force: the Luxembourg draft law on the exploration and use of space resources.46 IV. The US complex multi-act regime For largely historical reasons, the handling of various types of private space activities in the US context with a view, inter alia, to compliance with US international obligations has developed across a number of different national acts.47 Four of those regimes directly address sectors where private space operations are already undertaken or envisaged soon (in logical order: launching, satellite communications, satellite remote sensing, and space resource utilization). 1. Commercial Space Launch Act (1984/1988/2004/2015) The Commercial Space Launch Act was first enunciated in 198448 to incentivize and properly regulate the entrance of private operators into the business of providing launch services in a US context. It was fundamentally amended three times: once in 1988 to introduce major changes in the liability regime,49 once more in 2004 to address impending private launches of manned space objects,50 and, finally, in 2015 to address spaceflight participant-related issues.51 The Act stipulates that activities requiring a license or permit under the Act ratione materiae comprise the activity of launching objects, including manned space objects, into outer space as well as re-entering and landing them (with respect to the latter in particular). This category of activity is further subdivided into the actual launch/spaceflight operations and the operation of a launch site/spaceport to allow such launches to take place.52 The scope ratione personae/ratione geographiae extends, first, to both launch activities conducted by US nationals (including companies) and such activities conducted from US territory. Second, also launch activities conducted by foreign entities controlled by US nationals (including companies) would be covered by the Act.53 The licenses address third party liability by means of a complicated arrangement, following which, as far as international liability is concerned, the liability of the licensee translates into an obligation to reimburse the US government for international compensation under the Liability Convention. As of the 1988 amendments, such third party liability is capped for any individual license by the lowest of: (i) the maximum probable loss calculated on the basis that ‘probable’ refers to a chance of more than one in 10,000,000 for such damage to occur; (ii) the maximum amount of liability insurance available in the world insurance market against reasonable rates (as determined by the licensing authority); and (iii) a maximum of US $500,000,000. Insurance coverage (or, in the alternative, ‘financial responsibility’) up to the cap, whatever the amount ultimately quoted in the license is, has to be proven by the prospective licensee.54 2. Communications Act (1934/1970) The Communications Act was established in 193455 in order to regulate all communication activities by private operators at a federal level within the USA. Though it did not consider at the time, obviously, the possibility that such communication activities would include satellites as a fundamental part of the infrastructure, when the latter did become feasible, it was formally confirmed in 1970 that the Act as such also applied to such satellite communication activities.56 The Act simply provides that ‘[n]o person shall use or operate any apparatus for the transmission of energy or communications or signals by radio ... except under and in accordance with this chapter and with a license in that behalf granted under the provisions of this chapter’.57Ratione materiae, the Act extends to ‘all interstate and foreign communication by wire or radio and all interstate and foreign transmission of energy by radio’, which for the present purposes includes all satellite communication activities.58 The scope ratione personae/ratione geographiae of the licensing system was defined with reference to those operating on or from US territory, US-registered vessels, and other places under US jurisdiction.59 In view of the crucial linkage of liability to the launch under the Liability Convention, the Act was never made to address international third party liability in this particular context.60 3. Land Remote Sensing Acts (1984/1992) In 1984, the Land Remote-Sensing Commercialization Act61 was enunciated in order to allow for the entrance of private operators into the satellite remote-sensing sector. While the hoped-for privatization did not occur as expected and the Act had to be replaced by the 1992 Land Remote Sensing Policy Act,62 the essential possibility for private enterprise to become fundamentally involved in satellite remote-sensing operations remained intact. The scope of the Act ratione materiae pertains to the operation of ‘private remote-sensing space systems’.63 The scope ratione personae is determined as any ‘person that is subject to the jurisdiction or control of the United States’.64 This refers to persons (natural as well as legal) with US nationality as well as persons operating from US territory or even persons operating satellite remote-sensing systems with substantial connections to, or deriving substantial benefits from, the USA. On the issue of liability, for the same reasons as with satellite communications above, no clauses in the Act or the attendant chapter of the Code of Federal Regulations address international third party liability. 4. Commercial Space Launch Competitiveness Act (2015) Apart from amending other existing legislation pertaining to private commercial space ventures such as the Commercial Space Launch Act, as discussed above, the 2015 Commercial Space Launch Competitiveness Act65 addressed for the first time the novel area of space resource mining operations by way of its Title IV, entitled Space Resource Exploration and Utilization. It provided a first level of legally framed support measures and ‘guarantees’ to the incipient asteroid mining sector by adding a Chapter 513 to Title 51 of the US Code. Title IV of the Act notably recognizes the property rights of US citizens and companies over space resources once extracted on a ‘first come, first served’ basis—as for disputes playing out within US jurisdiction and in stated compliance ‘with ... the international obligations of the United States’, including, for instance, space debris and harmful interference-related consequences.66 This clause also provides for a scope ratione personae for the licensing regime to be developed in the near future for any such operator interested in benefiting from such legitimate ownership rights.67 As the details of the licensing regime are yet to be developed, however, little further can be said about any liability-related regime in this specific context. V. Various comprehensive single framework laws So far, counting only those States where an English text version has been made available, ten States have issued national legal framework laws at least in principle comprehensively encompassing all space activities as far as actually or potentially undertaken by the private sector. They are addressed in chronological order. 1. Sweden Sweden established its Act on Space Activities in 198268 to deal with its international obligations under the treaties—in particular, with a view to the operations conducted from the launch site at Kiruna in the northern part of the country. The scope ratione materiae of the licensing requirement is determined as ‘activities carried on entirely in outer space, ... the launching of objects into outer space and all measures to manoeuvre or in any other way affect objects launched into outer space’.69 Specific exceptions, however, are made for ‘[m]erely receiving signals or information in some other form from objects in outer space’ and the ‘launching of sounding rockets’.70 The scope of the Act is furthermore defined both ratione personae and ratione geographiae: ‘Space activities may not be carried on from Swedish territory by any party other than the Swedish State without a licence. Nor may a Swedish natural or juridical person carry on space activities anywhere else without a licence’.71 Regarding liability, the Act provides for, in principle, unlimited derogation of an international claim to a licensee: ‘If the Swedish State on account of undertakings in international agreements has been liable for damage which has come about as a result of space activities carried on by [licensees,] ... [they] shall reimburse the State what has been disbursed on account of the above-mentioned undertakings, unless special reasons tell against this.’72 Nothing else is provided on liability in the Act or Decree. 2. UK The UK established its Outer Space Act in 198673 ‘to confer licensing and other powers on the Secretary of State to secure compliance with the international obligations of the United Kingdom with respect to the launching and operation of space objects and the carrying on of other activities in outer space by persons connected with this country’.74 Currently, the Act is in the process of being amended, inter alia, with a view to liability and insurance arrangements; a Draft Spaceflight Bill75 specifially addressing manned spaceflight is also presently being discussed. The scope of the Act ratione materiae is defined as comprising ‘(a) launching or procuring the launch of a space object; (b) operating a space object; [and] (c) any activity in outer space’.76 The scope ratione personae is defined with reference to the nationality of the operator: the Act applies to ‘United Kingdom nationals, Scottish firms, and bodies incorporated under the law of any part of the United Kingdom’.77 No territorial limitation to its scope is included in this respect. On liability arrangements, the Act provides that a licensee ‘shall indemnify Her Majesty’s government in the United Kingdom against any claims brought against the government in respect of damage or loss arising out of activities carried on by him to which this Act applies’.78 In other words, in principle, the indemnification obligation is without a cap. While the Act itself only allows the licensing authority to include conditions ‘requiring the licensee to insure himself against liability incurred in respect of damage or loss suffered by third parties, in the United Kingdom or elsewhere, as a result of the activities authorised by the licence’,79 in practice, this has given rise to a standard obligation for licensees to insure themselves, originally up to £100,000,000, but, since 4 July 2011, only up to €60,000,000. Following these changes, a consultation process has now started on proposed changes to the UK Outer Space Act regarding the introduction of a cap of €60,000,000 also on the indemnification requirement.80 3. Russian Federation Following the breakdown of communism in the Soviet Union and the dissolution of that country, with the introduction of free market principles in Russia it was decided to also establish a national law dealing with private involvement in space activities by way of the 1993 Law on Space Activities.81 The scope ratione materiae of the Law as such comprises all ‘space activities’, which are then very broadly defined as encompassing: space research; space communications, including television and radio broadcasting with the help of satellite systems; remote sensing of the Earth from outer space, including environmental monitoring and meteorology; the use of navigation, topographical and geodesic satellite systems; manned space flights [and] manufacturing materials and other products in outer space. In addition, however, such activities include not only the normal range of activities considered ‘space activities’ but also ‘other kinds of activities performed with the aid of space technologies’ and ‘creation (including development, manufacture and test) of, as well as using and transferring space technics, space technologies, other products and services necessary for carrying out space activities’.82 Within that scope, however, the licensing regime only applies in principle to space activities ‘if such activities include tests, manufacture, storage, preparation for launching and launching of space objects, as well as control over space flights’—that is, essentially the more classical core categories of space activities.83 In addition, though not ‘licensing’ in the strict sense of the word, and as different from other national space laws (with the exception of the Ukraine and, implicitly, Kazakhstan), the Russian Law also requires certification of ‘space technics’, including ‘space objects, and ground and other objects of space infrastructure created for scientific and national-economy purposes’ and, possibly, ‘[e]quipment used in the creation and use of space technics’, albeit that these further details are left to separate legislation.84 The scope ratione personae/ratione geographiae is delineated as applying the regime to both activities conducted by Russian ‘organizations and citizens’ and those of ‘foreign organizations and citizens’ operating in or from Russia.85 In addition, it should be noted that Russia ‘shall retain jurisdiction and control over space objects registered in it, during the ground time of such objects, at any stage of a space flight or stay in outer space, on celestial bodies and also on return to the Earth outside the jurisdiction of any state’.86 The system provided by the Law for handling liability issues is, unfortunately, constructed in a complicated manner, which is not always conducive to legal certainty. To start with, it provides that ‘organizations and citizens which exploit space technics ... shall take compulsory insurance coverage’, inter alia, covering third party property damage.87 The further wording of this provision is not unambiguous as to whether other kinds of third party damage are included such as are relevant under the Liability Convention, but, logically speaking, this should probably be inferred.88 More explicitly, the Russian Federation ‘shall guarantee full compensation for direct damage inflicted as a result of [an] accident while carrying out space activities’ under the relevant licenses.89 If the damage was the result of accidents caused by private entities, compensation for such damage shall be paid by those entities, presumably to the Russian Federation in the case of international third party damage.90 As to the amount of this indemnification and the obligatory insurance required, the possibility is left open to provide for a ceiling on the latter.91 This ceiling should, logically speaking, also constitute the maximum indemnification of the Russian Federation to be provided by the private entity so insured.92 4. South Africa On 6 September 1993, the Space Affairs Act of the Republic of South Africa entered into force.93 The Act largely was a response to the growing interest of South African industrial and service sectors in space, following the deconstruction of the apartheid regime and, thus, provided ‘for the establishment of a Council to manage and control certain space affairs in the Republic; to determine its objects and functions; to prescribe the manner in which it is to be managed and controlled; and to provide for matters connected therewith’.94 The scope ratione materiae of the Act’s licensing system comprises ‘launching ... operation of a launch facility; space activities—(i) entailing obligations to the State in terms of international conventions, treaties or agreements entered into or ratified by the Government of the Republic; or (ii) which may affect national interests [and] any other space or space-related activities prescribed by the Minister’.95 Ratione personae/ratione geographiae, the licensing system distinguishes between launch activities, including the operation of a launch facility, and other space activities, meaning ‘activities directly contributing to ... the operation of [space]craft in outer space’.96 The former require a license if conducted either from South African territory or by legal persons with South African nationality;97 the latter only if conducted by legal persons and ‘(i) entailing obligations to the State in terms of international conventions, treaties or agreements entered into or ratified by the Government of the Republic; or (ii) which may affect national interests’.98 Regarding liability, the licensee generally speaking would be required to reimburse the South African government for any international third party liability claim to the full.99 At the same time, governmental discretion would allow for only partial reimbursement or non-reimbursement if the South African interest would so require.100 Conditions may be inserted into the license as to any insurance to be provided with respect to such liability.101 5. Ukraine Ukraine, after Russia, is the most important newly independent State to arise out of the demise of the Soviet Union, and it also soon followed its major neighbour in enunciating its own national space law in 1996.102 Ratione materiae, the licensing regime applies to ‘space activities’, defined as ‘scientific space researches; construction and application of space engineering; [and] use of outer space’; further details of the kinds of space activities requiring a license are to be determined by further Ukrainian legislation.103 In addition to licensing, as is the case with Russia, the Ukrainian Law on Space Activities requires space objects involved in space activities to also be licensed as per an existing certification regime.104 Ratione personae/ratione geographiae, everyone undertaking space activities from Ukrainian territory or otherwise operating under Ukrainian jurisdiction (meaning everyone with Ukrainian nationality, natural and legal persons alike) requires a license.105 In terms of liability, similarly to Russia but in more succinct terms, the Law provides for a somewhat complicated approach. Liability ‘for damage caused during a space activity and the definition of the size of such damage which is subject to compensation are established in accordance with the legislation in force of Ukraine’, referring to general liability rules rather than the international Liability Convention.106 Nothing is specifically provided on a possible obligation to reimburse the Ukrainian government for international claims, although this might be assumed to follow from the general legislation Ukraine refers to. Also, the insurance obligation under the Law is couched in general terms—for ‘carrying out of space activities’—as well as referring to existing Ukrainian law and a specific decision of the Ukrainian government to determine the size of mandatory insurance, which finally was made in 2001 when the Ukrainian Parliament adopted the corresponding additions to the 1996 Law on Insurance.107 6. Belgium Belgium enunciated its Law on the Activities of Launching, Flight Operations or Guidance of Space Objects in the course of 2005108 to stimulate private involvement in certain space activities and address the attendant international obligations of Belgium in that respect. The scope of the licensing obligation (for which the Law uses the term ‘authorisation’), ratione materiae, extends to ‘activities of launching, flight operations and guidance of space objects’, the latter of which is defined in such a manner that activities only involving space objects whose operations are not controlled as such are excluded.109 The scope of the licensing scheme in first instance is limited, ratione geographiae, to activities conducted from Belgian territory, but it can come to encompass, ratione personae, such activities conducted elsewhere by Belgian persons if called for by an international agreement to which Belgium is a party.110 On liability, the Law provides for a very targeted right of counterclaim by the Belgian government against a licensed operator if the latter’s operations give rise to international claims under Article VII of the Outer Space Treaty or the Liability Convention. In these cases, such an operator has the right to be privy to the discussions and procedures. The reimbursement obligation may be limited by the government, except in cases where the licensee does not comply with the terms of the license. In case the responsible minister has included an obligation for the licensee to insure himself against third party liability, that insurance should also cover reimbursement, but it does not as such work as a cap on the reimbursement obligation.111 7. The Netherlands The Netherlands established its own Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry of Space Objects in 2007112 in view of the considered necessity to lay down such rules to accommodate various emerging private space initiatives.113 Its licensing regime, ratione materiae, applies to all ‘space activities’, which are defined exhaustively as ‘the launch, the flight operation or the guidance of space objects in outer space’.114 This scope, however, could be extended to ‘the organization of outer space activities’ by implementing regulation.115 The licensing obligation pertains ratione geographiae to all ‘space activities that are performed in or from within the Netherlands or else on or from a Dutch ship or Dutch aircraft’.116 However, implementing regulations may extend this scope, ratione personae, to Dutch nationals undertaking