National Regulation of Space Activities (Space Regulations Library)

National Regulation of Space Activities

SPACE REGULATIONS LIBRARY VOLUME 5

EDITORIAL BOARD Managing Editor

PROF. RAM S. JAKHU, Institute of Air and Space Law, McGill University, Montreal, Canada

MEMBERS M. DAVIS, Ward & Partners, Adelaide, Australia S. LE GOUEFF, Le Goueff Law Office, Luxembourg P. NESGOS, Milbank, Tweed, Hadley & McCloy, New York, U.S.A. S. MOSTESHAR, Chambers of Sa’id Mosteshar, London, U.K. & Mosteshar Mackenzie, California, U.S.A.

L. I. TENNEN, Law Offices of Sterns and Tennen, Phoenix, Arizona, U.S.A.

For further volumes: http://www.springer.com/series/6573

Ram S. Jakhu Editor

National Regulation of Space Activities

With Foreword by Judge Abdul G. Koroma

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Editor Prof. Ram S. Jakhu McGill University Faculty Law 3690 Peel St. Montreal Qu´ebec H3A 1W9 Canada [email protected]

ISBN 978-90-481-9007-2 e-ISBN 978-90-481-9008-9 DOI 10.1007/978-90-481-9008-9 Springer Dordrecht Heidelberg London New York Library of Congress Control Number: 2010929140 © Springer Science+Business Media B.V. 2010 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

Foreword

The legal regime of outer space, as enshrined in the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (General Assembly Resolution 1962 (XVIII), adopted in 1963, and in the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, while prohibiting the appropriation of space by any means, envisages exploration for the benefit and in the interest of all countries on a basis of equality and in accordance with international law. Freedom of scientific investigation is also contemplated. Elaborating on these instruments, the Assembly in 1996 adopted the Declaration on International Cooperation in the Exploration and Use of Outer Space (RES 51/122), in which it called for heightened international co-operation, with particular attention to be given to the benefit for and the interests of developing countries and countries with nascent space programmes. Thus, it is self-evident that the outer space regime, including the 1972 Liability Convention, envisages the conduct of national activities “for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development”. In this regard, Article 6 of the 1967 Treaty not only provides for national activities in outer space, but for international responsibility whether such activities are carried out by governmental agencies or non-governmental entities, and aims at ensuring that national activities are conducted in conformity with the Treaty. Similarly, Article 7 of the 1967 Treaty establishes the international liability of the launching State for damage caused by its space object. Against this background it is clear that national legislation/regulation is necessary to govern such activities. Indeed, such manifold activities as launching space objects, communication by satellite, remote sensing, etc., underscore the pressing need for national legislation/regulation. Hence, the value, importance and relevance of this timely study edited by Professor Ram S. Jakhu, himself a distinguished space law expert with extensive experience in the national implementation of the regime of outer space, are self-evident. The contributions cover the various regions of the globe, as well as

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outer space itself. We are very much indebted to the authors for making available to us their knowledge and expertise on the subject of the various national legislations and regulations. The Hague The Netherlands

Abdul G. Koroma Judge International Court of Justice

Preface

Outer space activities are no longer confined to government funded research and development projects. Today, space technology has matured especially in leading edge space applications such as telecommunications and launch services, and it is increasingly being exploited by private enterprises for commercial purposes. Other space applications like remote sensing, navigation, material processing and space tourism are also being rapidly privatised and commercialised. The global space industry has already become a multi-billion dollar economic sector generating revenues of over 250 billion US dollars annually. While encouraging the development and exploitation of space technology (dualpurpose technology that has both military and civil applications) for economic benefit, several space-faring nations around the world have also taken steps to regulate private space activities primarily through the enactment of national laws and regulations. The reasons underlying national regulation of private space activities are not farfetched: some are politically and/or strategically motivated, whereas others are derived primarily from international treaty obligations. Be that as it may, national regulation of space activities is a double edged sword. It may be used by governments as a means of either enhancing or impeding access to, exploration, and exploitation of outer space by private entrepreneurs. Countries like the United States, the United Kingdom, the Russian Federation, Sweden, France, South Africa, and South Korea have already adopted specific laws and regulations that govern all or most space activities carried out from their territories or by their citizens. China, Germany, Canada and Japan have passed a few specific laws and also have made some necessary modifications to relevant existing general laws in order to extend their application to space activities. Although extensive space activities are being undertaken in India, there is a near total absence of specific laws and subsidiary legislation to address the subject. Instead, there has been a multiplicity of policy directives issued by various government ministries and public entities which have a bearing on the conduct of space activities in India. It is generally expected that as space technology continues to develop and become accessible, more and more countries will bring their national laws and regulations to a level where they will be capable of effectively regulating all kind and manner of space activities domestically.

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At present, aside from a few articles published in some legal periodicals, there are practically no specific manuscripts in existence that deal with this topic. Due to the dearth of publications in this field, it is very difficult, if not impossible, to ascertain what national laws and regulations are applicable to space activities in any country and to understand how these laws and regulations have fared in practice. Against this background, the object of this book is to offer a compendium of essays which partially fills the void by describing national efforts at regulating space activities in fifteen space-faring nations, namely: Argentina; Australia; Brazil; Canada; France; Germany; India; Japan; The Netherlands; The Peoples’ Republic of China; The Republic of South Africa; The Russian Federation; Ukraine; The United Kingdom; and, The United States of America. For this purpose, a handful of the world’s leading experts in the field were invited to contribute essays on the regulation of space activities in their respective countries. Although each of the resulting contributions has been edited and mostly streamlined for consistency, they reflect the exclusive views of their author(s) who have demonstrated profound knowledge of the subject matter. The contributors have been very cooperative throughout this rather difficult and time consuming process of editing and streamlining. This book focuses primarily on the existence or otherwise of relevant national laws and regulations and the extent to which they seek to regulate space activities, particularly those that are carried out by private entities for commercial purposes. At the outset, it was suggested to each contributor that, on a country by country basis, each contribution should cover topics related to: the rationale for government regulation of space activities – the general philosophy and processes of government regulation, the basic principles of national laws and regulations, and the organization of national space activities; basic national space law(s) – legal issues related to launch services, export controls, legal issues related to satellite telecommunications (including satellite broadcasting) – licensing of private satellite telecommunications operators, competition, interconnections, and content regulation (including privacy); remote sensing services – licensing of remote sensing satellite operators, data distribution, and national security concerns; intellectual property and transfer of technology; satellite navigational services; human space flight, etc. An exception was made in connection with the approach taken to describe the legal regime governing space activities in the United States. Presently, the United States is the most advanced nation not only in terms of its leadership in the development of space technology but also in its commercial exploitation of those technologies. As a result, an extensive legal regime specifically governing almost all facets of space activity at the national level has been established and is being implemented in the United States by the federal government and several state governments. It is for this reason that six chapters of this compilation are devoted to the discussion of laws and regulations applicable to the conduct of space activities in the United States. This book provides comprehensive, general and mainly descriptive information in the field of national regulation of space activities. In view of the current lacuna which exists in the literature on the subject, it is believed that the book will be of significant practical value to the practising lawyer as well as those who are working

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or intend to work with or in the space industry, governments or other relevant agencies. More importantly, the book will be valuable resource for students and teachers of space law, managers in space industry and agencies, and government officials from all over the world who wish to know about this newly emerging and rapidly expanding specialised area of space law. Although the subject matter of the book is heavily steeped in law, the material contained in each of the chapters has been presented in such a manner as to facilitate its accessibility to lawyers and non-lawyers alike. Montreal, QC, Canada

Ram S. Jakhu

Acknowledgements

I express my deepest appreciation to H.E. Abdul G. Koroma, Judge at the International Court of Justice, the Hague, the Netherlands, for graciously writing the foreword for this book. I would like to express my special thanks to Michael Mineiro, Yaw Nyampong and Manohar Sarin for their invaluable assistance in proof-reading all the chapters. I also acknowledge with gratitude the financial support for assistance in editing this book provided by Erin J.C. Arsenault Fund at McGill University. Montreal, QC, Canada February 2010

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Contents

1 International Space Law: A Basis for National Regulation . . . . Ronald L. Spencer, Jr.

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2 Regulation of Space Activities in Argentina . . . . . . . . . . . . . Julian Hermida

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3 Regulation of Space Activities in Australia . . . . . . . . . . . . . Noel Siemon and Steven Freeland

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4 Regulation of Space Activities in Brazil . . . . . . . . . . . . . . . José Monserrat Filho

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5 Regulation of Space Activities in Canada . . . . . . . . . . . . . . Ram S. Jakhu

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6 Regulation of Space Activities in France . . . . . . . . . . . . . . Philippe Achilleas

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7 Regulation of Space Activities in Germany . . . . . . . . . . . . . Stephan Hobe and Julia Neumann

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8 Regulation of Space Activities in India . . . . . . . . . . . . . . . Ranjana Kaul and Ram S. Jakhu

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9 Regulation of Space Activities in Japan . . . . . . . . . . . . . . . Setsuko Aoki

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10 Regulation of Space Activities in The Netherlands . . . . . . . . . Frans von der Dunk

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11 Regulation of Space Activities in the People’s Republic of China . Yun Zhao

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12 Regulation of Space Activities in South Africa . . . . . . . . . . . Justine Limpitlaw

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13 Regulation of Space Activities in the Russian Federation . . . . . Sergey P. Malkov and Catherine Doldirina

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14 Regulation of Space Activities in Ukraine . . . . . . . . . . . . . . Nataliya R. Malysheva

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15 Regulation of Space Activities in the United Kingdom . . . . . . . Sa’id Mosteshar

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16 Overview of the United States Space Policy and Law . . . . . . . Paul Stephen Dempsey

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17 Regulation of Private Launch Services in the United States . . . . Petra A. Vorwig

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18 Regulation of Satellite Communications in the United States . . . Petra A. Vorwig

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19 Politics and Regulation of Earth Observation Services in the United States . . . . . . . . . . . . . . . . . . . . . . . . . . Eligar Sadeh

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20 Regulation of Global Navigation and Positioning Services in the United States . . . . . . . . . . . . . . . . . . . . . . . . . . Paul B. Larsen

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21 State and Municipal Regulation of the Aerospace Industry in the United States . . . . . . . . . . . . . . . . . . . . . . . . . . Patricia Margaret Sterns and Leslie I. Tennen

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Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Contributors

Philippe Achilleas Paris-Sud 11 University, Paris, France, [email protected] Setsuko Aoki Keio University, Minato, Tokyo, Japan, [email protected] Paul Stephen Dempsey McGill University, Montreal, QC, Canada, [email protected] Catherine Doldirina McGill University, Montreal, QC, Canada, [email protected] José Monserrat Filho Ministry of Science and Technology, Brazil, [email protected] Steven Freeland University of Western Sydney, Sydney, NSW, Australia, [email protected] Julian Hermida Algoma University, Sault Ste. Marie, ON, Canada, [email protected] Stephan Hobe University of Cologne, Cologne, Germany, [email protected] Ram S. Jakhu McGill University, Montreal, QC, Canada, [email protected] Ranjana Kaul Dua Associates, Advocates & Solicitors, New Delhi, India, [email protected] Paul B. Larsen Georgetown University Law Center, Washington, DC, USA, [email protected] Justine Limpitlaw University of Pretoria, Pretoria, South Africa, [email protected] Sergey P. Malkov Saint-Petersburg State University, Saint Petersburg, Russia, [email protected]

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Contributors

Nataliya R. Malysheva Volodymyr Koretsky Institute for State and Law, Ukrainian National Academy of Sciences, Kyiv, 01001, Ukraine, [email protected] Sa’id Mosteshar London Institute of Space Policy and Law, London WC1B 5DR, England, Sa’[email protected] Julia Neumann Private Attorney at Law, Germany, [email protected] Eligar Sadeh Astroconsulting International LLC, USA, [email protected] Noel Siemon Canberra, Australian Capital Territory, ACT, Australia, [email protected] Ronald L. Spencer, Jr. United States Air Force, Vandenberg Air Force Base, CA, USA, [email protected] Patricia Margaret Sterns Law Offices of Sterns and Tennen, Phoenix, AZ, USA, [email protected] Leslie I. Tennen Law Offices of Sterns and Tennen, Phoenix, AZ, USA, [email protected] Frans von der Dunk University of Nebraska-Lincoln, Lincoln, Nebraska, USA, [email protected] Petra A. Vorwig Steptoe & Johnson LLP, Washington, DC, USA, [email protected] Yun Zhao University of Hong Kong, Pokfulam, Hong Kong, [email protected]

About the Editor

Ram S. Jakhu Professor Ram S. Jakhu has over 25 years of experience in spacerelated fields. He is Associate Professor at the Institute of Air and Space Law, Faculty of Law, of McGill University in Montreal, Canada, where he teaches several courses covering numerous subjects including public international law, international space law, and regulation of space activities, law of space applications, space commercialization, telecommunications, etc. He served as the Director, Centre for the Study of Regulated Industries, McGill University, from 1999 to 2004. He was a Professor, Head of School Social Sciences and Management, and the First Director of the Masters Program of the International Space University, Strasbourg, France, between 1995 and 1998. From 1978 to 1994, he held various positions at the Institute of Air and Space Law at McGill University. He has published a book and more than 60 articles in several reputed journals. He has presented numerous papers and expert legal opinions at various conferences around the world. He is the managing editor of the Space Regulations Library Series; a member of the Editorial Boards of the Annals of Air and Space Law and the German Journal of Air & Space Law; Research Director for Space Security Index Project; a “Fellow” as well as the Chairman of the Legal and Regulatory Committee of the International Association for the Advancement of Space Safety; and a Member of the Board of Directors of the International Institute of Space Law. In 2007, he received a “Distinguished Service Award” from the International Institute of Space Law. His academic credentials include the following degrees: B.A. (Panjab University); LL.B. (Panjab University); LL.M. (Panjab University); LL.M. (McGill University); and Doctor of Civil Law (McGill University).

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About the Authors

Philippe Achilleas Dr. Philippe Achilleas is Vice-Dean of the Faculty Jean Monnet, University Paris-Sud 11, France. He is director of the Institute of Space and Telecommunications Law and of the Master’s degree program in Law of Space Activities and Telecommunications at the University Paris-Sud 11. He obtained his Doctorate degree in International and European Law – with honors, from University Panthéon – Sorbonne (Paris – I). Dr. Achilleas has taught various subjects including space and international law at numerous universities in France and in other countries. He is the author of numerous publications on various subjects related to International and European Law, Space Law and Space Policy, and Communications Law and Policy. He is also a consultant for space companies and space agencies. Setsuko Aoki Dr. Setsuko Aoki is Professor of International Law, Faculty of Policy Management, Keio University, Japan. She earned her Doctor of Civil Law degree from the Institute of Air and Space Law, Faculty of Law, McGill University, Canada, in June, 1993. Prof. Aoki has been a member of the Experts’ Committee for Space Development Strategy under the Strategic Headquarters for Space Development chaired by the Prime Minister of Japan since September 2008. Her recent publications in English include: “Japanese Perspective on Space Security”, John Logsdon, ed., Collective Security in Space: Asian Perspective, The Elliot School of International Affairs, Georgetown University, (2008), “International Legal Cooperation to Combat Communicable Diseases: The Increasing Importance of Soft Law Framework”, 1:2 Asian J. of WTO & Int’l Health L.& Policy (2006) pp. 543–568; Non-Proliferation, Arms Control and Disarmament: Asian Perspective, Working Paper Series 87, Graduate School of Media and Governance, Keio University. Paul Stephen Dempsey Dr. Paul Stephen Dempsey is Tomlinson Professor of Global Governance in Air & Space Law and Director of the Institute of Air & Space Law at McGill University in Montreal, Canada. From 1979 to 2002, he held the chair as Professor of Transportation Law and was Director of the Transportation Law Program at the University of Denver. He was also Director of the National Center for Intermodal Transportation. Earlier, he served as an attorney with the Civil Aeronautics Board and the Interstate Commerce Commission (I.C.C.) in Washington, D.C., and was Legal Advisor to the Chairman of the xix

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About the Authors

I.C.C. Dr. Dempsey holds the following degrees: Bachelor of Arts (1972), Juris Doctor (1975), University of Georgia; Master of Laws (1978), George Washington University; and, Doctor of Civil Laws (1986), McGill University. He is admitted to practice law in Colorado, Georgia and the District of Columbia, USA. Catherine Doldirina Catherine Doldirina, a Ph.D. candidate at the McGill University Institute of Air and Space Law has been conducting legal research relating to space activities since 2005. Her expertise is in the field of intellectual property law and her current research relates to the legal status of remote sensing data. She lectures on European competition and copyright law, as well as space law at the University of Bremen and at the European Humanities University (Lithuania). She has also tutored at the European Space Law Centre summer school on space law and policy. She gained her professional experience as legal assistant to specialist copyright lawyers (Bremen). She completed an internship at the European Space Policy Institute, Vienna, drafting the study “Case for Space.” She works on several aspects of space law (e.g. for the International Astronautical Congress), is engaged in research activities at the McGill Institute of Air and Space law (e.g. the Space Security Index) and is a member of the International Institute of Space Law. José Monserrat Filho José Monserrat Filho is Head of the International Affairs Office in the Ministry of Science and Technology of Brazil. He is a Scholar of International Law and the Law of Space Activities. He was the editor of the newspaper, Jornal da Ciência, published by the Brazilian Society for the Progress of Science. He studied at the Peoples’ Friendship University of Russia (1961–1967) where he obtained the degree of Master of Laws, specializing in international law and particularly in Space Law. He also studied at the Academy of International Law (1977) in The Hague, the Netherlands; the International Space University (1989), France; and, the European Center for Space Law (1993). He is Vice-President of the Brazilian Association of Air and Space Law, Board Member of the International Institute of Space Law, member of the International Academy of Astronautics and member of the Space Law Committee of the International Law Association. He has been a member of the Brazilian official delegation at the Legal Subcommittee of the United Nations Committee on Peaceful Uses of Outer Space since 1997. He is also a member of the Scientific Advisory Board of the “Cologne Commentary on Space Law” published by the Institute of Air and Space Law at the University of Cologne, Germany. He is the author of “Introduction to Space Law” (SBDA/Brazilian Space Agency, 1998), “Law and Policy in the Space Age – Can we be fairer in space than on Earth?” (Vieira & Lent, 2007), and dozens of papers on the political and legal problems related to space activities, some of which have been published in foreign publications, such as the British magazine “Space Policy”. In 1994, he won the José Reis Award of Scientific Journalism, CNPq. Steven Freeland Steven Freeland is Professor of International Law at the University of Western Sydney, Australia, a Visiting Professor of International Law at the University of Copenhagen, Denmark and a Visiting Professional (Chambers) at the International Criminal Court in The Hague. Among other professional affiliations,

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he is a member of the Space Law Committee of the London-based International Law Association and a member of the Directorate of Studies of the International Institute of Space Law. He also sits on the editorial board of the “Australian Journal of Human Rights”, the “Australian International Law Journal” and a series of books entitled “Studies in Space Law”. He has published widely on various aspects of International Law, including the International Law of Outer Space, and is a frequent invited speaker at international conferences on International Law. Julian Hermida Dr. Julian Hermida is Assistant Professor at Algoma University’s Department of Law and Politics, Sault Ste. Marie, Ontario, Canada. He is a graduate of McGill University’s Faculty of Law, from which he holds Doctor of Laws and Master of Laws degrees. He has another Ph.D. from the Catholic University of Cordoba. He has been a Postdoctoral Fellow at the University of Ottawa (Faculty of Law, Common Law Section), Visiting Fellow at the University of Cambridge, Faculty of Law, Lauterpacht Research Centre for International Law, and Assistant Professor at Dalhousie University. Dr. Hermida has published 2 books, 7 book chapters, and over 30 journal articles on Space Law, International Law, and Comparative Law. Dr. Julian Hermida has around 15 years of experience in negotiating, drafting, and managing sophisticated international aerospace agreements as well as in corporate finance, mergers and acquisitions, and other transactional matters focused on the aerospace industry, together with significant regulatory and risk management experience. He is a member of the International Institute of Space Law. Stephan Hobe Since September 2001, Professor Dr. Stephan Hobe has held the Chair for Public International Law, European Law, European and International Economic Law at the University of Cologne. Concurrently, he is Director of the Institute of Air and Space Law at the University of Cologne. Prof. Hobe studied law at the Universities of Munich, Freiburg and Göttingen. He received his Master of Laws degree from McGill University (Montreal, Canada) and his Doctoral degree in law from the University of Kiel, Germany. He was awarded the Jean-Monnet Professorship for the Law of European Integration in 1998. Prof. Hobe serves as Treasurer of the International Institute of Space Law (IISL), and is a Member of the Board of Directors of the European Centre for Space Law (ECSL) and the German Society of International Law. He is the Rapporteur of the Space Law Committee of the International Law Association, Corresponding Member of the International Academy of Astronautics, Member of the American Society of International Law and Member of the Advisory Board of the International Institute of Air and Space Law at the University of Leiden, the Netherlands. As the author of over 150 publications in the fields of public international law, European law, German public law and air and space law, Prof. Hobe is also editor of the German Journal of Air and Space Law (ZLW), the series “Studies in Air and Space Law” (Carl Heymanns Verlag/Cologne et al.) and the book series “Cologne Studies on Public International Law and European Law” (LIT-Verlag/Münster). He is also co-editor of the looseleaf collection “Space Law – Basic Legal Documents” (Eleven International Publishing/ Utrecht).

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About the Authors

Ranjana Kaul Dr. Ranjana Kaul is Partner at Dua Associates, Advocates & Solicitors, in New Delhi, India. She obtained her Ph.D. from University of Poona, Pune, India and the LL.M from the Institute of Air & Space Law, Faculty of Law, McGill University, Montreal, Canada and the LL.B. from the Faculty of Law, University of Delhi, India. Her practice focusses primarily on matters related to Indian law, including incorporation of companies/trusts/societies, foreign direct investment and foreign exchange regulations and mergers and acquisitions, particularly related to the infrastructure and education sectors. Dr. Kaul has published numerous papers, participated in various national and international conferences and is regularly consulted in matters related to Indian Law, Aviation Law, Space Law and Telecommunications Law. Paul B. Larsen Professor Paul Larson is Adjunct Professor of Law and attorney in private practice. He obtained his LL.B. from University of Cincinnati, LL.M. degrees from New York University and the Institute of Air and Space Law, McGill University, Montreal. Professor Larsen practiced law in the U.S. Department of Transportation (1970–1998) and provided counsel to the Administrative Conference of the United States and the Urban Institute. Professor Larsen was a research scholar of the Alexander V. Humbolt Foundation at the University of Cologne and at the Max Planck Institute for Private International Law in Hamburg (1997– 1998). Professor Larsen was a U.S. Delegate to UNCITRAL, IMO, ICAO, OAS, and bilateral negotiations. As Adjunct Professor at Georgetown University Law Center, Washington, DC, since 1973, he has taught Comparative Law, Conflicts of Law, International Law, and Property Law in addition to the Space Law Seminar. Professor Larsen was an assistant professor at Southern Methodist University School of Law from 1966 to 1969 and a visiting professor at Georgetown University Law Center in 1978. Justine Limpitlaw Justine Limpitlaw is a Media, Broadcasting, Electronic Communications and Space and Satellite Law Consultant and Academic. She is currently a senior Researcher at the International Development Law Unit, Centre for Human Rights, University of Pretoria, South Africa. She has taught a Space and Satellite Law course for a number of years. She has also drafted legislation, legislative amendments, regulations, licences, contracts, opinions, licence applications, position papers and litigation pleadings and has acted as a legislative advisor for clients and appeared before Parliamentary Portfolio Committees on a number of occasions. Her various pro bono engagements include advising non-governmental organizations on administrative justice, access to information, freedom of expression and community broadcasting matters. Sergey P. Malkov Dr. Sergey P. Malkov is Vice-head of the International Law Department, the Saint-Petersburg State University of Aerospace Instrumentation, Faculty of Law. He holds a scientific degree – Ph.D. (in the Russian Federation – candidate of law). In 2005 he presented a thesis on the history of legal regulation of space activities on the exploration and use of celestial bodies in the Russian Federation. He is a Reader of the International Law department and teaches

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International Space Law and Air Law. He is a Corresponding member of the Russian Academy of Cosmonautics named after Konstantin E. Tsiolkovskiy. Nataliya R. Malysheva Professor Nataliya R. Malysheva is Deputy Director of the International Center for Space Law, Professor of the Environmental Law and Space Law at the Kyiv University of Law and a leading research fellow of the Volodymyr Koretsky Institute for State and Law of the Ukrainian National Academy of Sciences, Kyiv, Ukraine. Dr. Malysheva was educated at the Taras Shevchenko National University of Kyiv, where she studied law and graduated in 1974 (with distinction). Since 1975, she has been working at the Volodymyr Koretsky Institute for State and Law of Ukrainian National Academy of Sciences. She obtained her Ph.D. degree in 1979 (dissertation “Protection of the environment against noise”) and Full Doctor of Law degree in 1996 (dissertation on “Harmonization of Environmental Law in Europe”). Dr. Malysheva received a scholarly degree of Professor in 1999. In 2006 she was awarded a Ukrainian State Prize for her contribution to national research in the legal sciences and law-making process of Ukraine. Professor Malysheva is a full member of the Ukrainian Academy of Legal Sciences (since 2008), a Corresponding member of the International Academy of Astronautics (since 2006), Member of the International Institute of Space Law (since 2001), Member of Ukrainian Delegation at the Legal Subcommittee of the Committee on Peaceful Uses of Outer Space (since 2000), and Member of the UNESCO National Committee on “Man and Biosphere”. She has about three hundred publications in the field of Environmental Law and Space Law. She participated in the drafting of several Ukrainian Laws and Regulations, including Laws related to Space Activities, Environmental Protection, Protected Areas, Ecological Expertise, Ecological Audits, Water, etc. Sa’id Mosteshar Sa’id Mosteshar, is Professor of International Space Law and Director of the London Institute of Space Policy and Law. He is a Barrister and California Attorney, and has advised governments, international agencies and major space corporations on legal and policy issues for over 25 years. He teaches space law and policy courses and is a frequent speaker at international space conferences. Sa’id is the author of several books on various space law topics and has widely published in legal and industry journals. He is the author of one of the earliest books on Satellite Communications and on the International Protection of Satellite Television. He is a former Chairman of the Outer Space Committee of the International Bar Association holds degrees in physics and econometrics and was admitted to Fellowship of the Institute of Chartered Accountants in England and Wales, and is a Member of the Chartered Institute of Arbitrators and of the International Institute of Space Law. Julia Neumann Dr. Julia Neumann is Attorney at law and did her doctoral research under the supervision of Professor Dr. Stephan Hobe in the field of space law and international telecommunications law. Her thesis is related to “Bridging the digital divide with communications satellites – legal claims of developing countries”. From

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About the Authors

January 2005 to October 2007 she served as senior research assistant at the Institute of Air and Space Law of the University of Cologne, Germany, where she was in charge of the coordination of various space-law related projects. Julia Neumann is an elected member of the International Institute of Space Law and has published several articles in the field of space law. Eligar Sadeh Dr. Eligar Sadeh is President of Astroconsulting International a company that provides value added services for the national security, commercial, and civil space sectors in the United States. Sadeh holds a Ph.D. in Political Science with an emphasis on Science and Technology Policy from Colorado State University. He also holds a Masters of Arts degree in International Studies from the Hebrew University of Jerusalem, and a Bachelor of Science in Aerospace Engineering from the University of Colorado, Boulder. From 2001 to 2008, Sadeh held professorships in Space Studies at the College of Aerospace Sciences of the University of North Dakota, and in Space and Defense Studies at the United States Air Force Academy. Currently, Sadeh is an adjunct professor at the University of Colorado and Embry Riddle Aeronautical University. Prior to these academic positions, Sadeh worked for Lockheed-Martin as a Space Systems Engineer. Sadeh also serves as Editor of Astropolitics published by Taylor and Francis Routledge and Space and Defense, journal of the Eisenhower Center for Space and Defense Studies. Sadeh has a number of publications in Acta Astronautica, Astropolitics, and Space Policy, and he is a contributing author to a Space Power Theory Project of National Defense University and a Space and Defense Policy textbook edited by the United States Air Force Academy, and published Space Politics and Policy: An Evolutionary Perspective in 2002 and Politics of Space. Noel Siemon Noel Siemon has over 30 years experience working in the Australian Public Service and for the private sector. He has been involved in space policy issues over a 20 year period and has undertaken academic research on strategic factors for a national space-related innovation system. His current research involves an analysis of the influence of space institutional infrastructure on the national security sector. Ronald L. Spencer, Jr. Major Ronald L. Spencer, Jr. received his commission through the Army ROTC program in 1991 at the Ohio State University as a regular Army scholarship recipient. After graduation, he served as an Air Defense Artillery officer with the Army National Guard on various assignments. He obtained a Masters in Business Administration degree from Ohio University in 1994, a Juris Doctor degree (with honors) from Capital University Law School in 1998, and a Master of Laws degree in Air and Space Law from McGill University in 2008. Major Spencer has served as a Judge Advocate in the United States Air Force since 2001. He has served multiple tours litigating and supervising Courts-Martial. In 2003 he was deployed in support of Operation Iraqi Freedom as the Staff Judge Advocate at two air bases in Kuwait and again in 2005 he was deployed in support of Operation Enduring Freedom as a legal advisor to United States Special Operations Command Europe. In 2007 he was selected for the civilian education program to

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attend McGill University. He presently serves as the Chief of Space and Operations Law for Headquarters Fourteenth Air Force. In that capacity he is responsible for advising the Commander and his staff on space, international, and operational law aspects of Fourteenth Air Force’s missions and operations. This mission includes the Joint Space Operations Center responsible to plan, task, direct, synchronize, and execute military space operations. Major Spencer is admitted to the bars of the U.S. Supreme Court, U.S. Court of Appeals for the Armed Forces, U.S. Air Force Court of Criminal Appeals, District of Columbia Court of Appeals, and Ohio Supreme Court. He and his family reside at Vandenberg Air Force Base, California. Patricia Margaret Sterns Dr. Sterns received her Bachelor of Arts in Philosophy, with an emphasis on the classical, from Arizona State University in 1974. She received her Doctor of Laws degree in 1977 from the University of Arizona, having done her graduate paper on the scientific/legal issues concerning preservation of the right to sunlight for the purpose of passive and active solar energy. Dr. Sterns was elected as a lifetime member of the International Institute of Space Law in 1978, and served as an active Director of the Institute until being voted by her colleagues to hold the lifetime position of Honorary Director. She also was voted by her colleagues to be a full member Academician of the International Academy of Astronautics. Dr. Sterns has published more than forty space law papers, both alone and in partnership with Dr. Les Tennen. These papers appear in numerous Journals, scientific periodicals, and other collections of space law, including the prestigious annual Proceedings of the International Institute of Space Law. A significant number of papers and all participations on numerous scientific/legal roundtables have been by invitation of the Organizer and/or Chairperson. For the World Space Congress in 2002, in cooperation with a colleague from NASA, Dr. Sterns successfully Co-Organized and Co-Chaired a full day Symposium on the diverse and controversial topic of Planetary Protection of the Earth, Moon, and other celestial bodies. This Symposium brought together the International Institute of Space Law, COSPAR, and the International Academy of Astronautics/IAF. This was the first joint Symposium uniting these highly respected organizations, opening the door for future joint endeavors. Dr. Sterns has served the Superior Court of the State of Arizona, for Maricopa County, as a Judge Pro Tempore since 1983, with a short hiatus allowing her to work as the Institute’s U.S. member of the Board of the IISL in preparations for the Institute’s position as co-host during the 2002 World Space Congress. She lives in Phoenix with her Husband, Dr. Leslie Tennen, on the BAR E ranch with the company of two wonderful house cats (Jacques and Ophelia), a mixed breed golden retriever (Waggles or Farfle), several barn cats, approximately thirty peacocks and peahens, about one hundred chickens, and last, but certainly not least, a very large and handsome steer named Gus, together with his harem of five cows. Leslie I. Tennen Leslie I. Tennen is an attorney in private practice in Phoenix, Arizona, and has focused on space law matters for more than 30 years. He is a partner in Sterns and Tennen, the first law firm to be elected to membership in the International Astronautical Federation. Mr. Tennen received his Juris Doctor degree

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from the University of Arizona, and studied international and comparative law at the Hebrew University at Mt. Scopus, Jerusalem. He is a member of the State Bar of Arizona, and was awarded the highest score on the February, 1977, Arizona Bar Examination. Mr. Tennen was appointed by the Governor of the State of Arizona to serve as a Commissioner on the Arizona Space Commission from 1994 to 2000, and is a frequent lecturer at conferences and colloquia. He has authored and coauthored several dozen articles which have been published in leading legal and scientific journals. He is a member of the International Institute of Space Law, and the International Academy of Astronautics. In 1998, Mr. Tennen was the corecipient, with Patricia Margaret Sterns, of the International Institute of Space Law Award of Appreciation. Mr. Tennen received the IISL Distinguished Service Award in 2006. Mr. Tennen is married to Patricia Margaret Sterns, and they reside on a small ranch in Phoenix with cows, peacocks, chickens, cats, and dogs. Frans von der Dunk Professor Dr. Frans von der Dunk is the Harvey and Susan Perlman Alumni/Othmer Professor of Space Law at the University of NebraskaLincoln’s LL.M. Programme on Space and Telecommunication Law. He also is Director of Black Holes BV, Consultancy in space law and policy, based in Leiden. He was awarded the IISL Distinguished Service Award in Vancouver, in October 2004, and the IAA Social Science Award in Valencia, in October 2006. He is the Series Editor of “Studies in Space Law”, published by Brill, and is Member of the Board of Directors of International Institute of Space Law and Member of the Board of European Centre of Space Law. Finally, he has served as adviser to many governments, intergovernmental organisations (incl. European Commission, European Space Agency and United Nations), space agencies, the Association of Space Explorers and the industry. Petra A. Vorwig Ms. Vorwig is an attorney in the International and Technology Departments of Steptoe & Johnson LLP. She represents domestic and foreign telecommunications clients, who provide international and domestic telephone, wireless, and satellite telecommunications services before the Federal Communications Commission and other federal government agencies. She also advises clients on export control and economic sanctions laws and regulations. Her export/sanctions practice covers operational and transactional counseling, licensing and advisory opinions, internal investigations, enforcement matters, and regulatory policy, and requires direct interaction with the principal US agencies administering these regulatory programs, including the Departments of Commerce, State, and Treasury. Ms. Vorwig also has extensive experience in licensing proceedings for satellite systems, earth stations, terrestrial wireless carriers, international common carriers, and submarine cable operators before the Federal Communications Commission. Ms. Vorwig also advises companies on encryption import, export and use laws and regulations under US rules. Her experience in the encryption area includes encryption licensing and product classifications. Ms. Vorwig obtained her Juris Doctor degree from Georgetown University Law Center and her Bachelor of Arts degree from the University of Virginia.