space activities ‘on or from the territory of a State that is not party to the Outer Space Treaty or on or from a ship or aircraft that falls under the jurisdiction of a State that is not party to the Outer Space Treaty’.117 On liability, the Law provides first for obligatory reimbursement, ‘in full or in part’, by the licensee of the government in case of international claims under Article VII of the Outer Space Treaty or the Liability Convention.118 However, the extent of reimbursement liability is then limited ‘to the value of the sum insured’.119 It is up to the minister to determine such a cap, according to what he ‘considers to be the maximum possible cover for the liability arising from the space activities for which a license is requested. Account is taken here of what can reasonably be covered by insurance’.120 8. France For several decades, France had fulfilled its obligations under Article VI of the Outer Space Treaty of authorization and continuing supervision of its two major private space operators—Arianespace and SpotImage—by way of owning, through its national space agency, the Centre national d’études spatiales (CNES),121 the largest amount of their shares. As for the former, it also took care of potential international third party liability under the Liability Convention, involving as appropriate the other ESA Member States part of the Ariane programs of ESA.122 Following the privatization of EUTELSAT and the increasing role of the European Community, then European Union (EU), in the European space endeavour, however, France ultimately decided to replace that construct with a full-fledged national space law, the 2008 French Law on Space Operations.123 The licensing regime of the Law, ratione materiae, applies to ‘the launching of a space object’, ‘intending to proceed with the return of such an object’, ‘intending to procure the launching of a space object’ and ‘intending to command such an object during its journey in outer space’.124 In short, it comprises the full range of space activities considered of interest to private space entrepreneurs, with the exception of the operation of ‘non-commanded’—read unguided small satellites—where the same issue arises as in the Belgian and Dutch cases, although the fact that such satellites would nevertheless require at least an original launch and some measure of control of separation from the launch vehicle would generally ensure the potential for the French Law to exercise a certain measure of a priori legal control over these operations.125 Ratione personae/ratione geographiae, the licensing regime makes a distinction between launching and return activities respectively and all other space activities. For the former, the licensing obligation extends to both anyone undertaking such activities from French territory or facilities (under territorial respectively quasi-territorial jurisdiction) and any French operator undertaking such activities elsewhere, whereas, for the latter, only French operators as such require a license.126 Space activities undertaken by the French Ministry of Defence and CNES are—logically—exempted from the licensing obligation under the Law.127 Regarding liability, any licensee must ‘have and maintain’ ‘insurance or another financial guarantee approved by’ CNES in view of its potential third party liability.128 This third party liability applies internationally in that, if France itself has compensated relevant claims under the Outer Space Treaty or the Liability Convention, it is in principle entitled to indemnification by the licensee.129 Also, in that case, France limits the extent of mandatory indemnification and attendant insurance coverage to an amount later determined by a Finance Act to be between €50,000,000 and €70,000,000.130 An interesting point in the light of France’s membership of the EU concerns the extension of the French government’s guarantee under the Finance Act for amounts of compensation above the cap to space activities conducted from the territories of other EU Member States and even of Member States of the European Economic Area.131 9. Austria Austria established its Federal Law on the Authorisation of Space Activities and the Establishment of a National Space Registry in 2011,132 driven in particular by increasing involvement of Austrian entities in niche markets such as small satellites and the desire to develop an appropriate legal and regulatory framework for those in the light of Austria’s obligations under international law. The scope of the licensing regime, ratione materiae, encompasses ‘space activities’, defined as comprising ‘the launch, operation or control of a space object, as well as the operation of a launch facility’.133 The same limitation discussed before in the context of Belgium, the Netherlands, and France as regarding small satellites could thus have arisen. In the Austrian context, however, it was consciously decided at the outset, in contrast, that all small satellites, unguided or not, should be considered to also fall within of the scope of the licensing obligation.134Ratione personae, the Act’s licensing obligation applies on a territorial, quasi-territorial, and personal basis—namely, to ‘space activities carried out 1. On Austrian territory, 2. On board of vessels or airplanes, registered in Austria or 3. By a natural person with Austrian citizenship or legal persons seated in Austria’.135 Specifically on liability and insurance, the arrangements are rather precise: In order to cover liability for damages caused to persons and property, the operator is under the obligation to take out an insurance covering a minimum amount of €60,000,000 per insurance claim. Run-off liability may not be excluded or limited. If the space activity is in the public interest, the Minister for Transport, Innovation and Technology may determine a lower sum or release the operator from the insurance requirement by administrative decision, taking into account the risks connected to the activity and the operator’s financial capacity. Space activities are in the public interest if they serve science, research or education. Taking out an insurance is not necessary if the Federal State itself is the operator.136 These provisions apply also to international third party liability, where Austria then reserves a right of recourse to the licensee for any international claim paid out, up to the sum insured as per the above, at least for damage caused on earth or to aircraft in flight.137 10. Kazakhstan Kazakhstan, as the third main heir of the Soviet space heritage after Russia and Ukraine, established its 2012 Law on Space Activities in view, among others, of opportunities to enhance its presence in outer space by virtue of the spaceport Baikonur.138 Unfortunately, a rather sloppy translation often makes it difficult to derive solid conclusions from its clauses. Keeping this in mind, ratione materiae, the Law would apply its licensing system to ‘activities aimed at exploration and use of outer space for achieving the scientific, economic, environmental, defense, information and commercial purposes’, subject to ‘the legislation of the Republic of Kazakhstan on licensing’.139 The scope of the licensing obligation ratione personae/ratione geographiae, is also to be determined by ‘the legislation of the Republic of Kazakhstan on licensing’.140 In view of the registration requirements, however, it may be assumed that both personal and territorial jurisdiction are applied.141 The licensing requirements would include, with a view to liability and insurance, a more detailed legal clause following upon the principle of ‘compensation for harm to health of individuals, damage to the environment, property of individuals and legal entities, or the state arising out of the implementation of space activities’.142 The last phrase also suggests that State payment of international claims under the Liability Convention is included, calling for reimbursement by any licensee; this could happen either ‘voluntary or under court decision according to the laws of the Republic of Kazakhstan’.143 VI. Dispute settlement regarding space activities With the advent of more and more private entities into more and more sectors of space activities, the issue of dispute settlement becomes of special importance as well. Following the State-centred-ness of space law, questions would arise both as to the jus standi of private entities in such disputes as well as, more substantively speaking, whether existing dispute settlement mechanisms would be able to appropriately address the specific commercial and other concerns of private sector entities. The existing dispute settlement mechanisms of general international law, following, inter alia, Article III of the Outer Space Treaty, are in principle available to disputes involving private companies as well. This applies both to systems with a comprehensive scope, such as the International Court of Justice (ICJ),144 which can adjudicate disputes on any matter of international law,145 and to systems very much limited in scope such as the aforementioned Claims Commission, which can only provide decisions on issue of liability pursuant to the Liability Convention,146 or the International Telecommunication Union’s (ITU) system for dispute settlement, which can only address issues relating to the ITU Constitution,147 the ITU Convention,148 and the regime developed on the basis of both conventions.149 However, crucially, private parties involved have no jus standi before such courts and tribunals. Access to the ICJ for adjudication is exclusively reserved for States;150 the option of instigating a Claims Commission and presenting claims before it is also only open to States151 and so is the dispute settlement system under the ITU treaties.152 It is for reasons of trying to address these shortcomings that the Rules on Outer Space Disputes of the Permanent Court of Arbitration (PCA)153 were adopted in late 2011 during a special session of the PCA Administrative Council of Member States, which currently number 115.154 The Rules were based on the 2010 UNCITRAL Arbitration Rules, changed notably as appropriate to ‘(i) reflect the particular characteristics of disputes having an outer space component involving the use of outer space by States, international organizations and private entities; [and] (ii) reflect the public international law element that pertains to disputes that may involve States and the use of outer space, and international practice appropriate to such disputes’.155 The PCA Rules on Outer Space Disputes leave it completely to the parties to avail themselves thereof. The legal basis for the dispute is irrelevant; using the Rules for ‘disputes between [parties] in respect of a defined legal relationship, whether contractual or not’ is dependent solely upon agreement between the two parties involved.156 Even more fundamentally, ‘[t]he characterization of the dispute as relating to outer space is not necessary for jurisdiction where parties have agreed to settle a specific dispute under these Rules’.157 Thus, the Rules avoid the difficult issue of what constitutes ‘space activities’, and, thereby, they also avoid the difficult discussion on where ‘outer space’, as an area, begins. As is quite usual under arbitration rules, agreement by a party to arbitrate automatically means that such a party waives any immunity from jurisdiction it might otherwise invoke, although a waiver of immunity from execution of any arbitral award must be expressed explicitly.158 This is a fundamental clause in any arbitration regime, which allows jus standi for both States and non-State actors, as otherwise the principled legal equality of the parties to a dispute would be fundamentally jeopardized. Immunity from execution, while also a principled barrier to such legal equality, does require explicit agreement of a State party to a dispute both for practical and for principled reasons. Nevertheless, the assumption is that one way or another a State faced with an award imposing specific obligations—for example, to pay a fine—would in good faith abide by such an award even if immunity from execution had not been waived in that particular case. If failure to satisfactorily allow execution of such an award by a State invoking immunity from execution would give rise to serious injustice, there would in many cases be a residual possibility for the State of the victimized non-State party to raise the issue to an international, State-to-State level and, for example, exercise diplomatic protection by seizing the ICJ. The PCA Rules on Outer Space Disputes also provide for a set of clauses on how the arbitral tribunal is to be established.159 The size of the panel is one other area where maximum flexibility was striven for; while the default option would be three arbitrators, other sizes may also be opted for with a five-arbitrator panel being mentioned explicitly, but no size a priori being excluded.160 Thus, if the technical, operational, or political complexity of a case so warrants, also panels consisting of seven or nine members could be established. The Rules also provide for a full waiver of the liability of arbitrators and, more extensively, of ‘any person appointed by the arbitral tribunal’ for ‘any act or omission’ connected to arbitration.161 The addition of other persons than the arbitrators themselves refers, for instance, to expert witnesses, the need for which may—arguably—be particularly prominent in many space activities-related disputes. With respect to the procedure, the arbitrators are also handed a large measure of discretion, as ‘the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that, at an appropriate stage of the proceedings, each party is given a reasonable opportunity of presenting its case’.162 A similar discretion applies to allowing third parties to join the proceedings.163 The only non-discretionary precondition for such joinder, the need for the third party to be party to the arbitration agreement, serves as a guarantee—with a view to the potential complexity of cases in terms of potentially afflicted parties, subject matter, and applicable law—that such a third party would also be formally and fully aware of the way the arbitration is going to be handled and its rights and obligations following from such joinder. This notably also includes the novelty the PCA Rules on Outer Space Disputes provide as compared to other arbitration mechanisms, which is the concept of the ‘confidentiality adviser’. Here, a rather special procedure caters for the presumed occasional need to respect confidentiality, exceptionally even secrecy, in the context of commercially sensitive, or security-sensitive, information. First, a party may call for information to be classified as ‘confidential’.164 The tribunal then decides on whether such classification would actually be granted on the assumption that ‘the absence of special measures of protection [of information requested to be tagged confidential] in the proceedings would be likely to cause serious harm to the party or parties invoking its confidentiality’.165 It then also decides ‘under what conditions and to whom the confidential information may in part or in whole be disclosed and shall require any person to whom the confidential information is to be disclosed to sign an appropriate confidentiality undertaking’.166 In the alternative—and this is the real novelty—the tribunal may, at the request of either party or proprio motu, appoint a ‘confidentiality adviser’—an independent expert—‘in order to report to it on the basis of the confidential information on specific issues designated by the arbitral tribunal without disclosing the confidential information either to the party from whom the confidential information does not originate or to the arbitral tribunal’.167 This clause walks a thin line between the need to accommodate the supreme interest of one party to keep certain information confidential to such an extent that it rules its willingness to submit to arbitration and the due process requirement that opposing parties should be allowed to have access to information used for making judgmental decisions in particular disputes. Whether the line is so thin as to actually break is currently a matter of conjecture and will remain so unless tested in cases invoking the Rules as well as the confidentiality clauses. With regard to the applicable law, the PCA Rules on Outer Space Disputes provide that ‘the arbitral tribunal shall apply the law or rules of law designated by the parties as applicable to the substance of the dispute’.168 If no such designation has occurred, the arbitrators are to apply the national and/or international law rules they determine to be appropriate.169 Also deciding ‘as amiable compositeur or ex aequo et bono’ is only an option for the tribunal if parties have expressly authorized such a ground for decisions.170 If a contract is involved in the dispute, the tribunal ‘shall decide in accordance with the terms of the contract, if any, and shall take into account any usage of trade applicable to the transaction’.171 Above, attention was drawn to the large measure of technicality and the resulting needs to provide for proper evidentiary rules and involvement of experts. Here, it is obviously for the tribunal to decide on ‘admissibility, relevance, materiality and weight of the evidence offered’.172 If considered appropriate, non-technical documents may be requested by the arbitrators from the parties to explain certain pieces of information.173 Likewise, the tribunal may call upon experts on scientific or technical matters after consulting the parties, which may be challenged by any of the parties.174 The tribunal can impose interim measures at the request of one of the parties.175 ‘Interim measures’ are defined as: any temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party, for example and without limitation, to: (a) Maintain or restore the status quo pending determination of the dispute; (b) Take action that would prevent, or refrain from taking action that is likely to cause, (i) current or imminent harm or (ii) prejudice to the arbitral process itself; (c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or (d) Preserve evidence that may be relevant and material to the resolution of the dispute.176 In other words, as is normal in regard to interim measures, the tribunal should weigh the interests of a claiming party in not seeing any possible favourable outcome—which consequently should prima facie be a realistic possibility—prejudiced by irreversible events and the interests conversely of a defending party in not seeing any possible favourable outcome to that party being prejudiced. Like any true arbitrary award—and differently, for example, from the Liability Convention’s Claims Commission mechanism—awards of the arbitration tribunal under the PCA Rules on Outer Space Disputes are also ‘final and binding on the parties’, unless a ‘simple’ error should be detected afterwards, which may then be corrected.177 Awards will be decided by majority if there is more than one arbitrator.178 Separate awards are possible if circumstances so warrant in the view of the tribunal.179 Unless parties have decided otherwise, the reasons for the award will be provided by the tribunal.180 Requests for (further) interpretation of an award can be honoured.181 Additional awards may also be requested by the parties, and such requests are to be honoured at the discretion of the tribunal.182 Finally, the PCA Rules on Outer Space Disputes provide for important directions on the costs of the arbitration procedure.183 The PCA Rules on Outer Space Disputes offer, as compared to the existing and applicable dispute settlement mechanisms, the most comprehensive coverage of all aspects of space activities and, hence, of all possible disputes regarding such activities. Through the various mechanisms, the Rules take into account terrestrial aspects as well as space aspects, national law and jurisdiction as well as international law and the ‘global commons’ character of outer space, the various categories of the actors and stakeholders, public as well as private (and including any contractual law issues), and, finally, the technological and operational complexities of the sector at least as well as, and often more efficiently and coherently, than those other mechanisms briefly recounted above. Flexibility for the tribunal as well as the parties and party autonomy are truly maximized by way of such provisions, allowing the parties the ultimate decision on whether to use the PCA Rules on Outer Space Disputes or not, on the size of the arbitral tribunal, and on applicable law within a coherent system. Ample room is also offered for taking the technological and operational complexities into due consideration. The only serious caveat would regard the confidentiality adviser; it remains to be seen whether this procedural novelty strikes the right balance or is the enemy of the good, causing more damage to due process than it helps bring about solutions to intricate space-related disputes. VII. Concluding remarks The increasing involvement of private entities in various space sectors has been principally dealt with by means of national space legislation addressing such activities in the context of the relevant States being held responsible and liable for those activities in accordance with Articles VI and VII of the Outer Space Treaty and the Liability Convention. To a certain extent, this is now also specifically happening in the area of the mitigation of space debris. However, certainly from an overarching perspective, this is far from satisfactory on a number of counts. First, a number of key States—Germany, Italy, Canada, Japan, India, perhaps China, and many others—have not yet developed any comprehensive domestic legal approach to private space actors, even as it is questionable whether private or semi-private operators from such countries are not already substantially engaged in space activities. Second, those States that have implemented relevant duties, including those pertaining to registration pursuant to Article VIII of the Outer Space Treaty and the Registration Convention, have done so with considerable variations. This applies notably to the scope, ratione personae/ratione geographiae, of their licensing systems, the level of specificity or even specifics as such of the requirements for, and the handling of international third party liability for damage. With respect to the reimbursement per se, the most intricate question is whether the State is going to require reimbursement only up to a level—which certainly would stimulate the private space industry but would present a risk for the national treasury in case of catastrophic accidents—or, alternatively, full reimbursement regardless of the extent of the damage—which would mean the State does not run a financial risk (at least not as far as the solvency of the private entity and/or the insurance coverage go), yet private entities will be very reluctant to apply for such a license. In actual fact, some States have included a very complex methodology for establishing the maximum amount of reimbursement for any particular license, whereas others have simply named a single monetary amount, applicable across the board, and yet others have given at best a vague indication of their default position and approach on the issue. Another follow-up question would be to what extent insurance is mandatory to cover any cases of third party liability claims if substantial differences arise. In short, the global environment for space activities presents a far from harmonized picture to the private sector, in spite of the, by definition, global nature of their activities. While there may be profound reasons for this (ranging from the security concerns that are always around the corner when it comes to space operations and space technologies to ideological differences concerning the appropriate role of private enterprise in a global commons such as outer space), at least a similarity of interpretation of key provisions of the space treaties by way of national implementation should be aspired to in order to minimize any legal uncertainty for private operators in either direction. Presumably, much progress could still be made in this realm, and much work consequently still needs to be done. Finally, also in the area of dispute settlement, the globalized space environment is only beginning to take into consideration the major role that the private sector is playing in that context, for better or worse. The PCA Rules on Outer Space Disputes, albeit not entirely without questions, would seem to provide a rather interesting tool in this particular context, but so far they have not been actually tested. Alas, if the normal, ‘natural’ course of events would apply in outer space as well, a first multi-billion-dollar dispute might be required to make that happen, which, however, is likely to happen sooner rather than later. Indeed, space activities by now have become a conglomerate of multi-billion-dollar businesses with commensurately pressing legal questions, even while outer space still remains a global commons that is supposed to be used for the benefit of all mankind. Footnotes 1 See e.g. Peter Jankowitsch, ‘The Background and History of Space Law’, in Frans von der Dunk (ed), Handbook of Space Law (Cheltenham/Northampton, Edward Elgar, 2015) 1, 2-3, 14–20. 2 COMSAT, the Communications Satellite Corporation, was established by way of the Communications Satellite Act, 31 August 1962, Public Law 87–624, 87th Congress, H.R. 11040; 76 Stat. 419; as amended 1978; and ‘privatised’ (read ‘de-monopolized’) and the market liberalized by way of the 2000 ORBIT Act; Open-market Reorganization for the Betterment of International Telecommunications Act, 17 March 2000, Public Law 106–180, 106th Congress. See Marietta Benkö and Karl-Heinz Böckstiegel (eds), Space Law: Basic Legal Documents (Eleven International Publishing, 2011; loose-leaf) E.III.2. 3 See e.g. Peter van Fenema, ‘Legal Aspects of Launch Services and Space Transportation’, in Frans von der Dunk (ed), Handbook of Space Law (Cheltenham/Northampton, Edward Elgar, 2015) 382, 382–92. 4 See e.g. Patricia McCormick, ‘Neo-Liberalism: A Contextual Framework for Assessing the Privatisation of Intergovernmental Satellite Organisations’, in Patricia McCormick and Maury Mechanick (eds), The Transformation of Intergovernmental Satellite Organisations (Leiden/Boston, Martinus Nijhoff, 2013) 1, 1–25. 5 See e.g. Fabio Tronchetti, ‘Legal Aspects of Satellite Remote Sensing’, in Frans von der Dunk (ed), Handbook of Space Law (Cheltenham/Northampton, Edward Elgar, 2015) 501, 505–13. 6 See e.g. Jankowitsch (n 1) 3–9. 7 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), London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967). 8 According to some, the 1963 Partial Test Ban Treaty (Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Moscow, done 5 August 1963, entered into force 10 October 1963; 480 UNTS 43; TIAS 5433; 14 UST 1313; UKTS 1964 No. 3; ATS 1963 No. 26) presented the first international treaty on outer space, but since it on the one hand also addresses the earth’s atmosphere and oceans and on the other hand addresses only specific military aspects, the Outer Space Treaty should be considered—certainly from the current vantage point—the first comprehensive convention in this regard. 9 See Arts. IV resp. I, Outer Space Treaty; further Stephan Hobe, ‘Article I’, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume I: The Outer Space Treaty (Cologne, Carl Heymanns Verlag, 2009) 1; Kai-Uwe Schrogl and Julia Neumann, ‘Article IV’, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume I: The Outer Space Treaty (Cologne, Carl Heymanns Verlag, 2009) 70. 10Cf., resp., Arts. III, I, IX, Outer Space Treaty; further Hobe (n 9); Olivier Ribbelink, ‘Article III’, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume I: The Outer Space Treaty (Cologne, Carl Heymanns Verlag, 2009) 64; Sergio Marchisio, ‘Article IX’, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume I: The Outer Space Treaty (Cologne, Carl Heymanns Verlag, 2009) 169. 11 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Rescue Agreement), London/Moscow/Washington, done 22 April 1968, entered into force 3 December 1968; 672 UNTS 119; TIAS 6599; 19 UST 7570; UKTS 1969 No. 56; Cmnd. 3786; ATS 1986 No. 8; 7 ILM 151 (1968). 12 See Arts. 1-5, Rescue Agreement. Art. V, Outer Space Treaty, accorded astronauts a lofty status entitling them to maximum support in case of distress, whereas Art. VIII, Outer Space Treaty, confirmed that space objects continued to belong to the launching State wherever found. See further Irmgard Marboe, Julia Neumann and Kai-Uwe Schrogl, ‘The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space’, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume II: Rescue Agreement / Liability Convention / Registration Convention / Moon Agreement (Cologne, Carl Heymanns Verlag, 2013) 7. 13 See e.g. Stephan Hobe, ‘Space Tourism as a Challenge to the Astronaut Concept’, in Gabriel Lafferranderie and Sergio Marchisio (eds), The Astronauts and Rescue Agreement: Lessons Learned (Paris, European Centre for Space Law, 2011) 71. 14 Convention on International Liability for Damage Caused by Space Objects (Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971). 15 See further Jane Smith, Armel Kerrest de Rozavel and Fabio Tronchetti, ‘The 1972 Convention on International Liability for Damage Caused by Space Objects’, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume II: Rescue Agreement / Liability Convention / Registration Convention / Moon Agreement (Cologne, Carl Heymanns Verlag, 2013) 92. 16 See Arts. II resp. III, Liability Convention. 17Cf., resp., Arts. IV-V, VII-VIII, XII, Liability Convention. 18 See Smith, Kerrest de Rozavel and Tronchetti (n 15) 111–13. 19 As per Arts. XIV-XX, Liability Convention. 20Cf. Arts. XV, XVI, Liability Convention. 21 See Art. XIX(2), Liability Convention. 22 See Art. XI(2), Liability Convention. 23 Convention on Registration of Objects Launched into Outer Space (Registration Convention), New York, done 14 January 1975, entered into force 15 September 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975). 24 See further Bernhard Schmidt-Tedd and others, ‘The 1975 Convention on Registration of Objects Launched into Outer Space’, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume II: Rescue Agreement / Liability Convention / Registration Convention / Moon Agreement (Cologne, Carl Heymanns Verlag, 2013) 232. 25 See Art. II, Registration Convention. 26 See Art. IV, Registration Convention. The international register can be accessed at http://www.unoosa.org/oosa/en/spaceobjectregister/index.html (accessed 9 May 2018). 27 See in general Lotta Viikari, The Environmental Element in Space Law (Leiden/Boston, Martinus Nijhoff Publishers, 2008) esp. 31-45, 65-72. 28 This ultimately resulted in the IADC Space Debris Mitigation Guidelines, IADC-02-01, Revision 1, September 2007. 29 As per Space Debris Mitigation Guidelines of the United Nations Committee on the Peaceful Uses of Outer Space (A/62/20) endorsed by General Assembly Resolution 62/217 of 21 December 2007; A/RES/62/217. See further Carsten Wiedemann, ‘Space Debris Mitigation’, in Irmgard Marboe (ed), Soft Law in Outer Space (Vienna/Cologne/Graz, Böhlau Verlag, 2012) 315. 30 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets (Space Assets Protocol), Berlin, done 9 March 2012, not yet entered into force; Unidroit 2012 – DCME-SP – Doc. 43; http://www.unidroit.org/english/conventions/mobile-equipment/spaceassets-protocol-e.pdf (accessed 9 May 2018). 31 Convention on International Interests in Mobile Equipment (Cape Town Convention), Cape Town, done 16 November 2001, entered into force 1 April 2004; ICAO Doc. 9793; http://www.unidroit.org/instruments/security-interests/cape-town-convention (accessed 9 May 2018). 32 See http://www.unidroit.org/status-2012-space (accessed 9 May 2018). 33 See on this discussion Frans von der Dunk, ‘International Space Law’, in Frans von der Dunk (ed), Handbook of Space Law (Cheltenham/Northampton, Edward Elgar, 2015) 29, 53–4. 34 See e.g. Irmgard Marboe, ‘National Space Law’, in Frans von der Dunk (ed), Handbook of Space Law (Cheltenham/Northampton, Edward Elgar, 2015) 127, 130–5. 35 Notably, in France, Italy, Japan, the United Kingdom, and the United States; see e.g. Viikari (n 27); Toshio Kosuge and Yu Takeuchi, ‘From Guideline to International Treaty for Rule of Law Concerning Mitigation of Space Debris?’, in Proceedings of the International Institute of Space Law 2010 (Washington, AIAA, 2011) 291. 36Cf. §§ 3.4, 4, 5, IADC Space Debris Mitigation Guidelines. 37 Note that Art. XI, Liability Convention, ensures that other mechanisms for settling disputes on liability and compensation besides the Convention remain available to relevant parties. 38 See Marboe (n 34) 137–9. 39 See Arts. I-V, Liability Convention, attributing liability to the ‘launching State(s)’. 40 Act on launching objects from Norwegian territory into outer space, No. 38, 13 June 1969; Nataliya Malysheva and Yuryj Shemshuchenko (eds), National Space Legislation of the World (Atika), Vol. I (2001), at 286. See further Frans von der Dunk and Atle Nikolaisen, ‘Vikings First in National Space Law: Other Europeans to Follow—The Continuing Story of National Implementation of International Responsibility and Liability’, in Proceedings of the Forty-Fourth Colloquium on the Law of Outer Space 2001 (Washington, AIAA, 2002) 111; Marboe (n 34) 151–2. 41 An Act about space activities, and for related purposes, No. 123 of 1998, assented to 21 December 1998; Malysheva and Shemshuchenko (n 40) 197. The Act was amended amongst others in 2001 and 2002, by way of the Space Activities Amendment (Bilateral Agreement) Act, An Act to amend the Space Activities Act 1998, and for related purposes, No. 101 of 2001, assented to 4 September 2001; http://www.austlii.edu.au/au/legis/cth/num_act/saaaa2001397/ (accessed 9 May 2018); respectively the Space Activities Amendment Act, An Act to amend the Space Activities Act 1998, No. 100 of 2002, assented to 10 November 2002; http://www.austlii.edu.au/au/legis/cth/num_act/saaa2002247/ (accessed 9 May 2018). See further Noel Siemon and Steven Freeland, ‘Regulation of Space Activities in Australia’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 37, 44–57; Marboe (n 34) 166–8. 42 Administrative Edict No. 27, 20 June 2001; Nataliya Malysheva and Yuryj Shemshuchenko (eds), National Space Legislation of the World (Atika), Vol. II (2002), at 377. See further José Monserrat Filho, ‘Regulation of Space Activities in Brazil’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 61, 68–78; Marboe (n 34) 177. 43 Space Development Promotion Act, Law No. 7538, of 31 May 2005, entered into force 1 December 2005; unofficial translation 33 (2007) Journal of Space Law, 175. See further Doo Hwan Kim, ‘The Main Contents of the New Space Development Promotion Act in Korea’, in Proceeedings of the Forty-Eighth Colloquium on the Law of Outer Space 2005 (Washington, AIAA, 2006) 290; Marboe (n 34) 168–70. 44 Remote Sensing Space Systems Act, assented to 25 November 2005; S.C. 2005, c. 45. See further Bruce Mann, ‘First License Issued under Canada’s Remote Sensing Satellite Legislation’, 34 (2008) Journal of Space Law, 67; Marboe (n 34) 174-5. 45 Act Protecting Against the Endangerment of German Security through the Proliferation of High Resolution Aerial Imagery of the Earth (Satellitendatensicherheitsgesetz), 23 November 2007, effective 1 December 2007; Federal Gazette (BGBl.) Year 2007 Part I No. 58, of 28 November 2007. See further Michael Gerhard and Bernhard Schmidt-Tedd, ‘Germany Enacts Legislation on the Distribution of Remote Sensing Satellite Data’, in Proceedings of the Fiftieth Colloquium on the Law of Outer Space 2007 (Washington, AIAA, 2008) 411; Marboe (n 34) 172–4. 46 See for the draft version of the text in English as published by the Luxembourg government: http://www.spaceresources.public.lu/content/dam/spaceresources/news/Translation%20Of%20The%20Draft%20Law.pdf (accessed 9 May 2018); also http://www.luxembourg.public.lu/en/actualites/2017/07/21-spaceresources/index.html (accessed 9 May 2018). 47 The 1998 Commercial Space Act (27 January 1998, Public Law 105-303, 105th Congress, H.R. 1702; 51 U.S.C. 50101; 112 Stat. 2843 (1998)) only represented a first effort to try and align some elements of the commercialization of space and the resulting growing interest and involvement of the private sector in space activities, but mainly focused on some idiosyncratic issues such as the use of GPS in a commercial context, the conversion of military missiles into civil launch vehicles, and commercialization of the ISS; it did not in any sense change the existing systems for licensing particular private space operations. 48 Commercial Space Launch Act, 30 October 1984, Public Law 98-575, 98th Congress, H.R. 3942; 98 Stat. 3055; Benkö and Böckstiegel (n 2) E.III.3; now codified as 51 U.S.C. Ch. 509—Commercial Space Launch Activities. See further Petra Vorwig, ‘Regulation of Private Launch Services in the United States’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 405; Marboe (n 34) 141–3. 49 Commercial Space Launch Act Amendments, 15 November 1988, Public Law 100-657, 100th Congress, H.R. 4399; 49 U.S.C. App. 2615; 102 Stat. 3900; Benkö and Böckstiegel (n 2) E.III.3, 13ff. 50 Commercial Space Launch Amendments Act, 23 December 2004, Public Law 108-492, 108th Congress, H.R. 3752, 49 U.S.C.; 118 Stat. 3974. 51 Commercial Space Launch Competitiveness Act, 25 November 2015, Public Law 114-90, 114th Congress; Ch. 513, 51 U.S.C., in particular its Title I, Spurring Private Aerospace Competitiveness and Entrepreneurs. 52 Sec. 50904(a), 51 U.S.C. 53 Secs. 50904(a), 50902(1)(C), 51 U.S.C. 54 Secs. 50914(a), (c), 50915, 51 U.S.C. 14 C.F.R. (e.g. § 440) provide for further details on the process, including MPL calculations. In actual fact, the highest third-party liability cap applied to licenses was US $261,000,000 for several Atlas-V and Delta-IV launches; by contrast e.g. the SpaceShipOne flights of October 2004 carried a cap of US $3,100,000 only. 55 Communications Act, 19 June 1934; 47 U.S.C. 151 (1988); 48 Stat. 1064. See further Petra Vorwig, ‘Regulation of Satellite Communications in the United States’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 421; Marboe (n 34) 143. 56 Communications Satellite Facilities, First Report and Order, 22 FCC 2d 86 (1970), Appendix C, p. 1. 57 Sec. 301, Communications Act. 58 Sec. 152(a), Communications Act. 59 Sec. 301, Communications Act. 60Cf. Sec. 206, Communications Act. 61 Land Remote-Sensing Commercialization Act, 17 July 1984, Public Law 98-365, 98th Congress, H.R. 5155; 98 Stat. 451; Benkö and Böckstiegel (n 2) E.III.4. 62 Land Remote Sensing Policy Act, 28 October 1992, Public Law 102-555, 102nd Congress, H.R. 6133; 15 U.S.C. 5601; 106 Stat. 4163; now codified as 51 U.S.C. Ch. 601—Land Remote Sensing Policy. See further Eligar Sadeh, ‘Politics and Regulation of Earth Observation Services in the United States’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 443, 455–8; Marboe (n 34) 141. 63 Sec. 60121, 51 U.S.C. 64 Sec. 60122(a), 51 U.S.C. 65 See further Frans von der Dunk, ‘The US Space Launch Competitiveness Act of 2015’, (30 November 2015) JURIST, http://www.jurist.org/forum/2015/11/frans-vonderdunk-space-launch.php (accessed 9 May 2018). 66 Sec. 51303, 51 U.S.C., as amended. 67 Sec. 51302(b), 51 U.S.C., as amended. 68 Act on Space Activities (Swedish Act on Space Activities), 1982: 963, 18 November 1982; Malysheva and Shemshuchenko (n 40) 398; Benkö and Böckstiegel (n 2) E.II.1; 36 (1987) Zeitschrift für Luft- und Weltraumrecht, 11. See further Christian Brünner and Edith Walter (eds), Nationales Weltraumrecht / National Space Law (Vienna/Cologne/Graz, Böhlau Verlag, 2008) 73; Marboe (n 34) 152–4. 69 Sec. 1, Swedish Act on Space Activities. 70 Sec. 1, Swedish Act on Space Activities. 71 Sec. 2, Swedish Act on Space Activities. 72 Sec. 6, Swedish Act on Space Activities. 73 Outer Space Act (UK Outer Space Act), 18 July 1986, 1986 Chapter 38; Malysheva and Shemshuchenko (n 40) 293; Benkö and Böckstiegel (n 2) E.I; 36 (1987) Zeitschrift für Luft- und Weltraumrecht, 12. See further Sa’id Mosteshar, ‘Regulation of Space Activities in the United Kingdom’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 357, 359ff.; Marboe (n 34) 154–6. 74 Preamble, UK Outer Space Act. 75 Draft Spaceflight Bill, February 2017, Cm. 9421. 76 Sec. 1, UK Outer Space Act. 77 Sec. 2(1), UK Outer Space Act. ‘United Kingdom national’ is further defined in Sec. 2(2), whereas Sec. 2(3) allows for extension to ‘bodies incorporated under the law of any of the Channel Islands, the Isle of Man or any dependent territory’. The Isle of Man in particular has established itself as a space industry region, even going as far as defining ‘space object’ for the purpose of its regional ‘Treasury Regulations’. 78 Sec. 10(1), UK Outer Space Act. 79 Sec. 5(2)(f), UK Outer Space Act. 80Cf. e.g.https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/298017/impact-assessment-reform-of-the-outer-space-act.pdf (accessed 9 May 2018). 81 Law of the Russian Federation on Space Activities (Russian Law on Space Activities), No. 5663-1, 20 August 1993, effective 6 October 1993; Malysheva and Shemshuchenko (n 40) 101. See further Sergey Malkov and Catherine Doldirina, ‘Regulation of Space Activities in the Russian Federation’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 315, 316 ff.; Marboe (n 34) 144–8. 82 Art. 2(1) and (2), Russian Law on Space Activities. 83 Art. 9(2), Russian Law on Space Activities. 84 Art. 10(1), Russian Law on Space Activities. 85 Art. 9(2), Russian Law on Space Activities. 86 Art. 17(2), Russian Law on Space Activities. 87 Art. 25(1), Russian Law on Space Activities. In actual fact, third-party liability insurance policies have been taken out for amounts varying between US $80,000,000 and US $300,000,000, as depending upon the particulars of the launch vehicle (e.g. relating to size and track record) and the launch service offered thereby (e.g. relating to complexity of payload or orbit targeted). 88 For example, elsewhere the Law refers explicitly to the fulfillment of the international obligations of Russia in respect of space activities, including the Outer Space Treaty; see Art. 26(3), Russian Law on Space Activities. 