About the Authors

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Yun Zhao Dr. Yun Zhao studied at China University of Political Science and Law in Beijing (LL.M. in 1998 and LL.B. in 1995), Leiden University, the Netherlands (LL.M. in 1999) and Erasmus University Rotterdam, the Netherlands (Ph.D. in 2003). He is an Associate Professor at the Department of Law of the University of Hong Kong. He is a Guest Professor of Yunnan University in China, Arbitrator of the Hong Kong International Arbitration Center and Guangzhou Arbitration Commission, Panelist of the Asian Domain Name Dispute Resolution Center and of the Online Dispute Resolution Center of the CIETAC in Beijing. He is also founding Council Member of Hong Kong Internet Forum (HKIF), elected Member of International Institute of Space Law, Member of Asia Pacific Law Association and Beijing International Law Society, Vice President of the CUPL Hong Kong Alumni Association, Judge of Manfred Lachs Space Law Moot. Previously, he was Associate Professor at the School of Law of City University of Hong Kong, researcher at GLODIS Institute, Erasmus University Rotterdam, the Netherlands. He is listed in Marquis Who’s Who in the World. He is winner of Prof. Dr. I.H.Ph. Diederiks-Verschoor Award 2006 by International Institute of Space Law, the first winner of Isa Diederiks-Verschoor Prize in the Netherlands and also first winner of SATA Prize by the Foundation of Development of International Law in Asia (DILA). He has more than 80 publications on various topics including Dispute Resolution, Space Law, E-Commerce Law, International Economic Law. His recent publications include Dispute Resolution in Electronic Commerce (Martinus Nijhoff, 2005), Liberalization of Electronic Commerce and Law (Peking University Press, 2005), Space Commercialization and the Development of Space Law (Intellectual Property Press, 2008).

Chapter 1

International Space Law: A Basis for National Regulation Ronald L. Spencer, Jr.

1.1 Introduction State Parties to the Treaty shall bear international responsibility for national activities in outer space . . . whether carried on by governmental agencies or by non-governmental entities . . .. – Outer Space Treaty, Article VI(1)

Each state regulates space activities for its own specific reasons. However, the most important reason and one common basis for doing so is a state’s international responsibility for national activities in outer space as specified under several international space treaties and other instruments. This chapter discusses the relevant provisions of some of such treaties and instruments in order to delineate the basis for national legislative actions taken, or to be taken, for regulating space activities. The general consent of states creates rules of general application.1 More particularly, the Statute of the International Court of Justice provides the following hierarchy for determining international obligations: international conventions establish rules when recognized by the contesting states; international custom as evidenced by general practice; general principles of law recognized by civilized nations; and subsidiary means such as judicial decisions and teachings of the most highly qualified publicists.2 The law of international responsibility or the obligation of continuing supervision of national space activities contain all four of the sources relied upon by the International Court of Justice (ICJ).

R.L. Spencer, Jr. (B) United States Air Force, Vandenberg Air Force Base, CA, USA e-mail: [email protected] Portions of this chapter were previously published by the U.S. Government Printing Office at Ronald L. Spencer, Jr., “State Supervision of Space Activity” (2009) 63 Air Force Law Review, 75. 1 Ian Brownlie, Principles of Public International Law (Oxford and New York: Oxford University Press, 2003), at 3. 2 Statute of the International Court of Justice, 26 June 1945, 59 Stat 1031, 3 Bevans 1179, Article 38.

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_1,  C Springer Science+Business Media B.V. 2010

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State responsibility is a general principle established in public international law which occurs upon the breach of a convention, treaty, or other legal duty. The duty to make reparation in an appropriate form flows from the breach of such a duty.3 The form depends on the terms of the obligation and the factual circumstances but may include payment of actual damages or assurances of non-repetition. This duty may even arise from the consequences of an act that is not itself unlawful,4 such as the duty of the launching state to pay damages resulting from its national space activities.5 Reparations are long recognized as a method to address noncompliance with international obligations not resulting in any particular form of damage, but rather to compel compliance in order to preserve the state’s interest. Reparation is such an essential mechanism to enforce a convention or treaty term that its power is implied. Therefore, a specific reparation provision is not required to be included in the agreement to be available.6 The concept of state responsibility is based on either original or vicarious responsibility. A state has original responsibility for its own acts or the acts it authorized. Vicarious responsibility is the consequence of unauthorized acts of a state’s agent, a national, or an act within its territory.7 A State Party to the Outer Space Treaty consequently incurs original responsibility for the commercial space activities conducted pursuant to its formal authorization process. It may also be found vicariously responsible for the unauthorized space activities of its nationals or acts occurring within its territory. However, the attribution of commercial activity occurring in space under the control of a national or originating from its territory is challenging for the international community to assess.8 Whether a person, entity, or property is appropriately attributed to a state is normally a function of its domestic jurisdictional laws. This domestic law is to be recognized by other states so far as it is consistent with the applicable treaties and international customs.9 The space treaties specifically attribute space activity through launch10 and registration.11 The state that launches, procures the launching, 3 Yearbook

of the International Law Commission 2001 Volume II (Part Two), Report of the Commission to the General Assembly on the work of its Fifty-third Session, UN ILC, 2001, UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [Responsibility of States for Internationally Wrongful Acts]. 4 Ibid., Article 55. 5 Treaty Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 27 January 1967, 610 U.N.T.S. 205, 18 U.S.T. 2410 [Outer Space Treaty], Article VII; Convention on the International Liability of Damage Caused by Space Objects, 29 March 1972, 961 U.N.T.S. 187, 24 U.S.T. 2389 [Liability Convention], Articles II and IV. 6 Supra note 1, at 421. 7 Supra note 3, at Part One, Chapter II. 8 Supra note 1, at Part VIII. 9 Ibid., at 377. 10 Outer Space Treaty, supra note 5, Article VII; Liability Convention, supra note 5, Article I(c). 11 Outer Space Treaty, supra note 5, Article VIII; Convention on the Registration of Objects Launched into Outer Space, 12 November 1974, 1023 U.N.T.S. 15, 28 U.S.T. 695 [Registration Convention], Article II.

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or from whose territory or facility an object is launched is deemed responsible.12 The state of registration obtains jurisdiction over the object and personnel while in space.13 In so doing, this regime attempts to apply the principle of substantial connection through its designation of the launching and registration states.14 However, in a commercial environment in which capital, both physical and human, is exchanged in an international market, these connections, though closely aligned with authorization, are not necessarily applicable through the supervision stage of the space activity. The initial responsible state may not retain the ability to supervise if it lacks jurisdiction over the acquiring entity even if the Outer Space Treaty preserves the jurisdiction link. This gives rise to the question of which state has the real and effective nationality.15 The increasing number of space-faring states16 calls into question the ability to provide adequate supervision. Originally, space-faring states possessed a monopoly on space technology and launch facilities. The potential now is that commercial activity may arise in jurisdictions (states) which possess little capability or desire to provide supervision. What is yet more disturbing is that such a jurisdiction (state) may not be a party to the Outer Space Treaty, thus not extending original responsibility over its commercial space activities. What remains for the responsible space-faring states are their own long arm statutes in an attempt to reach some aspect of the commercial actor and negotiations with the sponsoring state. Either approach may prove inadequate to the threat posed by irresponsible behavior in space calculated to maximize short term gains even at the cost of the larger international community’s interest in preserving space access. Such are the dangers that flags of convenience or registrations of convenience create for the space environment.17 These treaties have no formal dispute settlement authority to determine the responsible state.18 Unfortunately, the ICJ decisions factually based in the analogous sea environment confound the issue of attribution. In the Corfu Channel case the Court concluded from the mere fact of the control exercised by Albania over its territorial waters that it was responsible for any unlawful act perpetrated therein, specifically the presence of an underwater mine.19 Whereas, in the Oil Platform case it refused to attribute underwater mines and missile attacks by Iran against

12 Bin Cheng, “Article VI of the 1967 Space Treaty Revisited: International Responsibility, National Activities, and the Appropriate State” (1998) Journal of Space, Law Volume 26, Number 1. 13 Ibid. 14 Supra note 1, at 395. 15 Nottebohm Case (Liechtenstein v. Guatemala), [1955] I.C.J. Rep. 4. 16 Project Ploughshares, Space Security 2007 (Waterloo: Project Ploughshares, 2008). 17 Inter-Agency Debris Coordination Committee, IADC Space Debris Mitigation Guidelines (2004), online: Inter-Agency Space Debris Coordination Committee [IADC Guidelines]. 18 But see, Liability Convention, supra note 5 at XIV–XX (authority to establish an ad hoc claims commission). 19 Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), [1949] I.C.J. Rep. 4.

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international shipping despite the physical and circumstantial evidence tying it to these acts of aggression.20 In space, the attribution of objects and their activities are more difficult to assess; there are an estimated 35 million space objects21 capable of damaging severely or destroying a satellite while only 5,660 objects22 are formally acknowledged by the state members of the United Nations. Historically, the United Nations Committee on the Peaceful Use of Outer Space (UNCOPUOS) has been the source of international space law development. But it has not produced a convention since the negotiation of the Moon Agreement in 1979 which subsequently failed to be adopted by a major space-faring state. Also, the Committee on Disarmament (CD) is effectively at an impasse on how to proceed with expanding the Outer Space Treaty’s Article IV limitation on weaponizing space. The majority of states support establishing a prohibition against space based weapons before their deployment. However, the United States is the most vocal opponent to a new space arms control agreement. Its position is based upon the practical challenges presented in defining such space weapons when most operable satellites have the inherent capability to disable or destroy neighboring satellites. Should the definition dilemma be solved, the inability to verify compliance with such a treaty remains. Outside the scope of this debate are ground based threats to space applications and the vulnerability of ground segment and transmission.23 Therefore, the United States opposes the development of new legal regimes which prohibit or limit access to or use of space. Proposed arms control agreements or restrictions are not supported by the United States if they would impair the right to conduct research, development, testing, and operations or other activities in space for national interests.24 By default, the International Telecommunication Union (ITU), has become the primary source of space law development as a consequence of it radio frequency oversight duties. This regulatory body recognizes both the governmental and commercial stakeholders when promulgating its technical regulations. International organizations and bodies of space experts frequently conduct conferences in an effort to advance this body of law through nonbinding processes. Upon the consensus of the participants, resolutions, declarations, or principles are published as formative instruments to influence future space law development. The resulting documents adopted by the interested commercial sector, governments, space administrations, or other international organizations are collectively referred to as “soft” law. The hazard of “soft” law pronouncements is the false impression of 20 Case

concerning Oil Platforms (Islamic Republic of Iran v. United States of America), [2003] I.C.J. Rep. 161. 21 National Aeronautics and Space Administration, Orbital Debris Quarterly News, Volume 12, Issue 2 (April 2008). 22 United Nations Office for Outer Space Affairs, Registry Search online: Office for Outer Space Affairs (accessed: 24 April 2008). 23 Paul A. DeSutter, “Is An Outer Space Arms Control Treaty Verifiable?” (George C. Marshall Institute Roundtable at the National Press Club, 4 March 2008). 24 The White House, U.S. National Space Policy (2006) [Unclassified].

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substantive law they present when authors and advocates attach unwarranted weight to their text. This is troublesome in the arena of public international law where ascertaining the applicable formal and material sources of law to a particular state in question requires careful attention.25 The key to evaluating the authority of documents short of convention law is to evaluate its acceptance by the major space-faring states, the reputation of the contributing publicists, and the evolving state practice. The proper perspective is to view “soft” law as declarations of collective wisdom of the contributing space stakeholders. Over time they may correctly predict the evolved consensus on the question they address. A state may implement a particular practice in its own domestic law when useful to exercise its supervision obligation and even encourage the implementation by others.

1.2 Outer Space Treaty The activities of non-governmental entities in outer space . . . shall require authorization and continuing supervision by the appropriate State Party to the Treaty. – Outer Space Treaty, Article VI(2)

The purpose of the Outer Space Treaty was to establish general principles to be applied prospectively to govern space activity. Authors describe it as the Magna Carta or the constitution of space law. This Treaty is the most widely accepted of the five space law agreements26 creating binding legal obligations for the State Parties. Some of these principles are judged to now constitute customary international law applicable to parties and non-parties alike as they have become so widely accepted by the international community. However, the Outer Space Treaty Article VI obligation to provide supervision is not one of these. But, its more general principle of state responsibility as outlined above is a well established principle in the body of public international law. The space law regime is a specialized area of international law, thus when interpreting these agreements one must be mindful that some of its principles differ from general international law norms. Space is a newly regulated international commons which shares similarities, as well as dissimilarities, with the terrestrial international commons whose accompanying bodies of law were developed over time to reflect their usage. Space law’s rapid development in a complex environment, occurring during a contentious period, did not benefit from the observance of long established state practice as other international commons benefitted prior to promulgating

25 Supra note 1 at c. 1; Eilene Galloway, “Creating Space Law” Space Law-Development and Scope

(1992). 26 Outer

Space Treaty with 98 State Parties, Rescue Agreement with 88 State Parties, Liability Convention with 82 State Parties, Registration Convention with 45 State Parties, and Moon Agreement with 11 State Parties (Moon Agreement is not ratified by any State with a lunar program).

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their conventions.27 As technology grows to permit new space applications and the evolving field of space actors changes, this international commons will require an evolving legal structure to remain relevant.28 Briefly, the well accepted principles of space law include the principle of common interest. Found in the first sentence of Article I, this principle recognizes the most pragmatic difference between space and other international commons by recognizing that it borders every state and by declaring it a natural resource for all states to enjoy and respect. The following sentence establishes the complementary principle of freedom by expressing that states are free to explore and use space in accordance with international law. Article III reaffirms the application of international law to space activity in recognizing that space activities affect the entire international community, not just the supervising state. However, it is important here to recall that the interpretation and application of international law often differ from state to state. Article IX requires a State Party to conduct international consultations prior to conducting activities with potential for harmful interference with the activities of other Parties. Although this provision is limited to the Outer Space Treaty Parties, it finds widespread observance and implementation through the larger body of ITU Member States. The obligation to authorize and supervise commercial activity is found in Article VI of the Outer Space Treaty. As adopted from the earlier Declaration of Legal Principles Governing the Activities of States in Outer Space (1963) and reaffirmed by the Resolution on the Application of the concept of the “Launching State” (2004), it recognizes a fundamental change to the prevailing international law by redefining national activities to include both government and non-government actors in space. This shift brings the actions of the state’s commercial sector within the original responsibility of the appropriate state rather than the more remote category of vicarious responsibility.29 The liability provision in Article VII holds the state internationally liable for damage caused by national space activity wherever the damage may occur.30 In the English text, separate terms are employed to distinguish the concept of responsibility from that of liability. The Treaty in other languages31 loses this distinction by employing the equivalent term for the more general concept of responsibility in both articles. A State Party assumes responsibility for the harm caused by its commercial space activity. Conversely, a non-Party

27 See e.g. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 3,

12 I.L.M. 1261 [Law of the Sea]. Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Leyden: A.W. Sijthoffat, 1972), c. III. 29 Outer Space Treaty, supra note 5 at Article VI (“State Parties to the Treaty shall bear international responsibility for national activities in outer space”). 30 Ibid., at Article VII (“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 or in outer space, including the moon and other celestial bodies”). 31 Ibid., at Article XVII (“English, Russian, French, Spanish and Chinese texts are equally authentic”). 28 Manfred

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may be vicariously liable if it fails to use due diligence in accordance with the prevailing international standard to prevent harm committed by its nationals or from its territory. Such standards are established over time through the practices of the space-faring states.32 The elimination of the public versus private distinction for the State Parties necessitates the appropriate state provide continuing supervision over its commercial activity in order to provide assurance to the other Parties that all space activity is conducted in accordance with the principles of the Outer Space Treaty. A State Party is to ensure its space activities comply with the Treaty, recognize international law as it applies to the state, and to both authorize and supervise its non-governmental activities. It is understood that a state authorizes and supervises governmental activity as it funds and directs the activities of national space programs. In contrast, non-governmental or commercial undertakings are normally neither explicitly authorized nor directly supervised by the national government. Therefore, the Treaty adds these additional requirements for commercial activity to assure that a regulatory void does not excuse negligence or mischievous acts by the nationals of another State Party. The duty to authorize ensures the state recognizes the activity about to be undertaken by a commercial entity through an a priori licensing procedure. This process requires the proposed operator to provide the authorizing department or agency sufficient information to base its decision to either grant or deny the operator’s request. Whereas, the continuing supervision duty ensures the national activity remains in compliance with the state’s Outer Space Treaty obligations. A regulating body may either directly observe an activity or rely on reports from the operator, or a third party, to determine compliance. However, the Treaty does not provide minimal standards or procedures to satisfy this requirement. Therefore, individual states determine the form and scope of authorization and supervision required for their national activities in space. Consequently, the degree of regulatory oversight varies greatly by state. As states commercialize their space operations, the trend has been to increase regulatory requirements as private activity becomes more independent of daily governmental involvement.33 The substantive provisions of the Treaty to be enforced through supervision include the principle of non-appropriation of space or celestial bodies,34 space activities subject to international law,35 restraints on permissible security measures,36 requirements to render assistance to fellow space travelers,37 avoidance of harmful interference with others use of space,38 and compliance to inspection of all 32 Supra

note 12, at 11–12. Jakhu, Government Regulation of Space Activity Lecture Notes (Faculty of Law, McGill University, 2008). 34 Outer Space Treaty, supra note 5, Article II. 35 Ibid., Article III. 36 Ibid., Article IV. 37 Ibid., Article V. 38 Ibid., Article IX. 33 Ram

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space facilities.39 Article III’s recognition of international law opens the door to a great number of international obligations to the continuing supervision requirement. These requirements in addition to those each state imposes to satisfy its own domestic interests provide the foundation for authorization and supervision of regulatory regimes. By its nature, continuing supervision is applied extraterritorially as the nationals or object operates beyond the territorial boundaries of the appropriate state’s airspace.40 Additionally, the ground segment normally requires extraterritorial sites to communicate with the orbiting spacecraft. Each state creates and exercises its extraterritorial jurisdiction in accordance with its constitution or national legal charter.41 Unlike the aviation analogy, there is no international organization to implement the Outer Space Treaty such as the International Civil Aviation Organization (ICAO)42 which implements the Chicago Convention.43 Therefore, national governments lack the generally agreed upon international standards such a body generates44 for adoption by the state’s rulemaking apparatus.45 Such an organization is not precluded by the Treaty. In fact, its prospective nature caused the drafters to employ broad principles to support the growth of space activity as this commons matures. One example of an international space organization is found in the Moon Agreement.46 Although it failed to receive acceptance by the major spacefaring nations, Article 11(5) of the agreement provides for the establishment of an international regime and the appropriate procedures to govern the exploitation of the moon whenever such activity becomes feasible. A supervision standard setting body or procedures must not conflict with the principles of the Outer Space Treaty. But, presently the international community lacks consensus to form a new international body or to expand the mandate of an existing body, to establish such standards.47

39 Ibid.,

Article XII. J. Trepczynski, Edge of Space: Emerging Technologies, The “New” Space Industry, and the Continuing Debate on the Delimitation of Outer Space (LL.M. Thesis, McGill University Institute of Air and Space Law, 2006) [unpublished]. 41 See e.g. 18 U.S.C. § 7. 42 International Civil Aviation Organization, online: International Civil Aviation Organization (ICAO is a specialized agency of the United Nations, located in Montreal, Canada). 43 Convention on International Civil Aviation, 7 December 1944, 61 U.N.T.S. 1180, 61 U.S. Stat. 1180 [Chicago Convention]. 44 Ibid., Article 37. 45 Ibid., Article 38. 46 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 18 December 1979, 1363 U.N.T.S. 3, 18 I.L.M. 1434 [Moon Agreement]. 47 Nicholas Bahr et al., “ICAO for Space” (Draft white paper for the International Association for the Advancement of Space Safety, 2007) [unpublished]; Corinne Contant-Jorgenson et al., “Cosmic Study on Space Traffic Management” (Paper prepared for the International Academy of Astronautics, 2006); William Marshall et al., “Space Traffic Management” (Paper presented by International Space University summer session at Beijing, 2007). 40 Susan

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In summary, Article VI supervision is without explicit and binding standards. However, the supervision obligation is bolstered by separate obligations to insure against space damage, register spacecraft, regulate radio transmissions to and from space stations, and prevent rogue acts. Nonbinding standards address export controls and debris mitigation. The evolving state practice with regard to these aspects of state supervision over time may reflect the international norm for space activities. Today state practice varies greatly and compliance with the limited binding and nonbinding standards do not enjoy universal application. Therefore, there exists an obligation to supervise but states are left to implement this general obligation as they determine best. To date, this author is unaware of any complaint or démarche against a state for failure to satisfy their obligation to supervise.

1.3 Liability Convention The term “launching State” means: (i) A State which launches or procures the launching of a space object; (ii) A State from whose territory or facility a space object is launched. – Liability Convention, Article I(c)

Article VII of the Outer Space Treaty and the subsequent Liability Convention48 do not require implementing legislation to fulfill a state’s obligation to become internationally liable for damage by space objects. By acceding to either or both of these agreements, the launching state incurs liability for the damage caused by its commercial launch sector. However, requiring launch insurance equal to the magnitude of probable loss by the commercial entity seeking to launch or operate a space object is a responsible practice to speed recovery and ensure that a compensation fund is readily available for claimants. This is especially valuable for small states or for those liable for an entity whose proposed space application involves an elevated risk. However, states do not require continuing operational coverage as this portion of the space activity has not resulted in the same degree of risk that launch activities entail. But space activity does impose some risk on any surface area below its orbit.49 In addition, the space segment50 also risks collision, debris creation, and radio frequency interference51 thereby placing other space objects at risk. The majority view on liability differs depending on the space application involved. Liability for telecommunication satellites receives a generous view from the international community which recognizes no responsibility toward the users for

48 Liability

Convention, supra note 5. at Article II (absolute liability); See e.g. Settlement of Claim between Canada and the Union of Soviet Socialist Republics for Damage Caused by “Cosmos 954” (Released on 2 April 1981). 50 Ibid., at Article III (fault liability); Contra (no claim has so far been filed). 51 Constitution of the International Telecommunications Union, 22 December 1992, 1825 U.N.T.S. 31251 [ITU Constitution] (as amended in 1994, 1998, 2002 and 2006), Article 44. 49 Ibid.,

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claims of damages resulting from its signals.52 Commercial remote sensing activities under the prevailing view extend responsibility for the collection, dissemination, and use of remote sensing data to the operating state.53 And, Global Navigation Satellite Systems (GNSS) under the majority view would assign liability to the provider states for any damage resulting from the loss or error of such signals,54 whereas the provider states, the United States and the Russian Federation, take the position that liability for this free service which no state is obliged to use is limited to physical impact under their interpretation of the Liability Convention.55 As the Reusable Launch Vehicle introduces space transportation to the international scene, the aviation analogy may be useful in addressing the new risk of passenger liability. States regulate aviation liability with respect to passengers and cargo through the Warsaw Regime and Montreal Convention.56 These regimes have their imperfections, but the introduction of a new space application will generate additional liability issues.

1.4 Registration Convention Each State of registry shall furnish to the Secretary-General of the United Nations, as soon as practicable, the following information concerning each space object carried on its registry. – Registration Convention, Article IV(1)

The need to identify objects in space and to attribute state responsibility for such objects was articulated by the United Nations General Assembly in 1961.57 Toward this end, the United Nations public registry was established and registration commenced in 1962 with the United States providing the first two notifications.58 The Registration Convention59 was not adopted until 1974, making this practice a binding obligation for the Parties. The agreement received less support than the three

52 Ibid.,

Article 36. Relating to Remote Sensing of the Earth from Outer Space, GA Res. 41/65, UN GAOR, 41st Sess., UN Doc. A/RES/41/65 (1986) 115. 54 Jiefang Huang, “Development of the Longer-Term Legal Framework for the Global Navigation Satellite system” (1997) 22 Annals of Air & Space Law 585. 55 Paul B. Larsen, “GNSS International Aviation Issues” (1998) 98 IISL 183. 56 Convention for the Unification of Certain Rules Relating to International Carriage by Air, 12 October 1929, 137 L.N.T.S. 11, 49 U.S. Stat. 3000 [Warsaw Convention, as amended Warsaw System]; Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999 [Montreal Convention]. 57 International co-operation in the peaceful uses of outer space, GA Res. 1721 (XVI), UN GAOR, 16th Sess. (1961) 6 [Establishing the United Nations Registry of Launchings]. 58 Supra note 22. 59 Registration Convention, supra note 11 53 Principles

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previous space agreements60 although its purpose was to refine the obligation found at Article VIII of the Outer Space Treaty and to complement the purposes of the Liability Conventionand Rescue Agreement. Each state is to maintain a registry of the objects it launches into orbit.61 When two or more launching states are involved, they are to determine which state is to register the object.62 The registration report is due to the United Nations as soon as practicable with the four orbital parameters: nodal period, inclination, apogee, and perigee.63 This data is not known until the object reaches its orbital location; therefore, notification does not occur until sometime after the launch. To fulfill this requirement, states must require the commercial operators to provide them the orbital data once determined after launch. However, the usefulness of this data is short lived as it is outdated as a result of maneuvers made by the spacecraft and the perturbations resulting from the influence of natural forces on the object in orbit. There is no requirement to maintain current orbital parameters after the initial registration.64 The state responsible for registration is the launching state.65 The launching state definition66 is the same as that found in the Outer Space Treaty67 and the Liability Convention.68 The act of registration determines the jurisdiction applicable to the crew and spacecraft. This attributes the resulting activity to a particular state although multiple states or no States Party to the treaties may be involved with the launch, authorization, or supervision. After 30 years of practice, compliance with the Registration Convention has declined.69 Furthermore, the lack of a requirement to update the orbital parameters or the status of the spacecraft makes70 the fundamental purposes of the Convention to locate and identify space objects difficult to accomplish with the provisions of this document or the existing state practice.71 In the most congested orbit, the ITU assigns and identifies spacecraft with respect to the geosynchronous earth orbit (GEO) independent of United Nations’ registry. This is required to avoid interference with the use of radio frequencies. And, the United States Department of Defense provides space situational awareness (SSA) data to 60 See

supra note 26 (Outer Space Treaty in 1967, Rescue Agreement in 1968, and Liability Convention in 1972). 61 Registration Convention, supra note 11, Article II (1). 62 Ibid., at Article II(2). 63 Ibid., at Article IV(1). 64 Registration Convention, supra note 11, Article IV. 65 Ibid., at Article II(1). 66 Ibid., at Article I(a). 67 Outer Space Treaty, supra note 5, Article VII. 68 Liability Convention, supra note 5, Article I(c). 69 Marietta Benko et al., Space Law: Current Problems and Perspectives for Future Regulation (Utrecht, Netherlands: Eleven International Publishing, 2005). 70 Liability Convention, supra note 5. 71 Lubos Perek, “The 1976 Registration Convention” (Paper presented to the International Institute of Space Law Symposium, 23 March 1998) [41st Colloquium on the Law of Outer Space].

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government and commercial operators under the Commercial and Foreign Entity program to assist with collision avoidance.72 These supplemental efforts to regulate and coordinate space activity are stop gap measures to protect the tremendous investment placed in the space environment.

1.5 Application of the Concept of the Launching State . . . States conducting space activities, in fulfilling their international obligations under the United Nations treaties on outer space, in particular the [Outer Space Treaty]. . . consider enacting and implementing national laws authorizing and providing for continuing supervision of the activities in outer space of non-governmental entities under their jurisdiction. – Resolution on the Application of the Concept of the Launching State

The Resolution on the Application of the Concept of the “Launching State”73 in 2005 creates no additional obligations, but it does encourage the space-faring states to implement their international obligations with regard to national space activity. Specifically, it made four recommendations to the supervising states and their regulatory bodies. First, it recommends space-faring states recognize their international obligations under the Outer Space Treaty by enacting implementation laws to authorize and provide for continuing supervision of activities in outer space by the non-governmental entities under its jurisdiction. Using the same language found in Resolution 1962 (XVIII) and the Outer Space Treaty suggests that this resolution neither adds to the existing obligation nor is more instructive on how the Party States are to implement it. What it does demonstrate is the continuing need for supervision and a lacuna in state supervision through regulation.74 Second, it recommends that states enter international agreements contemplated in the Liability Convention to reduce the likelihood of disputes and to create certainty with respect to liability in complicated international enterprises,75 thereby recognizing the international nature of space activities and emphasizing the need to attribute responsibility in a transparent manner. Third, it calls on states to disclose their practices regarding transfer of ownership of space objects while on orbit. To date, state practice varies and the official statements of the space-faring states are useful evidence of the emerging customary international law.76 Fourth, it calls on states to harmonize national space legislation with international law. The other State Parties to the space legal regime rely on each state to honor its international obligations. A systemic failure to imple-

72 10

U.S.C. § 1174. of the Concept of the “Launching State”, GA Res. 59/115, UN GAOR, 59th Sess., UN Doc. A/RES/59/115 (2004). 74 Outer Space Treaty, supra note 5 at Article VI. 75 Liability Convention, supra note 5 at Article V(2). 76 Supra note 17 at 6. 73 Application

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ment the agreed legal regime over time indicates a general lack of compliance which jeopardizes the negotiated principle of state responsibility through the differing state practice.77

1.6 International Telecommunication Law In using frequency bands for radio services, Member States shall bear in mind that radio frequencies and any associated orbits, including the geostationary-satellite orbit, are limited natural resources and that they must be used rationally, efficiently and economically, in conformity with the provisions of the Radio Regulations, so that countries or groups of countries may have equitable access to those orbits and frequencies, taking into account the special needs of the developing countries and the geographical situation of particular countries. – Constitution of the ITU, Article 44(2) No transmitting station may be established or operated by a private person or by any enterprise without a licence issued in an appropriate form and in conformity with the provisions of these Regulations by or on behalf of the government of the country to which the station in question is subject. – Radio Regulations of the ITU, Article 18(1)

The singular international body to provide substantive and obligatory international standards for national space activity is the ITU.78 ITU’s role is to maintain and extend international cooperation between its 191 Member States for the improvement and rational use of telecommunications of all kinds.79 Originally founded to coordinate telegraph and telephone transmission protocols,80 ITU expanded its mandate to create radio emission standards shortly after the radio age emerged.81 As the space age began, ITU standards became central to coordinating transmissions to and from satellites with other uses of the limited radio frequency spectrum. Although originally concerned with terrestrial radio station transmissions, the advent of space station emission had the potential to disrupt the spectrum management globally.82 77 Supra

note 1 at 605. Telecommunication Union, online: International Telecommunication Union (ITU is a Specialized Agency of the United Nations, located in Geneva, Switzerland). 79 Supra note 51 at Article 1(1). 80 Lawrence D. Roberts “A Lost Connection: Geostationary Satellite Networks and the International Telecommunication Union” (2000) 15 Berkeley Tech. L.J. 1095 at 1105–1106 (ITU can trace its official existence back to 1865 to coordinate the various domestic telegraphic systems through international agreements to standardize the telegraph systems and codes. Later telephone standards were integrated into the ITU.). 81 Ibid., at 1107 (the Radio-telegraph Union formed to administer radio services through restrictions on the use of frequencies and power output of transmitters to minimize interference, but merged with ITU in 1932). 82 Matthew Brzezinski, Red Moon Rising: Sputnik and the Hidden Rivalries that Ignited the Space Age (New York: Henry Holt and Company, LLC., 2007) (Sputnik signal was not transmitted on the agreed IGY assignment and multiple reports were made of interference occurring while passing 78 International

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Effective coordination of these earth orbiting stations require a global forum to avoid interference among the competing earth and space stations. As the demand for satellite operations increased, ITU formally expanded its mandate to provide adequate satellite licensing and operation standards to include the orbital positions on the GEO as well as uplink and downlink transmissions.83 Now constituting the largest international forum addressing space activity by involving the Member States,84 intergovernmental organizations,85 and other nongovernmental entities,86 ITU formulates regional and global standards to be applied through the member’s national administration.87 By establishing global radio frequency standards in such a broad forum, ITU exceeds the participation level of the UNCOPUOS88 and the CD89 in the establishment of supervision standards. However, the ITU forum is used by the international community to address broader issues such as making communications more widely available, increasing security of transmissions in the interests of cyber security, and developing life saving communications for widely impacting events such as natural disasters.90 Therefore, the space supervision interest competes with the many non-space priorities within this forum as its mandate is much broader than space supervision. The standards created by ITU are expressed through its Administrative Regulations,91 which includes the technical standards as presented in the Radio Regulations.92 Member States are obligated to conform their use and supervision of the radio frequency spectrum to these regulations. As these regulations require frequent modifications to stay abreast of the technical changes, ITU employs an innovative provision which permits ratification of the convention to entail acceptance of the regulations existing at the time of the convention. Thereby, Member States remain current with the large and technical regulatory regime with limited reservation provisions to promote uniformity through a single act of ratification.93

overhead); John C. Cooper, “The Russian Satellite-Legal and Political Problems” (1957) 24 J. Air L. and Com. 379. 83 Supra note 51 at Article 44. 84 Supra note 51 (191 Member States). 85 Ibid., (5 Intergovernmental Organizations). 86 Ibid. (713 non-governmental entities with 567 Sector Members and 146 Associate Members). 87 National administration for the United States is the Federal Communications Commission; other states refer their administrations generically as Post Telegraph and Telephone administration or PTT. 88 United Nations Office for Outer Space Affairs, online: Office for Outer Space Affairs (69 Member States). 89 United Nations Office at Geneva, online: Geneva Office (65 Member States). 90 Secretary General Hamadoun I. Touré (Address to the International Telecommunication Union in Cairo, Egypt, 11 May 2008). 91 Supra note 51 at Article 4(3) (constitutes International Telecommunications Regulations and Radio Regulations). 92 International Telecommunication Union, Radio Regulations [Radio Regulations]. 93 Ibid., at Article 54.

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This generates a near universal set of standards for near space activity relating to the use of the radio frequency spectrum and the physical location of GEO assignments. All frequency assignments are made by the Member State’s national administration with coordination through the Radiocommunication Bureau at ITU.94 Member States are to require their private entities operate in accordance with the ITU regulations and to use radio frequencies in accordance with the Radio Regulations.95 To obtain an internationally enforceable assignment, ITU established three steps to effectively coordinate the global use of the limited frequency spectrum. All Member States are obligated to follow the Radio Regulations when making assignments.96 Prior to making an assignment capable of harming the service of another administration,97 for use in international communication,98 and under other circumstances,99 it is to follow the prescribed coordination procedures. First, ITU provides the forum for coordinating the use of the radio frequency spectrum through allocation. The spectrum is allocated by the frequency band, the geographic location, and the type of service best suited to the characteristics of the band and the physical environment associated with the region. The result of these negotiations is the Table of Frequency Allocations. The next step is the allotment of frequency band segments to the requesting state. This may occur in one of two ways. Allotment most commonly occurs on the first come, first served basis.100 This process is initiated by the national administration of the requesting state on behalf of the ultimate user and coordinated through the Bureau. The Bureau administers the coordination, notification and registration processes to ensure no prior authorized use will be adversely affected by the proposed assignment. This process allows all interested parties to comment and de-conflict the proposed operation. This process may be lengthy depending on the extent it affects other uses.101 Allotment may also occur on an a priori basis for the limited frequency band in which the allocation process has already occurred at the world level and is incorporated into the Radio Regulations.102 The requesting state applies to the Bureau for a simplified coordination procedure with other states as the band width is already reserved for its use. Under either allocation process, successful coordination results in the application’s entry on the Master International Frequency Register.103 The final step is the assignment by the national administration for use by an individual or entity within

94 Ibid.,

at Preamble. at Article 45(1) and 45(2). 96 Ibid., at Article 4.2. 97 Ibid., at Article 11.3. 98 Ibid., at Article 11.4. 99 See generally Ibid., at Article 11. 100 Ibid., at Article 11.6. 101 Ibid., at Article 9. 102 Ibid., at Article 11.5. 103 Ibid., at Article 8. 95 Ibid.,

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its jurisdiction under a license. Assignments are the sovereign right of the Member State, but membership in ITU requires such authorization and continuing supervision by the national administration in accordance with the Radio Regulations and the Master Register.104 The result for the administration and operator is an internationally recognized right to use the assigned frequency and a forum to address interference with its use. The Radio Regulations create additional standards to be implemented by the national administration. In return for assurances of no interference by other Member States, the national administration is likewise required to respect the Table of Frequency Allocations, Master Register, and the Radio Regulations when assigning frequencies to its domestic stations.105 It requires the administration to limit the number of frequencies and the spectrum used to the minimum essential to provide satisfactory services and to employ the latest technical advances when issuing a license.106 It is also required to minimize the assigned bandwidth and emission strength to avoid causing harmful interference to other radio stations.107 This is required to maximize the beneficial use of this limited international resource by extending the available bandwidth and the associated orbital positions through responsible measures. Although ITU regulates the use of the spectrum for all applications, some provisions apply specifically to space stations, or satellite operations. First, commercial satellite operations must be licensed by a national administration prior to operation.108 They must be capable of cessation of emissions when required by the supervising administration in order to protect a superior interest. The Radio Regulations also distinguish activity in the geostationary orbit from nongeostationary orbits. This is due to the special relationship the orbital slots in the GEO have with the given region on the earth within its footprint. On the other hand, satellites on all other orbital planes are in motion relative to the surface of the earth during their orbital periods and do not occupy specific slots over a given region.109 Therefore, special considerations are given to the Member States based upon their relationship to the GEO. Traditionally, supervision was conducted through the licensing of transmissions to and from the satellite station to a fixed ground station. Such fixed satellite services (FSS) required a separate uplink and downlink frequency to operate. Technological advances in antennas now permit broadcast satellite services (BSS) to transmit from the satellite station to any receiver within its coverage area. This advance requires the supervising state to ensure all technical means to reduce radiation over foreign territory unless a prior agreement

104 Ibid.,

at Article 18. at Article 8. 106 Ibid., at Article 4.1. 107 Ibid., at Article 15. 108 Ibid., at Article 18. 109 Supra note 78. 105 Ibid.,

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is reached by the underlying state. This expands the administration’s obligation to supervise its commercial sector by supervising its activity with regard to foreign states.110 The essence of the ITU regime is to maximize the utility of the frequency spectrum and to avoid harmful interference during its use as a coordination body for the supervising states. This is accomplished by recognizing the priority of use as established in the Master Registry and the coordination procedures to integrate new users efficiently into the spectrum. Each state member of the ITU is under obligation both for the authorization phase prior to commencing a space activity and to the supervision phase in order to ensure the activity conforms to the Radio Regulations out of necessity to coordinate the international use of the radio frequency spectrum. Thus an appropriate national regulatory regime (including licensing requirements) is necessary for the operation of space missions in each state.

1.7 Space Debris Mitigation Guidelines Member States and international organizations should voluntarily take measures, through national mechanisms or through their own applicable mechanisms, to ensure that these guidelines are implemented, to the greatest extent feasible, through space debris mitigation practices and procedures. – IADC Space Debris Mitigation Guidelines

Inter-Agency Debris Coordination Committee (IADC)111 formed an intergovernmental body composed of space-faring nations to address the growing hazards of manmade and natural debris in space. Orbital debris, or space junk, consists of artificial objects orbiting the Earth that are not functional spacecraft. Debris is a common hazard shared by all space-faring nations whose individual mitigation measures were deemed insufficient to the task. To better address this collective hazard, space agencies112 exchanged their mitigation standards and handbooks to create common guidelines with the goal of preventing on-orbit break-ups, removing spacecraft from densely populated orbital regions at the end of their missions, and limiting the debris released during normal operations. The IADC Guidelines113 recognized that expensive debris mitigation provides negligible benefits to the operator, but would have an immediate and adverse impact on the financial feasibility of the planned space activity. Therefore, the guidelines are voluntary and the scope of the recommendations

110 Supra

note 92 at Article 23. Space Debris Coordination Committee, online: IADC . 112 Italian Space Agency (ASI), British National Space Centre (BNSC), Centre National d’Etudes Spatiales (CNES), China National Space Administration (CNSA), Deutsches Zentrum fuer Luftund Raumfahrt e.V. (DLR), European Space Agency (ESA), Indian Space Research Organisation (ISRO), Japan, National Aeronautics and Space Administration (NASA), the National Space Agency of Ukraine (NSAU) and Russian Aviation and Space Agency (Rosaviakosmos). 113 IADC Guidelines, supra note 17. 111 Inter-Agency

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is limited to cost effective measures to mitigate debris when planning and designing space activities to improve compliance. The IADC Guidelines define space debris as all manmade objects including fragments and elements thereof, in near earth orbit and non-functional spacecraft. Mitigation measures include limiting the debris released during normal operations by minimizing the number, area, and orbital lifetime of the debris, as well as preventing explosions and ruptures at the end of missions and not initiating intentional destructions which will generate long lived orbital debris. Remedies include post mission disposal in GEO by boosting the satellite into a graveyard orbit outside this useful region, designing propulsion systems which do not separate from the spacecraft, or taking other measures to avoid their long term presence in this region. Finally, prevention of on-orbit collisions is enhanced by estimating and limiting the probability of accidental collision with known objects during the system’s orbital lifetime. The IADC Guidelines are not binding on the supervising state, but the collective wisdom of the IADC Member States and international organizations voluntarily implement these standards through their national authorization and supervision regimes. These reflect the general consensus of minimal standards by responsible space-faring states as reflected by existing practices, standards, codes, and handbooks developed by national and international organizations. The international body UNCOPUOS acknowledges the benefit of the IADC Guidelines.114

1.8 Export Controls These Guidelines, including the attached Annex, form the basis for controlling transfers to any destination beyond the Government s jurisdiction or control of all delivery systems (other than manned aircraft) capable of delivering weapons of mass destruction, and of equipment and technology relevant to missiles whose performance in terms of payload and range exceeds stated parameters. Restraint will be exercised in the consideration of all transfers of items within the Annex and all such transfers will be considered on a caseby-case basis. The Government will implement the Guidelines in accordance with national legislation . . .. – MTCR Guidelines, Paragraph 1

Export controls have addressed space activities since the inception of the space age. Born contemporaneous to the atomic bomb, space and security are inextricably intertwined. The supervision requirement was created to assure State Parties that all national activities will be conducted in the spirit of the Outer Space Treaty. Export controls are a natural extension of this philosophy as responsible spacefaring governments provide assurances that their national space capabilities will not be extended to irresponsible ones.

114 Report of the Committee on the Peaceful Uses of Outer Space, UNCOPUOS, 62nd Sess., Supp. No. 20, UN Doc. A/62/20 (2007).

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The international community recognizes the need to exercise arms control over certain weapons and dual-use technologies. However, since the end of the cold war, the community has failed to reach a consensus to make a binding list of regulated items or the procedures by which to enforce such restraints. Therefore, arrangements are substituted by the partner states who share a common interest to limit a particular class of weapons or technology. The Achilles heel to these security arrangements is that implementation and enforcement through national regulatory regimes is left to the member states’ discretion.115 Below is a brief review of the arrangements which directly affect national space activity. The Missile Technology Control Regime (MTCR)116 established in 1987 specifically addresses missiles, their subcomponents, and related technology to advance the goal of non-proliferation of unmanned delivery systems capable of delivering weapons of mass destruction. This is accomplished through an informal and voluntary body to coordinate national export licensing efforts aimed at preventing their proliferation. This export control arrangement is the most stringently applied through national legal regime on space transportation systems, trade in satellite equipment, and payload integration. The MTCR documents include the MTCR Guidelines117 and the Equipment, Software and Technology Annex.118 The Guidelines describe the purpose, organizational structure, and rules to guide the partner states and those who unilaterally apply MTCR. It recognizes that MTCR Partners must exercise particular care with sub-orbital launch vehicle equipment and technology transfers as this technology is virtually identical to that used in a ballistic missile. However, the Guidelines condition its application on the basis they are not meant to impede national space programs or international cooperation in such programs as long as such programs could not contribute to delivery systems for weapons of mass destruction.119 The Annex lists the items subject to MTCR controls and is updated every two years. The most recent Annex was adopted by the partner states in November 2008. The Annex is divided into Category I and Category II items. It includes a broad range of equipment and technology for both military applications and dual-use that are relevant to missile development, production, and operation. Partner states are to exercise restraint in the consideration of all transfers of items contained in the Annex and are to make their decisions on a case by case basis.120

115 Bill

Gertz and Alan Sklar, Treachery: How America’s Friends and Foes Are Secretly Arming Our Enemies (New York: Random House, 2004). 116 Missile Technology Control Regime, online: Missile Technology Control Regime (34 State Members). 117 MTCR Guidelines, online: Missile Technology Control Regime
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Greatest restraint is reserved for Category I items. These items include complete rocket systems (including ballistic missiles, space launch vehicles, and sounding rockets) and unmanned air vehicle systems (including cruise missiles systems and target and reconnaissance drones) with capabilities exceeding the 300 km range and 500 kg payload threshold. It also includes the production technology or major subsystems including rocket stages, re-entry vehicles, rocket engines, guidance systems, and warhead mechanisms. The remainder of the Annex is regarded as Category II, which includes systems not covered in Category I capable of a maximum range equal to or greater than 300 km. Also included are a wide range of equipment, material, and technologies, most of which have uses other than for missiles capable of delivering weapons of mass destruction (WMD). While still agreeing to exercise restraint, partners have greater flexibility in the treatment of Category II transfer applications.121 The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies122 was formed in 1996 to address conventional arms, but unlike its predecessor, the Coordinating Committee for Multilateral Export Controls (COCOM), it is not directed at any specific state. Rather, its purpose is to isolate destabilizing rogue states by denying them eight categories of weapon systems.123 Category 7 includes rockets, ballistic or cruise missiles capable of delivering a warhead or weapon of destruction to a range of at least 25 km, and the means to design or modify systems for such purpose.124 The more recent Nuclear Suppliers Group125 and Zangger Committee126 address WMD on a cooperative basis to limit the transfer of such materials and the technology related to their delivery in weapon form. The Australia Group127 was established in 1984 to prevent the proliferation of chemical and biological weapons as banned by the Chemical Weapons Convention of 1993 through export controls. As these arrangements are implemented by the individual states through their respective national laws and regulations, the degree of compliance and care varies by state.128 For the supervising state, the interest of security is systemic in its national space activity.

121 Supra

note 117. Arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies, online: Wassenaar Arrangement (65 State Members). 123 Guidelines & Procedures, including the Initial Elements (1996 as amended in 2003, 2004 and 2007), online: Wassenaar Arrangement < http://www.wassenaar.org/guidelines/index.html>. 124 Lists of Dual Use Goods and Technologies And Munitions List (2007), online: Wassenaar Arrangement . 125 Nuclear Suppliers Group, online: Nuclear Suppliers Group (45 State Members). 126 Zangger Committee, online: Zangger Committee (36 State Members). 127 The Australia Group, online: Australia Group (40 State Members). 128 Department of Commerce, online: . 122 Wassenaar

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1.9 Conclusion In conclusion, Article VI of the Outer Space Treaty establishes the principle of supervision for commercial space activity. The Treaty does not provide specific guidelines or minimum standards for adequate state supervision. However, the subsequent body of binding and non-binding international instruments relating to the conduct of space operations is created in furtherance of this principle. To re-open the Treaty to promulgate such standards is not appropriate under such a universal Treaty.129 The better method is to enter a separate agreement130 to provide state administrations a set of general supervision principles by which to conduct supervision and a mechanism to create minimal standards based upon technical feasibility and commercial practices of the time. The lacuna in supervision standards presents a growing risk to the prospect of using space for the betterment of all mankind. The alternative to a new international regime regulating commercial space operators is to continue the current practice of relying upon existing international bodies with mandates other than to advance the use of space to create de facto supervision standards based upon the limited and possibly conflicting needs of the disciplines which overlap with space applications. In either case there would be a need for harmonization of the various national regulatory approaches and mechanisms for implementing international obligations relating to responsibility for and supervision of national activities in outer space as specified under these international space treaties and other instruments.

129 Outer 130 See

Space Treaty, supra note 5 at Article XV. e.g. Liability Convention, Rescue Agreement and Registration Convention.

Chapter 2

Regulation of Space Activities in Argentina Julian Hermida

2.1 General Philosophy and Processes of Government Regulation 2.1.1 Law-Making Processes Argentina has long been involved in the regulation of space activities. During the Cold War, it played a very active role in the debate and elaboration of international space law treaties and conventions.1 It started to adopt national space laws in the early 1990s. This national legal framework, characterized by strong governmental control of private space activities, consists of the National Space Plan, which sets out: the general policy objectives for the use and exploitation of space science and technology; a series of resolutions aimed at implementing the authorization and continuing supervision principles; a competition and exclusivity regime for satellite telecommunications; and, detailed rules dealing with the registration of both space objects and space operators. Liability issues arising from space activities are governed by general responsibility provisions contained in the Civil Code.2 Argentina does not yet have regulations governing Earth observation services or intellectual property created in outer space or related to space endeavours. Despite the importance which the National Space Plan assigns to satellite data, Argentina has not adopted specific domestic laws to regulate the distribution of data. Decisions dealing with this issue are based on vague general principles contained in the National Space Plan. The Argentine Constitution, whose original text dates back to 1853 and which has since undergone several amendments throughout its existence,3 does not contain J. Hermida (B) Algoma University, Sault Ste. Marie, ON, Canada e-mail: [email protected] 1 J. Hermida, Commercial Space Law: International, National and Contractual Aspects (Buenos Aires: Ediciones Depalma, 1997), 88. 2 Argentine Civil Code, Articles 1109, 1113, 1119, and 1122. 3 N. P. Sagues, “An Introduction and Commentary to the Reform of the Argentine National Constitution” 28 U. Miami Inter-Am. L. Rev., 43.

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_2,  C Springer Science+Business Media B.V. 2010

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any provisions relating to outer space.4 However, outer space activities are considered to be within the jurisdiction of the federal government,5 so only the Federal Congress may enact legislation concerning outer space activities, and only federal courts have jurisdiction to hear disputes relating to outer space activities.6 In practice, the Federal Congress has played a marginal role in the adoption of space law and most of the existing norms emanate from Executive Branch agencies, particularly the National Commission on Space Activities (CONAE) and the National Communications Commission (CNC). The Federal Congress’ role has been limited to approving the international space treaties and conventions to which the country is signatory, and even in such instances, there has been no debate or analysis of the contents of those treaties.7 So far, Argentina has ratified the Outer Space Treaty, the Liability Convention, the Rescue and Return Agreement, and the Registration Convention.8

2.1.2 Basic Principles of National Laws Argentina is a civil law country which received its legal system from Spain during the colonial period. In the late nineteenth century, the French codification movement extended to Argentina. However, current the law governing international 4 The last amendment took place in 1994 and it did not include any reference to outer space issues.

The 1994 constitutional reforms are reflections of the myriad experiences which Argentina and Latin America have had with totalitarian rule. The reforms are a partial attempt to address this history and to resolve the tension between either subordinating or wholly incorporating US and other international precepts and principles. The reforms are a careful synthesis attempting to construct an administration of justice whose probity can withstand the unique challenges of Argentina’s complex and sometimes troubled political history. S. N. Vittadini Andrés, “First Amendment Influence in Argentine Republic Law and Jurisprudence” (1999) 4 Comm. L. & Pol’y, 149. 5 Horowitz v. Cruzeiro do Sul, Cámara Comercial de la Capital, 9-VI-1948, Gerardo Ramón y Cía SRL v. Panair do Brazil, Cámara Comercial de la Capital, Sala A, 25-II-1965. Argentine Constitution, Article 75.13. 6 Argentine Constitution, Article 116. It reads as follows: “The Supreme Court and the lower courts of the Nation are empowered to hear and decide all cases arising under the Constitution and the laws of the Nation, with the exception made in Section 75, Subsection 12, and under the treaties made with foreign nations; all cases concerning ambassadors, public ministers and foreign consuls; cases related to admiralty and maritime jurisdiction; matters in which the Nation shall be a party; actions arising between two or more provinces, between one province and the inhabitants of another province, between the inhabitants of different provinces, and between one province or the inhabitants thereof against a foreign state or citizen.” 7 J. Hermida, “Argentine Space Law and Policy” (1996) XXI-II Ann. Air & Sp. L., 177. 8 On December 4, 1968 Argentina ratified the Outer Space Treaty shortly after its adoption by the UN Assembly. By means of Act No. 23335 of July 30, 1986 Argentina ratified the Liability Convention. After a lobbying movement initiated by the Integration Foundation, a civil organization leaded by a former Minister of Justice with political aspirations to be considered for presidential candidate, through Act 24158 the Argentine Congress ratified the Registration Convention on September 30, 1992. Despite the fact that Argentina has taken the initiative to elaborate the Moon Agreement in the United Nations thanks to its then representative, Aldo Armando Cocca, Argentina has not yet ratified this Agreement.

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commercial transactions and practice dealing with sophisticated and complex issues, such as outer space issues, tend to follow the standards, principles, and contracts used in the United States.9 Argentine national space laws have been designed to provide Executive Branch agencies with power to influence and control the local space sector, and to restrict access to those projects which do not fall in line with the relatively narrow policy objectives spelt out in the National Space Plan. In practice, this means that it is very difficult to obtain governmental authorization for some space-related activities, such as the development of space vehicles.

2.1.3 Organization of National Space Activities CONAE is the only state agency competent to design, execute, control and administer outer space projects and endeavours, and to draft, update, and amend the National Space Plan.10 Additionally, CONAE has been entrusted with the following functions: (i) to centralize, organize, administer, and execute the National Space Plan; (ii) to carry out space research activities; (iii) to execute and develop national space programs, (iv) to transfer space technology to state entities and to the private sector under a license; (v) to train researchers, scientists, technicians, and professionals; (vi) to enter into cooperative agreements with public and private entities; (vii) to coordinate all the activities of the National Space System, which includes all the private and public institutions that carry out space activities directly or indirectly; and, (viii) to promote cooperation agreements with other States and foreign entities.11 While CONAE does not have any regulatory powers, it is considered a regulatory agency in practice and, in that capacity, it adopts resolutions having a wide reaching scope.12 The National Space Plan prepared by CONAE and approved by a presidential decree is the main legal and political instrument dealing with Argentine outer space issues.13 The National Space Plan is based on the premise that Argentina is a spacefaring country, i.e., it makes intensive use of products and services derived from outer space activities.14 Based on this premise, the Plan defines the methods which

9 J. Hermida, “Convergence of Civil Law and Common Law Contracts” (2004) 34 Hong Kong Law Journal, 339. 10 Argentine Decree 995/91, Article 2. 11 The terms “outer space programs” and “outer space endeavors” have not been defined and CONAE has understood that they include satellite telecommunications. Thus, as analyzed below, this has led to tensions between CONAE and CNC, which resulted in contradictory legal measures and political tension. 12 J. Hermida, Commercial Space Law: International, National and Contractual Aspects (Buenos Aires: Ediciones Depalma, 1997), 194. 13 Argentine Decree 2076/94. It was ratified by the Congress for budgetary purposes without any debate or discussion. 14 National Space Plan, 3.

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will permit Argentina to have access to outer space as an active consumer and producer of space products and services.15 The National Space Plan thus identifies the Space Information Cycle (“SIC”) as its conceptual framework. The whole Plan has been conceived and implemented around this concept. The SIC has been defined as the “set of steps encompassing space data generation, transmission, processing, and use.”16 According to the text of the Plan “along this cycle, space activities operate either as use promoters or as suppliers or consumers of both the data itself and the means for its production, transmission, elaboration, and storage.”17 Under the Plan, satellites are considered to be secondary elements only and their importance is subordinated to that of the data they produce or transmit. The rationale underlying this concept is that, in general, society may actually benefit more from the products of the satellites rather than from the development of satellite technology itself. Therefore, CONAE’s main efforts and resources have been concentrated on the reception and distribution of data – mainly from remote sensing satellites – instead of boosting the Argentine space industry and improving space technology; areas which would provide more comprehensive and everlasting benefits for society. Under the view adopted in the National Space Plan, the role of space launches and space launch vehicles is even more marginalized, for they are considered as mere auxiliary tools for a secondary activity.

2.2 Legal Issues Related to Launch Services (Space Transportation Systems) CONAE adopted a disclosure regime, which requires private and other nongovernmental organizations to notify it of their involvement in space activities.18 CONAE’s Resolution 330 is intended to implement the authorization and continuing supervision principles set out in article VI of the Outer Space Treaty. Thus, this resolution expressly recognizes that “the Outer Space Treaty holds States responsible for the activities of their governmental and non-governmental entities in outer space and that the Argentine state has undertaken to authorize and supervise national activities in accordance with Article VI of the Treaty.”19 Furthermore, the resolution also expressly recalls that “according to the Liability Convention, the Argentine State is absolutely liable for damages caused by . . . space objects launched from its territory or procured by public or private entities that act under its jurisdiction.”20

15 Ibid.,

3. 4. 17 Ibid., 5. 18 CONAE Resolution 330/96. 19 CONAE Resolution 330/96 Preamble. 20 Ibid., Preamble. 16 Ibid.,

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Unlike most space-faring states, Argentina does not have a licensing system or procedures to regulate the authorization of launch services. Instead, Resolution 330 has created a system of disclosure and notification of the initiation of space activities, which CONAE evaluates in order to grant or reject the authorization mandated by the Outer Space Treaty. The Resolution prescribes that “all public and private entities which, by themselves or on behalf of third parties, project, begin or develop activities related to satellites, including the feasibility studies, design, construction, launching, and operation of satellites, must notify CONAE of their engagement in such activities.”21 Additionally, “CONAE is to be notified of all tasks carried out in connection with the use of satellites in the scientific field, and for remote sensing and telecommunications purposes.”22 Upon receiving the information, CONAE has to classify it through its Registry Unit and must include it in the National Space Plan. According to Section 2.2 of the Resolution, CONAE is entitled to require further information regarding the disclosed activities. Furthermore, CONAE may demand that the entities undertaking those activities make the necessary modifications to adjust their activities to the applicable national and international space law regulations, including the National Space Plan. CONAE may not authorize the use, launch, and export of satellites, and other objects constructed, elaborated, assembled in, and/or imported into Argentina to be used in connection with space activities by entities which do not comply with the norms prescribed in the Resolution. In the event of non-compliance, these entities may also be penalized with a withdrawal of the right to record their space objects in the Argentine Space Object Registry. The legal basis for issuing the authorization under Resolution 330 is compliance with international space law and national regulations, including the National Space Plan. Nowhere in Resolution 330 or elsewhere in the existing legislation is there a safety regime or a set of safety standards which a proposed space endeavour must conform to. Absent these express standards, the legal grounds for the issuance of the authorization are at best either completely discretionary or absolutely nonexistent. In practice, compliance with national regulations, including the National Space Plan, implies that, non-governmental entities may be severely impeded from carrying out certain activities in outer space. Since the National Space Plan favours certain activities such as remote sensing and marginal telecommunications services over others, such as space launch services, some space projects, particularly those that do not coincide with the objectives outlined in the National Space Plan may not be authorized in Argentina. Consequently, some sectors of the Argentine private space industry may find it difficult if not impossible to obtain the necessary authorization for carrying out space activities. The enumeration of activities subject to notification is imprecise and vague. For example, the construction of satellites, as well as their launching, requires disclosure. However, the rules are silent with respect to the construction of space vehicles.

21 CONAE 22 Ibid.,

Resolution 330/96, Article I. Article I.

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In its own interpretation, CONAE has indicated that this enumeration is merely an example, and that all activities related to outer space need to be disclosed.23

2.2.1 Safety Concerns The disclosure and notification system adopted by CONAE24 does not contain any safety provisions whereby, as a condition for the issuance of the authorization, the State assesses the potential risks which a proposed space activity entails. The absence of clear safety rules and the consequent lack of actual oversight of space activities might incur liability for the State if an activity causes damage both at the international level where the Liability Convention applies and on the national plane where it does not.25 Argentina does not have specific rules which regulate the State’s recovery from the wrongdoer of compensation paid pursuant to the Liability Convention in the event of an accident caused by a space object belonging to Argentine nongovernmental entity. Liability issues in Argentina are regulated under the Civil Code, which prescribes general rules and principles of civil liability. The two basic sources of extra-contractual civil liability are based on (i) personal fault as regulated in Article 110926 and (ii) the facts of things, also referred to as objective liability in the legal doctrine and jurisprudence, which is governed by Article 1113.27 The Civil Code also contemplates the possibility of vicarious liability under certain circumstances.28 None of these systems of civil liability permit the Argentine state to recover from the actual entity that caused the damage compensation paid under and by virtue of the Liability Convention. Argentina also lacks a general risk sharing system which allocates the risks arising from space activities.29 23 J.

Hermida, Legal Basis for a National Space Legislation (Kluwer Academic Publishers: The Hague, London and Boston, 2004), 221. 24 According to this system all public and private entities which project or develop space related activities must notify CONAE of their engagement in such activities and where CONAE grants authorization only to those activities that conform to the National Space Plan. 25 The Liability Convention does not apply to: (i) nationals of the launching State, and (ii) foreign nationals who participated in the operation of that space object. According to Bin Cheng, the first exception is an application of a basic principle of International Law which refrains from dealing with relations between a state and its nationals, and the second one is an application of the principle Volenti non fit jura. B. Cheng, “Convention on International Liability for Damage Caused by Space Objects”, in Jasentuliyana, Nandasiri and Lee, Roy S. K. (eds.), Manual on Space Law (New York: Oceana, 1979), 101. 26 Argentine Civil Code, Article 1109. 27 Argentine Civil Code, Article 1113. 28 The Federal Congress has also enacted a number of laws outside of the Argentine Civil Code that formulate special liability rules. 29 J. Hermida, Legal Basis for a National Space Legislation (Kluwer Academic Publishers: The Hague, London and Boston, 2004), 217.

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2.2.2 Continuing Supervision Resolution 330 is silent with respect to the supervision of activities in outer space. According to the National Space Plan, once a space project is approved by CONAE – provided it conforms to the space policy guidelines of the Plan – it is included in the National Space Plan, which means that CONAE may “design, carry out, control, negotiate, and manage space projects and enterprises.”30 The Plan aspires to “attract and incorporate the participation of the private industry, the government, the academic sector, and the Argentine science and technology system.”31 Thus, CONAE exercises continuing supervision by dragging all private projects and other non governmental endeavours under its area of influence, and by including them under the umbrella of the National Space Plan, rather than by recognizing their independent existence and permitting them to develop without interference other than supervision of their compliance with national and international obligations. Another legal instrument adopted by CONAE for purposes of carrying out its supervision obligations is Resolution 463/97, which created a Space Operators Registry.32 This Resolution permits CONAE to centralize information concerning all current and potential entities involved in outer space, and to ensure that at all times they will be in accordance with the National Space Plan.33 The Resolution affords CONAE the ability to maintain closer control of the entities engaged in space activities and to require them to adopt corrective measures every time they embark on a project which is not contemplated in the National Space Plan. According to this Resolution, all individuals and entities that carry out or plan to carry out space activities must file with the Head of the Registry a request to record the information, using a form included as an annex to the Resolution. Once the request is received, the Head of the Registry may require such additional information as he considers necessary. The rationale behind CONAE’s supervision of space projects is to ensure that these projects will always be in conformity with the objectives outlined in the National Space Plan.

2.2.3 Argentine Space Object Registry Unlike most jurisdictions which simply require the recording of the information mentioned in Article IV of the Registration Convention, Argentina has created a rather complex registration system. Apart from the information which the Argentine State must communicate to the Secretary General of the United Nations and basic technical information, Argentine entities must also record other information geared 30 National

Space Plan, 8.

31 Ibid. 32 This

registry also depends on CONAE’s Registry Unit. Resolution 463/97. Resolution 463/97, Article IV.

33 CONAE

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towards facilitating the payment of compensation for damages caused by registered space objects; information regarding environmental issues; as well as ownership and collateral information. Executive Decree No. 125/95 created the National Registry of Objects Launched into Outer Space.34 It prescribes that all acts related to a space object launched or promoted by the national State or launched from its territory or facility, whether by the State itself or private entities, are to be recorded in the National Registry. Registration is compulsory and there is public access to the registry.35 The following information must be recorded with respect to each space object: • agreements with other launching states • date and territory or location of launch • basic orbital parameters, including: (a) nodal period, (b) inclination, (c) apogee, (d) perigee • general function of the space object • name and address of owners and/or operators • identity of manufacturers • name of launching company • information regarding insurance • name of the individual responsible for the control of the space object • location and characteristics of the telemetry, tracking, and command station • frequency of transmission of the space station on board • weight of the space object • expected lifetime of the space object • measures taken towards preventing contamination of Outer Space • estimated time of disintegration of the space object • identification mark Additionally, CONAE’s Resolution No. 252/96,36 which governs the procedure for the registration of space objects, also requires that the following acts need to be recorded. These are: (i) the creation, conveyance, declaration, modification, and extinction of ownership and security rights in space objects, (ii) any seizures, encumbrances, and liens over the space object, (iii) all acts that affect the legal condition of the space objects, and, (iv) acts which restrict or impede the sale of the space object by its owner, operator or other titleholder.