89 Art. 30(1), Russian Law on Space Activities. 90 Art. 30(2), Russian Law on Space Activities. 91 Art. 25(1), Russian Law on Space Activities; ‘compulsory insurance’ shall be taken ‘in the amount set by legislation of the Russian Federation’. 92 The difference in wording between Art. 30(1), Russian Law on Space Activities, on the ‘full compensation’ guaranteed by the Russian Federation, and Art. 30(2), on the ‘[c]ompensation’ to be paid by relevant private entities, supports this argument. 93 Space Affairs Act (South African Space Affairs Act), 6 September 1993, assented to on 23 June 1993, No. 84 of 1993; Statutes of the Republic of South Africa—Trade and Industry, Issue No. 27, 21–44; Malysheva and Shemshuchenko (n 40) 413. See further Justine Limpitlaw, ‘Regulation of Space Activities in South Africa’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 267, 275ff.; Marboe (n 34) 170–1. 94 Preamble, South African Space Affairs Act. 95 Sec. 11(1), South African Space Affairs Act. 96 Sec. 1, 21st bullet, South African Space Affairs Act. 97 Sec. 11(1)(a)-(c), South African Space Affairs Act. 98 Sec. 11(1)(d), South African Space Affairs Act. 99 See Sec. 14(1)(b), South African Space Affairs Act, which leaves actual inclusion of such an obligation however to the discretion of the Council. 100 Prospective licensees should probably be prepared, however, to accept the obligation of full reimbursement of the South African government for relevant cases of international third party damage; cf. by way of a contrario argument Sec. 14(2)(a), South African Space Affairs Act. 101 Sec. 14(1)(b), South African Space Affairs Act. 102 Law of Ukraine on Space Activities (Ukrainian Law on Space Activities), No. 502/96-VR, 15 November 1996; Malysheva and Shemshuchenko (n 40) 36. See further Nathaliya Malysheva, ‘Regulation of Space Activities in Ukraine’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 335; Marboe (n 34) 148–9. 103 Arts. 10 resp. 1, 1st bullet, Ukrainian Law on Space Activities. See also however Art. 8. 104 Art. 12, Ukrainian Law on Space Activities. 105 Art. 10, Ukrainian Law on Space Activities. 106 Art. 25, Ukrainian Law on Space Activities. 107 Art. 24, Ukrainian Law on Space Activities. 108 Law on the Activities of Launching, Flight Operations or Guidance of Space Objects (Belgian Space Law), 17 September 2005, adopted 28 June 2005; Brünner and Walter (n 68) 183. See further Marboe (n 34) 160–2; Jean-François Mayence, ‘Granting Access to Outer Space: Rights and Responsibilities for States and Their Citizens: An Alternative approach to Article VI of the Outer Space Treaty, Notably through the Belgian Space Legislation’, in Frans von der Dunk (ed), National Space Legislation in Europe (Leiden/Boston, Martinus Nijhoff Publishers, 2011) 73, 118–21. 109 Art. 2(1), see also Art. 3(5), Belgian Space Law. The latter exclusion has meanwhile become subject to reassessment and indeed change in practice in view of small satellites (such as cubesats) that are ‘simply’ lobbed into the lower regions of outer space without any further control, but able to transmit information (e.g. about small experiments on board) to the ground stations. On the other hand, the fact that such satellites would require at least an original launch and some measure of control of separation from the launch vehicle would generally ensure the potential for the Belgian Space Law to exercise a certain measure of a priori legal control over these operations nevertheless. 110 Art. 2(1)-(2), Belgian Space Law. The latter clause, while aiming at bilateral agreements with other countries under which Belgium agrees to exercise its licensing authority also seems to allow for accommodation of an interpretation of ‘national activities’ as per Art. VI, Outer Space Treaty, as also encompassing space activities by Belgian nationals, should such an interpretation come to be accepted at the international level; Belgium proceeds from the assumption however that currently such interpretation would not be warranted. 111 See Art. 15, also Art. 5(2), Belgian Space Law. 112 Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry of Space Objects (Dutch Space Law), 24 January 2007; 80 Staatsblad (2007), at 1; Brünner and Walter (n 68) 201. See also Brünner and Walter (n 68) 81; Marboe (n 34) 162–4. 113 See Preamble, Dutch Space Law. 114 Secs. 2(1) resp. 1(b), Dutch Space Law. Thus, the same issue regarding primary exclusion of non-guided space objects from the licensing obligation as in the case of Belgium arose. In the case of the Netherlands, however, pressure by the main Dutch small satellite operator resulted in the inclusion also of activities involving non-guidable space objects after all; see Tanja Masson-Zwaan, ‘Registration of Small Satellites and the Case of the Netherlands’, in Irmgard Marboe (ed), Small Satellites (Leiden/Boston, Martinus Nijhoff Publishers, 2016) 174, 187–93. 115 Sec. 2(b), Dutch Space Law. 116 Sec. 2(2)(a), Dutch Space Law. 117 Sec. 2(2)(a), Dutch Space Law. 118 Sec. 12(1), Dutch Space Law. 119 Sec. 12(3), Dutch Space Law. Sec. 12(4) allows the State also to take direct recourse against the insurer in applicable cases. 120 Sec. 3(4), Dutch Space Law. 121 CNES had been established already in 1961, by way of the Statut du Centre National d’Études Spatiales; Loi n° 61-1382 du 19 décembre 1961; Journal Officiel de la République Française (20 Déc. 1961), 11665; Malysheva and Shemshuchenko (n 40) 385. 122Cf. Declaration by Certain European Governments Relating to the Ariane Launcher Production Phase, done 14 January 1980, entered into force 15 October 1981; 6 (1981) Annals of Air and Space Law, 723; Convention between the European Space Agency and Arianespace on the Ariane Launcher Production Phase, done 8 February 1992, 24 September 1992; and Agreement between the French government and the European Space Agency with respect to the Centre Spatial Guyanais (CSG), 1993–2000; excerpts French version: 80 (November 1994) ESA Bulletin, 67. 123 Law on Space Operations (Loi relative aux opérations spatiales; French Law on Space Operations); Loi n° 2008-518 du 3 juin 2008; unofficial English version 34 (2008) Journal of Space Law, 453. See Philippe Achilleas, ‘Regulation of Space Activities in France’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 109, 111ff.; Marboe (n 34) 157–60. 124 Art. 2, French Law on Space Operations. 125 See however Art. 1(5), French Law on Space Operations, which defines the ‘phase of command’ as ending ‘when the operator has lost control over the space object’. 126 Art. 2(1) and (2) resp. (3), French Law on Space Operations. 127 Arts. 26 resp. 27, French Law on Space Operations. 128 Art. 6(1), French Law on Space Operations; see also Art. 13, which makes the distinction between absolute and fault liability reflecting Arts. II and III, Liability Convention. 129 See Art. 14, French Law on Space Operations. 130 See Art. 15, French Law on Space Operations; Art. 119, Loi no 2008-1443 du 30 décembre 2008 de finances rectificative pour 2008 (Finance Act). Whilst Arts. 16 and 17, French Law on Space Operations, suggest a certain calculation of actual risks vaguely reminiscent of the MPL approach in the United States, the Finance Act did only offer the relatively small margin of discretion as to determining the actual cap indicated; in the case of Arianespace launches—the only launching activities so far licensed under the Law – a standard cap of €60,000,000 is applied. 131 See Art. 15, French Law on Space Operations. 132 Austrian Federal Law on the Authorisation of Space Activities and the Establishment of a National Space Registry (Bundesgesetz über die Genehmigung von Weltraumaktivitäten und die Einrichtung eines Weltraumregisters (Weltraumgesetz); Austrian Outer Space Act), as adopted by Parliament on 6 December 2011; Federal Law Gazette of 27 December 2011; 61 (2012) Zeitschrift für Luft- und Weltraumrecht, 37–42, 56–61. See further Marboe (n 34) 164–6; Frans von der Dunk, ‘Another Addition to National Space Legislation: The Austrian Outer Space Act, Adopted 6 December 2011’, in Proceedings of the International Institute of Space Law 2012 (Washington, AIAA, 2013) 643. 133 Secs. 3, 2(1), Austrian Outer Space Act. 134 See Explanatory Report, 61 (2012) Zeitschrift für Luft- und Weltraumrecht, 42. 135 Sec. 1(1), Austrian Outer Space Act. 136 Sec. 4(4), Austrian Outer Space Act. 137 See Sec. 11, Austrian Outer Space Act. 138 Law of the Republic of Kazakhstan on Space Activities (Kazakh Law on Space Activities), of 6 January 2012, 2012 No. 528-IV; http://www.unoosa.org/documents/pdf/spacelaw/national/kazakhstan/528-IV_2012-01-06E.pdf (accessed 9 May 2018). See further Marboe (n 34) 150–1. 139 Arts. 1(7), 13, Kazakh Law on Space Activities. 140 Art. 3, Kazakh Law on Space Activities. 141Cf. Art. 11(1), Kazakh Law on Space Activities. 142 Art. 3(4), Kazakh Law on Space Activities. 143 Art. 27(2), Kazakh Law on Space Activities; note also the clause of Art. 2(2) confirming that international law binding upon Kazakhstan trumps any national legislation where deviating. 144 Established as per Art. 92, Charter of the United Nations, San Francisco, done 26 June 1945, entered into force 24 October 1945; USTS 993; 24 UST 2225; 59 Stat. 1031; 145 UKTS 805; UKTS 1946 No. 67; Cmd. 6666 & 6711; CTS 1945 No. 7; ATS 1945 No. 1; and the Statute of the International Court of Justice, San Francisco, done 26 June 1945, entered into force 24 October 1945; 156 UNTS 77; USTS 993; 59 Stat. 1031; UKTS 1946 No. 67; ATS 1945 No. 1. 145Cf. Art. 36, Statute of the International Court of Justice. Cf. also more specifically on space law, Maureen Williams, ‘Dispute Resolution Regarding Space Activities’, in Frans von der Dunk (ed), Handbook of Space Law (Cheltenham/Northampton, Edward Elgar, 2015) 995, 999 ff. 146 See also Williams (n 145) 1004–12. 147 Constitution of the International Telecommunication Union (ITU Constitution), Geneva, done 22 December 1992, entered into force 1 July 1994; 1825 UNTS 1; UKTS 1996 No. 24; Cm. 2539; ATS 1994 No. 28; Final Acts of the Additional Plenipotentiary Conference, Geneva, 1992 (1993), at 1; as amended. Cf. further Williams (n 145) 1020–1. 148 Convention of the International Telecommunication Union (ITU Convention), Geneva, done 22 December 1992, entered into force 1 July 1994; 1825 UNTS 1; UKTS 1996 No. 24; Cm. 2539; ATS 1994 No. 28; Final Acts of the Additional Plenipotentiary Conference, Geneva, 1992 (1993), at 71; as amended. 149Cf. Art. 56, ITU Constitution; Art. 41, ITU Convention. 150 See Art. 34(1), Statute of the International Court of Justice. 151Cf. Art. XIV, Liability Convention. 152 See Art. 56(1), (2), ITU Constitution. 153 PCA Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (PCA Rules on Outer Space Disputes), adopted 6 December 2011; https://pca-cpa.org/wp-content/uploads/sites/175/2016/01/Permanent-Court-of-Arbitration-Optional-Rules-for-Arbitration-of-Disputes-Relating-to-Outer-Space-Activities.pdf (accessed 9 May 2018). See further Williams (n 145) 1031–45. 154 Technically speaking, this concerns the total number of States having ratified either the 1899 or the 1907 founding conventions; the Convention for the Pacific Settlement of International Disputes, The Hague, done 29 July 1899, entered into force 4 September 1900; ATS 1901 No. 130; resp. the Convention for the Pacific Settlement of International Disputes, The Hague, done 18 October 1907, entered into force 26 January 1910; ATS 1997 No. 6. 155 Introduction, PCA Rules on Outer Space Disputes, p. 4. See also e.g. Fausto Pocar, ‘An Introduction to the PCA’s Optional Rules for Arbitration of Disputes Relating to Outer Space Activities’, 38 (2012) Journal of Space Law, 171. 156 Art. 1(1), PCA Rules on Outer Space Disputes. 157 Art. 1(1), PCA Rules on Outer Space Disputes. 158 Art. 1(2), PCA Rules on Outer Space Disputes. 159 Art. 6(1)-(3), PCA Rules on Outer Space Disputes. 160 Arts. 7-10, PCA Rules on Outer Space Disputes, esp. Arts. 7(1), 10(2). 161 Art. 16, PCA Rules on Outer Space Disputes. 162 Art. 17(1), PCA Rules on Outer Space Disputes. 163 Art. 17(5), PCA Rules on Outer Space Disputes. 164 Art. 17(6), PCA Rules on Outer Space Disputes. 165 Art. 17(7), PCA Rules on Outer Space Disputes. 166 Art. 17(7), PCA Rules on Outer Space Disputes. 167 Art. 17(8), PCA Rules on Outer Space Disputes. 168 Art. 35(1), PCA Rules on Outer Space Disputes. 169 Art. 35(1), PCA Rules on Outer Space Disputes. 170 Art. 35(2), PCA Rules on Outer Space Disputes. 171 Art. 35(3), PCA Rules on Outer Space Disputes. 172 Art. 27(5), PCA Rules on Outer Space Disputes. 173 Art. 27(4), PCA Rules on Outer Space Disputes. 174 Art. 29(1) resp. (3) as well as (7), PCA Rules on Outer Space Disputes. 175 Art. 26(1), PCA Rules on Outer Space Disputes. 176 Art. 26(2), PCA Rules on Outer Space Disputes. 177 Art. 34(2), resp. Art. 38, PCA Rules on Outer Space Disputes. 178 Art. 33(1), PCA Rules on Outer Space Disputes. 179 Art. 34(1), PCA Rules on Outer Space Disputes. 180 Art. 34(3), PCA Rules on Outer Space Disputes. 181 Art. 37, PCA Rules on Outer Space Disputes. 182 Art. 39, PCA Rules on Outer Space Disputes. 183E.g. Arts. 40(2), 42(1), PCA Rules on Outer Space Disputes. © The Author(s) (2018). Published by Oxford University Press on behalf of Unidroit. All rights reserved. For permissions, please email journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Uniform Law Review/Revue De Droit Uniforme Oxford University Press

Billion-dollar questions? Legal aspects of commercial space activities

Uniform Law Review/Revue De Droit Uniforme , Volume Advance Article (2) – May 18, 2018

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Abstract

Abstract Currently, several well-funded companies in the USA are in the process of developing long-term missions to asteroids to harvest mineral resources that are found there, including water. Other companies are getting close to flying manned missions on sub-orbital trajectories or even into low-earth orbits. Outer space, indeed, is becoming more and more a multi-billion-dollar sector. At the same time, outer space is gradually becoming a riskier environment—so-called ‘space debris’ is increasingly becoming a worry for public and private space activities alike. This raises major questions regarding the legal framework, which was developed initially in the 1960s and 1970s when commercial space activities were hardly on the horizon, yet until today remains the baseline for mitigating any negative or threatening aspects of the growing use of outer space. The present contribution aims to provide an overview of the general aspects of these questions as well as some of the current debates that are trying to move the current legal framework in the right direction. I. Introduction Back in 1957 when the Soviet Union launched Sputnik-1, the first man-made satellite, into outer space, the furore it caused was overwhelmingly political, military, and strategic in nature. In the context of the day, Sputnik-1’s unexpected flight suddenly meant that the Soviet Union could use missile technology to seriously threaten its Cold War adversary, the USA. To the extent that mankind’s entry into outer space was not driven by politico-military-strategic considerations, it was undertaken out of scientific interest in exploring outer space; not accidentally, Sputnik-1’s launch occurred in the International Geophysical Year, which was supposed to stimulate exploration of such outer-worldly areas as the polar areas and outer space.1 For a long time, this reflected the leading paradigm of space activities: too difficult, too costly, and too risky for anyone to undertake except for the two superpowers, plus a select number of their allies that, to a certain extent, were equally highly developed. In other words, outer space was a domain for State activities undertaken either for politico-military-strategic or for scientific reasons. Since neither of those categories of activities generates any money in themselves, the private sector was only interested in serving the needs of relevant governments by developing and manufacturing whatever was ordered by those governments. Even satellite communications, correctly hailed as the major commercial space sector, was very much government driven initially. So much so that the USA, the traditional champion of private enterprise and free competition, for the first four decades of the space age nevertheless ran satellite communications by way of a corporation established by a federal statute and given a statutory monopoly position.2 Only in the 1980s did this paradigm start to change fundamentally. Following the establishment in 1980 of the first commercial launch service provider in the form of Arianespace, which was private in character but legally and financially still supported by a structure involving the European Space Agency (ESA) and its Member States (most notably France), the USA also opened the door for private launch service providers in 1984.3 More or less concurrently, first and foremost in the USA, private companies started to compete with the major international satellite communication organizations, INTELSAT and INMARSAT, which triggered a push for commercialization in the sector culminating in the privatization of those organizations two decades later.4 Since then, to some extent, satellite remote sensing has also been commercialized and privatized,5 and such developments are expected to materialize soon in the areas of manned spaceflight and asteroid mining. The State-centred nature of mankind’s space adventure and the focus on politico-strategic-military and scientific activities was also reflected in the legal regime, which quickly became established, at least as to its essentials, in the 1960s and early 1970s.6 The main question, once the underlying paradigm of State-centred-ness of space activities started to erode, was consequently to what extent the up-and-coming private space sector was, and/or would need, to be accommodated in this context. Effectively, that now has become the (multi-)billion-dollar question regarding space activities and space law. II. The baseline legal framework for outer space activities The 1967 Outer Space Treaty7 was the first treaty comprehensively addressing outer space and providing the main legal framework for space activities.8 Following the State-centred nature and focus of the space endeavour, the Treaty prohibited certain military uses of outer space in an effort to prevent the arms race from spreading to outer space and declared the realm free for exploration and use by all countries, subject to an—initially at least—rather limited set of loosely formulated conditions.9 These conditions centred around international cooperation, the need for ensuring that space activities would benefit all countries, and an obligation within reasonable bounds to avoid harmful interference in other States’ legitimate space activities.10 The major follow-on treaties elaborating certain elements and aspects of the Outer Space Treaty reflected this approach equally. The 1968 Rescue Agreement,11 elaborating Articles V and VIII of the Outer Space Treaty, provided for more detailed rules on the obligations of State parties to come to the rescue when astronauts found themselves in distress and to return space objects to their respective launching State.12 Particularly with the impending private commercial spaceflight ventures, questions have now been raised as to whether private paying ‘tourists’ should be entitled to the same legal privileges as astronauts.13 The 1972 Liability Convention,14 elaborating Article VII of the Outer Space Treaty (which had already posited the general principle of third party liability for damage caused by space activities) provided for the details of the liability regime.15 Thus, for instance, a fundamental differentiation was made between absolute liability for damage caused on earth and fault liability for damage caused to other space objects in outer space.16 Joint and several liability was provided for, the right to claim was specified in some detail, and compensation was required to wipe out all consequences of the damaging act, generally understood as calling for (in principle) unlimited compensation.17 However, whether indirect or commercial loss would be included—which was of major importance for any private space operators once these came to be involved—was already another matter.18 The Liability Convention also offered a dispute settlement system to States engaged in a liability dispute by way of a Claims Commission.19 While, on the one hand, the liability regime was drafted in a victim-oriented manner in that an unwilling State could not prevent a Commission from taking on the case,20 ultimately it did not amount to true arbitration since the decision would only be final and binding if both State parties would have agreed thereto at the outset.21 It was also for this reason that the Liability Convention did not present an exclusive remedy and even allowed for priority of other juridical proceedings in case a victimized party (including private persons and entities) so preferred.22 The 1975 Registration Convention23 elaborated the concept of registration of space objects already posited by Article VIII of the Outer