2.3 Legal Issues Related to Satellite Telecommunications, Including Satellite Broadcasting The Secretary of Communications has devised a general satellite telecommunications framework and the National Communications Commission (CNC) implements 34 Argentine

Decree No. 125/95. objects may be recorded when they are under construction. 36 CONAE Resolution No. 252/96. 35 Space

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the regulations and oversees this regime.37 These regulations consist of a series of scattered,38 often amended and sometimes contradictory provisions.39 CNC has exclusive authority over the issues assigned to it, which implies an overlapping of jurisdiction and functions with CONAE.40 So, satellite operators in Argentina have to comply with two sets of rules imposed respectively by CNC and CONAE.41 Over the years, political tension between CNC and CONAE has led to a confrontation between these two organs, which in turn has resulted in the adoption of a burdensome double labyrinth of regulations.42

2.3.1 General Satellite Telecommunications Framework Argentina has expressly excluded geostationary fixed satellite services i.e., the services provided by the predominant satellite domestic operator43 from its 37 The Argentine National Telecommunications Commission was established in 1990 by Argentine

Decree 1185/90 as a response to the needs arising from the new scenario derived from the privatization process aimed at modernizing Argentina’s telecommunications infrastructure, in particular the privatization of the national telephone company. CNC also depended directly upon the Argentine President. In 1996, after the privatization of the telephone company was completed, it was transferred to the Secretariat of Communications. Unlike CONAE, it has several functions which are not directly related to Outer Space issues. CNC’s main functions deal with the administrative and technical regulation, control and verification of telecommunications in accordance with applicable law and presidential policy. 38 The Telecommunications Act was enacted in 1972 and although it underwent several amendments in practice its provisions are ineffective. The original text conceived telecommunications as a national prerogative subject to a rigid governmental control and the exploitation of satellite services was reserved to the state. Furthermore, the use of antennae for individual reception of satellite broadcasting was forbidden by the Act and only permitted in 1989 through Argentine Decree 174/89, which adopted the principle of free satellite reception, thus allowing viewers to receive television signals directly in their homes. Other important decrees modifying the statutory provisions of the Telecommunications Act were introduced in the late 1980s and the beginning of this decade, such as Argentine Decree 1842/87. 39 J. Hermida, “Satellite Reciprocity Agreement between the United States and Argentina” (1998) 27 J. Sp. L., 38. 40 CNC is entrusted with administering the radio-frequency spectrum, except for broadcasting matters, and satellite orbits, regulating the provision of satellite services in Argentina, and authorizing the use and establishment of communications satellite systems. Additionally, CNC has been given authority to issue regulations on telecommunications services and to revise any modification to the assignment of capacity in transponders No. 185, 186, 187 and 188 on Intelsat 15 VA F13, having to verify that there are not antitrust behaviors or a discriminatory treatment to the users of such satellite facility. Pursuant to Argentine Decree 1185/90, CNC has to participate in the drafting and negotiation of all international treaties and conventions dealing with telecommunications and technical cooperation matters, and to render advice to the national entity which represents the Argentine state before an international forum. 41 J. Hermida, “Argentine Space Law and Policy” (1996) XXI-II Ann. Air & Sp. L. at 177. 42 CONAE Resolution 303/97. 43 For Argentine communications authorities, the most significant political and legal decision concerning satellite telecommunications in Argentina was the establishment of a domestic satellite system. After several unsuccessful projects which began in 1974 under the promotion and

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commitments before the WTO.44 Thus, none of the WTO principles, including those dealing with market access and non discrimination, are applicable to this kind of service. National regulations have established a restrictive licensing regime for authorizing these services, especially in the Ku Band.45 For purposes of accessing the satellite market under this regime, CNC’s regulations have divided the Argentine market into different segments. First, the regulations differentiate between geostationary satellite services and non geostationary ones. The geostationary satellite market is divided into a mixed system of exclusivity (monopoly) and competition according to different radio frequency bands. Special access conditions have been devised for each of these segments. The Argentine government liberalized access to the non geostationary satellite market on November 8, 2000.46

2.3.2 Licensing of Private Satellite Telecommunications Operators (Both National and Foreign) 2.3.2.1 Geostationary Satellite Services Ku-Band Argentine satellite operators enjoy exclusivity in the Ku Band.47 For a seven-year period that ended in December, 2003,48 there was a legal monopoly which protected the incumbent domestic Argentine satellite system, and no other licenses were granted even for other Argentine satellite operators.49 supervision of CNC’s predecessors, in 1993 Argentina finally succeeded in having its own national satellite telecommunications system. In 1985, in response to the recommendations of one of such projects, Argentina registered two orbital positions for two satellites before the International Telecommunication Union: NAHUEL 1 and NAHUEL 2 (80◦ W and 85◦ W respectively). In 1992, through Argentine Decree 2061 Argentine authorities announced a national and international tender to set the national satellite telecommunications system. The project was formally awarded to the winning joint venture, made up of Deutsche Aerospace (Germany), Aérospatiale (France) and Alenia Spazio (Italy), which was then incorporated in Argentina under the name Nahuelsat S.A. 44 Argentina has signed and ratified the Basic Telecommunications Agreement negotiated before the World Trade Organization and thus it is bound by its provisions, except for those services specifically included in the list of Article II exemptions. G. Oberst, “Satellites and World Trade” (1999) Regulatory Update at 18. 45 This policy is geared toward implementing a legal framework to protect the predominant satellite operator. 46 Argentine Law No. 25000. 47 SC Resolution 3609/99, Argentine Decree 793/99, Article 20. 48 The regulations deliberately did not make any reference to the starting point of the seven-year period. Taken into account that the license was given in December 1993 the exclusivity period should have finished by the end of 2000. However, in response to rulings required by potential market operators, CNC authorities clarified that the seven-year period had to be calculated as from December 1996, which was the actual launch of Nahuelsat. 49 J. Hermida, Legal Basis for a National Space Legislation (Kluwer Academic Publishers: The Hague, London and Boston, 2004).

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However, there are a few circumstances under which foreign operators may obtain authorization to operate in the Ku Band. In principle, these are: (i) when domestic Argentine satellite capacity is not available; (ii) when Argentine satellite capacity is offered at abusive prices; or, (iii) when there are technical restrictions which impede the satisfaction of users’ demand by Argentine satellites.50 The nature of these exceptions indicates that the actual possibility for foreign satellite providers to be granted licences to operate in the Ku Band is slight to non-existent. Furthermore, CNC officials have repeatedly indicated that, at present, these conditions do not exist and that it is reasonable to presume that they will not take place in the near future. A fourth possible exception to the exclusivity regime lies in the existence of reciprocity agreements between Argentina and a foreign government. In order for a reciprocity agreement to be considered as an exception to the monopoly regime and thus to permit foreign operators to obtain licenses to provide fixed satellite services via geostationary satellites, the agreement must afford Argentine operators the same treatment accorded to domestic satellite operators in the other country, and it must encompass Direct to Home (DTH) services.51 At present, Argentina has signed reciprocity agreements with the United States, Canada, Mexico, Brazil, Spain, and the Netherlands.52 A literal reading of the regulations indicates that the three exceptions analyzed above require the existence of a reciprocity agreement in order to be effective. In other words, under a literal interpretation, even if, for example, there is no available Argentine satellite capacity a foreign satellite services provider may not enter the Argentine market unless its national administration has signed a reciprocity agreement with Argentina. Conversely, the mere existence of a reciprocity agreement would not entitle a service provider to render satellite services in Argentina unless there is evidence that one of the three exceptional circumstances foreseen in the regulations does exist. The text of this provision of the regulations has been the object of severe criticism by the US Federal Communications Commission which pressed the Argentine government to let PANAMSAT provide DTH services in Argentina.53 As a consequence of this development, the CNC has indicated that the existence of a reciprocity agreement must be considered as an exception to the exclusivity regime and consequently as grounds for obtaining the relevant license regardless of the existence of or the condition of domestic Argentine satellite capacity.54 Although the effect of this decision is somehow in consonance with the international framework, it contradicts the text of the resolution which the CNC itself elaborated. However,

50 SC

Resolution 14/97. Resolution 14/97. 52 J. Hermida, “Satellite Reciprocity Agreement between the United States and Argentina” (1998) 27 J.Sp.L., 38. 53 J. Hermida, Commercial Space Law: International, National and Contractual Aspects (Buenos Aires: Ediciones Depalma, 1997), 181. 54 SC Resolution 1361/98. 51 SC

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by virtue of this decision, a foreign operator whose administration executed a reciprocity agreement with Argentina may now provide services in Argentina even in the frequency bands reserved for Argentine satellite systems as if it were a national operator.55 Other Bands For all other bands, i.e., the less profitable radio spectrum frequencies, the CNC has designed a somewhat less restrictive system, called the competition regime. Under this regime, foreign operators may render satellite services in the C Band, provided that these services are offered exclusively in this band.56 Thus, absent a reciprocity agreement, a foreign service provider with satellites operating in the C and the Ku Bands may not offer satellite services in Argentina unless it restricts its services to the C Band. In all other bands, including the Ka Band, authorization for foreign operators where there is no reciprocity agreement may only be issued on a temporary and conditional basis when services are not being rendered by domestic Argentine satellite systems.57 Once an Argentine satellite system is capable of providing services in these bands, the satellite operator must cease to market its services to new customers and may only continue to honour existing contracts which are in force. After all contracts have terminated or expired, the foreign operator will lose its Argentine license.58 DTH Services Irrespective of the band used, DTH services may also be provided only through Argentine satellites. The existence of a reciprocity agreement may, however, permit foreign companies to obtain a license to offer these services in Argentina. Other Authorizations Required Another rule59 issued by the communications authorities imposes the obligation to obtain an additional license. Apart from the license to provide satellite services in Argentina, both national and foreign satellite operators, must also seek a license to qualify as satellite facility provider.60 In all the reciprocity agreements signed

55 Agreement

between the Government of Canada and the Government of the Argentine Republic Concerning the Provision of Satellite Facilities and the Transmission and Reception of Signals to and from Satellites for the Provision of Satellite Services to Users in Canada and the Argentine Republic, 17 October, 2000. 56 SC Resolution 3609/99, Argentine Decree 793/99, Article 22. 57 Ibid., Article 22. 58 Ibid., Article 22. 59 SC Resolution 14/97. 60 The term satellite facility provider is a concept used in Argentine law that means an individual or legal entity licensed to operate satellite facilities.

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to date, the Argentine government did not waive the requirement to procure this license. As such, foreign operators must therefore seek authorization to operate as satellite facility providers.61 2.3.2.2 Non Geostationary Satellites Satellite services which are provided via non-geostationary, non-fixed satellite services, and which do not fall within the category of Personal Communications Satellite (PCS) services, were liberalized on November 8, 2000.62 With respect to the Personal Communications Satellite services market, Argentina made an exception to the WTO commitments and these services are therefore not open to competition. In this case, Argentine officials have declared that the CNC will make decisions in the light of present and future needs.63 In practice, this implies that foreign players will face severe obstacles accessing the PCS market not only because Argentina might eventually close this market for competition but also because of the lack of a clear regulatory framework governing these services.64

2.4 Conclusion Argentina has had a national space law framework since the 1990s. These national laws assign the State a central role in the conduct and management of, and decision making with respect to, space activities. Space programs which do not coincide with the State’s policy objectives may be rejected as the existing legal framework empowers the Executive Branch agencies to favour some activities over others. The existing national space legal framework consists of the National Space Plan, which sets out the nation’s general policy in the space arena, and a series of Resolutions adopted by Executive Branch agencies aimed at implementing some of the principles arising from the international space law treaties and conventions.

61 Agreement

between the Government of Canada and the Government of the Argentine Republic Concerning the Provision of Satellite Facilities and the Transmission and Reception of Signals to and from Satellites for the Provision of Satellite Services to Users in Canada and the Argentine Republic, 17 October, 2000, Article 4. 62 G. Oberst, “Satellites and World Trade” (1999) Regulatory Update, 18. 63 J. Hermida, Legal Basis for a National Space Legislation (Kluwer Academic Publishers: The Hague, London and Boston, 2004), 230. 64 In 1998 Argentina launched a tender process, which was open to national and international operators. After a bidding competition whose legitimacy was questioned in the courts and widely denounced in the press, the CNC granted one license. In light of this experience it is unlikely that communication authorities will call a bid for a new license in the near future.

Chapter 3

Regulation of Space Activities in Australia Noel Siemon and Steven Freeland

3.1 General Philosophy and Processes of Government and Legal Regulation 3.1.1 The Australian Legal System The Australian legal system is based on the English common law system. Within this system, the sources of law are (a) statute and delegated legislation; (b) common law, equity and custom; and (c) judge-made and international law. The most important statute in Australia is the Australian Constitution Act 1900. The Constitution is an Act of the British Parliament and is the supreme law in Australia. In 1901 all the colonies in Australia combined to form the Commonwealth of Australia. At the same time, the Constitution established the Commonwealth as a federation of States and as a self-governing nation. Sections 51 and 52 of the Constitution, in accordance with the principles of federation, give legislative powers to the Commonwealth Parliament either concurrently or exclusively with the State Parliaments. Thus, the statute law applicable in Australia comprises both Acts of Commonwealth Parliament and of Acts of State Parliaments. Consequently, full parliamentary sovereignty does not exist in accordance with the Westminster System, because State Parliaments have powers to make legislation and the High Court of Australia has the authority to interpret the Constitution and is competent to declare a Commonwealth statute unconstitutional. However, parliamentary sovereignty does exist if the Commonwealth Parliament acts intra vires its powers under the Constitution. Delegated legislation is also made by persons with delegated authority, such as Ministers or government officials who have the expertise to make detailed regulations that supplement Acts of Parliament. In accordance with the reception of English law, all Australian courts have followed the English Parliament’s fusion of common law and equity. However, there are separate divisions that deal with common law and equity cases in the State N. Siemon (B) Canberra, Australian Capital Territory, ACT, Australia e-mail: [email protected] Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_3,  C Springer Science+Business Media B.V. 2010

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Supreme Courts. English common law was immediately applied in the colonies, with the consequence that local Aboriginal law was unrecognized after British arrival, based on the view that the colonies were acquired by settlement. In 1992, the High Court in Mabo v Queensland (No 2) held that the colonies were acquired by conquest and thereby rejected the applicability of the principle of terra nullius. Judge-made law is the process of judges from higher courts declaring a legal principle to be applied in particular situations, also known as precedent. This is another illustration of how full parliamentary sovereignty does not exist in Australia. International law plays no formal part in Australia’s domestic law, although there is an increasing tendency among various judges of the High Court to take account of international law principles – including human rights rules – in deciding cases. Moreover, the passing of laws by the Commonwealth Parliament in recognition of international agreements has been recognized by the High Court. Australia has three levels of government: Commonwealth, State and Local. In accordance with the principles of the Westminster system of government, the Commonwealth Government operates within a structure of what is termed ‘separation of powers’ between the Executive (incorporating the Government of the day and the Governor-General of Australia), Parliament, (House of Representatives and the Senate) and the Judiciary. The Commonwealth Government is supported through several portfolios, each having a government department. In addition to these departments, there are agencies and statutory authorities. The roles and responsibilities of the departments and agencies are located within the Administrative Arrangement Orders of the Commonwealth Government. The civilian space activities within Australia are decentralized. Australian space regulatory institutions lie within two main portfolios: Innovation, Industry, Science and Research and the Broadband, Communications, and the Digital Economy. The Department of Innovation, Industry, Science and Research (DISSR) is responsible for the implementation of Australia’s space policy1 and the regulations concerning space activities such as space launches.2 Under the Department of Broadband, Communications and the Digital Economy, an independent Statutory Authority, the Australian Communications and Media Authority (ACMA), regulates and manages the use of radiocommunications spectrum relating to space networks.

3.1.2 Australia’s Early Involvement in Space Activities Australia has long been involved in various aspects of space activities. Its technical expertise, geographic location and long and close alliance with the United States has meant that it has played an important role in tracking and communications activities with all sorts of space objects. As early as 1949, a test launch facility was developed at a site in Woomera, a remote area in South Australia surrounded by desert. 1 Australian

Department of Industry, Tourism and Resources. 2003. Space Engagement. The Australian Government’s Space-related Activities: Policy Framework and Overview. 2 Australian Space Activities Act, No 123, 1998.

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In 1961, Australia entered into bilateral arrangements with the United States regarding that country’s satellite program, through the Exchange of Notes constituting an Agreement between the Government of Australia and the Government of the United States of America for Cooperation in a Transit Navigational Satellite Program.3 This and subsequent agreements with the United States led to the establishment of a number of important space tracking stations in Australia. These continue to play an important role in the evolution of Australia’s involvement in space activities. It was also apparent quite early, as the space faring community began to expand and to look for appropriate areas from which to conduct launch activities, that Australia might represent a suitable place from which to launch space objects. Not only is this due to its highly suitable geographical features, but also because of the fact that vast areas of Australia are sparsely populated, thereby lessening the risk of human injury in the event that things go wrong and give rise to the potential for legal responsibility and liability. Moreover, Australia offers other ‘infrastructural’ advantages – including a stable political climate, technical expertise and a good communications system – which are necessary for the successful development of a space launch program. Indeed, the Australian Government concluded a number of early bilateral arrangements with countries that were attracted by the advantages presented for strategic launch activities from remote parts of Australia. In the mid-1970s, Australia entered into an Exchange of Notes constituting an Agreement between the Government of Australia and the Government of the Federal Republic of Germany concerning the Launching of a Skylark Vehicle and Payload at Woomera for Scientific Purposes.4 This arrangement included an indemnity by the German Government in respect of loss or damage suffered by either the Australian or United Kingdom Governments,5 as well as any potential claims for liability against the Australian Government, except where Australia failed ‘to exercise any of its responsibilities’ under the arrangement.6 A similar arrangement was entered into with Canada in 19767 and there were several launch arrangements agreed upon with the United States.8 35

June 1961, [1961] ATS 10. December 1974–11 February 1975, [1975] ATS 6. 5 The various States of Australia had been ‘colonies’ of the United Kingdom before independence on 1 January 1901, and the United Kingdom at the time maintained facilities and operations at the Woomera site. 6 Article 5, Exchange of Notes constituting an Agreement between the Government of Australia and the Government of the Federal Republic of Germany concerning the Launching of a Skylark Vehicle and Payload at Woomera for Scientific Purposes. 7 Exchange of Notes constituting an Agreement between the Government of Australia and the Government of Canada relating to the Launching of a Canadian Scientific Rocket from Woomera 26–27 August 1976, [1976] ATS 22. 8 For example, Exchange of Notes constituting an Agreement between the Government of Australia and the Government of the United States of America concerning the Launching of Seven Aerobee Rockets18 September 1973, [1973] ATS 25 and Exchange of Notes constituting an Agreement 4 19

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There have also been a number of Australian Government launches, with the earliest being registered under the Convention on Registration of Objects Launched into Outer Space (Registration Convention)9 in 1967. However, it was not until the late 1990s that the Australian Government began to consider seriously the potential for the establishment of a significant commercial space launch industry in the country, culminating in the passing through Federal Parliament of the Space Activities Act 1998 (Cth) (Space Activities Act), which came into force on 21 December 1998.

3.1.3 Space Policy in Australia Australia’s history of space activities has been influenced mainly from a research and development perspective. Apart from the early days of space activities at Woomera, when Australia participated in the American and British missile development and in the European Launcher Development Organisation (ELDO) programs, the following years have been without a publicly accepted national policy on space. It was not until 1986 when the Australian Government publicly stated a policy on civilian space development.10 As a result of this statement, Australia established a space board, which later became a Space Council, a Space Office and a National Space Program. This institutional arrangement ceased in 1996, which coincided with a change of government. With the demise of the National Space Program and of the Australian Space Office, a new approach was undertaken in civilian space policy. The Government considered the space sector as being similar to any other high technology industry in Australia and did not provide specific support for space development, but rather competition with other technology and industry development through the general range of industry and science support programs. As such, Australia has lacked a coordinating body and a coordinated approach to its space-related activities and development. As a dedicated space strategy and program do not exist, a decrease in space capabilities and expertise has resulted. The space policy also was redefined. Following a review by the Department of Industry, Tourism and Resources into Australia’s space-related activities, the Government issued its revised Space Engagement and Policy Framework in November 2003, updating it in July 2004, November 2006 and more recently March 2008. At the time, the revised policy provided a clear message to space lawyers and the broader space industry that there is no pressing necessity, and consequently no support for a centrally

between the Government of Australia and the Government of the United States of America on the Launching of Sounding Rockets1 September 1987, [1987] ATS 13. 9 Open for signature 14 January 1975, in force 15 September 1976, 1023 U.N.T.S. 15. 10 Button, John. A space policy for Australia. Media release as Minister for Industry, Technology and Commerce, 22 September 1986.

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funded ‘space office’ or a ‘dedicated space program’ in Australia.11 This reinforced the then prevailing situation that Australia was the only developed country in the world without a dedicated national space program. Indeed, the prospects of building such a program diminished further with the announcement of the termination of Government funding by the end of 2005 for Cooperative Research Centre for Satellite Systems (CRCSS), which built and operated the Australian research satellite FedSat, launched in December 2002.12 FedSat was the first Australian-built satellite in more than thirty years13 and data collected by it was used by Australian and international researchers to study space weather, to help improve computers, communication systems and other satellite technology, and to research navigation and satellite tracking methods. CRCSS, which combines the resources and skills of twelve Australian organizations (four companies, six universities and two government agencies), was established on 1 January 1998 with a budget of about $60 million over a seven-year period, of which about $22 million was provided by the Australian Government.14 The announcement that Government support would not be extended beyond 2005 represented a major blow at the time to the development of future space launch and operation activities. Various members of the Australian space community are still now resigned to the possibility that there may not be another Australian space mission after FedSat. This policy approach affecting space development within Australia is described within the Australian Government Space Engagement: Policy Framework and Overview. This document outlines the decentralised space policy framework and incorporates four themes: (a) (b) (c) (d)

Ensuring access to space services; Supporting world-class science and research related to national priorities; Growing Australia’s space industries; and Safeguarding Australia’s national security.

The Department of Innovation, Industry, Science and Research (DIISR) now has the responsibility for civilian space activities in Australia. An interdepartmental forum, Australian Government Space Forum, is chaired by DIISR. The purpose of this Forum is one of information exchange between government departments and agencies.15 11 Australian

Government Space Engagement: Policy Framework and Overview at 3. for Australian Satellite as Space Effort Hits Wall’ Space Daily 15 December 2004 (accessed at www.spacedaily.com on 20 January 2005). 13 WRESAT (Weapons Research Establishment Satellite), a scientific satellite was launched from Woomera on 29 November 1967 14 Australian Government Space Engagement: Policy Framework and Overview at 10. 15 DIISR; CSIRO; the Australian Research Council; Geoscience Australia; Office of Spatial Data Management; Defence Space Engagement; Broadcasting Division of Department of Broadband, Communications and the Digital Economy; Australian Communications and Media Authority; Department of Infrastructure, Transport, Regional Development and Local Government; 12 ‘Milestone

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The policy document indicated that the focus of the country’s future engagement with space activities was to be increasingly driven by those areas where Australia ‘has competitive advantages’. In this respect, it was anticipated that much of Australia’s participation in future space activities would revolve around the provision of technological expertise and ground station tracking services, utilizing several of those facilities established under the terms of previous bilateral arrangements noted above, particularly those with the United States. Despite the promulgation of the Space Activities Act, it was made clear that the Government would not provide any further tangible beneficial support to facilitate the emergence of a significant commercial space launch industry. According to its policy document, this does not preclude the development of private launch operations, but only if ‘they are commercially viable and sustainable’.16 The document does highlight the ‘success’ of the Hyshot Scramjet launch project, with the first launch having taken place from Woomera in July 2002, and indicates that the program may be extended.17 However, apart from this, there are no positive indications regarding any other aspect of space launch activities. Indeed, although the Christmas Island Spaceport project is mentioned, this is primarily to publicise the Government’s previously announced funding, without any indication at all as to future Government initiatives. Under the heading of ‘Emerging Issues and Opportunities’ there is no reference at all to space launch services.18 Since 2005, however, the Australian space community has entered into an emerging debate on the importance of the need for a national space policy.19 From a space science perspective, the Australian Academy of Sciences has proposed an Australian space science program identifying research projects to be undertaken over a ten year period. This Decadal Plan is still subject to consideration and approval by the National Committee for Space Sciences.20 The newly elected Rudd Labour Government has conducted a recent public inquiry into The Current State of Australia’s Space Science & Industry Sector,

International Organisations and Legal Division of Department of Foreign Affairs and Trade; Emergency Management Australia; Public International Law Branch of Attorney-General’s Department; Office of International Law; Bureau of Rural Sciences; Corporate Strategies Division of Department of Environment, Water, Heritage and the Arts; IPS Radio and Space Services; and the Bureau of Meteorology. 16 Australian Government Space Engagement: Policy Framework and Overview at 3. 17 Australian Government Space Engagement: Policy Framework and Overview at 9. The first HyShot launch in October 2001 failed and did not achieve its goal of achieving the world’s first supersonic combustion flight: ‘Aussie Scramjet Test Fails’ SpaceDaily 31 October 2001 (accessed at www.spacedaily.com on 1 November 2001). 18 Australian Government Space Engagement: Policy Framework and Overview at 13. 19 Chapman, G. Senator. 2006. Space – A priority for Australia, Department of the Senate, Parliament House, Canberra, 2005, and Biddington, B., 2008, Skin in the Game: Realising Australia’s National Interests in Space to 2025, Kokoda Paper No. 7, May 2008. The Kokoda Foundation. Canberra. 20 The First Decadal Plan for Australian Space Science (2008–2017): ‘Building a National Presence in Space’ .

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which was undertaken by the Senate Standing Committee on Economics. Its purpose was to examine options to strengthen and expand Australia’s position in fields aligned with space science and industry. The committee paid particular reference to: (a) Australia’s capabilities in space science, industry and education, including: • existing Australian activity of world-class standard; and • areas in which there is currently little or no activity, but that are within the technical and intellectual capacity of the country; (b) Arguments for and against expanded Australian activity in space science and industry, including: • an assessment of the risks to Australia’s national interest of Australia’s dependence on foreign-owned and operated satellites; • the potential benefits that could accrue to Australia through further development of its space capability; • economic, social, environmental, national security and other needs that are not being met or are in danger of not being met by Australia’s existing space resources or access to foreign resources; • impediments to strengthening and expanding space science and industry in Australia, including limiting factors relating to spatial information and global positioning systems, including but not limited to ground infrastructures, intergovernmental arrangements, legislative arrangements and government/industry coordination; and • the goals of any strengthening and expansion of Australia’s space capability, both in the private sector and across government; and (c) Realistic policy options that facilitate effective solutions to cross-sector technological and organisational challenges, opportunity capture and development imperatives that align with national need and in consideration of existing world-class capability. The Committee issued its final report in November 2008. This report provides a possible platform upon which Australia could develop a revised national space strategy for the future, incorporating a coordinated space policy and a dedicated space agency. As a precursor to the establishment of a space agency, the Senate Committee has made a number of important recommendations, including: (a) the establishment of an Australian government Space Information Website (Recommendation 1); (b) that immediate steps should be taken to coordinate Australia’s space activities so as to ‘reduce [its] over reliance on other countries in the area of space technology’ (Recommendation 2); (c) the formation of a government unit to coordinate Australia’s space activities (Recommendation 3);

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(d) the establishment of a Space Industry Advisory Council comprising industry representatives, government agencies, defence and academics (Recommendation 4); (e) that the Space Industry Advisory Council conduct various analysis and evaluations ‘[a]s a precursor to the establishment of [a] space agency’ (Recommendation 5); and (f) that any Australian Space Agency should become more closely linked to an international space agency (Recommendation 6).21 The Australian Government announced in May 2009 its support of the establishment of an Australian Space Science Programto coordinate Australia’s national and international civil space activities, and to support space research, innovation and skills development in areas of national significance. Under this program, a Space Policy Unit was established within the Department of Innovation, Industry, Science and Research to provide whole-of-Government advice on space and industry development, and to coordinate and support space research, innovation and skills development in areas of national significance. A Space Industry Innovation Council to advise the Government on Australia’s civil space matters was established in November 2009 with the announcement by the Minister for Innovation, Industry, Science and Research of the appointment of its Chair. The Council acts as an important innovation advocate to capitalise on Australia’s niche space-related strengths and opportunities. The Council will also consider the space science and industry implications arising from the Defence White Paper22 and the National Security Science and Innovation Strategy.23

3.2 Legal Issues Related to Launch Services 3.2.1 History and Objectives Australia is a party to the five space treaties.24 It therefore is under an obligation to monitor and regulate space activities within its territory or under its control. Articles

21 Senate Standing Committee on Economics, Lost in Space? Setting a new direction for Australia’s

space science and industry sector. November 2008. Australia in the Asia Pacific Century: Force 2030 23 The Strategy was announced by the Prime Minister in Parliament on 4 December 2008. 24 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, 1967 (Outer Space Treaty); the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 1968 (Rescue Agreement); the Convention on International Liability for Damage Caused by Space Objects, 1972 (Liability Convention); the Convention on Registration of Objects Launched into Outer Space , 1975 (Registration Convention); and the Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 1979 (Moon Agreement). 22 Defending

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V1, VII and VIII of the Outer Space Treaty25 provide areas of responsibility for Australia; namely responsibility, liability, and registration. As a consequence of these provisions and the subsequent Liability Convention (1972) and Registration Convention (1975), Australia could, in appropriate circumstances, be held liable for damage caused by a space object, as a launching State within the terms of the Liability Convention.26 As such, Australia might also be responsible in relation to registration with the United Nations of any space objects in relation to which Australia is a launching state. As the international commercial launch industry became more competitive and sophisticated in the 1990s, private consortia sought to explore the possibilities of undertaking commercial satellite launch projects from Australia. Given the historical reluctance of the Australian Government to encourage the development of a large-scale domestic space launch vehicle system, these projects were largely conceived as being consistent with the need to ‘import’ launch vehicle and associated technology, as the foundation to facilitate the development of a domestic launch industry.27 In April 1997, the American corporation Kistler Aerospace Corporation signed an Operations Agreement with the Australian Government, which provided a licensing framework to allow the company to develop and operate a commercial launch

25 Article

VI: States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization. Article VII: 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. Article VIII: A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return. 26 Liability Convention, Art 1(c) defines a ‘launching state’ as a state which launches or procures the launching of a space object and a state from whose territory of facility a space object is launched. 27 Heather Walker ‘Bi-lateral Agreements to Facilitate Launch Projects and Satisfy NonProliferation Obligations’ (unpublished paper presented at 47th Colloquium of the International Institute of Space Law, Vancouver, 2004), p. 6 (on file with authors).