Space Treaty as providing for a right of the registering State to (continue to) exercise jurisdiction over the space object so registered by way of a two-pronged system.24 The Convention, on the one hand, required launching States to establish a national register and to ensure that in the case of multiple launching States for a single space object only one of those was to register and exercise primary jurisdiction.25 On the other hand, such launching States were required to provide the UN Secretary-General (in actual fact, the UN Office for Outer Space Affairs) with a certain minimum set of data concerning the space object launched for inclusion in an international and openly accessible register, mainly for the purpose of identifying specific space objects with a view to responsibilities and liabilities of the launching State.26 As such, the treaties did not deal with space debris; in those days, this issue was not high on the agenda, while it was generally recognized that ‘space debris’ would qualify as ‘space objects’ for the purpose of triggering the application of the Liability Convention in given cases.27 Tackling this vexing problem started with major space agencies in the context of the Inter-Agency Space Debris Coordination Committee (IADC) agreeing in 2002 on a political/practical level to start conducting their respective space operations in a manner less conducive to the generation of harmful space debris.28 As a next step, the United Nations (UN), almost as the official representative of the international community of States, officially recognized the validity and value of the IADC document in UN General Assembly Resolution 62/217 of 2007 and thereby elevated these practical guidelines to what should probably be called ‘soft law’—highly authoritative, politically speaking, but not yet enforceable hard law in the normal sense of the word.29 Similarly, the treaties did not deal with such typical commercial and private law issues as the international financing schemes for space activities and the legal security rights and collateral to be held in that respect. A first effort to address such issues resulted in the recent Space Assets Protocol,30 which would apply the more general international regime of the Cape Town Convention31 to international mobile assets in the space sector, but which has so far carried very little support and is at least for the foreseeable future unlikely to enter into force.32 As a consequence, the register that is to be developed under the Protocol is not yet operative, and any possible issue with a view to concurrent registration of space objects under the Registration Convention is moot. III. From international to national law: handling private space activities Since private space activities at the time were neither expected nor, consequently, required to be dealt with in any detail, the Outer Space Treaty crucially provided only for the international responsibility and liability of States for any such private activities, should they ever become a reality; private operators had no formal standing under any of the space treaties discussed. Thus, Article VI of the Outer Space Treaty provides: States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. Although the precise scope of ‘national activities in outer space’ has never been fully clarified,33 the clause fully equates activities of non-governmental entities, including, notably, private companies, with activities of State-run agencies for the purpose of responsibility and calls for ‘authorization and supervision’ of the former, preferably by means of a national space law including a licensing system.34 Complementing to some extent Article VI, Article VII of the Outer Space Treaty provides for State liability, also in case of private involvement in the relevant activities, as follows: Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies. The details of the applicable liability regime are provided by the Liability Convention discussed in section II. In other words, pursuant to the foregoing at the most general level, the privatization of space activities has been addressed by relevant States enunciating national space legislation. As of today, some two dozen States have done so, including major space-faring nations such as the USA, the Russian Federation, Ukraine, France, the United Kingdom (UK), Germany, Canada, Australia, South Korea, and Brazil. All of these national laws crucially provide for licensing systems. In addition, the space debris problem is currently being addressed along these lines. Following the 2002 IADC Guidelines and UN General Assembly Resolution 62/217, the process has now reached a third phase, where the major States involved have chosen to start applying the relevant aspects of these guidelines as license requirements for private space operators;35 in other words, only on a domestic level so far, which, without question, has resulted in legally binding obligations resting upon licensees. If, somewhere down the road, these processes would indeed spread to all space-faring nations in a more or less consistent fashion—read, for example, faithfully following the IADC Guidelines and UN General Assembly Resolution 62/217—clearly a State practice with attendant opinio juris amounting to customary international law would emerge: ‘[T]hou shalt not leave thy junk in outer space, and either safely de-orbit, re-orbit or boost into deep space, as well as minimize intentional break-up and take other preventive measures.’36 Although not formally required to do so, in view of the liability burden for privately caused damage resting upon the State as far as the Liability Convention is concerned,37 it will be obvious that those States having established national licensing regimes have also usually and explicitly included mechanisms for reimbursement by licensees of any compensation thus paid out.38 Summarily speaking, three generic models for national space legislation can be discerned: (i) a complex multi-act regime; (ii) a single framework law covering in principle all space activities; and (iii) a single framework law essentially covering only a single specific type of space activity such as launching, remote sensing, or space resource utilization. For the sake of the present overview, only the first two categories will be briefly scrutinized in the following discussion, as to how they approach licensing, and within that context, liability with a view to claims involving the Liability Convention, since they fundamentally cover, for the countries concerned, the complete gamut of space activities (at least in principle). As for the third category, for the sake of reference, it may be noted that so far four national laws exist focusing exclusively on launching (in view of the focus of international liability on the launch39): the 1969 Act on launching objects from Norwegian territory into outer space;40 the 1998 Australian Space Activities Act;41 the 2001 Brazilian Administrative Edict no. 27 enclosing a regulation on procedures and on the definition of necessary requirements for the request, evaluation, issuance, follow-up, and supervision of licenses for carrying out launching space activities on Brazilian territory;42 and the 2005 South Korean Space Development Promotion Act.43 Two more existing laws focus exclusively on remote sensing in view of specific security concerns regarding very high resolution remote-sensing data: the 2005 Canadian Remote Sensing Space Systems Act44 and the 2007 German Act on Satellite Data Security.45 Finally, at the time of this writing, one national law exclusively dealing with the mining of space resources in view of their novel, yet complex, legal characteristics is soon to enter into force: the Luxembourg draft law on the exploration and use of space resources.46 IV. The US complex multi-act regime For largely historical reasons, the handling of various types of private space activities in the US context with a view, inter alia, to compliance with US international obligations has developed across a number of different national acts.47 Four of those regimes directly address sectors where private space operations are already undertaken or envisaged soon (in logical order: launching, satellite communications, satellite remote sensing, and space resource utilization). 1. Commercial Space Launch Act (1984/1988/2004/2015) The Commercial Space Launch Act was first enunciated in 198448 to incentivize and properly regulate the entrance of private operators into the business of providing launch services in a US context. It was fundamentally amended three times: once in 1988 to introduce major changes in the liability regime,49 once more in 2004 to address impending private launches of manned space objects,50 and, finally, in 2015 to address spaceflight participant-related issues.51 The Act stipulates that activities requiring a license or permit under the Act ratione materiae comprise the activity of launching objects, including manned space objects, into outer space as well as re-entering and landing them (with respect to the latter in particular). This category of activity is further subdivided into the actual launch/spaceflight operations and the operation of a launch site/spaceport to allow such launches to take place.52 The scope ratione personae/ratione geographiae extends, first, to both launch activities conducted by US nationals (including companies) and such activities conducted from US territory. Second, also launch activities conducted by foreign entities controlled by US nationals (including companies) would be covered by the Act.53 The licenses address third party liability by means of a complicated arrangement, following which, as far as international liability is concerned, the liability of the licensee translates into an obligation to reimburse the US government for international compensation under the Liability Convention. As of the 1988 amendments, such third party liability is capped for any individual license by the lowest of: (i) the maximum probable loss calculated on the basis that ‘probable’ refers to a chance of more than one in 10,000,000 for such damage to occur; (ii) the maximum amount of liability insurance available in the world insurance market against reasonable rates (as determined by the licensing authority); and (iii) a maximum of US $500,000,000. Insurance coverage (or, in the alternative, ‘financial responsibility’) up to the cap, whatever the amount ultimately quoted in the license is, has to be proven by the prospective licensee.54 2. Communications Act (1934/1970) The Communications Act was established in 193455 in order to regulate all communication activities by private operators at a federal level within the USA. Though it did not consider at the time, obviously, the possibility that such communication activities would include satellites as a fundamental part of the infrastructure, when the latter did become feasible, it was formally confirmed in 1970 that the Act as such also applied to such satellite communication activities.56 The Act simply provides that ‘[n]o person shall use or operate any apparatus for the transmission of energy or communications or signals by radio ... except under and in accordance with this chapter and with a license in that behalf granted under the provisions of this chapter’.57Ratione materiae, the Act extends to ‘all interstate and foreign communication by wire or radio and all interstate and foreign transmission of energy by radio’, which for the present purposes includes all satellite communication activities.58 The scope ratione personae/ratione geographiae of the licensing system was defined with reference to those operating on or from US territory, US-registered vessels, and other places under US jurisdiction.59 In view of the crucial linkage of liability to the launch under the Liability Convention, the Act was never made to address international third party liability in this particular context.60 3. Land Remote Sensing Acts (1984/1992) In 1984, the Land Remote-Sensing Commercialization Act61 was enunciated in order to allow for the entrance of private operators into the satellite remote-sensing sector. While the hoped-for privatization did not occur as expected and the Act had to be replaced by the 1992 Land Remote Sensing Policy Act,62 the essential possibility for private enterprise to become fundamentally involved in satellite remote-sensing operations remained intact. The scope of the Act ratione materiae pertains to the operation of ‘private remote-sensing space systems’.63 The scope ratione personae is determined as any ‘person that is subject to the jurisdiction or control of the United States’.64 This refers to persons (natural as well as legal) with US nationality as well as persons operating from US territory or even persons operating satellite remote-sensing systems with substantial connections to, or deriving substantial benefits from, the USA. On the issue of liability, for the same reasons as with satellite communications above, no clauses in the Act or the attendant chapter of the Code of Federal Regulations address international third party liability. 4. Commercial Space Launch Competitiveness Act (2015) Apart from amending other existing legislation pertaining to private commercial space ventures such as the Commercial Space Launch Act, as discussed above, the 2015 Commercial Space Launch Competitiveness Act65 addressed for the first time the novel area of space resource mining operations by way of its Title IV, entitled Space Resource Exploration and Utilization. It provided a first level of legally framed support measures and ‘guarantees’ to the incipient asteroid mining sector by adding a Chapter 513 to Title 51 of the US Code. Title IV of the Act notably recognizes the property rights of US citizens and companies over space resources once extracted on a ‘first come, first served’ basis—as for disputes playing out within US jurisdiction and in stated compliance ‘with ... the international obligations of the United States’, including, for instance, space debris and harmful interference-related consequences.66 This clause also provides for a scope ratione personae for the licensing regime to be developed in the near future for any such operator interested in benefiting from such legitimate ownership rights.67 As the details of the licensing regime are yet to be developed, however, little further can be said about any liability-related regime in this specific context. V. Various comprehensive single framework laws So far, counting only those States where an English text version has been made available, ten States have issued national legal framework laws at least in principle comprehensively encompassing all space activities as far as actually or potentially undertaken by the private sector. They are addressed in chronological order. 1. Sweden Sweden established its Act on Space Activities in 198268 to deal with its international obligations under the treaties—in particular, with a view to the operations conducted from the launch site at Kiruna in the northern part of the country. The scope ratione materiae of the licensing requirement is determined as ‘activities carried on entirely in outer space, ... the launching of objects into outer space and all measures to manoeuvre or in any other way affect objects launched into outer space’.69 Specific exceptions, however, are made for ‘[m]erely receiving signals or information in some other form from objects in outer space’ and the ‘launching of sounding rockets’.70 The scope of the Act is furthermore defined both ratione personae and ratione geographiae: ‘Space activities may not be carried on from Swedish territory by any party other than the Swedish State without a licence. Nor may a Swedish natural or juridical person carry on space activities anywhere else without a licence’.71 Regarding liability, the Act provides for, in principle, unlimited derogation of an international claim to a licensee: ‘If the Swedish State on account of undertakings in international agreements has been liable for damage which has come about as a result of space activities carried on by [licensees,] ... [they] shall reimburse the State what has been disbursed on account of the above-mentioned undertakings, unless special reasons tell against this.’72 Nothing else is provided on liability in the Act or Decree. 2. UK The UK established its Outer Space Act in 198673 ‘to confer licensing and other powers on the Secretary of State to secure compliance with the international obligations of the United Kingdom with respect to the launching and operation of space objects and the carrying on of other activities in outer space by persons connected with this country’.74 Currently, the Act is in the process of being amended, inter alia, with a view to liability and insurance arrangements; a Draft Spaceflight Bill75 specifially addressing manned spaceflight is also presently being discussed. The scope of the Act ratione materiae is defined as comprising ‘(a) launching or procuring the launch of a space object; (b) operating a space object; [and] (c) any activity in outer space’.76 The scope ratione personae is defined with reference to the nationality of the operator: the Act applies to ‘United Kingdom nationals, Scottish firms, and bodies incorporated under the law of any part of the United Kingdom’.77 No territorial limitation to its scope is included in this respect. On liability arrangements, the Act provides that a licensee ‘shall indemnify Her Majesty’s government in the United Kingdom against any claims brought against the government in respect of damage or loss arising out of activities carried on by him to which this Act applies’.78 In other words, in principle, the indemnification obligation is without a cap. While the Act itself only allows the licensing authority to include conditions ‘requiring the licensee to insure himself against liability incurred in respect of damage or loss suffered by third parties, in the United Kingdom or elsewhere, as a result of the activities authorised by the licence’,79 in practice, this has given rise to a standard obligation for licensees to insure themselves, originally up to £100,000,000, but, since 4 July 2011, only up to €60,000,000. Following these changes, a consultation process has now started on proposed changes to the UK Outer Space Act regarding the introduction of a cap of €60,000,000 also on the indemnification requirement.80 3. Russian Federation Following the breakdown of communism in the Soviet Union and the dissolution of that country, with the introduction of free market principles in Russia it was decided to also establish a national law dealing with private involvement in space activities by way of the 1993 Law on Space Activities.81 The scope ratione materiae of the Law as such comprises all ‘space activities’, which are then very broadly defined as encompassing: space research; space communications, including television and radio broadcasting with the help of satellite systems; remote sensing of the Earth from outer space, including environmental monitoring and meteorology; the use of navigation, topographical and geodesic satellite systems; manned space flights [and] manufacturing materials and other products in outer space. In addition, however, such activities include not only the normal range of activities considered ‘space activities’ but also ‘other kinds of activities performed with the aid of space technologies’ and ‘creation (including development, manufacture and test) of, as well as using and transferring space technics, space technologies, other products and services necessary for carrying out space activities’.82 Within that scope, however, the licensing regime only applies in principle to space activities ‘if such activities include tests, manufacture, storage, preparation for launching and launching of space objects, as well as control over space flights’—that is, essentially the more classical core categories of space activities.83 In addition, though not ‘licensing’ in the strict sense of the word, and as different from other national space laws (with the exception of the Ukraine and, implicitly, Kazakhstan), the Russian Law also requires certification of ‘space technics’, including ‘space objects, and ground and other objects of space infrastructure created for scientific and national-economy purposes’ and, possibly, ‘[e]quipment used in the creation and use of space technics’, albeit that these further details are left to separate legislation.84 The scope ratione personae/ratione geographiae is delineated as applying the regime to both activities conducted by Russian ‘organizations and citizens’ and those of ‘foreign organizations and citizens’ operating in or from Russia.85 In addition, it should be noted that Russia ‘shall retain jurisdiction and control over space objects registered in it, during the ground time of such objects, at any stage of a space flight or stay in outer space, on celestial bodies and also on return to the Earth outside the jurisdiction of any state’.86 The system provided by the Law for handling liability issues is, unfortunately, constructed in a complicated manner, which is not always conducive to legal certainty. To start with, it provides that ‘organizations and