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facility at Woomera, involving the development of K-1 two stage reusable launch vehicles for the Low Earth Orbit (LEO) market. Trials were scheduled by its Australian subsidiary, Kistler Woomera Pty Ltd, to commence in early 1999, with a view to initiating a commercial launch service by the end of 1999.28 This has not (yet) eventuated, primarily due to funding difficulties, although the Australian Government still describes the Kistler project as ‘under development’. Another project (which also has not proceeded) was the proposal by United Launch Systems International to establish a commercial light launch service near Gladstone in Queensland, utilizing Russian Unity Launch Vehicle technology, which was anticipated to commence operations by 2001. A third consortia, operating through an Australian company Asia Pacific Space Centre Pty Ltd (ASPC), had proposed the establishment of a launch facility, again using Russian launch vehicle technology, on the Australian external territory (since 1958) of Christmas Island – which had previously been the site of a phosphate mining operation, then a Casino (both of which are no longer operating to any significant degree) and more recently a detention centre for asylum seekers29 – some 1,800 km north-west of the mainland in the Indian Ocean. The ASPC project was, until relatively recently, still ongoing, but now seems to have collapsed due to the lack of financial health of the consortia. There have also been a number of other proposals involving the deployment of Cape York (Queensland) and Woomera (South Australia) as launch facilities, but these have not come to fruition.30 In response to this largely private sector interest in the development of a launch industry in Australia, the Government enacted the Space Activities Act, thereby becoming only the sixth country to introduce specific domestic legislation directed towards space activities.31 Prior to this, there had been no existing Australian legislative or regulatory framework – including licensing, safety and liability issues – that specifically applied to ‘national’ space activities, particularly launch activities from Australia. The Space Activities Act was introduced as an intended springboard into a lucrative space launch industry. It establishes a quite sophisticated license system to deal with various aspects of launches from, and returns to facilities within Australia’s

28 Australian Ministry for Industry, Science and Resources, Explanatory Memorandum to the Space

Activities Bill 1998 December 1998 at p. 4 (accessed at www.aph.gov.au on 21 August 2004). establishment of a detention centre on Christmas Island has itself been the cause of some concern: ‘Detention centre threatens Russia’s Christmas island space project’ SpaceDaily 15 April 2002 (accessed at www.spacedaily.com on 16 April 2002). 30 Michael Davis ‘Space Legislation: The Australian Experience’, Project 2001 Workshop on ‘Needs and Prospects for National Space Legislation’, Munich 6 December 2000 (on file with authors). 31 The previous countries were the United States, Sweden, the United Kingdom, the Russian Federation and South Africa: Frans G von der Dunk ‘Launching from “Down Under”: The New Australian Space Activities Act of 1998’ [2000] Proceedings of the Forty-Third Colloquium on the Law of Outer Space 132 at 139 (footnote 9). 29 The

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territory. Although of course seeking to promote Australia’s interests, it also was designed to extend international cooperation in space activities. This Act, together with the accompanying Space Activities Regulations, 2001, provides the regulatory framework outlining the regulation of launch facilities, the launching of space objects, and the return of space objects; thereby fulfilling Australia’s obligations under international space law. To ensure the compliance with the Act, a licensing authority, called the Space Licensing and Safety Office (SLASO) was established in 2001. The operation of this Office forms part of the goals of the Commonwealth Department of Innovation, Industry, Science and Research. The need for an Australian Licensing Authority and the appointment of a safety range officer was acknowledged in 1992 by the Senate Standing Committee on Transport, Communication and Infrastructure.32 As a result of information provided by the space community during a public inquiry into developing satellite launching in Australia, the Committee recommended that the Australian Space Office should initiate and formulate a legislative and regulatory framework.33 In addition, the need to establish guidelines for safety standards on spaceports and the appointment of a Range Safety Officers to oversight compliance with safety requirements on behalf of the Commonwealth of Australia was recommended by the Committee. The Space Activities Act applies to space activities conducted either in Australia or by an Australian citizen overseas. For anyone operating a launching facility in Australia, including its external territories, a launch permit or an exemption certificate is required. The Government has described the principal object of the legislation in terms of ‘reflect[ing] in an Australian law, Australia’s obligations as a signatory to the key United Nations space treaties and provid[ing] a legally certain and predictable environment for the development and operation of Australia’s space launch facilities.’34 In keeping with this stated objective, the primary purposes of the legislation were expressed as follows:35 (a) To establish a system for regulation of space activities carried on either from Australia or by Australians nationals outside Australia; (b) To provide for the payment of adequate compensation for damage caused to persons or property as a result of space activities regulated by this Act; (c) To implement certain obligations of Australia’s obligations under the United Nations Space Treaties; and

32 Australian Senate Standing Committee on Transport, Communications and Infrastructure, 1992,

Developing Satellite launching facilities in Australia and the role of government, Canberra. Recommendation 5, p. 88. 34 Australian Ministry for Industry, Science and Resources Explanatory Memorandum to the Space Activities Bill 1998 December 1998, at p. 4 (accessed at www.aph.gov.au on 21 August 2004). 35 Space Activities Act 1998 (Cth) Section 3. 33 Ibid.,

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(d) To implement certain of Australia’s obligations under specific cooperation agreements. In essence, the legislation was designed to facilitate a commercial space launch industry in Australia, as well as launches of Australian payloads from overseas sites, both within the context of ensuring the preservation of public safety. As a general observation, the legislation has clearly ‘succeeded’ in respect of purposes (b)36 and (c)37 above. With respect to purpose (a) and despite the broad title of the legislation, it is only really concerned with civil space launch and return activities under the more general rubric of ‘commercial space activities’. Indeed, the legislation seeks to regulate only the operation of launch facilities, the launching of space objects and the return of space objects. Purpose (d) was subsequently added to the legislation under the Space Activities Amendment (Bilateral Agreement) Act 2001(Cth) to take into account the arrangements for cooperation between the Australia and Russian Governments, as reflected in the Agreement between the Government of Australia and the Government of the Russian Federation on Cooperation in the Field of the Exploration and Use Of Outer Space for Peaceful Purposes.38

3.2.2 Broad Outline of the Legislation The Space Activities Act comprises six parts, that is, Definition (Part 2), licensing (Part 3), liability for damage by space objects (Part 4), registration of space objects (Part 5), implementation of space cooperation agreement (Part 5A), and investigation of accidents (Part 7). (a) Licensing Regime: The Space Activities Act is designed to apply to space activities that take place in Australia or are undertaken by Australians outside of Australia. Activities that fall into either of these classifications are subject to approval. To facilitate this process, the legislation creates a number of different licenses to deal with specific space (launch-related) activities. In this regard, the legislation has followed the United States example of a licensing model for the regulation of national space activities. This approach is consistent with the fundamental obligations arising in Article VI of the Outer Space Treaty. (b) The specific licenses and permits created under the legislation are: 36 Part

4 of the Space Activities Act 1998 (Cth) sets out a comprehensive regime regarding the liability of launch operators. For a description of these provisions see Ricky J Lee & Associates The Australian Legal & Regulatory Framework for Space Launches: Guide for the Space Industry 2004 Profusion, Australia at pp. 51–63. 37 As noted above, Australia has ratified each of the five United Nations space treaties. While there have been some suggestions that a change is gradually emerging, it is still widely recognised that Australia operates under the ‘transformation’ approach to international law. Under this approach, it is necessary for treaty obligations to be transformed into Australian domestic law through implementing legislation. The Space Activities Actacts as the specific implementing domestic legislation in relation to certain obligations arising in the United Nations space treaties. 38 23 May 2001, [2004] ATS 17.

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(i) Space License – required to ‘operate a launch facility in Australia, or do anything directly connected with operating a launch facility in Australia, using a particular kind of launch vehicle’ or to use ‘particular flight paths’.39 The granting of space licenses is subject to eight requirements including the Minister being satisfied as to the organisational and financial competency of a person to operate a launch facility and the launch vehicle, that the person has sufficient funding to construct and operate the launch facility, and the completion of an adequate environmental management plan40 containing evidence of State and Commonwealth approvals.41 Under the Act, there is a requirement that the person seeking a space licence must be a corporation to which paragraph 51(XX) of the Constitution applies. The space licence may be revoked or varied by the Minister, but the location of the launch facility cannot be altered.42 Before a Space License is granted, the Minister (acting through the Space Licensing and Safety Office) may, among other things, require evidence to satisfy himself/herself: (a) as to the competence of the applicant to the launch facility and/or launch vehicles; (b) as to the provision of appropriate environmental safeguards as to the construction and operation of the launch facility; (c) as to the provision of sufficient funding to construct and operate the launch facility; (d) that there is only a low probability that the construction and operation of the launch facility will cause substantial harm to public health or public safety or substantial damage to property; (e) that Australia’s national security, foreign policy or international obligations do not require that the license not be granted.43 (ii) Launch Permit – required to launch ‘a particular space object’ or ‘a particular series of launches of space objects that . . . having regard to the nature of any payloads to be carried, may appropriately be authorized by a single launch permit from a launch facility located in Australia’.44 The permit may also ‘authorize particular space objects to be returned, in connection with the launch or launches, to a specified place or area in Australia’.45 Before a Launch Permit is granted, the Minister (acting through the Space 39 Space

Activities Act 1998 (Cth) Sections 15 and 18. Activities Act 1998, Section 18. 41 Including requirements under the Environment Protection (Impact of Proposals) Act 1974 and Environment Protection and Biodiversity Conservation Act 1999. 42 Space Activities Act 1998, Section 24. 43 Space Activities Act 1998 (Cth) Section 18. 44 Space Activities Act 1998 (Cth) Sections 11 and 26(1). 45 Space Activities Act 1998 (Cth) Section 26(2). 40 Space

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Licensing and Safety Office) may, among other things, require evidence to satisfy himself/herself: (a) that the applicant holds a relevant Space License covering the launch facility and kind of launch vehicle concerned; (b) as to the competence of the applicant to carry out the launch(es) and any connected returns; (c) that the insurance/financial requirements in Division 7 of the legislation will be satisfied for the launch(es) and any connected returns; (d) that there is only a low probability that the launch(es) and any connected returns will cause substantial harm to public health or public safety or substantial damage to property; (e) that the space object(s) concerned are not and do not contain a nuclear weapon or a weapon of mass destruction of any other kind; (f) that Australia’s national security, foreign policy or international obligations do not require that the permit not be granted. (iii) Overseas Launch Certificate – required for an Australian national to launch ‘a space object . . . from a launch facility located outside Australia’.46 Before an Overseas Launch Certificate is granted, the Minister (acting through the Space Licensing and Safety Office) may, among other things, require evidence to satisfy himself/herself: (a) that the insurance/financial requirements in Division 7 of the legislation will be satisfied for each launch or, that, having regard to the nature and purpose of the space object(s) concerned, it is not necessary to insist that those insurance/financial requirements be satisfied; (b) that there is only a low probability that the launch(es) will cause substantial harm to public health or public safety or substantial damage to property; (c) that Australia’s national security, foreign policy or international obligations do not require that the certificate not be granted.47 The Minister will also have regard to any agreement or arrangement between Australia and the other launching State(s), under which that State or States assume liability and indemnify Australia for any damage that the space object(s) may cause.48 (iv) Authorization of Return – required for the return to a place anywhere in Australia of a space object that was not launched from a launch facility located

46 Space

Activities Act 1998 (Cth) Section 12(a). Activities Act 1998 (Cth) Section 35. 48 Space Activities Act 1998 (Cth) Section 35(3). 47 Space

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within Australia.49 Before an Authorization of Return is granted, the Minister (acting through the Space Licensing and Safety Office) may, among other things, require evidence to satisfy himself/herself: (a) as to the competence of the applicant to carry out the return(s); (b) that the insurance/financial requirements in Division 7 of the legislation will be satisfied for the returns; (c) that there is only a low probability that the return(s) will cause substantial harm to public health or public safety or substantial damage to property; (d) that the space object(s) concerned are not and do not contain a nuclear weapon or a weapon of mass destruction of any other kind; (e) that Australia’s national security, foreign policy or international obligations do not require that the authorization not be granted.50 As with the Overseas Launch Certificate, the Minister will also have regard to any agreement or arrangement between Australia and any country that is a launching State(s), under which that State assumes liability and indemnifies Australia for any damage that the space object(s) may cause.51 (c) The legislation also provides for the possibility of an Exemption Certificate in relation to various space activities, to be issued in the circumstances set out in the relevant Regulations, which could, for example, be in a situation requiring an emergency landing.52 An interesting addition to the Space Activities Amendment Act 200253 is the amendment to Section 8 of the Space Activities Act, whereby an area beyond 100 km above mean sea level was identified in determining the issuing of licences, permits or certificates. That is, the Act applies to launches or attempted launches and/or payloads that go (or are intended to go) beyond 100 km above mean sea level. At the time of introducing this clearly defined point into the legislation, the Minister for Industry, Science and Resources explained that it was necessary to ‘provide certainty to industry about the point where industry players become subject to the provisions’ of the legislation, by addressing ‘the issue that there is uncertainty

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Activities Act 1998 (Cth) Sections 14(a) and (b). Australia has previously been the ‘unintended’ return destination for space objects. The most wellknown example was in 1979, when several tonnes of debris from the United States’ US$2.6 billion Skylab space station, at the time the largest space object ever to orbit the Earth, crashed into the Great Australian Desert, having re-entered the Earth’s atmosphere several thousand kilometres from its planned orbital track. This provoked a hurried and rather embarrassed apology to the Australian Government by United States President Jimmy Carter: see Steven Freeland ‘There’s a Satellite in my Backyard! – Mir and the Convention on International Liability For Damage Caused by Space Objects’ (2001) 24:2 University of New South Wales Law Journal462, at 463. 50 Space Activities Act 1998 (Cth) Section 43. 51 Space Activities Act 1998 (Cth) Section 43(4). 52 Space Activities Act 1998 (Cth) Section 46. 53 Space Activities Amendment Act 2002, No 100; date of Assent 10 November 2002.

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as to where “outer space” begins given that there is no definitive explanation of the term in either Australian or international law.’54 This was the first example in the world of domestic space-related law already in force that refers to a specific ‘demarcation point’ for the purposes of applying the regulations to space activities. It appears that other domestic laws may follow suit and, more significantly, a recently (January 2008) drafted treaty sponsored by Russia and China purporting to ban weapons in outer space, which was submitted to the Conference on Disarmament in Geneva, contained a definition of ‘outer space’ as being ‘space beyond the elevation of approximately 100 km above ocean level of the Earth’.55 Apart from the curious use of the word ‘approximately’ – in what circumstances would it not be 100 km? – this represents a rather revolutionary suggestion by two major superpowers, which, along with the United States, have tended to stifle previous attempts to designate a formal demarcation, primarily for strategic and political reasons. Indeed, it was only a few years ago that a Chinese Foreign Ministry spokesperson referred to outer space as the ‘Fourth Territory’. To accommodate this demarcation for the purposes of the Australian legislation, the definition of a ‘space object’ differs from that which appears in the United Nations’ space treaties.56 The Space Activities Act now defines a space object as follows:57 ‘space object’ means a thing consisting of: (a) a launch vehicle; and (b) a payload (if any) that the launch vehicle is to carry into or back from an area beyond the distance of 100 km above mean sea level; or any part of such a thing, even if: (c) the part is to go only some of the way towards or back from an area beyond the distance of 100 km above mean sea level; or (d) the part results from the separation of a payload or payloads from a launch vehicle after launch. 3.2.2.1 Establishment of the Space Licensing and Safety Office The Government has established the Space Licensing and Safety Office (SLASO) to administer the Space Activities Act and regulate those space activities undertaken under the regime established by the legislation. SLASO’s primary roles are to assess

54 Australian Ministry for Industry, Science and Resources, Explanatory Memorandum to the Space

Activities Amendment Bill 2002 February 2002 at p. 4 (accessed at www.aph.gov.au on 23 May 2005). 55 See Steven Freeland, ‘The 2008 Russia/China Proposal for a Treaty to Ban Weapons in Space: A Missed Opportunity or an Opening Gambit?’ (2008) 51 Proceedings of the Colloquium on the Law of Outer Space, 261–271. 56 Article 1(d) of the Liability Convention defines a space object as follows: ‘The term ‘space object’ includes component parts of the space object as well as its launch vehicle and parts thereof.’ 57 Space Activities Act 1998 (Cth) Section 8.

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applications for approval under the Space Activities Act and to exercise responsibility for the ongoing development and distribution of further subsidiary regulations and guidance material to the space industry, which provide additional explanation and advice about the operational aspects of the regime.58 Under the regime that has been established, SLASO must ensure that space activities do not jeopardize public safety, property, the environment and Australia’s national security, foreign policy or international obligations; that there is adequate third-party insurance in place to cover proposed and actual space activities; and that any accidents that may occur are investigated.59 SLASO is headed by a Director who, advised by expert assessors, is responsible (under delegation from the relevant Minister) for the licensing approvals of space launch facilities, space launches and associated activities carried on either from Australia or by Australian nationals outside Australia. The Director is responsible for ensuring public safety, emergency and incident investigations and for coordinating space related regulatory matters between government agencies.60 The Government sought to establish SLASO on a ‘cost-recovery’ basis, anticipating that as launch sites in Australia became commercially viable, its operating costs would be recovered from the launch operator(s).61 In reality, this has not yet been the case. From the period of its establishment in June 2001 to 30 March 2005, SLASO had approved only four completed space activities under the licensing provisions of the Space Activities Act. 3.2.2.2 Launch Safety Officer The appointment of a Launch Safety Officer for each licensed launch facility is a requirement placed on the Australian Government.62 The responsibility of the Launch Safety Officer is to ensure compliance with the Act and Regulations and to ensure that no person or property is endangered by a launch at that facility.63 The

58 See,

for example, Department of Industry, Tourism and Resources, Guidelines for Industry: Overseas Launch Certificate, 1 May 2003 and Department of Industry, Tourism and Resources, Guidelines for Industry: Authorized Return of Overseas Launched Space Object, 3 March 2005 (both accessed at www.industry.gov.au on 4 April 2005). 59 Under the terms of the Space Activities Act 1998 (Cth), there is a differentiation between an ‘accident’ and an ‘incident’. Under the legislation, a ‘suitably experienced and qualified investigator’ must be appointed in the case of an accident, but need not be in the case of an incident (see Space Activities Act 1998 (Cth) Sections 85, 86 and 88). For further details see Department of Industry, Tourism and Resources, Introduction to the Australian Space Safety Regime, 1 May 2003 (accessed at www.industry.gov.au on 4 April 2005). 60 Department of Industry, Tourism and Resources, SLASO Website Introduction (accessed at www.industry.gov.au on 4 April 2005). 61 Australian Ministry for Industry, Science and Resources, Explanatory Memorandum to the Space Activities Bill 1998 December 1998 at p. 8 (accessed at www.aph.gov.au on 21 August 2004). 62 Ibid., Section 50. 63 Space Activities Act 1998, Section 51.

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powers of the Launch Safety Officer are prescribed in Sections 52 and 56 of the Act. These powers include: (a) with the consent of the holder of the space license, or of any other person authorised by the holder, the Launch Safety Officer may enter and inspect the launch facility and any space object, including the inspection and testing of any equipment; (b) the Launch Safety Officer may request any information or assistance in the proper performance of his or her functions; (c) the Launch Safety Officer may give directions about the launch of a space object carried out, or proposed to be carried out, at the facility that he or she considers necessary to avoid any danger to public health or to persons or property; including directions to stop the launch or destroy the space objects. (d) The Launch Safety Officer may give any directions about the return of a space object that was launched from the facility that he or she considers necessary to avoid any danger to public health, person or property;64 and (e) The Launch Safety Officer has the power of search of the launch facility and seizure of items.65 3.2.2.3 Registration The Act also requires that the Minister maintains a Register of Space Objects.66 The information required under the Act includes: (a) (b) (c) (d) (e) (f)

The registration number given to the space object under Section 77 of the Act; The launch facility; The date of launch; The space objects orbital parameters; The space object’s general function; and The name of the launching State(s).

3.2.2.4 Liability One of the important aspects of a national regulatory framework for space activities is to establish a regime where the State can ‘set off’ its financial risk in relation to damage caused to third parties. While this does not result in the extinguishment of the legal liability of the State, as a launching State, under the terms of the Outer Space Treaty and the Liability Convention, it does provide a degree of financial comfort, by facilitating the passing on of the financial responsibility down the chain to the entity directly engaged in the activity. This model has, for example, been used in the regime imposed by United States national space law. 64 Ibid.,

Section 52(2). Section 56(1). 66 Ibid., Section 76. 65 Ibid.,

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The Space Activities Actestablishes a liability regime with this goal in mind. Part 4 of the legislation provides for either absolute liability67 or fault liability68 on the part of the launch operator in circumstances largely mirroring the terms of the Articles II and III of the Liability Convention. This regime is applicable where Australia is regarded as a launching State and only during the ‘liability period’, which is defined as follows:69 (a) for the launch of a space object – the period of 30 days beginning when the launch takes place, or such other period as is specified in the regulations; and (b) for the return of a space object – the period beginning when the relevant re-entry manoeuvre is begun and ending when the object has come to rest on Earth, or such other period as is specified in the regulations. Unless there has been a breach of the relevant permit, or the damage has been caused by an operator who has failed to obtain a required permit (in which case there is unlimited liability), the legislation provides for a maximum amount of liability equal either to the ‘Maximum Probable Loss’ (MPL) or the statutory ceiling of A$750 million. This means that in relation to any damage caused by the payload or the launch vehicle to a third party, the launch operator is liable for compensation and that this compensation is limited to the maximum probable loss with the Government indemnifying the launch operator, up to an amount not exceeding three billion dollars.70 This cap was considered as important in order not to impose uncommercial and/or uncompetitive obligations upon launch operators seeking to engage in space activities under the regime established by the legislation.71 The legislation requires commercial operators of space launch activities to take out appropriate commercial insurance against third party claims for damage, and which covers any liability Australia might incur under the Liability Convention.72 The total insurance is based on the lesser of A$750 million and the MPL, to allow for the recovery of the amount of the financial liability from commercial participants or their insurers, in the event that Australia was called upon to compensate overseas parties.

67 Space

Activities Act 1998 (Cth) Section 67. Activities Act 1998 (Cth) Section 68. 69 Space Activities Act 1998 (Cth) Section 8. 70 Ibid., Sections 67 and 69(4) 71 Australian Ministry for Industry, Science and Resources, Explanatory Memorandum to the Space Activities Bill 1998 December 1998 at p. 9 (accessed at www.aph.gov.au on 21 August 2004). 72 See also David Sagar ‘Compulsory Insurance: Basic Features of National Insurance Regulations’ Project 2001 Plus Workshop ‘Towards a Harmonised Approach for National Space Legislation in Europe’, Berlin 29–30 January 2004, pp. 9–10. 68 Space

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3.2.2.5 Investigations In the event of an accident or an incident occurring, the space permit, issued subject to Section 43, is automatically suspended73 until revoked by the Minister. In addition, the space object or the wreckage becomes the custody of the Minister74 until an investigator is appointed75 to examine the circumstances surrounding the accident or incident and provide a written report to the Minister.76 3.2.2.6 Some (Relatively) Minor Issues Requiring Clarification Although the Space Activities Act has already been amended on a number of occasions, there are still a number of issues that leave some uncertainties in the practical application of its provisions. Overall, however, these areas are relatively minor and can be quite easily rectified. The main points that have previously been raised have been as follows:77 (a) There have been conflicting views as to whether the statutory ceiling on insurance cover is at an appropriate level. (b) Further clarification may be required regarding returns, as the legislation does not distinguish between the return of an Australian launch vehicle and an Australian payload. (c) It is not clear whether, and to what extent, the liability regime established under the legislation negates the possibility of a common law action in tort being instituted for damage caused by a launch operator, or in respect of claims for damage that occurs outside of the liability period. In any event, there are some complex domestic constitutional issues that would arise from any attempt by the Australian legislature to extinguish this common law right of action. (d) The legislation provides that the costs of investigations of accidents are to be met by launch operators. This differs from the practice under the United States legislative regime. (e) Part 5 of the legislation provides for the establishment of a Register of Space Objects to be maintained by the Minister. However, perhaps as an oversight, there is no provision for the relevant information to be sent to the SecretaryGeneral of the United Nations in accordance with Article IV of the Registration Convention. (f) The legislation simply defines a number of important concepts – ‘damage’, ‘fault’, ‘gross negligence’, ‘launching State’ – in terms of their current (uncertain) meanings under the Liability Convention. Given the innovation of 73 Space

Activities Act 1998 (Cth) Section 95. Section 94. 75 Ibid., Section 88(1). 76 Ibid., Section 93. 77 For a more detailed discussion on some of these points, see Ricky J. Lee and Associates The Australian Legal & Regulatory Framework for Space Launches: Guide for the Space Industry 2004. 74 Ibid.,

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the Space Activities Act in a number of other aspects, this could be considered as a missed opportunity to provide further clarity, as well as providing an interesting example for other countries to consider for their own respective national space legislation.

3.3 Satellite Data Distribution Policy There is no formal national law in Australia that addresses specifically the distribution of satellite remotely-sensed data. However, a centralized national remote sensing data provider, Geoscience Australia, a government organisation, provides data via the internet directly to customers. It is also responsible for the operation of the Australian Centre for Remote Sensing (ACRES). ACRES receives and archives, processes and distributes satellite-based remote sensing data of Australia and its Territories. In addition, the Tasmanian Remote Sensing Resources Satellite System (TERSS) operates an antenna for the reception of remote sensing data.

3.3.1 International Space-Related Agreements Australia has entered into agreements with several nations, in particular the United States of America and Japan, and with the European Space Agency, for the reception and distribution of data in Australia. These agreements include: • Memorandum of Understanding with United States Geological Survey (USGS) for access to Landsat data reception in Australia; • Memorandum of Understanding with Japanese Aerospace Exploration Agency (JAXA) for the reception of data from ALOS; and with the Japanese Earth Remote Sensing Data Analysis Centre (ERSDAC) for the distribution of ASTER satellite data; • Memorandum of Understanding with the European Space Agency (ESA) for the reception and distribution of ERS data in Australia.

3.4 Legal Issues Related to Satellite Telecommunications, Including Satellite Broadcasting Australia is a member of the International Telecommunication Union (ITU). As a result, Australia is obliged under international law to comply with the ITU Agreements. To manage the requirements associated with the radio spectrum on behalf of the Australian Government, an independent statutory authority was established. In 2005, the Australian Communications and Media Authority (ACMA) became an independent Statutory Authority within the Communications portfolio. ACMA was formed through a merger of the Australian Communications

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Authority (ACA) and the Australian Broadcasting Authority (ABA). It is responsible for regulating telecommunications and radiocommunications industries in Australia. This organisation was created under the Australian Communications and Media Authority Act (2005). It exercises powers under the Telecommunications Act (1997), the Telecommunications (Consumer Protection and Service Standards) Act (1999), the Radiocommunications Act (1992) and the SPAM Act (2003). ACMA falls under the Department of Broadband, Communications and the Digital Economy portfolio. The main policy perspective of ACMA includes: • Providing support and a policy and regulatory framework for satellite services to Australia; • Providing advice to Government on regulatory and engineering requirements for Australian and Foreign space systems, radioastronomers and satellite operations; • Representing Australia on issues relating to international regulation of communications; • Facilitating and managing access to the radiofrequency spectrum through radiocommunications licensing in accordance with the Radiocommunications Act 1992; • Investigating radiocommunications interference; • Licensing telecommunications carriers and ensuring compliance with license conditions and carriage service provider rules; • Regulating industry compliance with mandatory standards and voluntary codes of practice. The main legislative instruments that affect ACMA include: • The Australian Communications and Media Authority Act 2005; • The Telecommunications Act 1997; • The Telecommunications (Consumer Protection and Services Standards Act 1999; • The Broadcasting Services Act 1992; • The Radiocommunications Act 1992. ACMA, under the Radiocommunciations Act 1992, manages and regulates the radiofrequency spectrum. It issues licences for the operation of radio equipment and ensures that the radio operators comply with mandatory standards. From a space perspective, as a result of the Radiocommunciations Act 1992, Australia claims jurisdiction over ‘Australian space objects’. This Act describes and defines, in detail, the process when dealing with satellite applications. As a result, ACMA regulates and provides support for the communication needs of existing and for any proposed Australian satellite system and ensures that these systems comply with international agreements, including the ITU provisions. In addition, ACMA manages radiofrequency spectrum requirements associated with radioastronomy sites and of Earth stations within Australian Territory.

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Furthermore, under the Radiocommunications Act 1992, ACMA may establish Determinations and licences.78 For the purpose of the Act, ACMA may make a written determination that describes the status of a particular object and whether the object is or is not a space object for the purposes of the Radiocommunications Act. Under Division 4 of the Act, foreign space objects are excluded unless otherwise included through a Determination by the ACMA. In 2000, the Radiocommunciations (Foreign Space Objects)79 Determination 2000 was enacted. This Determination noted that foreign space objects are included within the scope of the Radiocommunciations Act 1992. Therefore, in order to provide a service in Australia, all satellites operators and services providers that involve foreign space objects are required to have a telecommunications apparatus licence.

References Australia. Radiocommunications Act 1992. Australia Radiocommunciations (Foreign Space Objects) Determination 2000. Australia. Space Activities Act 1998: Act 123 of 1998 as amended. Canberra Attorney General’s Department 2002. Australia. Parliament. Senate. Space Activities Act 1998: Explanatory Memorandum. Australia. Parliament House of Representatives. Space Activities Amendment Bill 2002: Explanatory Memorandum. Australia. Parliament House. Senate Standing Committee on Economics, Lost in Space? Setting a New Direction for Australia’s Space Science and Industry Sector. November 2008. Biddington, B. 2008. Skin in the Game: Realising Australia’s National Interests in Space to 2025, Kokoda Paper No. 7, May 2008. The Kokoda Foundation. Canberra. Button, J. 1986. A Space Policy for Australia. Media release as Minister for Industry, Technology and Commerce, 22 September 1986. Chapman, G. S. 2006. Space – A Priority for Australia.Department of the Senate, Parliament House, Canberra, 2005.

78 Section

16(1)(ca).

79 ‘Space object’ means an object (whether artificial or natural) that is beyond,

has been beyond or is intended to go beyond the major portion of the Earth’s atmosphere, or any part of such an object, even if the part is intended to go only some of the way towards leaving the major portion of the Earth’s atmosphere.

Chapter 4

Regulation of Space Activities in Brazil José Monserrat Filho

To use international cooperation involving technology transfer that accords with national interests.1

4.1 Introduction This Chapter aims at presenting some basic information on Brazilian space legislation, having particularly in mind private entrepreneurs planning to carry out space activities in Brazil. Brazilian Space Law is a collection of national rules related not only to private space activities, but also to space activities in general. It includes: the first legal act issued on August 3, 1961, which set up the Organizing Group for the National Commission on Spaces Activities (GOCNAE); recent regulations on commercial launching activities in Brazil; and, a General Regulation on Space Safety. Such a broad scope seems to be useful in fully understanding the entire regulatory process governing Brazilian space activities. One of the challenging space tasks that Brazil faces today is the commercialization of the Alcantara Launching Centre (CLA), a construction that commenced in 1979 and was completed in 1989. The objective of offering reliable and low cost launching services to the world market was announced in 1993.2 Controlled today by the Brazilian Air Command (formerly the Ministry of Aeronautics which, currently, is part of the Ministry of Defense), the CLA is located in the State of Maranhao, a very special geographical area (only 2.18◦ south of the Equator) for space launching activities in the North of the country. It offers excellent conditions for equatorial, as well as polar orbit launches. Occupying an area J.M. Filho (B) Ministry of Science and Technology, Brazil e-mail: [email protected] 1 Priority of Brazilian National Program of Space Activities – 2005–2014. 2 José

Monserrat Filho, “Brazilian Launch Centre Goes to Market”, Space Policy, Vol. 15, 1999.

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_4,  C Springer Science+Business Media B.V. 2010

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of 620 km2 , it is able to hold many launching pads and facilities necessary for the operation of different launchers of all sizes. Since 2005, the Brazilian space authorities have been involved in a project to create a civil Alcantara Space Centre covering about 85% of the area of the CLA. The remaining 15% of the area would serve as a military base.

4.2 National Space Law It is clear that national legislation is an important and valuable instrument for the enhancement and protection of national interests: adopting specific rules, for example, appels d’offres (national or regional preferences), technology transfers, financing research and development, insurance, patents, fiscal matters, etc. In order to guarantee the achievement of its goals, the national legislation can clearly and precisely show the way in which it intends to relate with other pieces of national legislation and international law. It can also serve the practical purpose of determining the meaning of notions of use and exploration of outer space that remain widely undefined in International Space Law, and it can as well establish a juridical basis favourable to the development of local industry.3 Military superiority and state supremacy remain formidable objectives for most space activities. However, practical commercial interests, especially private, became quite relevant in this field where private companies play a predominant role (at least in developed countries). Yet, the role of the state remains irreplaceable. With it lies the responsibility: (i) to establish the juridical framework under which non-governmental organizations operating within its jurisdiction can carry out space activities; and, (ii) to define the institutional structures for the concerned governmental organizations for properly developing the activities mandated to them.4 As such, it is legally impossible to undermine the importance of International Space Law as the highest level of regulation for space activities, with an essential global character and of immense and ever growing interest for all humanity.5

4.3 Brazilian Space Law As a collection of laws in force in Brazil concerning space activities, the Brazilian space law encompasses all the international agreements signed and ratified by the

3 Frans

G. von der Dunk, “Launching Alcantara into the Global Space Economy – The 2001 Brazilian National Space Law”, presented at the 45th Colloquium on Law of Outer Space, Houston, Texas, USA, October 14–19, 2002. 4 Article VI, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the Outer Space Treaty), 1967. 5 Preamble and Article I, the Outer Space Treaty.

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Federal Republic of Brazil,6 as well as the domestic space legislation, including regulations enacted by the legislature and contracts. This collection may be divided into three groups: – Laws adopted in the first phase of Brazilian space activities, i.e., from the 1960s until the 1980s, when this matter was looked at from a scientific perspective and, above all, primarily in terms of national security; – Laws approved in the 1990s which underlined the civil nature of Brazilian space activities and prepared the country to increase its efforts in the field of international space cooperation; and, – Laws approved in the beginning of the twenty first century aimed at paying attention to concrete demands of space commercialization.

4.4 First Phase of Brazilian Space Law The main legal instruments and decisions adopted during this phase are: (1) Presidential Decree No. 51.133, of August 3, 1961, establishing the National Research Council (CNPq), the Organizing Group for the National Commission on Space Activities (GOCNAE), the first Brazilian governmental space organization. According to this Decree, GOCNAE had a large range of competence; e.g.: – To study and propose the Brazilian Space Policy and the corresponding legislation, in close collaboration with the Ministry of Foreign Affairs;

6 Brazil

ratified the Outer Space Treaty, under the Brazilian Government Decree No. 64.362, of April 17, 1969, and published in the Union’s Official Gazette on April 22, 1969; the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, of December 19, 1968, promulgated by Brazilian Government Decree N. 71.989, of March 26, 1973, and published in the Union’s Official Gazette on March 27, 1973; the Convention on International Liability for Damage Caused by Space Objects, of March 29, 1972, promulgated by Brazilian Government Decree N. 71.981, of March 22, 1973, and published in the Union’s Official Gazette on March 23, 1973. Only in 2006 Brazil has adhered to the Convention on Registration of Objects Launched into Outer Space, of January 14, 1975. When this Convention was adopted in 1975, Brazil refused to sign it, arguing that it has only an administrative function – to control the quantity of objects launched into outer space, and it did not allow for an evaluation of the real mission of a space object. Many other countries held the same position. However, during the 40th Session of the Committee on the Peaceful Uses of Outer Space’s Legal Subcommittee, held in Vienna, Austria, from April 2 to 12, 2001, the Brazilian Delegation announced the governmental decision to adhere to the Registration Convention. Brazil’s decision is based on the consideration that the political world situation has strongly changed since the 1970s and that it needs to join this Convention to be fully in compliance with international legal conditions to introduce the CLA in the world market. This does not mean that Brazil renounces its former position. The Brazilian Government believes that by being a Party to the Registration Convention, it will be in a better position to promote the necessary up-dating of this instrument. For details, see Álvaro Fabrício dos Santos, “Brazil and the Registration Convention”, Proceedings of The 44th Colloquium on The Law of Outer Space, Toulouse, France, October 1–5, 2001, Published by AIAA, pp. 78–86.

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– To elaborate the plan for the creation of the National Commission on Space Activities as well as the laws, rules and regulations necessary for the institution; – To develop programs for technical-scientific international cooperation; – To coordinate relations between state space activities and the Brazilian industry. The President of the Republic appointed the GOCNAE President, who could get assistance from scientific and industrial, national and foreign, organizations in the performance of his functions. Under the legislation the COGNAE had been entitled to create the National Commission on Spaces Activities, which would have been directly subordinate to the President of the Republic. According to the technical recommendation made to the President at the time, the Commission was to be shaped as an autonomous organ, preferably with a juridical personality of a Public Right Foundation. But this was never created. GOCNAE itself assumed the role of the Commission in practice and this worked until 1971 when GOCNAE was replaced by the National Institute for Space Research (INPE). Although in the beginning, there was an active participation of renowned civilian scientists and technicians in COGNAE, it was clearly dominated by superior officers from the Air Force, Army and Navy. Their scientific and military objectives were mixed together. If there was any reference to the national and foreign industry, nothing was said about space commercialization, which was common at the time. (2) The Ministry of Aeronautics decision of June 1964, creating the Executive Group for Space Studies and Projects (Getepe). This decision was taken soon after the toppling of the civilian government in the beginning of April 1964. After that, a long (20 years) cycle of military governments started and continued until 1985. The initial mission of Getepe was to establish the Barreira do Inferno Rocket Range (CLFBI), at Natal, in the state of Rio Grande do Norte, in the Brazilian Northeast, close to the magnetic equator. Quickly constructed, the CLFBI was set up on December 15th, 1965. Its main contribution to international cooperation and the commercial use of space only came later at the end of the 1970s, when it started to give support to Ariane launchings, from the Kourou spaceport in French Guyana. (3) The Ministry of Aeronautics decision of October 17th, 1969, creating the Aerospace Technical Centre (CTA – known today as the Aerospace Technical Command), the Institute for Space Activities (IAE), which replaced the Getepe. This decision was made in order to consolidate the mark of space activities controlled by the military sector, related to the development of rockets, launching vehicles, bases and launching operations. (4) Presidential Decree No. 68.009, of January 20, 1971, creating the Brazilian Commission for Space Activities (Cobae).

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The Cobae was designed as a complementary organ of the National Security Council, with the mission of directly assisting the President of the Republic with implementing the National Policy for the Development of Space Activities (PNDAE). It was headed by the Chairman of the Joint Chiefs of Staff (EMFA), and as such, it was placed directly under the President of the Republic. This decision stressed the vision for both military and civilian space activities as a matter of national security. The space sector became so important that the vision was not submitted for discussion and approval by the National Congress. There was a growing thinking that the country should have full autonomy and self-sufficiency in the space area. This undermined the benefits of international cooperation. The Cobae was in charge of evaluating and taking care of space cooperation with foreign bodies and international organizations. Or, as it was said in the Decree, Cobae was supposed to: – “Undertake the superior coordination of external cooperation programs and follow their execution, signing necessary instruments with the foreign and international execution organs . . .”; and – “. . .give opinion on contracts and conventions with foreign and international entities, to be signed by the Brazilian execution organs.” However, in view of its clearly military nature, the Cobae had insuperable difficulties which prevented it from promoting any meaningful international exchange mainly in the technological areas. This problem provided the basis for the decision adopted at the beginning of the 1990s to replace Cobae with a civilian space agency. (5) Presidential Decree No. 68.532, of April 22, 1971, creating the National Institute for Space Research (INPE). This Decree abolished GOCNAE and created INPE, formally subordinate to the National Research Council (CNPq), as “the main execution organ for the development of space research, in the civilian sector”, but acting “in accordance with the orientation of Cobae”. This Decree provides the clearest indication that prior to its adoption, civilian space programs in Brazil were carried out under severe military supervision. (6) Presidential Decree No. 69.905, of January 6, 1972, establishing INPE’s Internal Regulation. This Decree confirmed INPE as an organ run by Cobae, and it also provided for the establishment of permanent position on the INPE’s Directorate Council to be occupied by an EMFA (Joint Chiefs of Staff) nominee. (7) The November 1979 Cobae decision was to create the Brazilian Complete Space Mission (MECB). This decision was adopted at the peak of this phase yet its implementation was refused, allegedly because it was too expensive. It included a French proposal of bilateral cooperation involving the development of a launch vehicle and three satellites (two for data transmission and the third for remote sensing).

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In its place, Cobae approved a purely Brazilian proposal, under which all the necessary technological developments would be carried out in Brazil. Within the MECB program, the Institute for Space Activities (IEA) at the Aerospace Technical Command (CTA) was supposed to develop the launch vehicle (VLS); the Ministry of Aeronautics was also required to construct a new launch base (Alcantara); and, the INPE was to be responsible for the development of satellites, their tracking, control, and data reception. (8) Many bilateral space agreements and protocols were signed with Argentina, Chile, China (about 15), Columbia, France, Germany, Russia, Ukraine and the USA, as well as the European Space Agency.

4.5 Second Phase of Brazilian Space Law The main documents adopted during this phase are: (1) The Federal Constitution adopted in 1988, Article 21 of which gives competence to the Union (Federal Administration and National Congress) to “explore”, directly or through authorization, concession or permission, “aerospace navigation”. In this connection, the Union is represented by the Ministry of Aeronautics which, by virtue of Article 9 of Complementary Law No. 69 of July 23, 1991, is competent to establish, equip and operate directly or through concession, the aerospace infrastructure. (2) Law No. 8.854 of February 10, 1994, creating the Brazilian Space Agency (AEB)7 and establishing the framework for the development of space activities in Brazil. The creation of the AEB marks a very important change in the evolution of Brazilian space policy, mainly in view of the improvement in relations with the USA and other developed countries that it brought about. The AEB was planned to succeed to the Cobae, which, as a military institution, had encountered severe impediments in international space cooperation, particularly regarding the transfer of space technology. In his report of April 15, 1993, the EMFA’s chief recognized that Cobae is “responsible for the management of the Brazilian space programme by determining broad and full development of the space programme.” As experience has shown over the years, the creation of AEB, has allowed Brazil more than at any other time, to amplify its external relations in the space area. In this regard, the AEB’s mandate requires it among other things: – To analyze international space cooperation proposals and to sign them, in liaison with the Ministries of Foreign Affairs and of Science and Technology, and to monitor their implementation;

7 José

Monserrat Filho, “The new Brazilian Space Agency: a political and legal analysis,”Space Policy, Vol. 11, Number 2, May 1995.

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– To express opinions, in liaison with the Ministries of Foreign Affairs and of Science and Technology, on space-related matters in international organizations, and to participate in their meetings; – To stimulate private sector participation in space activities; – To identify opportunities for the participation of the private sector in the provision of services and the manufacture of goods for space related activities; – To issue standards and regulations for space activities in the country. This last activity (function), if properly followed, can facilitate speedy solution of relevant and urgent legal questions, such as those related to the commercialization plans of the Alcantara Launching Center (CLA) that will be mentioned below. This possibility is reinforced by the fact that the AEB’s Superior Council is competent to “approve directions for the establishment of rules and expedition of licenses and authorizations related to space activities”, according to paragraph VII of Section III of Decree No. 1.329, of December 6, 1994, that established the organizational structure of the AEB. (3) Presidential Decree No. 1.332, of December 8, 1994, approving the National Policy for the Development of Space Activities (PNDAE). This document affirms that “Brazil’s achievements in the space field must be consolidated and amplified”, and that “this requires”, among other things, “the creation of opportunities for the commercialization of space related products and services”. The PNDAE considers as one of its specific goals the need to “create and expand the Brazilian productive sector to participate and acquire competitiveness in space products and services markets”. Some of its objectives are the following: – “To promote international cooperation at all levels, as a way to accelerate the acquisition of scientific and technological knowledge, guarantee the access to data and to make economically viable the development of space systems of interest to the country.” – “To promote and encourage entrepreneurial participation in the financing of space systems devoted to profitable services on a commercial basis.” – “To encourage mainly private sector commercial exploration initiatives aimed at providing services and products originating from or associated with space activities.” On the other hand, one of the main objectives of the National Program of Space Activities (PNAE) is to “provide the country with a totally operational launching center that, taking advantage of its equatorial location, may provide a wide variety of services, on a commercially competitive basis in the international arena.” Brazilian space activities have been, and are still being carried out, under the PNAE 1998–2007 and PNAE 2005–2014 programmes and plans. However, their main objectives remain the same.

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(4) Presidential Decree No. 1.953, of July 10, 1996, creating the National System of Space Activities Development (SINDAE). This Presidential Decree establishes the AEB as the central organ of the system, and the following as the sector organs: the Department of Research and Development (Deped) of the Ministry of Aeronautics (known today as the Aeronautics Command); and, the INPE of the Ministry of Science and Technology. Also included are participant organs and entities of other Ministries interested in space activities, as well as representatives of states and local authorities. A legally appointed representative of the private sector who is approved by the AEB’s Superior Council can also be a member of the System by signing a participation agreement (convention). (5) Law No. 9.112, of October 10, 1995, dealing with the Export of Sensitive Goods and Services. This law approved by the National Congress was enacted by the President of the Republic on October 10, 1995, the same day that Brazil joined the Missile Technology Control Regime (MTCR) as a new member. It was not a mere coincidence. The promulgation of this law was an indispensable condition for Brazil’s entrance to the MTCR, since it represented a legal guarantee that Brazilian authorities would strongly control the export of dual use technologies that can be used for peaceful or military purposes. In February 1994, the Brazilian government enacted the law for the creation of a civilian Space Agency. The Ministry of Foreign Affairs announced that Brazil had commenced acting in accordance with the MTCR rules. These were pragmatic measures, adopted by the Brazilian government in order to eliminate distrust from the developed countries that its space program was, in reality, of a military character. In this manner, Brazil made an effort to open up the possibility of space technology transfer or at least the opportunity to purchase space components in the world market. This, in fact, has not happened yet. But, at least, the bias and fears previously held against the Brazilian space program in the international community have, to a large extent, been allayed as a result of these measures.

4.6 Third Phase of Brazilian Space Laws Brazilian laws relating to commercial space activities are: (1) Edict of 2001 adopted by the AEB’s Superior Council relating to the licensing of private enterprises to prepare launching operations from Brazilian territory. (2) Edict of 2002 adopted by the same Council for the authorization of private enterprises to carry out launching operations on Brazilian territory.8 8 Other

Brazilian legal texts which have stimulated the commercialization of the CLA and other space projects include: Administrative Edict CA/MD (Air Command/Defense Ministry) No.

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(3) The Brazilian-Ukrainian Treaty signed in 2003, to create a bi-national venture to exploit commercial launchings from the CLA using the Cyclone-4, as well as the Bye-law for this new enterprise adopted in 2006.9 (4) Convention on Registration of Objects Launched into Outer Space of 1975 (Registration Convention), signed by Brazil in 2006. (5) General Regulation of Space Safety, adopted in 2007. To understand this phase, it is useful to have an overview of the main space projects Brazil is developing and implementing today. This in turn provides a fair idea of the scope of legal issues the country is facing now: (1) Chinese-Brazilian Earth Resources Satellite System (CBERS) based on a bilateral agreement signed between the two countries in 1988. The CBERS-1 was launched in 1999; the CBERS-2 in 2003; and the CBERS-2B in September 2007. The CBERS-2B is designed to prevent any interruption in coverage that may occur between the end of the CBERS-2 lifetime and the beginning of the CBERS-3. The CBERS-3 is planned to be launched in 2011, and the CBERS-4 by 2014. The high quality of images received from CBERS-2 and CBERS-2B attest to the reliability and competitiveness of the program. Since June 2004 more than 500,000 images have been distributed freely in Brazil to more than 14,000 users including more than 2,000 institutions. The free distribution of satellite images in Brazil has started a culture of increased utilization of remote sensing data and this in turn is creating a large internal market for such products. On 19th May 2009, a Protocol on the Cooperation related to CBERS Continuity, Expansion and Applications was signed by China National Space Administration and the Brazilian Space Agency (AEB). Under the Protocol, both sides commit themselves to keep and deepen cooperation in the field of space application, satellite develop, and other areas. (2) Brazilian-Russian cooperation set up on November 22, 2004, to improve the Brazilian launch vehicle VLS-1, with the introduction of a solid fuel stage. The old VLS-1 failed in all three launching attempts. The new VLS-1 may be launched by 2010. 100/GC4, of February 25th, 2000, on the register of Aerospace Industry enterprises and products, for the fulfillment of the covenant on sales tax (tax reduction incentive); Law No. 9.994, of July 24th, 2000, creating the Program for the Scientific and Technological Development of Space Sector (Industry); Normative Instruction No. 29, approved by Federal Income Secretary of the Financial Ministry on March 15th, of 2001, on customs regime to regulate the temporary admission of material necessary for the launching activities of satellites from the CLA. 9 José Monserrat Filho, and Valnora Leister, “Brazil-USA Agreement on Alcantara Launching Centre,” Proceedings of the Forty-Third Colloquium on the Law of Outer Space, Rio de Janeiro, Brazil, October 2–6, 2000, pp. 328–334; “The Discussion in the Brazilian National Congress of the Brazil-USA Agreement on Technology Safeguards Relating to the Use of Alcantara Spaceport,”Proceedings of the Forty-Fourth Colloquium on the Law of Outer Space, Toulouse, France, October 1–5, 2001, pp. 377–384; “Brazil-Ukraine Partnership for the Use of the Alcantara Launch Centre,” paper presented in the Forty-Fifth Colloquium on the Law of Outer Space, Houston, Texas, USA, October 10–19, 2002.

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(3) The Brazilian-Ukrainian joint venture Alcantara Cyclone Space officially established in 2007 to exploit commercial launchings from the CLA with the Cyclone-4 launch vehicle. It was created by a bilateral treaty signed between the two countries in 2003. On January 16, 2002, Brazil and Ukraine signed a Technological Safeguard Agreement and a Memorandum of Understanding relating to the commercial use of the Cyclone-4 Ukrainian rocket for launches from the CLA. This agreement was approved by the Brazilian Senate and promulgated by the Brazilian Government on November 8, 2004. It is the first international venture created to offer the CLA as an attractive alternative to the world launch market. But there are still serious problems to be solved in order to make this project successful. Among them, there is the Brazil-U.S. Technological Safeguard Agreement on the use of the CLA by U.S. private enterprises, signed on April 18, 2000. This agreement was contested by the opposition in the National Congress on the ground that it would be harmful to Brazilian sovereignty. The opposition did not accept, for instance, the establishment of the “restricted areas”, where “the US participants retain control of [their] launch vehicle, spacecraft, related equipment and technical data, unless otherwise authorized by the Government of USA”. However, this was a mistaken position since the Brazilian government would maintain effective control over all of the main operations in CLA, despite the rigorous conditions imposed by the agreement. Nevertheless, a new text is now being negotiated by the Brazilian and U.S. Governments. Without a Technological Safeguard Agreement, the U.S. Government will not allow American companies to promote launches from the CLA. These companies are seen as major potential clients for the Brazilian and Ukrainian venture.10 (4) The Edict, adopted by the National Institute of Colonization [Settlement] and Land Reform and published in Federal Gazette on 4th November 2008, recognized the legal administrative process according which the area of 78,105 hectare (about 193,000 acres) located in the territory of Alcantara Launching Center (CLA) historically belongs to the Quilombola Community of Alcantara (ethnic group reminiscent from slaves fighting for their liberty). Before the Edict, the CLA’s area covered 87,363 ha (215,874 acres). It means that now, if this administrative process is confirmed, 89.5% of the CLA’s area would not belong anymore to the Air Force Command, but to Quilombola Community of Alcantara. Only 10.5% of previous area remains under the control of the CLA. That is why the Brazilian Space Agency decided to construct the Cyclone-4 launching facilities on the remaining area of the CLA. The Ministry of Defense, which controls the Air Force Command, has appealed to the Federal Supreme Court against to above-mentioned administrative process. This polemic legal question is delaying the construction of the Cuclone4 launching facilities as well as the implementation, by the Brazilian Space

10 Frans

G. von der Dunk, op. cit., supra note 3.

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Agency, of the project of a strictly civilian Alcantara Space Centre in part of the area of the CLA. The Alcantara Space Centre is expected to stimulate not only national public and private space activities but also different international space ventures. (5) The INPE is carrying out several projects involving the design and construction of telecommunication, meteorological and scientific satellites – Equatorial Atmospheric Research Satellite (Equars), and X-Ray Imagiator and Monitoring Satellite (Mirax). It also includes the conclusion of a Multi-Mission Platform project (500 kg class spacecraft) and its payloads; among them is the BrazilianGerman MAPSAR (Multi-Application Purpose SAR) mission for creating a light and innovative L-band SAR sensor to assess, manage and monitor natural resources. (6) In the beginning of 2008, the Governments of Brazil and Argentina decided to jointly construct a satellite, named Sabia-Mar, in order to study sea coast and water resources of both countries. (7) In July 2008, the Governments of Brazil and the United Kingdom agreed upon a Project involving a Brazilian satellite (Amazonia-1) that will be launched in 2011. The satellite, equipped with a British-made high resolution camera (12 m), will help monitor deforestation around the world. The two bodies working together on this Project are the Brazil’s National Institute for Space Research (INPE) and the UK’s Rutherford Appleton Laboratory – Science & Technology Facilities Council. Amazonia-1 represents an important step in the construction of an integrated global earth observation network for the public good. This Project will disseminate data free of charge; thus will play an important role in helping other countries, especially in Africa, to monitor their own land use and forests. The new National Program of Space Activities 2005–2014 was adopted in 2004 and published in 2005. This document is particularly important and useful in identifying current and future Brazilian space legal matters. Although it has four annexes with legal documents enclosed, the new National Program of Space Activities 2005–2014 fails to address the current and anticipated legal issues in its text.

4.7 Brazilian Launch Licensing and Authorizing Regimes On June 20th, 2001, Brazil adopted its first statute regulating private participation in space activities within the Federal Republic jurisdiction, international responsibility and international liability. This is Administrative Edict No. 27, approving the “Regulation of procedures and the definition of requirements necessary for request, evaluation, issuance, control and follow-up of licenses for carrying out space launching activities on the Brazilian territory.” Less than a year later, on February 21st, 2002, a second and complementary statute with the same focus was issued; i.e. Administrative Edict No. 05, approving

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the “Regulation of procedures for authorizing space launching operations from the Brazilian territory.” Both Edicts and Regulations were elaborated by the AEB and approved by the High Council of the AEB as well as by the President of the AEB. They entered into force, respectively, on June 21, 2001, and on February 25, 2002, when they were published in the Union’s Official Gazette. As they are legally binding, they may be invoked in the courts of justice. Consequently, it is mandatory for any private entity interested in carrying out launching activities in or from Brazil to obtain first a license for this purpose, and afterwards an authorization to complete the operation. Licensing and authorization requirements provide the basis for governmental control over all private launching activities in Brazil.

4.7.1 The Shorter Way It should be underlined that, according to the 1988 Brazilian Constitution (Article 22, § X), the competence to legislate on issues related to space activities belongs exclusively to the Union (Federal Administration and National Congress). Brazil became the ninth country and the first “developing country” to enact national legislation specific to the participation of the private sector in space activities. The other countries in this category are: Norway (1969), USA (1970), Sweden (1982), the United Kingdom (1986), Russia (1993), South Africa (1993), Ukraine (1996) and Australia (1998). However, if today Brazil has this unique status, it is also due to the Law No. 8.854, of February 10th, 1994, which created the AEB. Fortunately, the drafters of this law had the foresight to assign to the AEB the legal competence to issue Administrative Edicts, which are legally binding, on important issues relating to space activities. Thus, according to Article 3 § XIII of that law, the AEB is competent “to establish rules and issue licenses and authorizations regarding space activities.” It is worth noting that Article 3 § XII, also authorizes the AEB “to identify commercial possibilities to utilize space technologies and applications in order to stimulate entrepreneurial initiatives, to render services or to produce goods.” In fact, this broad competence gives the AEB the legal basis to carry out, to a considerable extent, the plan of commercialization of the Alcantara Launching Centre, for which the use of Administrative Edicts can play an important role. The AEB was founded as an autonomous federal executive entity directly linked to the President of the Republic, but this link lasted for less than a year. As soon as President Fernando Henrique Cardoso was inaugurated in 1995, he moved the AEB to the National Secretary of Strategic Affairs (with the rank of Ministry). Since 1999, the AEB has been within the Ministry of Science and Technology. All AEB initiatives and decisions are, therefore, supervised and controlled by this Ministry. These changes have resulted in a rather curious administrative framework. The AEB is managed by a President and a High Council, which has 17 members, including

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representatives of numerous Ministries. Inasmuch as the Ministry of Science and Technology supervises the AEB, it also stands above other Ministries, at least in relation to space matters – which, definitely, is not a usual situation. Nevertheless, it is relevant to point out that over the years, the National Secretary of Strategic Affairs (and afterwards, the Ministry of Science and Technology) prepared together with the AEB a draft of a broad national space legislation to be placed before the National Congress by the President of the Republic. At that time, the Brazilian authorities were convinced that the main legal issues relating to private launching activities from the Brazilian territory could only be properly solved through a law approved by the National Congress (Chamber of Representatives and Senate). Back then, the AEB Administrative Edicts were not considered an efficient solution, because of certain limitations: for instance, they could not set a budget of governmental expenditure, as this is an exclusive prerogative of the National Congress. However, later on, the authorities came to the conclusion that it would take too much time, maybe many years, before the National Congress would approve an all-embracing law on space activities. Thus, they decided to make use of the AEB’s competence “to establish rules and issue licenses and authorizations regarding space activities.” This would have the convenience of kick-starting the law-making process required by the pressing need to launch Alcantara into the world market. All of a sudden, Brazil seemed to be in a hurry. Nevertheless, it does not mean that the Brazilian authorities have given up the project of adopting a comprehensive space law passed by the National Congress. The AEB subsequently assumed the task of preparing a draft of such a law.

4.7.2 Details of the Administrative Edicts Both Administrative Edicts consist of two parts. The first part of both Edicts includes the formal AEB Presidential decision to approve the Regulation set forth in Article 1 and to establish the AEB Office for Standards and Licensing that “may enact complementary instructions aimed at the performance of administrative actions” related, respectively, to the licensing and authorization procedures (Article 2). The first part also indicates that the Regulation enters into force upon publication in the Brazilian Union’s Official Gazette (Articles 3 and 4 respectively). The first part of the License Edict has one more provision, which revokes the previous AEB Edict No. 8, of February 14, 2001, on the same matter (Article 3). The second part of each Administrative Edict sets forth the corresponding Regulations. These Regulations constitute the substantive provisions relating to the licensing and authorization of private launching activities in Brazil. They are not long documents. The License Regulation has 6 chapters and 27 articles. The Authorization Regulation also has 6 chapters, but only 20 articles.

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The following table lists the chapter titles of the License Regulation and of the Authorization Regulation side by side:

License regulation

Authorization regulation

(i) General provisions (ii) Documents required (iii) Enabling procedures (iv) Administrative sanctions (v) Administrative appeal (vi) Final provisions

(i) General provisions (ii) Procedures for authorization and enabling procedures (iii) Administrative sanctions (iv) Administrative appeal (v) Final provisions

It is quite clear that there are two different procedures; i.e. one can obtain a license without an authorization, but one cannot obtain an authorization without a license. However, a license by itself is not sufficient to receive an authorization. To obtain an authorization it is necessary to fulfill some additional requirements.

4.7.3 Focus Both Edicts and Regulations relate exclusively to launching activities and to their private participation, as the Brazilian interest is focused on nothing other than the commercial potential of the CLA. This is similar to the laws of Norway (1969) and Australia (1998), dedicated only to space launchings, as well as the special U.S. statutes (1984, 1988, 1994 and 1998) on private commercial space launches. Both Brazilian Regulations in Article 1 § 2 establish that they do not apply “to space launching operations carried out by Brazilian government organizations or bodies.”

4.7.4 Definitions of License and Authorization “License” is defined, in Article 2 of the License Regulation, as “The administrative deed, within the competence of AEB, authorized by a Resolution of its High Council, granted to a legal person (single, an association or consortium), for the purpose of carrying out or launching space activities on Brazilian territory, in compliance with the terms and conditions established in this Regulation.” “Authorization” is defined in Article 2 of the Regulation, as “The administrative act, within the competence of AEB, issued by a Resolution of its High Council, to operate a specific space launching from the Brazilian territory, in compliance with the terms and conditions established in this Regulation and pertinent laws.” This way, it is envisaged that the license can be granted to all kinds of private entities – single legal persons and associations or consortiums of legal persons. There are no restrictions on any form of private enterprises. However, according to Article 6, a “License shall only be granted to legal persons, single as well as associations or consortia, having headquarters or

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representation in Brazil, deemed legally, technically and financially competent, for periods of time established in the deed itself, bearing in mind the period of amortization of investments to be made by the licensee”. If an entity has its headquarters in Brazil, it means that it is legally a Brazilian private enterprise, even if it is linked to a foreign company. If an entity has a representation in Brazil, it means that this is a local subsidiary of a foreign private enterprise. In any event, it is important that the entity proves to be legally, technically and financially competent, at least during the period fixed in the license itself. Its representation in Brazil must have “express powers to be subpoenaed and to answer both at administrative and court levels” (Article 7, License Regulation). In addition, the license as well as the authorization “may contain restrictive or conditional clauses” (Article 2, § 1 and Sole §, respectively).

4.7.5 Definition of Space Launching The License Regulation defines “Space Launching Activities” as “the set of actions associated with the launching of satellites and other kinds of orbital and sub-orbital payloads, by means of launch vehicles, including the preparation and carrying out of the operation, as well as the elaboration of all technical and administrative documentation related to the launching.” In turn, the Authorization Regulation defines “Space Launching” as “the operation to place or attempt to place a launching vehicle and its payload in sub-orbital trajectory, in Earth orbit or otherwise in outer space.” Thus, a broader definition of space launching activities was adopted in the license procedures. This definition includes “the elaboration of all technical and administrative documentation related to the launching”. Whereas, in the authorization procedures, space launching is only the launching operation itself. Both Regulations (Articles 27 and 18, respectively) require that the AEB shall maintain a database for the purpose of registering licenses and authorizations for carrying out space launching activities on Brazilian territory. In addition, according to Article 19 of the Authorization Regulation, the “AEB shall establish and maintain a registry book for the registration inscription of space objects launched into outer space from Brazilian territory”. This means that Brazil had decided to fulfill the requirements of the Registration Convention even before becoming Party to this instrument.

4.7.6 Documents Required According to Article 6 of the License Regulation, to obtain a license, the applicant has to present documents pertaining to: – Legal personality; – Technical qualifications;

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– Economic and financial qualifications; and, – Tax regularity To receive an authorization under Article 9, § 2 of the respective Regulation, the applicant is required to present a brief description of the object of the intended authorization, as well as the following documents: – Draft of the space launching service contract to be signed by the licensee; – Space launching plan, including orbital data, trajectory and respective timetable; – Description of the launching vehicle, including propellants to be used in Earth stage; – Description of the payloads, including their purpose or mission, as well as their owners’ identification; – List of all legal persons involved in the space launching operation along with their respective qualifications; – Proof of an insurance contract for the space launching operation; and, – Proof of payment of all due fees.

4.7.7 Liability Issues Damage according to Article 5 of the License Regulation means “loss of life, personal injuries, or other damage to health, loss of State property or of natural or legal persons’ property or damages inflicted to such property”. It is similar to the wording used in Article I of the Liability Convention. The definition of damages included in the Authorization Regulation is broader than the Liability Convention’s definition, as it includes not only damage to the property of intergovernmental organizations, but also damage to the environment. This may be explained by the fact that the Brazilian Government and local public opinion consider it essential to safeguard the environment in the entire Alcantara region. One of the economic and financial conditions for obtaining a license is “purchase of insurance to cover possible damages to third parties, according to the degree of risk of the activities to be carried out by the applicant, where appropriate, in the amount previously established by the AEB” (Article 9, § III). On the other hand, to obtain an authorization, “the Licensee is required to contract an insurance company to cover damages to third parties that might be involved in each space launching operation, and the AEB shall establish the amount of the insurance ” (Article 4). According to the Authorization Regulation, “liability for damages due to space launching shall be settled in accordance with space treaties and conventions to which Brazil is signatory, as well as other applicable norms, without prejudice to any contract that might have been concluded between the parties that laid down rules for the accountability of financial obligations” (Article 4, § 1). This means that Brazil recognizes its international obligations as a “launching State”, liable with regard to every space object launched from the Brazilian territory, including those

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launched privately. At the same time, Brazilian legislation indicates the possibility of contractually sharing with other involved parties the financial obligations arising from the damage caused by launched objects. Both Regulations consider an insurance contract an obligatory requirement, but they only state that the amount of insurance will be fixed by the AEB. They do not provide details about insurance coverage, because the Administrative Edict has no competence to regulate questions involving governmental expenditure. These issues fall within the exclusive the responsibility and jurisdiction of the National Congress. Whether the draft comprehensive (general) space law that the AEB is currently preparing to propose to the National Congress will solve this problem, it is not known yet. But it is quite possible that Brazil will follow the examples of the U.S. and Australian space legislation and adopt the “maximum probable loss” approach.11

4.7.8 Foreign Legal Persons: Special Requirements The License Regulation pays special attention to foreign applicants (Article 14). These applicants must present “statements by their respective home countries as to their being licensed to perform the launching activities intended” (§ 1). It is a way to ensure that the State of the foreign applicant is assuming its international obligations as “launching State” as well. Moreover, the AEB reserves the right to require, as an additional condition to issuing a license to foreign entities, “the existence of a safeguard agreement relating to technology transfer” between their countries and Brazil. Here, it is important to note that the Agreement between Brazil and the USA on Technology Safeguards Associated with the USA Participation in Launches from the CLA, of April 18, 2000 (not yet ratified by the Brazilian National Congress) establishes in Article III, § F, that Brazil has to sign equivalent agreements with any other States also interested in participating in launches from the CLA, if the operation involves American technology.

4.7.9 Settlement of Disputes While the License Regulation makes no reference to settlement of disputes, the Authorization Regulation provides in its Article 20 that “The jurisdiction of Brasilia (Brazilian capital) – the Court of Federal Justice – is elected to settle all controversies regarding the provisions entrusted in this Regulation.” Since the AEB is a federal agency (part of federal administration), it has its headquarters located in the Federal District of Brasilia.

11 Frans

G. von der Dunk, ibid.

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4.7.10 Business Plan The AEB worked out both Regulations with two basic objectives: (1) To create an environment of legal and technical certainty, as well as of competent and productive performance, in regard to all phases of launching activities from the CLA, under Brazilian control and supervision; and (2) To assure the licensees the best conditions for the complete and profitable fulfillment of their business plans. The question as to whether these objectives are being fulfilled is too early to answer at present. As has been demonstrated in the foregoing sections of this chapter, the existing Edicts and Regulations seem to be reasonable documents, despite some imperfections that need to be removed. But the last word belongs to the practice, which is not there yet.

4.8 Regulations on Space Safety On December 5, 2007, the High Council of the AEB approved the Resolution No. 71, establishing the Regulations on Space Safety, which was elaborated by a special commission formed by representatives from the AEB’s High Council, the INPE, the Aeronautics Command and its Department of Research and Development (DEPED), the Army Command, the Ministry of Development, Industry and External Trade, the Ministry of External Relations, and the industrial sector. The Regulations on Space Safety12 are set out in two volumes. The first one is entitled “General Regulation on Space Safety”. The second volume is divided into seven parts: – – – – – – –

General Technical Regulation on Space Safety; Technical Regulation on Environmental Safety; Technical Regulation on Launching and Flight safety; Technical Regulation on Payload Safety; Technical Regulation on Launching Complex Facilities Safety; Technical Regulation on Launch Vehicle Safety; and, Technical Regulation on Inter-Platforms Safety.

A third volume will be dedicated to Regulations on Investigation and Prevention of Space Accidents and should be equally approved by AEB’s High Council once drafted. The Regulations should be reviewed within the first year of coming into force.

12 The

complete text of the approved Regulations on Space Safety are available on the website of the AEB: http://www.aeb.gov.br/area/PDF/regulamento_seguranca.pdf (accessed: 12 December 2008).

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4.9 Brazilian National General Law on Space Activities? In Brazil, there is already an increasing awareness about the need for an all embracing national space legal framework (a comprehensive general space law). It is being felt by the AEB, the INPE and at some other institutions; like the Brazilian Association of Air and Space Law (SBDA). Such a comprehensive (general) law on space activities would probably include principles and provisions relating to both public and private space activities in different fields: Launching services, industrial, commercial, remote sensing, communications, insurance, intellectual property rights, and even in space education. The general objective is to enlarge the pool of qualified technical people and highly skilled critic mass, as well as the massive dissemination of space information and knowledge. The main idea of such a wide and ambitious project is the hope that it could be an essential contribution to the consolidation of a strong, efficient, and well-organized space sector. But everyone knows that it is not an easy task. The success of this complex work would depend on many factors; e.g.: (1) Consolidation of the AEB as the head of the national space policy and the effective coordination of the system of all national space institutions; (2) Speed of development and implementation of the Brazilian Space Program. It requires, above all, the regular and timely transfer to the program of the budgetary resources, which were increased during the last few years, but must be increased further, if the aim of making space activities a national priority is to be effectively achieved. (3) A broader awareness of the public opinion about the Brazilian Space Program, particularly in the National Congress. The parliamentary group interested in scientific and technological development and specially in space development – although it is still relatively smaller than some others – has been growing during the last few years, and achieving more prestige and political weight. The draft project of the new Brazilian space general law will certainly be prepared by the AEB. This text has to be approved by the President of the Republic, who must submit it to the National Congress, where it should be discussed, reviewed, and approved by both the Camera of Representatives and the Senate. It is a long and sometimes non-straightforward way. In the best-case scenario, it can be concluded within two years, but this process has not started yet.