citizens which exploit space technics ... shall take compulsory insurance coverage’, inter alia, covering third party property damage.87 The further wording of this provision is not unambiguous as to whether other kinds of third party damage are included such as are relevant under the Liability Convention, but, logically speaking, this should probably be inferred.88 More explicitly, the Russian Federation ‘shall guarantee full compensation for direct damage inflicted as a result of [an] accident while carrying out space activities’ under the relevant licenses.89 If the damage was the result of accidents caused by private entities, compensation for such damage shall be paid by those entities, presumably to the Russian Federation in the case of international third party damage.90 As to the amount of this indemnification and the obligatory insurance required, the possibility is left open to provide for a ceiling on the latter.91 This ceiling should, logically speaking, also constitute the maximum indemnification of the Russian Federation to be provided by the private entity so insured.92 4. South Africa On 6 September 1993, the Space Affairs Act of the Republic of South Africa entered into force.93 The Act largely was a response to the growing interest of South African industrial and service sectors in space, following the deconstruction of the apartheid regime and, thus, provided ‘for the establishment of a Council to manage and control certain space affairs in the Republic; to determine its objects and functions; to prescribe the manner in which it is to be managed and controlled; and to provide for matters connected therewith’.94 The scope ratione materiae of the Act’s licensing system comprises ‘launching ... operation of a launch facility; space activities—(i) entailing obligations to the State in terms of international conventions, treaties or agreements entered into or ratified by the Government of the Republic; or (ii) which may affect national interests [and] any other space or space-related activities prescribed by the Minister’.95 Ratione personae/ratione geographiae, the licensing system distinguishes between launch activities, including the operation of a launch facility, and other space activities, meaning ‘activities directly contributing to ... the operation of [space]craft in outer space’.96 The former require a license if conducted either from South African territory or by legal persons with South African nationality;97 the latter only if conducted by legal persons and ‘(i) entailing obligations to the State in terms of international conventions, treaties or agreements entered into or ratified by the Government of the Republic; or (ii) which may affect national interests’.98 Regarding liability, the licensee generally speaking would be required to reimburse the South African government for any international third party liability claim to the full.99 At the same time, governmental discretion would allow for only partial reimbursement or non-reimbursement if the South African interest would so require.100 Conditions may be inserted into the license as to any insurance to be provided with respect to such liability.101 5. Ukraine Ukraine, after Russia, is the most important newly independent State to arise out of the demise of the Soviet Union, and it also soon followed its major neighbour in enunciating its own national space law in 1996.102 Ratione materiae, the licensing regime applies to ‘space activities’, defined as ‘scientific space researches; construction and application of space engineering; [and] use of outer space’; further details of the kinds of space activities requiring a license are to be determined by further Ukrainian legislation.103 In addition to licensing, as is the case with Russia, the Ukrainian Law on Space Activities requires space objects involved in space activities to also be licensed as per an existing certification regime.104 Ratione personae/ratione geographiae, everyone undertaking space activities from Ukrainian territory or otherwise operating under Ukrainian jurisdiction (meaning everyone with Ukrainian nationality, natural and legal persons alike) requires a license.105 In terms of liability, similarly to Russia but in more succinct terms, the Law provides for a somewhat complicated approach. Liability ‘for damage caused during a space activity and the definition of the size of such damage which is subject to compensation are established in accordance with the legislation in force of Ukraine’, referring to general liability rules rather than the international Liability Convention.106 Nothing is specifically provided on a possible obligation to reimburse the Ukrainian government for international claims, although this might be assumed to follow from the general legislation Ukraine refers to. Also, the insurance obligation under the Law is couched in general terms—for ‘carrying out of space activities’—as well as referring to existing Ukrainian law and a specific decision of the Ukrainian government to determine the size of mandatory insurance, which finally was made in 2001 when the Ukrainian Parliament adopted the corresponding additions to the 1996 Law on Insurance.107 6. Belgium Belgium enunciated its Law on the Activities of Launching, Flight Operations or Guidance of Space Objects in the course of 2005108 to stimulate private involvement in certain space activities and address the attendant international obligations of Belgium in that respect. The scope of the licensing obligation (for which the Law uses the term ‘authorisation’), ratione materiae, extends to ‘activities of launching, flight operations and guidance of space objects’, the latter of which is defined in such a manner that activities only involving space objects whose operations are not controlled as such are excluded.109 The scope of the licensing scheme in first instance is limited, ratione geographiae, to activities conducted from Belgian territory, but it can come to encompass, ratione personae, such activities conducted elsewhere by Belgian persons if called for by an international agreement to which Belgium is a party.110 On liability, the Law provides for a very targeted right of counterclaim by the Belgian government against a licensed operator if the latter’s operations give rise to international claims under Article VII of the Outer Space Treaty or the Liability Convention. In these cases, such an operator has the right to be privy to the discussions and procedures. The reimbursement obligation may be limited by the government, except in cases where the licensee does not comply with the terms of the license. In case the responsible minister has included an obligation for the licensee to insure himself against third party liability, that insurance should also cover reimbursement, but it does not as such work as a cap on the reimbursement obligation.111 7. The Netherlands The Netherlands established its own Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry of Space Objects in 2007112 in view of the considered necessity to lay down such rules to accommodate various emerging private space initiatives.113 Its licensing regime, ratione materiae, applies to all ‘space activities’, which are defined exhaustively as ‘the launch, the flight operation or the guidance of space objects in outer space’.114 This scope, however, could be extended to ‘the organization of outer space activities’ by implementing regulation.115 The licensing obligation pertains ratione geographiae to all ‘space activities that are performed in or from within the Netherlands or else on or from a Dutch ship or Dutch aircraft’.116 However, implementing regulations may extend this scope, ratione personae, to Dutch nationals undertaking space activities ‘on or from the territory of a State that is not party to the Outer Space Treaty or on or from a ship or aircraft that falls under the jurisdiction of a State that is not party to the Outer Space Treaty’.117 On liability, the Law provides first for obligatory reimbursement, ‘in full or in part’, by the licensee of the government in case of international claims under Article VII of the Outer Space Treaty or the Liability Convention.118 However, the extent of reimbursement liability is then limited ‘to the value of the sum insured’.119 It is up to the minister to determine such a cap, according to what he ‘considers to be the maximum possible cover for the liability arising from the space activities for which a license is requested. Account is taken here of what can reasonably be covered by insurance’.120 8. France For several decades, France had fulfilled its obligations under Article VI of the Outer Space Treaty of authorization and continuing supervision of its two major private space operators—Arianespace and SpotImage—by way of owning, through its national space agency, the Centre national d’études spatiales (CNES),121 the largest amount of their shares. As for the former, it also took care of potential international third party liability under the Liability Convention, involving as appropriate the other ESA Member States part of the Ariane programs of ESA.122 Following the privatization of EUTELSAT and the increasing role of the European Community, then European Union (EU), in the European space endeavour, however, France ultimately decided to replace that construct with a full-fledged national space law, the 2008 French Law on Space Operations.123 The licensing regime of the Law, ratione materiae, applies to ‘the launching of a space object’, ‘intending to proceed with the return of such an object’, ‘intending to procure the launching of a space object’ and ‘intending to command such an object during its journey in outer space’.124 In short, it comprises the full range of space activities considered of interest to private space entrepreneurs, with the exception of the operation of ‘non-commanded’—read unguided small satellites—where the same issue arises as in the Belgian and Dutch cases, although the fact that such satellites would nevertheless require at least an original launch and some measure of control of separation from the launch vehicle would generally ensure the potential for the French Law to exercise a certain measure of a priori legal control over these operations.125 Ratione personae/ratione geographiae, the licensing regime makes a distinction between launching and return activities respectively and all other space activities. For the former, the licensing obligation extends to both anyone undertaking such activities from French territory or facilities (under territorial respectively quasi-territorial jurisdiction) and any French operator undertaking such activities elsewhere, whereas, for the latter, only French operators as such require a license.126 Space activities undertaken by the French Ministry of Defence and CNES are—logically—exempted from the licensing obligation under the Law.127 Regarding liability, any licensee must ‘have and maintain’ ‘insurance or another financial guarantee approved by’ CNES in view of its potential third party liability.128 This third party liability applies internationally in that, if France itself has compensated relevant claims under the Outer Space Treaty or the Liability Convention, it is in principle entitled to indemnification by the licensee.129 Also, in that case, France limits the extent of mandatory indemnification and attendant insurance coverage to an amount later determined by a Finance Act to be between €50,000,000 and €70,000,000.130 An interesting point in the light of France’s membership of the EU concerns the extension of the French government’s guarantee under the Finance Act for amounts of compensation above the cap to space activities conducted from the territories of other EU Member States and even of Member States of the European Economic Area.131 9. Austria Austria established its Federal Law on the Authorisation of Space Activities and the Establishment of a National Space Registry in 2011,132 driven in particular by increasing involvement of Austrian entities in niche markets such as small satellites and the desire to develop an appropriate legal and regulatory framework for those in the light of Austria’s obligations under international law. The scope of the licensing regime, ratione materiae, encompasses ‘space activities’, defined as comprising ‘the launch, operation or control of a space object, as well as the operation of a launch facility’.133 The same limitation discussed before in the context of Belgium, the Netherlands, and France as regarding small satellites could thus have arisen. In the Austrian context, however, it was consciously decided at the outset, in contrast, that all small satellites, unguided or not, should be considered to also fall within of the scope of the licensing obligation.134Ratione personae, the Act’s licensing obligation applies on a territorial, quasi-territorial, and personal basis—namely, to ‘space activities carried out 1. On Austrian territory, 2. On board of vessels or airplanes, registered in Austria or 3. By a natural person with Austrian citizenship or legal persons seated in Austria’.135 Specifically on liability and insurance, the arrangements are rather precise: In order to cover liability for damages caused to persons and property, the operator is under the obligation to take out an insurance covering a minimum amount of €60,000,000 per insurance claim. Run-off liability may not be excluded or limited. If the space activity is in the public interest, the Minister for Transport, Innovation and Technology may determine a lower sum or release the operator from the insurance requirement by administrative decision, taking into account the risks connected to the activity and the operator’s financial capacity. Space activities are in the public interest if they serve science, research or education. Taking out an insurance is not necessary if the Federal State itself is the operator.136 These provisions apply also to international third party liability, where Austria then reserves a right of recourse to the licensee for any international claim paid out, up to the sum insured as per the above, at least for damage caused on earth or to aircraft in flight.137 10. Kazakhstan Kazakhstan, as the third main heir of the Soviet space heritage after Russia and Ukraine, established its 2012 Law on Space Activities in view, among others, of opportunities to enhance its presence in outer space by virtue of the spaceport Baikonur.138 Unfortunately, a rather sloppy translation often makes it difficult to derive solid conclusions from its clauses. Keeping this in mind, ratione materiae, the Law would apply its licensing system to ‘activities aimed at exploration and use of outer space for achieving the scientific, economic, environmental, defense, information and commercial purposes’, subject to ‘the legislation of the Republic of Kazakhstan on licensing’.139 The scope of the licensing obligation ratione personae/ratione geographiae, is also to be determined by ‘the legislation of the Republic of Kazakhstan on licensing’.140 In view of the registration requirements, however, it may be assumed that both personal and territorial jurisdiction are applied.141 The licensing requirements would include, with a view to liability and insurance, a more detailed legal clause following upon the principle of ‘compensation for harm to health of individuals, damage to the environment, property of individuals and legal entities, or the state arising out of the implementation of space activities’.142 The last phrase also suggests that State payment of international claims under the Liability Convention is included, calling for reimbursement by any licensee; this could happen either ‘voluntary or under court decision according to the laws of the Republic of Kazakhstan’.143 VI. Dispute settlement regarding space activities With the advent of more and more private entities into more and more sectors of space activities, the issue of dispute settlement becomes of special importance as well. Following the State-centred-ness of space law, questions would arise both as to the jus standi of private entities in such disputes as well as, more substantively speaking, whether existing dispute settlement mechanisms would be able to appropriately address the specific commercial and other concerns of private sector entities. The existing dispute settlement mechanisms of general international law, following, inter alia, Article III of the Outer Space Treaty, are in principle available to disputes involving private companies as well. This applies both to systems with a comprehensive scope, such as the International Court of Justice (ICJ),144 which can adjudicate disputes on any matter of international law,145 and to systems very much limited in scope such as the aforementioned Claims Commission, which can only provide decisions on issue of liability pursuant to the Liability Convention,146 or the International Telecommunication Union’s (ITU) system for dispute settlement, which can only address issues relating to the ITU Constitution,147 the ITU Convention,148 and the regime developed on the basis of both conventions.149 However, crucially, private parties involved have no jus standi before such courts and tribunals. Access to the ICJ for adjudication is exclusively reserved for States;150 the option of instigating a Claims Commission and presenting claims before it is also only open to States151 and so is the dispute settlement system under the ITU treaties.152 It is for reasons of trying to address these shortcomings that the Rules on Outer Space Disputes of the Permanent Court of Arbitration (PCA)153 were adopted in late 2011 during a special session of the PCA Administrative Council of Member States, which currently number 115.154 The Rules were based on the 2010 UNCITRAL Arbitration Rules, changed notably as appropriate to ‘(i) reflect the particular characteristics of disputes having an outer space component involving the use of outer space by States, international organizations and private entities; [and] (ii) reflect the public international law element that pertains to disputes that may involve States and the use of outer space, and international practice appropriate to such disputes’.155 The PCA Rules on Outer Space Disputes leave it completely to the parties to avail themselves thereof. The legal basis for the dispute is irrelevant; using the Rules for ‘disputes between [parties] in respect of a defined legal relationship, whether contractual or not’ is dependent solely upon agreement between the two parties involved.156 Even more fundamentally, ‘[t]he characterization of the dispute as relating to outer space is not necessary for jurisdiction where parties have agreed to settle a specific dispute under these Rules’.157 Thus, the Rules avoid the difficult issue of what constitutes ‘space activities’, and, thereby, they also avoid the difficult discussion on where ‘outer space’, as an area, begins. As is quite usual under arbitration rules, agreement by a party to arbitrate automatically means that such a party waives any immunity from jurisdiction it might otherwise invoke, although a waiver of immunity from execution of any arbitral award must be expressed explicitly.158 This is a fundamental clause in any arbitration regime, which allows jus standi for both States and non-State actors, as otherwise the principled legal equality of the parties to a dispute would be fundamentally jeopardized. Immunity from execution, while also a principled barrier to such legal equality, does require explicit agreement of a State party to a dispute both for practical and for principled reasons. Nevertheless, the assumption is that one way or another a State faced with an award imposing specific obligations—for example, to pay a fine—would in good faith abide by such an award even if immunity from execution had not been waived in that particular case. If failure to satisfactorily allow execution of such an award by a State invoking immunity from execution would give rise to serious injustice, there would in many cases be a residual possibility for the State of the victimized non-State party to raise the issue to an international, State-to-State level and, for example, exercise diplomatic protection by seizing the ICJ. The PCA Rules on Outer Space Disputes also provide for a set of clauses on how the arbitral tribunal is to be established.159 The size of the panel is one other area where maximum flexibility was striven for; while the default option would be three arbitrators, other sizes may also be opted for with a five-arbitrator panel being mentioned explicitly, but no size a priori being excluded.160 Thus, if the technical, operational, or political complexity of a case so warrants, also panels consisting of seven or nine members could be established. The Rules also provide for a full waiver of the liability of arbitrators and, more extensively, of ‘any person appointed by the arbitral tribunal’ for ‘any act or omission’ connected to arbitration.161 The addition of other persons than the arbitrators themselves refers, for instance, to expert witnesses, the need for which may—arguably—be particularly prominent in many space activities-related disputes. With respect to the procedure, the arbitrators are also handed a large measure of discretion, as ‘the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that, at an appropriate stage of the proceedings, each party is given a reasonable opportunity of presenting its case’.162 A similar discretion applies to allowing third parties to join the proceedings.163 The only non-discretionary precondition for such joinder, the need for the third party to be party to the arbitration agreement, serves as a guarantee—with a view to the potential complexity of cases in terms of potentially afflicted parties, subject matter, and applicable law—that such a third party would also be formally and fully aware of the way the arbitration is going to be handled and its rights and obligations following from such joinder. This notably also includes the novelty the PCA Rules on Outer Space Disputes provide as compared to other arbitration mechanisms, which is the concept of the ‘confidentiality adviser’. Here, a rather special procedure caters for the presumed occasional need to respect confidentiality, exceptionally even secrecy, in the context of commercially sensitive, or security-sensitive, information. First, a party may call for information to be classified as ‘confidential’.164 The tribunal then decides on whether such classification would actually be granted on the assumption that ‘the absence of special measures of protection [of information requested to be tagged confidential] in the proceedings would be likely to cause serious harm to the party or parties invoking its confidentiality’.165 It then also decides ‘under what conditions and to whom the confidential information may in part or in whole be disclosed and shall require any person to whom the confidential information is to be disclosed to sign an appropriate confidentiality undertaking’.166 In the alternative—and this is the real novelty—the tribunal may, at the request of either party or proprio motu, appoint a ‘confidentiality adviser’—an independent expert—‘in order to report to it on the basis of the confidential information on specific issues designated by the arbitral tribunal without disclosing the confidential information either to the party from whom the confidential information does not originate or to the arbitral tribunal’.167 This clause walks a thin line between the need to accommodate the supreme interest of one party to keep certain information confidential to such an extent that it rules its willingness to submit to arbitration and the due process requirement that opposing parties should be allowed to have access to information used for making judgmental decisions in particular disputes. Whether the line is so thin as to actually break is currently a matter of conjecture and will remain so unless tested in cases invoking the Rules as well as the confidentiality clauses. With regard to the applicable law, the PCA Rules on Outer Space Disputes provide that ‘the arbitral tribunal shall apply the law or rules of law designated by the parties as applicable to the substance of the dispute’.168 If no such designation has occurred, the arbitrators are to apply the national and/or international law rules they determine to be appropriate.169 Also deciding ‘as amiable compositeur or ex aequo et bono’ is only an option for the tribunal if parties have expressly authorized such a ground for decisions.170 If a contract is involved in the dispute, the tribunal ‘shall decide in accordance with the terms of the contract, if any, and shall take into account any usage of trade applicable to the transaction’.171 Above, attention was drawn to the large measure of technicality and the resulting needs to provide for proper evidentiary rules and involvement of experts. Here, it is obviously for the tribunal to decide on ‘admissibility, relevance, materiality and weight of the evidence offered’.172 If considered appropriate, non-technical documents may be requested by the arbitrators from the parties to explain certain pieces of information.173 Likewise, the tribunal may call upon experts on scientific or technical matters after consulting the parties, which may be challenged by any of the parties.174 The tribunal can impose interim measures at the request of one of the parties.175 ‘Interim measures’ are defined as: any temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party, for example and without limitation, to: (a) Maintain or restore the status quo pending determination of the dispute; (b) Take action that would prevent, or refrain from taking action that is likely to cause, (i) current or imminent harm or (ii) prejudice to the arbitral process itself; (c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or (d) Preserve evidence that may be relevant and material to the resolution of the dispute.176 In other words, as is normal in regard to interim measures, the tribunal should weigh the interests of a claiming party in not seeing any possible favourable outcome—which consequently should prima facie be a realistic possibility—prejudiced by irreversible events and the interests conversely of a defending party in not seeing any possible favourable outcome to that party being prejudiced. Like any true arbitrary award—and differently, for example, from the Liability Convention’s Claims Commission mechanism—awards of the arbitration tribunal under the PCA Rules on Outer Space Disputes are also ‘final and binding on the parties’, unless a ‘simple’ error should be detected afterwards, which may then be corrected.177 Awards will be decided by majority if there is more than one arbitrator.178 Separate awards are possible if circumstances so warrant in the view of the tribunal.179 Unless parties have decided otherwise, the reasons for the award will be provided by the tribunal.180 Requests for (further) interpretation of an award can be honoured.181 Additional awards may also be requested by the parties, and such requests are to be honoured at the discretion of the tribunal.182 Finally, the PCA Rules on Outer Space Disputes provide for important directions on the costs of the arbitration procedure.183 The PCA Rules on Outer Space Disputes offer, as compared to the existing and applicable dispute settlement mechanisms, the most comprehensive coverage of all aspects of space activities and, hence, of all possible disputes regarding such activities. Through the various mechanisms, the Rules take into account terrestrial aspects as well as space aspects, national law and jurisdiction as well as international law and the ‘global commons’ character of outer space, the various categories of the actors and stakeholders, public as well as private (and including any contractual law issues), and, finally, the technological and operational complexities of the sector at least as well as, and often more efficiently and coherently, than those other mechanisms briefly recounted above. Flexibility for the tribunal as well as the parties and party autonomy are truly maximized by way of such provisions, allowing the parties the ultimate decision on whether to use the PCA Rules on Outer Space Disputes or not, on the size of the arbitral tribunal, and on applicable law within a coherent system. Ample room is also offered for taking the technological and operational complexities into due consideration. The only serious caveat would regard the confidentiality adviser; it remains to be seen whether this procedural novelty strikes the right balance or is the enemy of the good, causing more damage to due process than it helps bring about solutions to intricate space-related disputes. VII. Concluding remarks The increasing involvement of private entities in various space sectors has been principally dealt with by means of national space legislation addressing such activities in the context of the relevant States being held responsible and liable for those activities in accordance with Articles VI and VII of the Outer Space Treaty and the Liability Convention. To a certain extent, this is now also specifically happening in the area of the mitigation of space debris. However, certainly from an overarching perspective, this is far from satisfactory on a number of counts. First, a number of key States—Germany, Italy, Canada, Japan, India, perhaps China, and many others—have not yet developed any comprehensive domestic legal approach to private space actors, even as it is questionable whether private or semi-private operators from such countries are not already substantially engaged in space activities. Second, those States that have implemented relevant duties, including those pertaining to registration pursuant to Article VIII of the Outer Space Treaty and the Registration Convention, have done so with considerable variations. This applies notably to the scope, ratione personae/ratione geographiae, of their licensing systems, the level of specificity or even specifics as such of the requirements for, and the handling of international third party liability for damage. With respect to the reimbursement per se, the most intricate question is whether the State is going to require reimbursement only up to a level—which certainly would stimulate the private space industry but would present a risk for the national treasury in case of catastrophic accidents—or, alternatively, full reimbursement regardless of the extent of the damage—which would mean the State does not run a financial risk (at least not as far as the solvency of the private entity and/or the insurance coverage go), yet private entities will be very reluctant to apply for such a license. In actual fact, some States have included a very complex methodology for establishing the maximum amount of reimbursement for any particular license, whereas others have simply named a single monetary amount, applicable across the board, and yet others have given at best a vague indication of their default position and approach on the issue. Another follow-up question would be to what extent insurance is mandatory to cover any cases of third party liability claims if substantial differences arise. In short, the global environment for space activities presents a far from harmonized picture to the private sector, in spite of the, by definition, global nature of their activities. While there may be profound reasons for this (ranging from the security concerns that are always around the corner when it comes to space operations and space technologies to ideological differences concerning the appropriate role of private enterprise in a global commons such as outer space), at least a similarity of interpretation of key provisions of the space treaties by way of national implementation should be aspired to in order to minimize any legal uncertainty for private operators in either direction. Presumably, much progress could still be made in this realm, and much work consequently still needs to be done. Finally, also in the area of dispute settlement, the globalized space environment is only beginning to take into consideration the major role that the private sector is playing in that context, for better or worse. The PCA Rules on Outer Space Disputes, albeit not entirely without questions, would seem to provide a rather interesting tool in this particular context, but so far they have not been actually tested. Alas, if the normal, ‘natural’ course of events would apply in outer space as well, a first multi-billion-dollar dispute might be required to make that happen, which, however, is likely to happen sooner rather than later. Indeed, space activities by now have become a conglomerate of multi-billion-dollar businesses with commensurately pressing legal questions, even while outer space still remains a global commons that is supposed to be used for the benefit of all mankind. Footnotes 1 See e.g. Peter Jankowitsch, ‘The Background and History of Space Law’, in Frans von der Dunk (ed), Handbook of Space Law (Cheltenham/Northampton, Edward Elgar, 2015) 1, 2-3, 14–20. 2 COMSAT, the Communications Satellite Corporation, was established by way of the Communications Satellite Act, 31 August 1962, Public Law 87–624, 87th Congress, H.R. 11040; 76 Stat. 419; as amended 1978; and ‘privatised’ (read ‘de-monopolized’) and the market liberalized by way of the 2000 ORBIT Act; Open-market Reorganization for the Betterment of International Telecommunications Act, 17 March 2000, Public Law 106–180, 106th Congress. See Marietta Benkö and Karl-Heinz Böckstiegel (eds), Space Law: Basic Legal Documents (Eleven International Publishing, 2011; loose-leaf) E.III.2. 3 See e.g. Peter van Fenema, ‘Legal Aspects of Launch Services and Space Transportation’, in Frans von der Dunk (ed), Handbook of Space Law (Cheltenham/Northampton, Edward Elgar, 2015) 382, 382–92. 4 See e.g. Patricia McCormick, ‘Neo-Liberalism: A Contextual Framework for Assessing the Privatisation of Intergovernmental Satellite Organisations’, in Patricia McCormick and Maury Mechanick (eds), The Transformation of Intergovernmental Satellite Organisations (Leiden/Boston, Martinus Nijhoff, 2013) 1, 1–25. 5 See e.g. Fabio Tronchetti, ‘Legal Aspects of Satellite Remote Sensing’, in Frans von der Dunk (ed), Handbook of Space Law (Cheltenham/Northampton, Edward Elgar, 2015) 501, 505–13. 6 See e.g. Jankowitsch (n 1) 3–9. 7 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), London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967). 8 According to some, the 1963 Partial Test Ban Treaty (Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Moscow, done 5 August 1963, entered into force 10 October 1963; 480 UNTS 43; TIAS 5433; 14 UST 1313; UKTS 1964 No. 3; ATS 1963 No. 26) presented the first international treaty on outer space, but since it on the one hand also addresses the earth’s atmosphere and oceans and on the other hand addresses only specific military aspects, the Outer Space Treaty should be considered—certainly from the current vantage point—the first comprehensive convention in this regard. 9 See Arts. IV resp. I, Outer Space Treaty; further Stephan Hobe, ‘Article I’, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume I: The Outer Space Treaty (Cologne, Carl Heymanns Verlag, 2009) 1; Kai-Uwe Schrogl and Julia Neumann, ‘Article IV’, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume I: The Outer Space Treaty (Cologne, Carl Heymanns Verlag, 2009) 70. 10Cf., resp., Arts. III, I, IX, Outer Space Treaty; further Hobe (n 9); Olivier Ribbelink, ‘Article III’, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume I: The Outer Space Treaty (Cologne, Carl Heymanns Verlag, 2009) 64; Sergio Marchisio, ‘Article IX’, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume I: The Outer Space Treaty (Cologne, Carl Heymanns Verlag, 2009) 169. 11 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Rescue Agreement), London/Moscow/Washington, done 22 April 1968, entered into force 3 December 1968; 672 UNTS 119; TIAS 6599; 19 UST 7570; UKTS 1969 No. 56; Cmnd. 3786; ATS 1986 No. 8; 7 ILM 151 (1968). 12 See Arts. 1-5, Rescue Agreement. Art. V, Outer Space Treaty, accorded astronauts a lofty status entitling them to maximum support in case of distress, whereas Art. VIII, Outer Space Treaty, confirmed that space objects continued to belong to the launching State wherever found. See further Irmgard Marboe, Julia Neumann and Kai-Uwe Schrogl, ‘The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space’, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume II: Rescue Agreement / Liability Convention / Registration Convention / Moon Agreement (Cologne, Carl Heymanns Verlag, 2013) 7. 13 See e.g. Stephan Hobe, ‘Space Tourism as a Challenge to the Astronaut Concept’, in Gabriel Lafferranderie and Sergio Marchisio (eds), The Astronauts and Rescue Agreement: Lessons Learned (Paris, European Centre for Space Law, 2011) 71. 14 Convention on International Liability for Damage Caused by Space Objects (Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971). 15 See further Jane Smith, Armel Kerrest de Rozavel and Fabio Tronchetti, ‘The 1972 Convention on International Liability for Damage Caused by Space Objects’, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume II: Rescue Agreement / Liability Convention / Registration Convention / Moon Agreement (Cologne, Carl Heymanns Verlag, 2013) 92. 16 See Arts. II resp. III, Liability Convention. 17Cf., resp., Arts. IV-V, VII-VIII, XII, Liability Convention. 18 See Smith, Kerrest de Rozavel and Tronchetti (n 15) 111–13. 19 As per Arts. XIV-XX, Liability Convention. 20Cf. Arts. XV, XVI, Liability Convention. 21 See Art. XIX(2), Liability Convention. 22 See Art. XI(2), Liability Convention. 23 Convention on Registration of Objects Launched into Outer Space (Registration Convention), New York, done 14 January 1975, entered into force 15 September 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975). 24 See further Bernhard Schmidt-Tedd and others, ‘The 1975 Convention on Registration of Objects Launched into Outer Space’, in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume II: Rescue Agreement / Liability Convention / Registration Convention / Moon Agreement (Cologne, Carl Heymanns Verlag, 2013) 232. 25 See Art. II, Registration Convention. 26 See Art. IV, Registration Convention. The international register can be accessed at http://www.unoosa.org/oosa/en/spaceobjectregister/index.html (accessed 9 May 2018). 27 See in general Lotta Viikari, The Environmental Element in Space Law (Leiden/Boston, Martinus Nijhoff Publishers, 2008) esp. 31-45, 65-72. 28 This ultimately resulted in the IADC Space Debris Mitigation Guidelines, IADC-02-01, Revision 1, September 2007. 29 As per Space Debris Mitigation Guidelines of the United Nations Committee on the Peaceful Uses of Outer Space (A/62/20) endorsed by General Assembly Resolution 62/217 of 21 December 2007; A/RES/62/217. See further Carsten Wiedemann, ‘Space Debris Mitigation’, in Irmgard Marboe (ed), Soft Law in Outer Space (Vienna/Cologne/Graz, Böhlau Verlag, 2012) 315. 30 Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets (Space Assets Protocol), Berlin, done 9 March 2012, not yet entered into force; Unidroit 2012 – DCME-SP – Doc. 43; http://www.unidroit.org/english/conventions/mobile-equipment/spaceassets-protocol-e.pdf (accessed 9 May 2018). 31 Convention on International Interests in Mobile Equipment (Cape Town Convention), Cape Town, done 16 November 2001, entered into force 1 April 2004; ICAO Doc. 9793; http://www.unidroit.org/instruments/security-interests/cape-town-convention (accessed 9 May 2018). 32 See http://www.unidroit.org/status-2012-space (accessed 9 May 2018). 33 See on this discussion Frans von der Dunk, ‘International Space Law’, in Frans von der Dunk (ed), Handbook of Space Law (Cheltenham/Northampton, Edward Elgar, 2015) 29, 53–4. 34 See e.g. Irmgard Marboe, ‘National Space Law’, in Frans von der Dunk (ed), Handbook of Space Law (Cheltenham/Northampton, Edward Elgar, 2015) 127, 130–5. 35 Notably, in France, Italy, Japan, the United Kingdom, and the United States; see e.g. Viikari (n 27); Toshio Kosuge and Yu Takeuchi, ‘From Guideline to International Treaty for Rule of Law Concerning Mitigation of Space Debris?’, in Proceedings of the International Institute of Space Law 2010 (Washington, AIAA, 2011) 291. 36Cf. §§ 3.4, 4, 5, IADC Space Debris Mitigation Guidelines. 37 Note that Art. XI, Liability Convention, ensures that other mechanisms for settling disputes on liability and compensation besides the Convention remain available to relevant parties. 38 See Marboe (n 34) 137–9. 39 See Arts. I-V, Liability Convention, attributing liability to the ‘launching State(s)’. 40 Act on launching objects from Norwegian territory into outer space, No. 38, 13 June 1969; Nataliya Malysheva and Yuryj Shemshuchenko (eds), National Space Legislation of the World (Atika), Vol. I (2001), at 286. See further Frans von der Dunk and Atle Nikolaisen, ‘Vikings First in National Space Law: Other Europeans to Follow—The Continuing Story of National Implementation of International Responsibility and Liability’, in Proceedings of the Forty-Fourth Colloquium on the Law of Outer Space 2001 (Washington, AIAA, 2002) 111; Marboe (n 34) 151–2. 41 An Act about space activities, and for related purposes, No. 123 of 1998, assented to 21 December 1998; Malysheva and Shemshuchenko (n 40) 197. The Act was amended amongst others in 2001 and 2002, by way of the Space Activities Amendment (Bilateral Agreement) Act, An Act to amend the Space Activities Act 1998, and for related purposes, No. 101 of 2001, assented to 4 September 2001; http://www.austlii.edu.au/au/legis/cth/num_act/saaaa2001397/ (accessed 9 May 2018); respectively the Space Activities Amendment Act, An Act to amend the Space Activities Act 1998, No. 100 of 2002, assented to 10 November 2002; http://www.austlii.edu.au/au/legis/cth/num_act/saaa2002247/ (accessed 9 May 2018). See further Noel Siemon and Steven Freeland, ‘Regulation of Space Activities in Australia’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 37, 44–57; Marboe (n 34) 166–8. 42 Administrative Edict No. 27, 20 June 2001; Nataliya Malysheva and Yuryj Shemshuchenko (eds), National Space Legislation of the World (Atika), Vol. II (2002), at 377. See further José Monserrat Filho, ‘Regulation of Space Activities in Brazil’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 61, 68–78; Marboe (n 34) 177. 