References 1. Ceballos, D. C. 1995, Augusto. The Brazilian Space Program: A Selective Strategy for Space Development and Business, Space Policy, Vol. 11, Number 3. 2. Le cadre institutionnel des activities spatiales des états. 1997. sous la direction de Simone Courteix, préface de Hubert Curien, Chapitre V, Section II: Brésil par José Monserrat Filho, Editions A. Pedone. 3. Graham, C. P. 1991, February. The Brazilian Space Program – An Overview, Space Policy, Vol. 7, Number 1.

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4. Oliveira, F. 1991. Pathways to Space (30 Years of the National Institute for Space Research – INPE), published by INPE, Secretary of Science and Technology, Presidency of Republic, Ed. Contexto. 5. Oliveira, F. 1996. Brazil Reaches the Space – SCD-1 Data Collection Satellite, National Institute for Space Research (INPE), Proposta Editorial.

Chapter 5

Regulation of Space Activities in Canada Ram S. Jakhu

5.1 Introduction Though Canada became the third country in the world to design and build its own satellites when it launched the Alouette I research satellite in 1962, it is yet not a major space power. Canada’s space program has primarily been designed to serve specific domestic needs of the country, which is the second largest in the world in geographical terms and has a population of only about 33 millions, mostly inhabiting a horizontal corridor of 200 kilometers in width along the U.S. border. In Canada, the space industry, though small by world standards, is an important economic activity. From the perspective of space activities undertaken and revenues generated, Canada can be considered to be a medium size space power. Canada has ratified several international treaties that govern outer space activities,1 with the exception of the 1979 Moon Agreement.2 These treaties have to some extent Ram S. Jakhu (B) McGill University, Montreal, QC, Canada e-mail: [email protected] 1 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,

including the Moon and other Celestial Bodies (hereinafter referred to as the Outer Space Treaty); opened for signature on 27 January 1967, entered into force for Canada on 10 October 1967; 610 UNTS 205; Canada Treaty Series1967/19; The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature on 22 April 1968, entered into force for Canada on 20 February 1975; 672 UNTS 119; Canada Treaty Series1975/6; The Convention on International Liability for Damage Caused by Space Objects (the “Liability Convention,” opened for signature on 29 March 1972, entered into force for Canada on 20 February 1975; 961 UNTS 187; Canada Treaty Series1975/7; The Convention on Registration of Objects Launched into Outer Space (the “Registration Convention,” opened for signature on 14 January 1975, entered into force for Canada on 15 September 1976; 1023 UNTS 15; Canada Treaty Series1976/36; the Charter of the United Nations, 26 June 1945; Constitution and Convention of the International Telecommunication Union with Annex, 1994 (as amended in 2006) and ITU Radio Regulations, Edition of 2007; Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, 5 August 1963, 480 UNTS 43; etc. 2 The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, adopted by the General Assembly in its resolution 34/68), opened for signature on 18 December 1979, entered into force on 11 July 1984. Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_5,  C Springer Science+Business Media B.V. 2010

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been implemented in Canada in the form of some specific laws or by making minor modifications to exiting laws. Therefore, national space law in Canada is a collection of a few specific laws exclusively regulating certain aspects of space activities as well as a web of numerous laws and regulations of general application which have been amended and adapted to cover several other facets of space activities. This Chapter briefly describes Canadian national laws and regulations that relate to the organization of space activities in Canada, launch activities, export controls, satellite communications, remote sensing from space, human space activities and microgravity research, military uses of outer space and Canada’s international responsibility of space activities. Canada being a federal state necessitates determination with respect to the jurisdictional competence of its constituent parts over space activities. Therefore, we start the Chapter with a brief discussion of constitutional basis of Canadian space regulatory regime. This Chapter focuses only on civil and commercial space activities, except a minor description of military uses of space by Canada.

5.2 Constitutional Basis of Canadian Space Regulatory Regime Canada is a federal state, comprising of ten provinces and three territories, with parliamentary form of government, a constitutional monarchy with the Queen Elizabeth II (represented by the Governor General in Canada) as the head of state and the Prime Minister as the head of the Canadian Government. Unlike countries that have a single-document federal constitution, Canada’s constitution derives not only from a set of enactments known as Constitution Acts, but also a set of unwritten conventions. Under the British North America Act of 1867,3 the British Parliament united four Canadian colonies into a confederation of provinces and also enacted provisions dealing with the distribution of legislative authority between the Dominion Parliament and the Provincial Legislatures. As a result, in order to determine the appropriate legislature under whose jurisdiction the regulation of space activities in Canada falls, one must return to the basic provisions of the Constitution Acts. Following the scheme established by the Constitution Act of 1867, Canada has a federal legislature (Parliament) and ten provincial as well as three territorial legislatures. As regards the distribution of legislative power between the federal and provincial legislatures, Sections 91 and 92 of the British North America Act, 1867 are the relevant provisions. Section 91 provides as follows: It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as

3 British North America Act, 1867, 30–31 Victoria, c. 3; currently known as the Constitution Act, 1867.

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to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; . . .4

The effect of this provision was to give the federal Parliament jurisdiction over all classes of subjects over which exclusive jurisdiction had not been conferred upon the provincial legislatures. Further, Section 91 specifically prescribes certain classes of subjects over which the federal Parliament has exclusive legislative authority.5 These subjects obviously did not include space activities. Section 92, on the other hand, contains a list of classes of subjects over which the power to legislate is exclusively entrusted to provincial legislatures. Needless to say, the list in this section also does not include space activities.6 It might therefore appear that the regulation of space activities in Canada falls neither within the realm of the federal nor provincial legislatures. However, the general clause in Section 91 provides basis for the assertion that the federal Parliament in Canada has jurisdiction to regulate space activities. Since legislative authority over space activities has not been exclusively assigned to provincial legislatures, it follows that such activities are within the jurisdiction of the federal Parliament. It must also be kept in mind that under Section 92(10), the Parliament of Canada may enact legislation bringing wholly local works within its jurisdiction by declaring them for the General Advantage of Canada. In the past, courts have recognized the exclusive legislative jurisdiction of the federal Parliament in areas, which were not mentioned in the Constitution Act, like aeronautics,7 radiocommunications,8 telecommunications9 and broadcasting both with respect to the carriage and contents,10 etc. In making their rulings involving these subjects, the courts were guided by (i) the provision of “peace, order and good government” of Section 91, (ii) the provision relating to local works be declared of “General Advantage to Canada” under Section 92(1), (iii) the necessity of implementing international treaty obligations, and (iv) the test of functional integrity thus avoiding divided jurisdiction. Like aeronautics and radio frequencies, satellites do not respect political borders and thus must be considered to have essentially been covered by international agreements. Moreover, the federal Government has primary authority (jurisdiction) over foreign policy and national defence, the two 4 British

North America Act, 1867, Section 91[emphasis added]. The provision also contains a list of classes of subjects over which the federal Parliament has exclusive legislative authority. 5 Ibid., 6 Ibid., Section 92. 7 Re Aerial Navigation, A.-G. Can. V A.-G. Ont. [1932] 1 D.L.R. 58, [1931] 3 W.W.R. 625, [1932] A.C. 54. 8 Re Regulation and Control of Radio Communication, [1932] A.C. 304. 9 Alberta Government Telephones v. Canadian Radio-television and Telecommunications Commission, [1989] 2 S.C.R. 225. 10 Capital Cities Communication Inc. v. Canada [Radio-television and Telecommunications Commission], [1978] 2 S.C.R. 141.

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subjects that are very closely linked to space activities. Therefore, outer space activities are within the exclusive jurisdiction of the federal Parliament and there is no room for separate provincial jurisdiction over space matters. The federal Parliament of Canada has exercised, without any constitutional challenge, legislative authority over the regulation of space activities in Canada, particularly in the areas of telecommunications and broadcasting by satellite, e.g. Broadcasting Act,11 Telecommunications Act,12 Telesat Canada Act,13 Teleglobe Canada Act,14 Canadian Space Agency Act,15 etc. The federal Parliament (Government) has essentially been adapting its existing laws, with minor changes, in order to regulate Canadian space activities as they have been developing over a period of four decades.

5.3 Organisation of Space Activities After several studies, Canada decided to establish a single governmental entity, known as the Canadian Space Agency (CSA) in 1989, to carry out space research and development within a coherent Canadian Space Program.16 The main objects of the CSA, as specified in its constituent Act, “are to promote the peaceful use and development of space, to advance the knowledge of space through science and to ensure that space science and technology provide social and economic benefits for Canadians.”17 The CSA achieves its mandate in co-operation with other government departments/agencies, private, universities, as well as international partners in domain that are not by law assigned to other departments. In addition, the CSA is responsible for coordinating all federal space-related policies and programs of the government. According to the Canadian Space Strategy, the CSA manages the Canadian Space Program which is clustered into five divisions: i.e. (a) Space Based Earth Observation, (b) Space Science and Exploration (including those related to human space activities and participation in the International Space Station), (c) Satellite Communications, (d) Generic Space Activities in support of first three activities, and (e) Activity Space Awareness and Learning.18

11 Broadcasting

Act, S.C. 1991, c. 11. Act, S.C. 1993, c. 38. 13 R. S. 1985, c. T-6. 14 S.C. 1987, c.12. 15 S.C. 1990, c. 13. 16 Canadian Space Agency Act (An Act to establish the Canadian Space Agency and to provide for other matters in relation to space), Chapter C-23.2 (1990, c. 13). (hereinafter referred to as the CSA Act). 17 Ibid., Section 4. 18 Report on plans and priorities 2009-2010 Estimates, http://www.asc-csa.gc.ca/ eng/publications/ rpp_2009.asp (accessed: 12 September 2009). 12 Telecommunications

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The CSA undertakes space research and development activities in all areas, except launch vehicles and services. It has been mandated to (a) plan, direct, manage and implement programs and projects relating to scientific or industrial space research and development and the application of space technology; (b) promote the transfer and diffusion of space technology to and throughout Canadian industry; and (c) encourage commercial exploitation of space capabilities, technology, facilities and systems.19 The Agency reports to the Canadian Parliament through the Minister of Industry20 who is also responsible for the design and implementation of Canadian space policy, programs and projects. The Agency is headed by a President, who is its chief executive officer, and “under the direction of the Minister, has control and supervision over the work, officers and employees of the Agency.”21 The Agency’s five core functions relate to Space Programs, Space Technologies, Space Science, Canadian Astronaut Office, and Space Operations. With an annual budget of only CAN $355.1 million for the year 2009–2010 and a work force of 711.2 (full time equivalent) employees,22 the CSA is one of the most efficient space agencies in the world.

5.4 Launch Activities Launch activities in Canada are regulated under the Canadian Aeronautics Act23 and the Canadian Aviation Regulations24 issued pursuant to the Act. Everyone in Canada is required to procure an authorization (license) issued by the Minister of Transport for the launch of a rocket, other than a model rocket or a rocket of a type used in a fireworks display.25 Moreover, there is general prohibition about the launch of “a model aircraft or a kite or launch a model rocket or a rocket of a type used in a fireworks display into cloud or in a manner that is or is likely to be hazardous to aviation safety.”26 According to Section 3(1) of the Aeronautics Act, “aircraft” means “. . .any machine capable of deriving support in the atmosphere from reactions of the air, and includes a rocket”. And “rocket”, has been defined in the Canadian Aviation Regulations, as “a projectile that contains its own propellant

19 The

CSA Act, Section 5(2).

20 Order Designating the Minister of Industry, Science and Technology as Minister for Purposes of

the Act, SI/93-229 (15 December, 1993). CSA Act, Section 12(2). 22 Report on plans and priorities 2009–2010 Estimates, http://www.asc-csa.gc.ca/eng/publications/ rpp_2009.asp (accessed: 12 September 2009). 23 Aeronautics Act (An Act to authorize the control of aeronautics), R.S. 1985, c. A-3. 24 Canadian Aviation Regulations. http://www.tc.gc.ca/CivilAviation/regserv/affairs/cars/menu.htm (12 October 2009). 25 Ibid., Section 602.43. 26 Canadian Aviation Regulations, Section 602.45. 21 The

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and that depends for its flight on a reaction set up by the release of a continuous jet of rapidly expanding gases.”27 The Canadian Department of Transport (Transport Canada) is responsible for the implementation of the Aeronautics Act, including the launch of rockets. In order to procure a launch license, an application needs to be made to Transport Canada whose Launch Safety Office reviews requests for launch authorizations.28 The Minister may issue the requested authorization where the “launch of the rocket is in the public interest and is not likely to affect aviation safety.”29 In addition, a launch authorization is issued if Transport Canada is satisfied that adequate measures for safety of the launch are in place. The application for such authorization, specifically indicates that all “rocket activities and participants must comply with the applicable safety codes, launch standards and procedures as developed, published and maintained by a rocketry association accepted by the Minister including all applicable Canadian Aviation Regulations (602.43) and standards as well as other federal, provincial and municipal laws.”30 Transport Canada may impose some conditions to enhance launch safety. It is interesting to note that the Canadian Association of Rocketry (a volunteer non-government organization of people with a keen interest in rocketry safety) has developed “Model Rocket Safety Code”, “High Power Rocket Safety Code” and different processes for safety certification.31 These codes and their application play an important role in ensuring safety in design and launch of rockets in Canada. On 1st October 2004, Transport Canada approved the application from the Orva Space Group, also known as the da Vinci team, for a suborbital launch,32 so that it could participate in the international suborbital space race competition that was sponsored by the Ansari X Prize. In the 1950’s Canada constructed a launch site at Fort Churchill, Manitoba. Starting in 1959, Bristol Aerospace of Manitoba launched the first Black Brant

27 Ibid.,

Section 101.01. Safety Office”, http://www.tc.gc.ca/civilaviation/general/LSO/menu.htm (accessed: 2 September 2009). 29 Canadian Aviation Regulations, Section 602.44. 30 Transport Canada, Application for Authorization to Launch High Power and Advanced High Power Rocket(s), http://www.tc.gc.ca/civilaviation/general/LSO/26-0660.pdf (accessed: 2 September 2009). 31 For more information, visit: http://www.canadianrocketry.org/index.php (accessed: 2 September 2009). 32 Transport Canada, News Release (No. H054/04), da Vinci Team Application Approved by Transport Canada, October 1, 2004, available at http://www.tc.gc.ca/media room/releases/nat/2004/04-h054e.htm (accessed: 2 September 2009). The approval was granted subject to several conditions, including, “establishing security controls to protect the public during the launch; wind restrictions for safe balloon and rocket launches; visibility requirements of at least 5 kilometers; inclusion of a tracking device for speed and direction monitoring; mission control staff’s awareness of notification and communications requirements; having a range safety officer present to coordinate safety procedures; and, compliance with the conditions in the flight manual:” ibid. 28 “Launch

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rocket for sub-orbital research. Since then over 3000 flights by sounding rockets took place from the launch site, which has been deserted since 1990.33 Canada had once decided not to develop its own launch vehicle and had opted, instead, to rely on the launch services of its partners or commercial launchers. Traditionally, Canada has been relying upon the U.S., Europe and Russia for the launch of all its satellites and the transportation of its astronauts to the International Space Station. Recently though, a small technology satellite (CanX-2) designed and constructed by the University of Toronto has been launched by India34 and Telesat’s most recent launches were by Russian Proton and European Ariane rockets.

5.5 Export Controls The use of launch services provided by foreign countries triggers the application of Canada’s export control regulations. Canadian export controls are incorporated in numerous domestic laws, regulations, administrate and policy directives, and rules implementing multilateral export control regimes.35 The Export and Import Permits Act (EIPA),36 first enacted in 1947, is the main legislation that controls exports and the transfer of certain goods and technologies. The provisions of the Act are supplemented by Export Permits Regulations37 and Import Permits Regulations.38 Pursuant to Section 3 of the Act, the Government of Canada establishes an Export Control List (ECL) enlisting therein goods and technologies the export or transfer of which the Government deems necessary to any destination if their use might be detrimental to the security of Canada. Similarly, under Section 4 of the Act, the Government may establish an Area Control List (ACL) including therein any country to which the Government deems it necessary to control the export or transfer of any goods or technology. The Department of Foreign Affairs and International Trade (DFAIT) has issued The Export Controls Handbook (February 2009),39 which provides useful information with respect the Canadian export controls, particularly

33 Fort

Churchill – a Landmark in Canadian Space Research. http://www.asc-csa.gc.ca/eng/ sciences/fort_churchill.asp (accessed: 2 October 2009). Also see: Canada’s Churchill Spaceport. http://www.spacetoday.org/Rockets/Spaceports/Canada.html (accessed: 2 October 2009). 34 “Big Science from Canada’s Smallest Satellite,” 9 March 2009. http://www.spacedaily.com/ reports/Big_Science_From_Canada_Smallest_Satellite_999.html (accessed: 2 October 2009). 35 For an overview of Canadian Export Control regime, see Lisa R. Lifshitz and Leila J. Burden, “Canada’s Export Control Laws-An Overview”, November 2004. http://www.gowlings .com/resources/PublicationPDFs/Lifshitz_LRLExportPaper.pdf (accessed: 7 August 2009). 36 Export and Import Permits Act, R.S., c. E-19. 37 SOR/97-204. 38 SOR/79-5. 39 http://www.international.gc.ca/controls-controles/assets/pdfs/documents/ExportControlHandbookeng.pdf (accessed: 3 October 2009).

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the ECL and ACL. The Regulations adopted in April 2009 amended the ECL and brought into effect the Government’s A Guide to Canada’s Export Controls,40 which was originally introduced in 2007. The export or transfer of goods or technology from Canada by any resident41 of Canada will require permits.42 A permit under EIPA can be obtained by a resident of Canada “for”, “on behalf of”, “or” “for the use of” another person who is not a resident of Canada.43 There are three important issues relevant to export regulatory matters: Firstly, the export or transfer of goods and technologies specified in the ECL and ACL requires export permits. Groups 1 (Dual Use List) and 2 (Munitions List) of the ECL, control satellites (“spacecraft”44 ) and “space qualified”45 items. While term “technology” includes “technical data, technical assistance and information necessary for the development, production or use of an article included” in the ECL, the term “transfer” “means, in relation to technology, to dispose of it or disclose its content in any manner from a place in Canada to a place outside Canada.”46 Technology also includes information that may take the form not only of technical data but also of technical assistance.47 Besides the items included in Groups 1 and 2 of the ECL dealing with space, the export or transfer of satellites, vehicles and certain components thereof in category 1–7 (Navigation and Avionics) and category 1–9 (Aerospace and Propulsion) attract the application of other controls related to:

40 http://www.international.gc.ca/controls-controles/assets/pdfs/documents/exportcontrols2007-

en.pdf (accessed: 3 October 2009). 41 According to Export and Import Permits Act, Section 2(1), a “resident of Canada” means, “in the

case of a natural person, a person who ordinarily resides in Canada and, in the case of a corporation, a corporation having its head office in Canada or operating a branch office in Canada.” 42 Export and Import Permits Act, Section 7(1). 43 Ibid, Section 21: Applicant for permit for non-resident – “Where a permit under this Act is issued to a person who has applied for it for, on behalf of, or for the use of, another person who is not a resident of Canada and that other person commits an offence under this Act, the person who applied for the permit is, whether or not the non-resident has been prosecuted or convicted, guilty of the like offence and liable, on conviction, to the punishment provided for the offence, on proof that the act or omission constituting the offence took place with the knowledge or consent of the person who applied for the permit or that the person who applied therefore failed to exercise due diligence to prevent the commission of the offence.” 44 Spacecraft” is defined as “Active and passive satellites and space probes” for the purposes of both the lists. See: A Guide to Canada’s Export Controls – 2007, p. 70. 45 “Space qualified” is defined in both the lists as “Products designed, manufactured and tested to meet the special electrical, mechanical or environmental requirements for use in the launch and deployment of satellites or high altitude flight systems operating at altitudes of 100 km or higher.” See: A Guide to Canada’s Export Controls – 2007, p. 70. 46 Export and Import Permits Act, Section 2(1). 47 A Guide to Canada’s Export Controls – 2007, p. 99.

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• Group 5 (Miscellaneous Goods of ECL) items, which include U.S. origin goods, including the spacecraft, technology and its components as “strategic goods” (item 5504); and • The Controlled Goods Program,48 created in 2001 under the Defense Production Act49 (DPA), and elaborated and implemented through the Controlled Goods Regulations.50 In its Schedule, the DPA contains the Control Goods List, which, with respect to spacecraft or parts thereof, refers back to item 5504 of Group 5 (mentioned above) and all goods listed in Group 6 (Missile Technology Control Regime-MTCR) of the ECL. The definition of the Space Launch Vehicle Payload in Group 6 includes satellites and component parts.51 Secondly, the mandatory compliance with the American export control regulations adds another layer of legal requirement for Canada and Canadian entities. The American International Traffic in Arms Regulations (ITAR),52 issued under the U.S. Arms Export Control Act,53 regulate the exports or re-exports from Canada to foreign subsidiaries and offices of end-users headquartered in Canada. In this respect, the provision of Section 7(1) of the EIPA applies to natural person and corporation

48 The Controlled Goods Program is a Canadian industrial security program designed to strengthen

controls over trade in, and proliferation of, controlled goods (e.g. strategic assets including, satellite) and related technology intellectual property. The Controlled Goods Directorate administers the program and registers individuals after a mandatory security assessment. Unless exempt under the Regulations, an individual must be a registered person to be entitled to examine, possess or transfer controlled goods and/or technology within Canada. http://ssi-iss.tpsgc-pwgsc.gc.ca/dmccgd/apropos-about/apercu-overview-eng.html (accessed: 14 November 2009). 49 R.S., 1985, c. D-1. 50 SOR/2001-32. See: http://www.canlii.org/en/ca/laws/regu/sor-2001-32/latest/sor-2001-32.html (accessed: 14 November 2009). 51 Space Launch Vehicles “Payload” includes “a. Satellites (single or multiple); b. Satelliteto-launch vehicle adapters including, if applicable, apogee/perigee kick motors or similar manoeuvering systems.” See: A Guide to Canada’s Export Controls – 2007, p. 117. 52 U.S. 22 Code of Federal Regulations 120-130. In addition, one must be aware of the existence of the U.S. Export Administration Regulations (15 CFR 730-774), issued under the Export Administration Act (of 1979, as amended) and their application to dual-use systems like the International Space Station. The Export Administration Regulations (EARs) are administered by the U.S. Department of Commerce’s Bureau of Industry and Security. (For more information, see www.bis.doc.gov). Since 21 August 2001, the Export Administration Act has lapsed but the dualuse export control regime in the U.S. is being continued on the basis of the President”s invocation of emergency powers under the U.S. International Emergency Economic Powers Act (Title 50, United States Code, Chapter 35). The Department has drawn up a Commerce Control List (CCL), category 9 of which deals with Propulsion Systems, Launch Vehicles and Related Equipment. The EARs require Canadian companies to obtain re-export authorization before exporting the items on the CCL from Canada to a third destination. See: The Export Controls Handbook (February 2009), op cit. supra note 39, p. 18. 53 Titel 22, United States Code, chapter 39 (Arms Export Control).

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alike.54 Therefore, the U.S. export controls are applicable to the launch of Canadian satellites by foreign countries requiring licenses or export authorizations55 from the U.S. where the U.S.-origin items (goods, technology, and components, that are subject to ITAR or are mentioned in ECL Group 2, 6 or 5540)56 are re-exported to third countries from Canada.57 Thirdly, Canada is a member of the 1996 Wassenaar Arrangement, which is a multilateral arrangement amongst 39 countries that have agreed to coordinate their national regulations and policies controlling exports of conventional weapons and sensitive dual-use goods and technologies.58 The Statement of Understanding on Control of Non-Listed Dual-Use Items, agreed upon in 2003, adds responsibility for Canada to ensure that its regulations require authorization for the transfer of nonlisted dual-use items to destinations subject to a United Nations Security Council arms embargo or regional arms embargo that Canada is bound to or has agreed to

54 Through Minister’s power in “granting permit to any resident of Canada applying therefore a permit to export goods included in an Export Control List or goods to a country included in an Area Control List, in such quantity and of such quality, by such persons, to such places or persons and subject to such other terms and conditions as are described in the permit or in the regulations.” 55 Under Export Control Regulations (SOR/97-204), Section 1, “United States export authorization” means any of the following approvals issued by the United States under the International Traffic in Arms Regulations, Title 22, Parts 120–130 of the Code of Federal Regulations (United States):

(a) an export licence; (b) a Warehousing and Distribution Agreement; (c) a Technical Assistance Agreement; (d) a Manufacturing Licence Agreement; (e) a re-export authorization letter; or (f) a U.S. export licence exemption.” 56 ECL 5400 defines “United States Origin Goods” as “[a]ll goods and technology of United States

origin, unless they are included elsewhere in this List, whether in bond or cleared by the Canada Border Services Agency, other than goods or technology that have been further processed or manufactured outside the United States so as to result in a substantial change in value, form or use of the goods or technology or in the production of new goods or technology.” See: A Guide to Canada’s Export Controls – December 2007, p. 100. 57 For details, see United States, 22 Code of Federal Regulations §123.9, “Country of ultimate destination and approval of re-exports or retransfers.” It is may be noted that in June 2000, the U.S. and Canada had entered into an agreement (See Joint Statement On Defence Export Controls, Government Of Canada, News Release, of 16 June 2000, No. 154) under which Canada undertook to strengthen its legislative framework (consequently, it passed Bill S-25: An Act to Amend the Defence Production Act) and to harmonize its Export Control List with the U.S. Munitions List and thus would obtain exemption from many provisions of the U.S. ITARs for re-export of US components. 58 For details, see “Wassenaar Arrangement – Basic Documents,” January 2009. http://www. wassenaar.org/publicdocuments/2009/Basic%20Documents%20-%20Jan%202009.pdf (accessed: 2 October 2009).

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adhere to.59 Under the Arrangement, Canada must disclose the information related to transfers or denials of transfers of certain controlled and dual-use items. Canada exercises its rights of transfer or denying a transfer of items in the Arrangement’s Group-1 (Dual Use) list or Group-2 (Munitions) List60 through the EIPA. It is interesting to note that the definitions of terms “spacecraft” and “space qualified” in the Arrangement are the same as under the Canada’s Export Control List. In addition to the Wassenaar Arrangement, Canada, as a member of the United Nations, is obliged to impose sanctions that have been decided under any UN Security Council Resolution. It fulfills such obligation by enforcing them through its applicable domestic law (i.e. United Nations Act, R.S., 1982, c. U-2) and the regulations adopted under the Act. In the absence of a UN Security Council resolution, the Canadian Government may impose on a foreign state economic sanctions, pursuant to the Special Economic Measures Act (1992, c. 17) for implementing a decision of an international organization, of which Canada is a member, that calls upon its members to take economic measures against that foreign state.

5.6 Satellite Communications The 1968 Canadian Government’s White Paper entitled A Domestic Satellite Communications System for Canada, concluded that “in view of Canada’s particular geographic, economic and social features, ‘. . .. a domestic satellite communications system is of vital importance for the growth, prosperity and unity of Canada, and should be established as a matter of priority.’”61 This policy objective was achieved when The Telesat Canada Act62 was passed and proclaimed to be effective on 1st September 1969. Under this Act, Telesat Canada Corporation, a Crown Corporation was created “to establish satellite telecommunication systems providing, on a commercial basis, telecommunication services between locations in Canada.”63 Canada became the first country in the world to operate a geostationary orbit domestic communications satellite system when it launched its Anik-A 1 in 1972. Since then, communications satellites have been owned and operated by Telesat Canada. In 1991, Telesat Canada Act was replaced by the Telesat Canada Reorganization and Divestiture Act64 when the company was privatized. Satellites play an important 59 Statement

of Understanding on Control of Non-Listed Dual-Use Items, 2003. http://www.wassenaar.org/guidelines/docs/Non-listed_Dual_Use_Items.pdf (accessed: 2 October 2009). 60 The Wassenaar Arrangement, List of Dual-Use Goods and Technologies and Munitions List. See: http://www.wassenaar.org/controllists/2008/WA-LIST%20%2808%29%201/WA-LIST%20% 2808%29%201.pdf (accessed: 2 October 2009). 61 Cited from: The Creation of Telesat Canada, Online Journal of Space Communications, http://satjournal.tcom.ohiou.edu/Issue4/ historal_telesat.html (accessed: 20 October 2009). 62 R. S. 1985, c. T-6. 63 Ibid., Section 5.1. 64 S.C. 1991, c. 52.

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role in the provision of modern communication services of all kinds and in achieving almost 100% teledensity in the country. Since 2004, Ciel Satellite Group of Ottawa has become a domestic competitor to Telesat Canada. Communications in Canada are regulated under three principal laws, which have been slightly amended and adapted to cover all sorts of satellite communications. They are: (a) Radiocommunication Act,65 (b) Telecommunications Act,66 and (c) Broadcasting Act.67 The Radiocommunication Act is implemented by the Department of Industry (i.e. Industry Canada) which imposes licensing requirements for the use of radio frequencies for all wireless communications, including satellite communications. The Act applies, inter alia, to any spacecraft that is under the direction or control of (a) Her Majesty in right of Canada or a province, (b) a citizen or resident of Canada, or (c) a corporation incorporated or resident in Canada.68 Section 4(1) of the Act specifies that “No person shall, except under and in accordance with a radio authorization [from the Minister of Industry], install, operate or possess radio apparatus, other than (a) radio apparatus exempted by or under,” Radiocommunication Regulations.69 “Radio apparatus” is defined in Section 1 of the Act as “a device or combination of devices intended for, or capable of being used for, radiocommunication.” Section 9(1)(c) of the Radiocommunication Act prohibits anyone to “decode an encrypted subscription programming signal or encrypted network feed otherwise than under and in accordance with an authorization from the lawful distributor of the signal or feed.”70 Upholding the validity of Section 9(1)(c), the Supreme Court of Canada unanimously ruled in Bell ExpressVu Limited Partnership v. Rex

65 R.S.

1985, c. R-2, s. 1; 1989, c. 17, s. 2. (as amended, consolidated in 2009). http://laws. justice.gc.ca/PDF/Statute/R/R-2.pdf (accessed: 23 November 2009). 66 S.C. 1993, c. 38. (as amended, consolidated in 2009). http://laws.justice.gc.ca/PDF/Statute/T/T3.4.pdf (accessed: 23 November 2009). 67 S.C. 1991, c. 11. (as amended, consolidated in 2009). http://laws.justice.gc.ca/PDF/Statute/B/B9.01.pdf (accessed: 23 November 2009). 68 Radiocommunication Act, Section 3(3)(b). 69 Radiocommunication Regulations (1996): “Regulations Respecting Radiocommunication, Radio Authorizations, Exemptions from Authorizations and The Operation Of Radio Apparatus, Radio-Sensitive Equipment And Interference-Causing Equipment.” (SOR/96-484, as amended, consolidation in 2009) http://laws.justice.gc.ca/PDF/Regulation/S/SOR-96-484.pdf (accessed: 24 November 2009). 70 It may also be noted that Criminal Code (R.S.-1985, c. C-46) in its Section 327(1) provides that “Everyone who, without lawful excuse, the proof of which lies on him, manufactures, possesses, sells or offers for sale or distributes any instrument or device or any component thereof, the design of which renders it primarily useful for obtaining the use of any telecommunication facility or service, under circumstances that give rise to a reasonable inference that the device has been used or is or was intended to be used to obtain the use of any telecommunication facility or service without payment of a lawful charge therefore, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.”