43 Space Development Promotion Act, Law No. 7538, of 31 May 2005, entered into force 1 December 2005; unofficial translation 33 (2007) Journal of Space Law, 175. See further Doo Hwan Kim, ‘The Main Contents of the New Space Development Promotion Act in Korea’, in Proceeedings of the Forty-Eighth Colloquium on the Law of Outer Space 2005 (Washington, AIAA, 2006) 290; Marboe (n 34) 168–70. 44 Remote Sensing Space Systems Act, assented to 25 November 2005; S.C. 2005, c. 45. See further Bruce Mann, ‘First License Issued under Canada’s Remote Sensing Satellite Legislation’, 34 (2008) Journal of Space Law, 67; Marboe (n 34) 174-5. 45 Act Protecting Against the Endangerment of German Security through the Proliferation of High Resolution Aerial Imagery of the Earth (Satellitendatensicherheitsgesetz), 23 November 2007, effective 1 December 2007; Federal Gazette (BGBl.) Year 2007 Part I No. 58, of 28 November 2007. See further Michael Gerhard and Bernhard Schmidt-Tedd, ‘Germany Enacts Legislation on the Distribution of Remote Sensing Satellite Data’, in Proceedings of the Fiftieth Colloquium on the Law of Outer Space 2007 (Washington, AIAA, 2008) 411; Marboe (n 34) 172–4. 46 See for the draft version of the text in English as published by the Luxembourg government: http://www.spaceresources.public.lu/content/dam/spaceresources/news/Translation%20Of%20The%20Draft%20Law.pdf (accessed 9 May 2018); also http://www.luxembourg.public.lu/en/actualites/2017/07/21-spaceresources/index.html (accessed 9 May 2018). 47 The 1998 Commercial Space Act (27 January 1998, Public Law 105-303, 105th Congress, H.R. 1702; 51 U.S.C. 50101; 112 Stat. 2843 (1998)) only represented a first effort to try and align some elements of the commercialization of space and the resulting growing interest and involvement of the private sector in space activities, but mainly focused on some idiosyncratic issues such as the use of GPS in a commercial context, the conversion of military missiles into civil launch vehicles, and commercialization of the ISS; it did not in any sense change the existing systems for licensing particular private space operations. 48 Commercial Space Launch Act, 30 October 1984, Public Law 98-575, 98th Congress, H.R. 3942; 98 Stat. 3055; Benkö and Böckstiegel (n 2) E.III.3; now codified as 51 U.S.C. Ch. 509—Commercial Space Launch Activities. See further Petra Vorwig, ‘Regulation of Private Launch Services in the United States’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 405; Marboe (n 34) 141–3. 49 Commercial Space Launch Act Amendments, 15 November 1988, Public Law 100-657, 100th Congress, H.R. 4399; 49 U.S.C. App. 2615; 102 Stat. 3900; Benkö and Böckstiegel (n 2) E.III.3, 13ff. 50 Commercial Space Launch Amendments Act, 23 December 2004, Public Law 108-492, 108th Congress, H.R. 3752, 49 U.S.C.; 118 Stat. 3974. 51 Commercial Space Launch Competitiveness Act, 25 November 2015, Public Law 114-90, 114th Congress; Ch. 513, 51 U.S.C., in particular its Title I, Spurring Private Aerospace Competitiveness and Entrepreneurs. 52 Sec. 50904(a), 51 U.S.C. 53 Secs. 50904(a), 50902(1)(C), 51 U.S.C. 54 Secs. 50914(a), (c), 50915, 51 U.S.C. 14 C.F.R. (e.g. § 440) provide for further details on the process, including MPL calculations. In actual fact, the highest third-party liability cap applied to licenses was US $261,000,000 for several Atlas-V and Delta-IV launches; by contrast e.g. the SpaceShipOne flights of October 2004 carried a cap of US $3,100,000 only. 55 Communications Act, 19 June 1934; 47 U.S.C. 151 (1988); 48 Stat. 1064. See further Petra Vorwig, ‘Regulation of Satellite Communications in the United States’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 421; Marboe (n 34) 143. 56 Communications Satellite Facilities, First Report and Order, 22 FCC 2d 86 (1970), Appendix C, p. 1. 57 Sec. 301, Communications Act. 58 Sec. 152(a), Communications Act. 59 Sec. 301, Communications Act. 60Cf. Sec. 206, Communications Act. 61 Land Remote-Sensing Commercialization Act, 17 July 1984, Public Law 98-365, 98th Congress, H.R. 5155; 98 Stat. 451; Benkö and Böckstiegel (n 2) E.III.4. 62 Land Remote Sensing Policy Act, 28 October 1992, Public Law 102-555, 102nd Congress, H.R. 6133; 15 U.S.C. 5601; 106 Stat. 4163; now codified as 51 U.S.C. Ch. 601—Land Remote Sensing Policy. See further Eligar Sadeh, ‘Politics and Regulation of Earth Observation Services in the United States’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 443, 455–8; Marboe (n 34) 141. 63 Sec. 60121, 51 U.S.C. 64 Sec. 60122(a), 51 U.S.C. 65 See further Frans von der Dunk, ‘The US Space Launch Competitiveness Act of 2015’, (30 November 2015) JURIST, http://www.jurist.org/forum/2015/11/frans-vonderdunk-space-launch.php (accessed 9 May 2018). 66 Sec. 51303, 51 U.S.C., as amended. 67 Sec. 51302(b), 51 U.S.C., as amended. 68 Act on Space Activities (Swedish Act on Space Activities), 1982: 963, 18 November 1982; Malysheva and Shemshuchenko (n 40) 398; Benkö and Böckstiegel (n 2) E.II.1; 36 (1987) Zeitschrift für Luft- und Weltraumrecht, 11. See further Christian Brünner and Edith Walter (eds), Nationales Weltraumrecht / National Space Law (Vienna/Cologne/Graz, Böhlau Verlag, 2008) 73; Marboe (n 34) 152–4. 69 Sec. 1, Swedish Act on Space Activities. 70 Sec. 1, Swedish Act on Space Activities. 71 Sec. 2, Swedish Act on Space Activities. 72 Sec. 6, Swedish Act on Space Activities. 73 Outer Space Act (UK Outer Space Act), 18 July 1986, 1986 Chapter 38; Malysheva and Shemshuchenko (n 40) 293; Benkö and Böckstiegel (n 2) E.I; 36 (1987) Zeitschrift für Luft- und Weltraumrecht, 12. See further Sa’id Mosteshar, ‘Regulation of Space Activities in the United Kingdom’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 357, 359ff.; Marboe (n 34) 154–6. 74 Preamble, UK Outer Space Act. 75 Draft Spaceflight Bill, February 2017, Cm. 9421. 76 Sec. 1, UK Outer Space Act. 77 Sec. 2(1), UK Outer Space Act. ‘United Kingdom national’ is further defined in Sec. 2(2), whereas Sec. 2(3) allows for extension to ‘bodies incorporated under the law of any of the Channel Islands, the Isle of Man or any dependent territory’. The Isle of Man in particular has established itself as a space industry region, even going as far as defining ‘space object’ for the purpose of its regional ‘Treasury Regulations’. 78 Sec. 10(1), UK Outer Space Act. 79 Sec. 5(2)(f), UK Outer Space Act. 80Cf. e.g.https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/298017/impact-assessment-reform-of-the-outer-space-act.pdf (accessed 9 May 2018). 81 Law of the Russian Federation on Space Activities (Russian Law on Space Activities), No. 5663-1, 20 August 1993, effective 6 October 1993; Malysheva and Shemshuchenko (n 40) 101. See further Sergey Malkov and Catherine Doldirina, ‘Regulation of Space Activities in the Russian Federation’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 315, 316 ff.; Marboe (n 34) 144–8. 82 Art. 2(1) and (2), Russian Law on Space Activities. 83 Art. 9(2), Russian Law on Space Activities. 84 Art. 10(1), Russian Law on Space Activities. 85 Art. 9(2), Russian Law on Space Activities. 86 Art. 17(2), Russian Law on Space Activities. 87 Art. 25(1), Russian Law on Space Activities. In actual fact, third-party liability insurance policies have been taken out for amounts varying between US $80,000,000 and US $300,000,000, as depending upon the particulars of the launch vehicle (e.g. relating to size and track record) and the launch service offered thereby (e.g. relating to complexity of payload or orbit targeted). 88 For example, elsewhere the Law refers explicitly to the fulfillment of the international obligations of Russia in respect of space activities, including the Outer Space Treaty; see Art. 26(3), Russian Law on Space Activities. 89 Art. 30(1), Russian Law on Space Activities. 90 Art. 30(2), Russian Law on Space Activities. 91 Art. 25(1), Russian Law on Space Activities; ‘compulsory insurance’ shall be taken ‘in the amount set by legislation of the Russian Federation’. 92 The difference in wording between Art. 30(1), Russian Law on Space Activities, on the ‘full compensation’ guaranteed by the Russian Federation, and Art. 30(2), on the ‘[c]ompensation’ to be paid by relevant private entities, supports this argument. 93 Space Affairs Act (South African Space Affairs Act), 6 September 1993, assented to on 23 June 1993, No. 84 of 1993; Statutes of the Republic of South Africa—Trade and Industry, Issue No. 27, 21–44; Malysheva and Shemshuchenko (n 40) 413. See further Justine Limpitlaw, ‘Regulation of Space Activities in South Africa’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 267, 275ff.; Marboe (n 34) 170–1. 94 Preamble, South African Space Affairs Act. 95 Sec. 11(1), South African Space Affairs Act. 96 Sec. 1, 21st bullet, South African Space Affairs Act. 97 Sec. 11(1)(a)-(c), South African Space Affairs Act. 98 Sec. 11(1)(d), South African Space Affairs Act. 99 See Sec. 14(1)(b), South African Space Affairs Act, which leaves actual inclusion of such an obligation however to the discretion of the Council. 100 Prospective licensees should probably be prepared, however, to accept the obligation of full reimbursement of the South African government for relevant cases of international third party damage; cf. by way of a contrario argument Sec. 14(2)(a), South African Space Affairs Act. 101 Sec. 14(1)(b), South African Space Affairs Act. 102 Law of Ukraine on Space Activities (Ukrainian Law on Space Activities), No. 502/96-VR, 15 November 1996; Malysheva and Shemshuchenko (n 40) 36. See further Nathaliya Malysheva, ‘Regulation of Space Activities in Ukraine’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 335; Marboe (n 34) 148–9. 103 Arts. 10 resp. 1, 1st bullet, Ukrainian Law on Space Activities. See also however Art. 8. 104 Art. 12, Ukrainian Law on Space Activities. 105 Art. 10, Ukrainian Law on Space Activities. 106 Art. 25, Ukrainian Law on Space Activities. 107 Art. 24, Ukrainian Law on Space Activities. 108 Law on the Activities of Launching, Flight Operations or Guidance of Space Objects (Belgian Space Law), 17 September 2005, adopted 28 June 2005; Brünner and Walter (n 68) 183. See further Marboe (n 34) 160–2; Jean-François Mayence, ‘Granting Access to Outer Space: Rights and Responsibilities for States and Their Citizens: An Alternative approach to Article VI of the Outer Space Treaty, Notably through the Belgian Space Legislation’, in Frans von der Dunk (ed), National Space Legislation in Europe (Leiden/Boston, Martinus Nijhoff Publishers, 2011) 73, 118–21. 109 Art. 2(1), see also Art. 3(5), Belgian Space Law. The latter exclusion has meanwhile become subject to reassessment and indeed change in practice in view of small satellites (such as cubesats) that are ‘simply’ lobbed into the lower regions of outer space without any further control, but able to transmit information (e.g. about small experiments on board) to the ground stations. On the other hand, the fact that such satellites would require at least an original launch and some measure of control of separation from the launch vehicle would generally ensure the potential for the Belgian Space Law to exercise a certain measure of a priori legal control over these operations nevertheless. 110 Art. 2(1)-(2), Belgian Space Law. The latter clause, while aiming at bilateral agreements with other countries under which Belgium agrees to exercise its licensing authority also seems to allow for accommodation of an interpretation of ‘national activities’ as per Art. VI, Outer Space Treaty, as also encompassing space activities by Belgian nationals, should such an interpretation come to be accepted at the international level; Belgium proceeds from the assumption however that currently such interpretation would not be warranted. 111 See Art. 15, also Art. 5(2), Belgian Space Law. 112 Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry of Space Objects (Dutch Space Law), 24 January 2007; 80 Staatsblad (2007), at 1; Brünner and Walter (n 68) 201. See also Brünner and Walter (n 68) 81; Marboe (n 34) 162–4. 113 See Preamble, Dutch Space Law. 114 Secs. 2(1) resp. 1(b), Dutch Space Law. Thus, the same issue regarding primary exclusion of non-guided space objects from the licensing obligation as in the case of Belgium arose. In the case of the Netherlands, however, pressure by the main Dutch small satellite operator resulted in the inclusion also of activities involving non-guidable space objects after all; see Tanja Masson-Zwaan, ‘Registration of Small Satellites and the Case of the Netherlands’, in Irmgard Marboe (ed), Small Satellites (Leiden/Boston, Martinus Nijhoff Publishers, 2016) 174, 187–93. 115 Sec. 2(b), Dutch Space Law. 116 Sec. 2(2)(a), Dutch Space Law. 117 Sec. 2(2)(a), Dutch Space Law. 118 Sec. 12(1), Dutch Space Law. 119 Sec. 12(3), Dutch Space Law. Sec. 12(4) allows the State also to take direct recourse against the insurer in applicable cases. 120 Sec. 3(4), Dutch Space Law. 121 CNES had been established already in 1961, by way of the Statut du Centre National d’Études Spatiales; Loi n° 61-1382 du 19 décembre 1961; Journal Officiel de la République Française (20 Déc. 1961), 11665; Malysheva and Shemshuchenko (n 40) 385. 122Cf. Declaration by Certain European Governments Relating to the Ariane Launcher Production Phase, done 14 January 1980, entered into force 15 October 1981; 6 (1981) Annals of Air and Space Law, 723; Convention between the European Space Agency and Arianespace on the Ariane Launcher Production Phase, done 8 February 1992, 24 September 1992; and Agreement between the French government and the European Space Agency with respect to the Centre Spatial Guyanais (CSG), 1993–2000; excerpts French version: 80 (November 1994) ESA Bulletin, 67. 123 Law on Space Operations (Loi relative aux opérations spatiales; French Law on Space Operations); Loi n° 2008-518 du 3 juin 2008; unofficial English version 34 (2008) Journal of Space Law, 453. See Philippe Achilleas, ‘Regulation of Space Activities in France’, in Ram Jakhu (ed), National Regulation of Space Activities (Dordrecht/Heidelberg/London/New York, Springer Science+Business Media, 2010) 109, 111ff.; Marboe (n 34) 157–60. 124 Art. 2, French Law on Space Operations. 125 See however Art. 1(5), French Law on Space Operations, which defines the ‘phase of command’ as ending ‘when the operator has lost control over the space object’. 126 Art. 2(1) and (2) resp. (3), French Law on Space Operations. 127 Arts. 26 resp. 27, French Law on Space Operations. 128 Art. 6(1), French Law on Space Operations; see also Art. 13, which makes the distinction between absolute and fault liability reflecting Arts. II and III, Liability Convention. 129 See Art. 14, French Law on Space Operations. 130 See Art. 15, French Law on Space Operations; Art. 119, Loi no 2008-1443 du 30 décembre 2008 de finances rectificative pour 2008 (Finance Act). Whilst Arts. 16 and 17, French Law on Space Operations, suggest a certain calculation of actual risks vaguely reminiscent of the MPL approach in the United States, the Finance Act did only offer the relatively small margin of discretion as to determining the actual cap indicated; in the case of Arianespace launches—the only launching activities so far licensed under the Law – a standard cap of €60,000,000 is applied. 131 See Art. 15, French Law on Space Operations. 132 Austrian Federal Law on the Authorisation of Space Activities and the Establishment of a National Space Registry (Bundesgesetz über die Genehmigung von Weltraumaktivitäten und die Einrichtung eines Weltraumregisters (Weltraumgesetz); Austrian Outer Space Act), as adopted by Parliament on 6 December 2011; Federal Law Gazette of 27 December 2011; 61 (2012) Zeitschrift für Luft- und Weltraumrecht, 37–42, 56–61. See further Marboe (n 34) 164–6; Frans von der Dunk, ‘Another Addition to National Space Legislation: The Austrian Outer Space Act, Adopted 6 December 2011’, in Proceedings of the International Institute of Space Law 2012 (Washington, AIAA, 2013) 643. 133 Secs. 3, 2(1), Austrian Outer Space Act. 134 See Explanatory Report, 61 (2012) Zeitschrift für Luft- und Weltraumrecht, 42. 135 Sec. 1(1), Austrian Outer Space Act. 136 Sec. 4(4), Austrian Outer Space Act. 137 See Sec. 11, Austrian Outer Space Act. 138 Law of the Republic of Kazakhstan on Space Activities (Kazakh Law on Space Activities), of 6 January 2012, 2012 No. 528-IV; http://www.unoosa.org/documents/pdf/spacelaw/national/kazakhstan/528-IV_2012-01-06E.pdf (accessed 9 May 2018). See further Marboe (n 34) 150–1. 139 Arts. 1(7), 13, Kazakh Law on Space Activities. 140 Art. 3, Kazakh Law on Space Activities. 141Cf. Art. 11(1), Kazakh Law on Space Activities. 142 Art. 3(4), Kazakh Law on Space Activities. 143 Art. 27(2), Kazakh Law on Space Activities; note also the clause of Art. 2(2) confirming that international law binding upon Kazakhstan trumps any national legislation where deviating. 144 Established as per Art. 92, Charter of the United Nations, San Francisco, done 26 June 1945, entered into force 24 October 1945; USTS 993; 24 UST 2225; 59 Stat. 1031; 145 UKTS 805; UKTS 1946 No. 67; Cmd. 6666 & 6711; CTS 1945 No. 7; ATS 1945 No. 1; and the Statute of the International Court of Justice, San Francisco, done 26 June 1945, entered into force 24 October 1945; 156 UNTS 77; USTS 993; 59 Stat. 1031; UKTS 1946 No. 67; ATS 1945 No. 1. 145Cf. Art. 36, Statute of the International Court of Justice. Cf. also more specifically on space law, Maureen Williams, ‘Dispute Resolution Regarding Space Activities’, in Frans von der Dunk (ed), Handbook of Space Law (Cheltenham/Northampton, Edward Elgar, 2015) 995, 999 ff. 146 See also Williams (n 145) 1004–12. 147 Constitution of the International Telecommunication Union (ITU Constitution), Geneva, done 22 December 1992, entered into force 1 July 1994; 1825 UNTS 1; UKTS 1996 No. 24; Cm. 2539; ATS 1994 No. 28; Final Acts of the Additional Plenipotentiary Conference, Geneva, 1992 (1993), at 1; as amended. Cf. further Williams (n 145) 1020–1. 148 Convention of the International Telecommunication Union (ITU Convention), Geneva, done 22 December 1992, entered into force 1 July 1994; 1825 UNTS 1; UKTS 1996 No. 24; Cm. 2539; ATS 1994 No. 28; Final Acts of the Additional Plenipotentiary Conference, Geneva, 1992 (1993), at 71; as amended. 149Cf. Art. 56, ITU Constitution; Art. 41, ITU Convention. 150 See Art. 34(1), Statute of the International Court of Justice. 151Cf. Art. XIV, Liability Convention. 152 See Art. 56(1), (2), ITU Constitution. 153 PCA Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (PCA Rules on Outer Space Disputes), adopted 6 December 2011; https://pca-cpa.org/wp-content/uploads/sites/175/2016/01/Permanent-Court-of-Arbitration-Optional-Rules-for-Arbitration-of-Disputes-Relating-to-Outer-Space-Activities.pdf (accessed 9 May 2018). See further Williams (n 145) 1031–45. 154 Technically speaking, this concerns the total number of States having ratified either the 1899 or the 1907 founding conventions; the Convention for the Pacific Settlement of International Disputes, The Hague, done 29 July 1899, entered into force 4 September 1900; ATS 1901 No. 130; resp. the Convention for the Pacific Settlement of International Disputes, The Hague, done 18 October 1907, entered into force 26 January 1910; ATS 1997 No. 6. 155 Introduction, PCA Rules on Outer Space Disputes, p. 4. See also e.g. Fausto Pocar, ‘An Introduction to the PCA’s Optional Rules for Arbitration of Disputes Relating to Outer Space Activities’, 38 (2012) Journal of Space Law, 171. 156 Art. 1(1), PCA Rules on Outer Space Disputes. 157 Art. 1(1), PCA Rules on Outer Space Disputes. 158 Art. 1(2), PCA Rules on Outer Space Disputes. 159 Art. 6(1)-(3), PCA Rules on Outer Space Disputes. 160 Arts. 7-10, PCA Rules on Outer Space Disputes, esp. Arts. 7(1), 10(2). 161 Art. 16, PCA Rules on Outer Space Disputes. 162 Art. 17(1), PCA Rules on Outer Space Disputes. 163 Art. 17(5), PCA Rules on Outer Space Disputes. 164 Art. 17(6), PCA Rules on Outer Space Disputes. 165 Art. 17(7), PCA Rules on Outer Space Disputes. 166 Art. 17(7), PCA Rules on Outer Space Disputes. 167 Art. 17(8), PCA Rules on Outer Space Disputes. 168 Art. 35(1), PCA Rules on Outer Space Disputes. 169 Art. 35(1), PCA Rules on Outer Space Disputes. 170 Art. 35(2), PCA Rules on Outer Space Disputes. 171 Art. 35(3), PCA Rules on Outer Space Disputes. 172 Art. 27(5), PCA Rules on Outer Space Disputes. 173 Art. 27(4), PCA Rules on Outer Space Disputes. 174 Art. 29(1) resp. (3) as well as (7), PCA Rules on Outer Space Disputes. 175 Art. 26(1), PCA Rules on Outer Space Disputes. 176 Art. 26(2), PCA Rules on Outer Space Disputes. 177 Art. 34(2), resp. Art. 38, PCA Rules on Outer Space Disputes. 178 Art. 33(1), PCA Rules on Outer Space Disputes. 179 Art. 34(1), PCA Rules on Outer Space Disputes. 180 Art. 34(3), PCA Rules on Outer Space Disputes. 181 Art. 37, PCA Rules on Outer Space Disputes. 182 Art. 39, PCA Rules on Outer Space Disputes. 183E.g. Arts. 40(2), 42(1), PCA Rules on Outer Space Disputes. © The Author(s) (2018). Published by Oxford University Press on behalf of Unidroit. All rights reserved. For permissions, please email journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Published: May 18, 2018

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