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(2002)71 that the sale of equipment to decode encrypted U.S. satellite TV signals is illegal. This decision seems to have put a lid on the so-called grey market in which several companies sold to thousands of Canadians specially designed equipment to unscramble signals from the U.S. direct-to-home satellites so they could watch American TV programs without paying the Canadian distributors of such programs. The Royal Canadian Mounted Police (RCMP) enforces Section 9(1)(c) and enforcement measures may include confiscation of illegal equipment. According to the RCMP, “the theft of satellite signals is estimated at more than $300 million annually.”72 Telecommunications Act and Broadcasting Act are implemented by a single independent regulatory authority known as the Canadian Radio-television and Telecommunications Commission (CRTC), which has been created under the Canadian Radio-television and Telecommunications Commission Act.73 No general license is required to provide satellite communications services in Canada. However, only a “Canadian carrier is eligible to operate as a telecommunications common carrier if it is a Canadian-owned and controlled corporation incorporated or continued under the laws of Canada or a province.”74 According to Section 16(3) of the Telecommunications Act, “a corporation is Canadian-owned and controlled if (a) not less than eighty per cent of the members of the board of directors of the corporation are individual Canadians; (b) Canadians beneficially own, directly or indirectly, in the aggregate and otherwise than by way of security only, not less than eighty per cent of the corporation’s voting shares issued and outstanding; and (c) the corporation is not otherwise controlled by persons that are not Canadians.” In other words, to be eligible to operate satellite communications in Canada, a corporation must not be owned more than 20% by foreigners. However, in the case of a holding company foreign ownership could be upto 33.3%.75 Such ownership restrictions do not apply in respect of the ownership or operation of “earth stations that provide telecommunications services by means of satellites.”76 However, international satellite telecommunications services could be provided only in accordance with an international telecommunications service license to be procured from the

71 [2002]

2 S.C.R. 559. SaskTel managers suspended with pay during investigation of satellite theft,” The Canadian Press (15 September 2008), http://satellite.signaltheft.tv/ (accessed: 22 October 2009). 73 1974-75-76, c. 49; R.S. 1985, c. C-22 (as amended, consolidated in 2009). http://laws. justice.gc.ca/PDF/Statute/C/C-22.pdf (accessed: 23 November 2009). 74 Telecommunications Act, Section 16(1). According to Section 2(1) of the Act, “Canadian carrier” is a means a telecommunications common carrier that is subject to the legislative authority of Parliament; and "telecommunications common carrier" means “means a person who owns or operates a transmission facility used by that person or another person to provide telecommunications services to the public for compensation.” 75 Canadian Telecommunications Common Carrier Ownership and Control Regulations, SOR/94667, (as amended, consolidated in 2009). http://laws.justice.gc.ca/PDF/Regulation/S/SOR-94667.pdf (accessed: 23 November 2009). 76 Telecommunications Act, Section 16(5)(b). 72 “2

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CRTC.77 The license could be issued for a term not exceeding 10 years, but might be renewed on application to that effect.78 A license is transferable only with the prior consent of the Commission.79 The CRTC may suspend or revoke a license whenever it “believes on reasonable grounds that the licensee has contravened this Act, the regulations or any condition of the license.”80 Competition in the Canadian telecommunication sector is promoted pursuant to one of the policy directives enumerated in Section 7(c) of the Telecommunications Act; i.e. “to enhance the efficiency and competitiveness, at the national and international levels, of Canadian telecommunications.” The CRTC ensures the application of this policy and is also authorized to refrain (forbear) from regulation, in whole or in part, of any telecommunication service where it finds that there exists sufficient competition in the market to protect the interests of users.81 The Canadian Government, however, recognizes that competition might not fully serve the public interest. Therefore, Section 7(b) of the Telecommunications Act has been designed to safeguard the principle of universal service and other social needs of the Canadians; i.e. the service providers must render reliable and affordable telecommunications services of high quality accessible to Canadians in both urban and rural areas in all regions of Canada. In order to achieve this universal service objective, the CRTC has devised several mechanisms, including the institution of the Universal Service Fund, through which those service providers are compensated who make provision for services to rural and remote areas. The Canadian Broadcasting Act is essentially aimed at protecting and enhancing Canadian culture. Section 3 of the Act, written on three pages, extensively elaborates the Canadian Broadcasting Policy. The key elements of this Policy are that: (a) the Canadian broadcasting system, a public service, (i) is essential to the maintenance and enhancement of national identity and cultural sovereignty, (ii) shall be effectively owned and controlled by Canadians, and (iii) shall serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada, and (b) the programming provided by the Canadian broadcasting system should (i) be varied and comprehensive, providing a balance of information, enlightenment and entertainment for men, women and children of all ages, interests and tastes, and (ii) reflect the linguistic duality and multicultural and multiracial nature of Canadian society and the special place of aboriginal peoples within that society.

77 Ibid.,

Section 16.1(1). Section 16.3(4) and (5). 79 Ibid., Section 16.3(6). 80 Ibid., Section 16.4(1). 81 Ibid., Section 34. 78 Ibid.,

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The implementation of this Policy is entrusted to the CRTC, which has been considerably empowered under the Broadcasting Act for the performance of this very difficult and complex responsibility. The Broadcasting Act applies in respect of broadcasting carried on in whole or in part within Canada or with the use of “any spacecraft that is under the direction or control of (i) Her Majesty in right of Canada or a province, (ii) a citizen or resident of Canada, or (iii) a corporation incorporated or resident in Canada.”82 To be eligible to carry out broadcasting, a corporation must not be owned more than 20% by foreigners; however, in the case of a holding company foreign ownership could be upto 33.3%.83 Such restrictions on foreign ownership of Canadian broadcasting entities have generally been supported in Canada; e.g. the House of Commons, Standing Committee on Canadian Heritage, carried out a detailed study of broadcasting in Canada and recommended the maintenance of such restriction in order to protect Canadian culture.84 However, recently there have also been several indications that the Canadian Government might gradually liberalize foreign ownership restrictions in both the telecommunications and satellite sectors. Before staring a broadcasting service, an appropriate license must be procured from the CRTC.85 This required license is in addition to the one needed from the Minister of Industry under the Radiocommunication Act. No license can be issued to (a) non-Canadians,86 (b) any Canadian province, (c) agents of any Canadian province, and (d) municipal governments.87 The CRTC has issued several sets of very complex and detailed regulations under the Broadcasting Act for the purpose of promoting Canadian Content on all means of broadcasting.88 These regulations impose conditions on the broadcasting licensees with respect to carriage of certain percentage of Canadian programs and not to transmit foreign programs without prior authorization. The CRTC divides the television channels allowed to be distributed by cable companies into two categories; i.e. “basic” and “discretionary”.

82 Broadcasting

Act, Section 4(2). Section 2 of the Act defines “broadcasting" as “transmission of programs, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place.” 83 Direction to the CRTC (ineligibility of non-Canadians), SOR/97-192, http://www.canlii. org/en/ca/laws/regu/sor-97-192/latest/sor-97-192.html (accessed: 29 November 2009). 84 House of Commons, Standing Committee on Canadian Heritage, Our Cultural Sovereignty: the Second Century of Canadian Broadcasting June 2003. 85 Broadcasting Act, Section 9(1). 86 Direction to the CRTC (ineligibility of non-Canadians), SOR/97-192, http://www.canlii.org/ en/ca/laws/regu/sor-97-192/latest/sor-97-192.html (accessed: 29 November 2009). 87 Direction to the CRTC (Ineligibility to Hold Broadcasting Licences), SOR/85-627, as amended in 2007 and 2009. http://www.gazette.gc.ca/archives/p2/2007/2007-05-02/html/sordors73-eng.html (accessed: 23 November 2009); http://www.gazette.gc.ca/rp-pr/p2/2009/2009-0415/html/sor-dors103-eng.html (accessed: 23 November 2009). 88 Broadcasting Distribution Regulations, SOR/99-423; Pay Television Regulations, SOR/90105; Radio Regulations, SOR/86-982; Specialty Services Regulations, SOR/90-106; Television Broadcasting Regulations, SOR/87-49; etc.

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Discretionary channels are allowed on the basis of a priori determination of the desired balance between the protection of Canadian broadcasters and program producers and the foreign satellite television channels. For this purpose, the CRTC maintains a “List of Eligible Satellite Services”, the latest revision of which has been issued in November 2009.89 In 2004, the CRTC refused the carriage of Italian RAI International channel on the ground that this could create undue competition with local programs90 but allowed the carriage of Al Jazeera as no local entity was producing and broadcasting programs similar to those of Al Jazeera.91 This aroused serious and sensitive debate in the country. However, no cable companies distributed Al Jazeera programs. Again on 26 November 2009, the CRTC allowed the English version of Al Jazeera Channel to be distributed in Canada.92

5.7 Remote Sensing Canada is a country of vast territory and of extensive coastline in the East, West and North. It is primarily Canada’s domestic needs for ice services, natural resources exploration, mapping, crop and forest monitoring and management, weather forecasting and environmental monitoring, and disaster response and mitigation, which have led to its decision to use satellite remote sensing technologies and systems.93 For several years, Canada has been a pioneer in the development of remote sensing technology and of the analytic tools required for the extraction of information products. With its synthetic aperture radar (SAR) sensors, Canada’s highly advanced and unique remote sensing satellite system, called RADARSAT, is capable of capturing data through clouds, darkness, fog, and smoke. The second generation satellite, RADARSAT-2 is a collaborative project of the Canadian Government and a private Canadian company (MacDonald, Dettwiler and Associates Ltd. (MDA) of Richmond, B.C.). MDA owns the satellite and the related ground segment, and operates it.94 MDA also holds exclusive rights to distribute the data from RADARSAT-1

89 List

of Part 2 Eligible Satellite Services, 26 November 2009, http://www.crtc.gc.ca/Eng/ publications/satlist.htm (accessed: 29 November 2009). 90 Broadcasting Public Notice CRTC 2004-50 (Requests to add non-Canadian third-language services to the lists of eligible satellite services for distribution on a digital basis), 15 July 2004. 91 Broadcasting Public Notice CRTC 2004-51, (Requests to add Al Jazeera to the lists of eligible satellite services for distribution on a digital basis), 15 July 2004. 92 Broadcasting Regulatory Policy CRTC 2009-725, 26 November 2009, “Addition of Al Jazeera English to the lists of eligible satellite services for distribution on a digital basis,” http://www.crtc.gc.ca/eng/archive/2009/2009-725.htm (accessed:29 November 2009). 93 Government of Canada, Department of Foreign Affairs and International Trade, News Release (No. 134, 9 June 1999), Canada to Control Imaging Satellites, Backgrounder “Developing a Canadian Access Control Policy For Commercial Remote Sensing Satellites.” 94 For details, visit the websites of the MDA and of Canadian Space Agency: http://www.radarsat2.info// (accessed: 23 October 2009); http://radarsat.espace.gc.ca/eng/ satellites/radarsat2/default.asp (accessed: 23 October 2009).

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and RADARSAT-2.95 RADARSAT is not only being used for commercial purposes but also for national security and national defence purposes. In Canada, the CSA supplies RADARSAT-1 data to all government departments.96 Using state-of-the-art technologies for data archiving, processing, and dissemination systems, RADARSAT is used to better understand and manage Canada’s “natural resources for land-use planning, environmental assessment, and oil and mineral exploration.”97 For RADARSAT-2, which is owned and operated by MDA/GSI, the federal Government pre-purchased an allocation of data for its own needs over the lifetime of the satellite. MDA/GSI is also the exclusive distributor of the RADARSAT-2 data. In addition to the application of the Radiocommunication Act under which a license is required for the use of radio frequencies, there is a set of legislations and regulations that regulate the operation and satellite systems, and collection and distribution of remote sensing data and products produced by Canadian satellites and entities.98 These policies were developed after domestic consultations and reaching a bilateral agreement with the Government of the U.S.99 Under the 2000 Canada-U.S. bilateral agreement concerning the operation of commercial remote sensing satellites (including RADARSAT-2), the Government of Canada undertook to develop a regulatory regime for these systems that would balance the promotion of the private use of high-performance imaging satellites with the need to protect national security and foreign policy interests.100 Pursuant to this undertaking, the Government of Canada tabled in November 2004 draft legislation (Bill C-25, An Act Governing the Operation of Remote Sensing Space Systems)101 95 http://gs.mdacorporation.com/

(accessed: 23 October 2009). Resources Canada, Earth Observation Data Services. http://eods.nrcan.gc.ca/about _e.php (accessed: 23 October 2009). 97 From: Notes for a Speech by The Honourable Herb Dhaliwal, PC, MP, Minister of Natural Resources Canada to the Canada Centre for Remote Sensing-Canadian Space Agency, Announcement, Saint-Hubert, Quebec, January 30, 2003. 98 Government of Canada, Department of Foreign Affairs and International Trade, Canada to Control Imaging Satellites., News Release No. 134, 9 June 1999. 99 Government of Canada, Department of Foreign Affairs and International Trade, Canada And United States Sign Agreement Concerning Operation Of Commercial Remote Sensing Satellite Systems, News Release No. 153, 16 June 2000. The text of the Agreement is available at: http://www.treaty-accord.gc.ca/text-texte.asp?id=103522&bprint=true (accessed: 23 October 2009). 100 Government of Canada, Department of Foreign Affairs and International Trade, Canada And United States Sign Agreement Concerning Operation Of Commercial Remote Sensing Satellite Systems, News Release No. 153, 16 June 2000. Agreement Between The Government of Canada And The Government of The United States of America Concerning The Operation of Commercial Remote Sensing Satellite Systems, Signed at Washington, on 16 June 2000. Canada Treaty Series No. 2000/14. http://www.treaty-accord.gc.ca/text-texte.asp?id=103522 (accessed: 23 October 2009). 101 Government of Canada, Department of Foreign Affairs and International Trade, Canada Tables Legislation Regulating Remote Sensing Space Systems, News Release No. 136, 23 November 2004. For legislative history of the Act, http://www2.parl.gc. 96 Natural

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in the Canadian Parliament. The Bill was adopted as The Remote Sensing Space Systems Act102 in 2005. It came into force on 29 March 2007 when the Regulations adopted pursuant to the Act were also made effective. It is interesting to note that this Act had its origins in the above-mentioned commitments made in the 2000 CanadaU.S. Agreement, regarding the operation of commercial remote sensing satellite systems, which was influenced by the shift of remote sensing satellites from public to private ownership in Canada and the U.S. The Remote Sensing Act designates the Minister of Foreign Affairs as responsible for the implementation of its provisions. According to Section 5 of the Act, no person is permitted to operate a remote sensing satellite system in any manner without a license from the Minister of Foreign Affairs. After considering national security, the defense of Canada, the safety of Canadian Forces, Canada’s international relations and obligations, the Minister may issue a license, renew or amend a license, or issue a provisional license, subject to the conditions that the Minister considers appropriate.103 Some of these conditions, as specified in the Act, include:104 (a) that the licensee keep control of the licensed system; (b) that the licensee not permit any other person to carry on a controlled activity in the operation of the system except in accordance with the license; (c) that raw data and remote sensing products from the system about the territory of any country (but not including data or products that have been enhanced or to which some value has been added) be made available to the government of that country within a reasonable time and on reasonable terms,105 but subject to any license conditions that the Minister considers appropriate; and (d) that the licensee keep control of raw data and remote sensing products from the system. The licensing requirement is equally applicable for any activities related to remote sensing space systems carried out outside of Canada by any Canadian citizen, permanent resident, Canadian corporation, and member of any prescribed class of persons having a substantial connection to Canada.106 The Minister of Foreign Affairs is vested with the discretionary power to approve, issue, amend,

ca/HousePublications/Publication.aspx?pub=bill&doc=C-25&parl=38&ses=1&language=E (accessed: 20 October 2009); http://www2.parl.gc.ca/Sites/LOP/LegislativeSummaries/Bills_ls.asp? lang=E&Parl=38&Ses=1&ls=C25&source=Bills_House_Government (accessed: 20 October 2009). 102 S.C. 2005, c. 45. (hereinafter referred to as the Remote Sensing Act). 103 Remote Sensing Space Systems Act, Subsection 8(1). 104 Ibid., Subsection 8(4). 105 Canada is required to provide the data acquired by its system concerning the territory under the jurisdiction of foreign a government in accordance with the 1986 United Nations Resolution no. A/RES/41/65 entitled “Principles Relating to Remote Sensing of the Earth from Space.” 106 Remote Sensing Space Systems Act, Section 6.

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renew, or suspend a licence, due to concerns of national security, defence, international relations, Canada’s international obligations, and any prescribed factors. The Minister has the discretion and authority, through licensing conditions, to control the distribution of the raw data107 and remote sensing product.108 The Act gives extraordinary powers to several Ministers (i.e. Minister of Foreign Affairs, the Minister of National Defense, and the Solicitor General of Canada or their delegates) to have immediate priority access to all services of the licensee.109 Similar to the shuttle control powers in the hands of the U.S. Government, the Canadian Minister of Foreign Affairs or the Minister of National Defence may require a licensee to interrupt or restrict any operation if the respective Minister believes that the continuation of that operation would be injurious to Canada’s conduct of international relations or inconsistent with Canada’s international obligations, the defence of Canada or the safety of Canadian Forces.110 The Minister of Foreign Affairs may suspend a licence, if he believes that the continued operation of a licensed system is likely to be (a) injurious to national security, the defence of Canada, the safety of Canadian Forces or Canada’s conduct of international relations; or (b) inconsistent with Canada’s international obligations.111 Under Canadian law, it is an offence to operate a remote sensing satellite system and the person guilty of an offence could be liable to a fine or to imprisonment.112 Pursuant to its power under Section 20 of the Act, the Government has issued in March 2007 the Remote Sensing Space Systems Regulations.113 They prescribe detailed provisions dealing with practical matters, such as: the required contents and processing of applications for licenses, licence conditions, transformation of raw data, archiving and access to raw data, satellite disposal, data protection plan, etc. Though the legislation [i.e. The Remote Sensing Act] limited the freedom of commercial operators, the Government alleged that the “benefits that derive from the remote sensing space system legislation are enormous. The Regulations permit Canadian commercial satellite operators to enter a growing international business where Canada has a leading role.”114 The Remote Sensing Space Systems Section of the Department of Foreign Affairs, which is in-charge for processing of the applications for licenses of remote sensing systems, provides assistance in this regard and has so far issued two licenses: 107 Ibid., Section 2 specifies that: “raw data” means sensor data from a remote sensing satellite, and any auxiliary data required to produce remote sensing products from the sensor data, that have not been transformed into a remote sensing product. 108 Ibid., Section 2 specifies that: “remote sensing product” means an image or data produced from raw data in any way that transforms the raw data. 109 Ibid., Section 15. 110 Ibid., Section 14. 111 Ibid., Section 11 (1). 112 Ibid., Section 38. 113 SOR/2007-66 (March 29, 2007). http://gazette.gc.ca/archives/p2/2007/2007-04-18/html/sordors66-eng.html (accessed: 23 October 2009). 114 Ibid., “Regulatory Impact Analysis Statement” (not a part of the Regulations).

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i.e. (a) to MDA Geospatial Services Inc. for the RADARSAT-2 System on 15 November 2007; and, (b) to the University of Toronto for the CanEX-2 System on 27 December 2007.115 The sale and use of the RADARSAT data and products are regulated by the terms of the contract with the end-user(s). Such contracts are subject to the laws of Canada and the province of British Columbia.116 The Act and Regulations permit Canadian corporations to own and operate remote sensing satellite systems, including the reception, storage, and processing of data collected by Canadian satellites and the distribution of this information to potential clients. They also give certain Ministers of the Government of Canada the authority to order priority access or to interrupt normal service to protect national security and defence or international relations and foreign policy interests, and to observe international obligations. This balancing of business interests of the private sector with the national security interests has become a normal regulatory standard among major states with remote sensing capabilities and legislations. In 2008, Alliant Techsystems (ATK), an American company that manufactures weapons and rockets offered to acquire for $1.3B Canada’s prime space company (i.e. MDA) that owns and operates Radarsat-2 satellite and is the developer of Canadarm technology. That offer aroused passionate political debate in the country focusing on the strategic importance of the MDA’s expertise that has primarily been developed with Canadian tax payers’ money. On 8th May 2008, the Minister of Industry using rarely invoked Canadian legislation117 refused to allow such acquisition since this will not “be of net benefit to Canada.”118 This shows that space commerce, at least in Canada, is not like any other business because of its strategic and nationalist significance.

5.8 Human Space Activities and Microgravity Research Canada’s single largest space program relates to human space activities and microgravity research, primarily through CSA’s participation in the International Space Station (ISS), which has been considered to provide “an opportunity for Canadians to participate in research that simply cannot be completed here on Earth. As a stable

115 Department

of Foreign Affairs, Remote Sensing Space Systems. http://www.inter national.gc.ca/arms-armes/non_nuclear-non_nucleaire/remote_sensing-teledetection.aspx?lang= eng (accessed: 23 October 2009). 116 MDA, General Terms of Use. http://gs.mdacorporation.com/about/legal/rsat_legal.asp (accessed: 23 October 2009). 117 An Act Respecting Investment in Canada, R.S. 1985, c. 28 (assented to 20 June 1985), Section 23(3)(b). 118 Industry Canada, “Minister of Industry Confirms Initial Decision on Proposed Sale of Macdonald, Dettwiler and Associates Ltd. to Alliant Techsystems Inc.”, News Release, 8 May 2008. http://www.ic.gc.ca/eic/site/ic1.nsf/eng/04219.html (accessed: 23 October 2009).

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space laboratory the ISS provides access for longer-term experiments, not possible on space shuttles or other ground-based microgravity platforms.”119 On 29th January 1998, Canada signed the revised Inter-Governmental Agreement (IGA) on International Space Station.120 Pursuant to its obligations under the 1998 IGA and the CSA’s Memorandum of Understanding (MOU) with NASA,121 Canada’s main contributions to the ISS are: the Space Station Remote Manipulator System (SSRMS), known as Canadarm2, theMobile Base System (MBS), and the Special Purpose Dexterous Manipulator (SPDM). In return for these contributions, Canada is entitled to utilization rights up to 2.3% of the non-Russian ISS facilities. The design, development, and installation on the ISS of Canada’s contributions will cost about $1.4 billion over 20 years or about three dollars a year per Canadian taxpayer.122 In addition to the gains in microgravity research expertise, economic benefits of about $6 billion and 70,000 person-years of employment are expected from Canada’s participation in the ISS.123 The 1998 IGA is, in a number of ways, tied to national laws of the Partner states.124 For example, (i) financial obligations of each Partner to the Agreement are subject to its national funding procedures and the availability of appropriated funds;125 (ii) subject to its national laws and regulations, each Partner is obliged to facilitate the movement of persons and goods necessary to implement this Agreement into or out of its territory;126 (iii) no Partner state is required to exchange technical data and goods in contravention to its national laws;127 and (iv) the granting of intellectual property rights is to be processed essentially according to the national laws of the Partners States;128 and (v) national criminal jurisdiction

119 CSA, Benefits of Scientific Research on the ISS, http://www.space.gc.ca/asc/eng/iss/ science.asp (accessed: 13 September 2005). 120 Agreement among the Government of Canada, Governments of member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America concerning cooperation on the civil International Space Station, signed at Washington, DC, on 29th January 1998; entered into force for Canada on27 March 2001, (hereinafter referred to as the 1998 IGA). 121 Memorandum of Understanding between the National Aeronautics and Space Administration of the United States of America and the Canadian Space Agency concerning cooperation on the civil International Space Station, signed at Washington, DC, on 29th January 1998, (hereinafter referred to as the NASA-CSA MOU). http://www.nasa.gov/mission _pages/station/structure/elements/nasa_csa.html (accessed: 23 October 2009). 122 CSA, International Space Station. http://www.asc-csa.gc.ca/eng/iss/info.asp (accessed: 23 October 2009). 123 Ibid. 124 The ISS Partners states are: United States, Russia, Japan, Canada, and 11 European countries (Belgium, Denmark, France, Germany, Italy, the Netherlands, Norway, Spain, Sweden, Switzerland and the United Kingdom). 125 1998 IGA, op. cit. supra note 120, Article 15. 126 Ibid., Article 18. 127 Ibid., Article 19. 128 Ibid., Article 21.

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over a Partner’s personnel in or on any flight element is to be exercised according to its national laws;129 etc. So far Canada has not made any specific changes in its laws respecting these matters, except in the case of exercise of its criminal jurisdiction. Under Article 22(1) of the 1998 IGA, Canada is entitled to “exercise criminal jurisdiction over personnel in or on any flight element who are” Canadian nationals. In order to provide domestic legal basis for the exercise of such jurisdiction Canada passed legislation, Civil International Space Station Agreement Implementation Act,130 through which it amended the Criminal Code.131 Section 7 of the Criminal Code has been amended with the addition of the following provision: Space Station – Canadian crew members (2.3) Despite anything in this Act or any other Act, a Canadian crew member who, during a space flight, commits an act or omission outside Canada that if committed in Canada would constitute an indictable offence is deemed to have committed that act or omission in Canada, if that act or omission is committed (a) on, or in relation to, a flight element of the Space Station; or (b) on any means of transportation to or from the Space Station. Space Station – crew members of Partner States (2.31) Despite anything in this Act or any other Act, a crew member of a Partner State who commits an act or omission outside Canada during a space flight on, or in relation to, a flight element of the Space Station or on any means of transportation to and from the Space Station that if committed in Canada would constitute an indictable offence is deemed to have committed that act or omission in Canada, if that act or omission (a) threatens the life or security of a Canadian crew member; or (b) is committed on or in relation to, or damages, a flight element provided by Canada.

Under Section 9 of the Act, the Government may make regulations for carrying out the purposes of giving effect to the 1998 IGA, including the Code of Conduct for the International Space Station Crew, a memorandum of understanding or another implementing arrangement under the 1998 IGA. For several years, the Canadian Space Agency, in collaboration with the National Research Council, has been conducting microgravity research using several parabolic flights.132 For long duration microgravity experiments, the CSA, under its Space Science Program, has been supporting Canadian scientists to participate in international microgravity projects.133 For example, (i) Canadian life 129 Ibid.,

Article 22. International Space Station Agreement Implementation Act, assented to 16th December 1999, S.C. 1999, c. 35. 131 R.S., 1985, c. C-46. 132 National Research Council Canada, Airborne Microgravity Experiments.http://www.nrccnrc.gc.ca/eng/programs/iar/airborne-microgravity.html (accessed: 22 September 2009). 133 Generally see: Lynne C. Myers, “The International Space Station: Canada’s Involvement”, Science and Technology Division, 5 September 2001. http://dsp-psd.pwgsc.gc.ca/CollectionR/LoPBdP/CIR/875-e.htm (accessed: 23 October 2009); Nicole Buckley and Perry JohnsonGreen, “Microgravity Research in the Canadian Space Agency,” Acta Astronautica, 63 (2008) 35 – 37; CSA, Past Space Missions, http://www.astro.espace.gc.ca/eng/astronauts/past.asp (accessed: 23 October 2009); CSA, Microgravity Sciences Research on the ISS, http://www.asccsa.gc.ca/eng/iss/microgravity.asp (accessed: 23 October 2009). 130 Civil

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sciences and microgravity research was conducted aboard NASA’s space shuttles and Russia’s MIR space station and NASA shuttle mission STS-85,134 and (ii) the Neurolab mission on STS-90 was used for “understanding of how the nervous system develops and functions in space.”135 For similar experiments requiring long exposure to a microgravity environment, Canada’s membership in the ISS partnership provides excellent opportunities and facilities for Canadian, and possibly foreign, scientists. Canada’s utilization rights of the ISS are defined and governed by Article 9 of 1998 IGA, the MOU between NASA and CSA,136 and the implementing arrangement. Under Article 9(2), Canada has the right to barter or sell any portion of its respective allocations to any “non-Partner or private entity under the jurisdiction of a non-Partner.” However, any such right to a proposed use of a non-Russian ISS element shall require prior notification to, and timely consensus of, all other Partners through their Cooperating Agencies. The Multilateral Coordination Board (MCB)137 coordinates activities of all Partners with respect to the utilization of the ISS. The following factors/mechanisms would affect Canada’s potential utilization or transfer rights to non-partners or private entities: (i) All decisions of the MCB are to be made by consensus. (ii) The Chairman of MCB, who, by default, is the NASA representative, is authorized to make decisions when consensus cannot be achieved on any specific issue within the required time. (iii) The CSA is entitled to use an equivalent of 2.3% of the ISS user accommodations provided by NASA, ESA, and the Government of Japan (GOJ), and can control the selection of users for its allocation of user accommodations.138 However, such control will be exercised in accordance with the procedures in (a) the MOU between NASA and CSA, (b) the MOU between NASA and ESA, (c) the MOU between NASA and the GOJ, and (d) the MOU between NASA and the RSA.

134 CSA,

Microgravity Isolation Mount (MIM). http://www.asc-csa.gc.ca/eng/missions/sts-085/ mim.asp (accessed: 23 October 2009). 135 CSA, STS-90 Mission Overview. http://www.asc-csa.gc.ca/eng/missions/sts-090/overview.asp (accessed: 23 October 2009). 136 NASA-CSA MOU, op.cit. supra note 121. 137 NASA-CSA MOU, op. cit. supra note 121. The MCB is comprised of representatives from NASA, Russian Space Agency (RSA), European Space Agency (ESA), Government of Japan (GOJ), and CSA. According to Article 8.1.b. of the NASA-CSA MOU, the MCB “meets periodically over the lifetime of the program or promptly at the request of any partner with the task to ensure coordination of the activities of the partners related to the operation and utilization of the Space Station. The Parties to this MOU and the other partners will plan and coordinate activities affecting the safe, efficient and effective operation and utilization of the Space Station through the MCB, except as otherwise specifically provided in this MOU.” 138 Ibid., Article 8.3.b.

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(iv) Five years in advance, the CSA will have to develop Annual Utilization Plans for all proposed uses of its own allocation of the ISS user accommodations and utilization resources139 and forward them to the User Operations Panel (UOP).140 In the event of failure of the UOP to reach consensus on the utilization of the ISS flight elements and/or related the ISS unique ground elements, the issue will be forwarded to the MCB for resolution.141 (v) The CSA can only sell, barter, or market the use of their allocations, or enter into other arrangements for any portion of its ISS allocations in accordance with the procedures established in the Utilization Management Plan. (vi) Any Partner can insist on its right to use through consultations in accordance with the convoluted mechanism established in Article 18 the NASA-CSA MOU,142 but if the matter is not resolved through consultation, the settlement of disputes provisions of Article 23 of the IGA may be used. Thus, the procedural mechanisms in the 1998 IGA and the MOU between NASA and CSA must be complied with in order to transfer Canada’s ISS utilization rights to any private entity or a foreign non-partner country.

5.9 Military Uses of Outer Space Canada’s use of space has been for peaceful purposes, which includes military uses that are not “aggressive.” In fact, Canada started making use of space for military research in 1962 as its first satellite Alouette-I was designed and built by scientists at Canada’s Defence and Research Telecommunications Establishment. Canada has so far not launched and operated any satellite system on its own dedicated for military purposes, though the launch of a space-based surveillance satellite called “Sapphire” is currently being planned.143 Currently, the Department of National Defense “uses space-based assets such as communications, weather forecasting, navigation, mapping and intelligence, surveillance and reconnaissance that depend on the use of

139 Ibid., 140 Ibid.,

Article 8.3.g.1. Article 8.3.g.2.

141 Ibid. 142 The process itself is cumbersome and two tiered: In the case of a question of interpretation or implementation of the terms of this MOU, such question will be first referred for settlement to the appropriate officials designated, respectively, by the NASA Administrator and the President of the CSA and then if not settled to include officials designated, respectively, by the ESA Director General, the Minister of State for Science and Technology of Japan, and/or the RSA General Director. It still remains unsettled the same will now be sent to the NASA Administrator and the President of the CSA and then if remained further unsettled – to ESA Director General, the Minister of State for Science and Technology of Japan, and/or the RSA General Director. 143 National Defence and the Canadian Forces, “Surveillance of Space (Sapphire),” 18 June 2009, http://www.cfd-cdf.forces.gc.ca/sites/page-eng.asp?page=6250 (accessed: 23 September 2009).

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earth-orbiting satellites.”144 Canada is a member of NATO and NORAD alliances which extensively use space assets for military purposes in general and during actual war operations in particular.145 Canada’s declared policy has consistently been against, not the militarization but, the weaponization of outer space. The rationale for such policy, as had been stated by the Department of Foreign Affairs and International Affairs, is that: The development, testing and deployment of space-based anti-satellite and ballistic missile defense systems, in addition to threatening the current peaceful uses of outer space, could also extinguish the explicit right of use of outer space of any nation in favor of implicit permission for its use by the first nation to successfully deploy such weapons in outer space. Access to outer space via space launch vehicles might then need to run a gauntlet of orbiting space-based weapons.146

In 2005, Canada decided not to join the American Ballistic Missile Defense (BMD) system, though would continue participating in the NORAD operations with the U.S.147 The current space and foreign policy objective of Canada “is to ensure secure and sustainable access to, and use of, space, and freedom from space-based threats.”148 Believing that its space security goal lies “in the juxtaposition of the right of safe passage of space objects for peaceful purposes with the right of self-defence in the Outer Space Treaty and the UN Charter,” Canada’s Ambassador Marius Grinius to the Conference on Disarmament (CD), tabled on 26 March 2009, Canada’s Working Paper on Transparency and Confidence-Building Measures (TCBMs) for Space Security. In the Paper, Canada proposed that the “CD should consider security guarantees, such as a declaration of legal principles, a code of conduct, or a treaty, that would: (a) ban the placement of weapons in space, (b) prohibit the test and use of weapons on satellites so as to damage or destroy them, and (c) prohibit the use of satellites themselves as weapons.”149

144 Defence

Research and Development Canada, Space Systems Group. http://www.ottawa.drdcrddc.gc.ca/html/RAST_170_SSG-eng.html (accessed: 2 October 2009). 145 Secure World Foundation, Canadian military space activities.http://www.secureworld foundation.org/index.php?id=99&page=Canada_Military (accessed: 25 October 2009) 146 The Non-weaponization of Outer Space, http://www.dfait-maeci.gc.ca/arms/outer3-en.asp (accessed: 23 January 2007). 147 “Canada Will Not Participate In US Missile Defense Program,” 24 February 2005. http://www.spacewar.com/news/bmdo-05i.html (accessed: 20 October 2009). 148 Department of Foreign Affairs and International Trade, Space Security. http://www. international.gc.ca/arms-armes/non_nuclear-non_nucleaire/space_security-securite_spatiale.aspx ?lang=en&menu_id=120&menu=R (accessed: 23 October 2009). 149 Canada, WORKING PAPER On the Merits of Certain Draft Transparency and Confidence-Building Measures and Treaty Proposals for Space Security. 26 March 2009, http://www.reachingcriticalwill.org/political/cd/papers09/1session/Canada-PAROS.pdf (accessed: 2 November 2009). http://www.reachingcriticalwill.org/political/cd/speeches09/1session/26March _Canada-PAROS.pdf (accessed: 7 November 2009).

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5.10 Canada’s International Responsibility The Government of Canada bears international responsibility for national space activities whether carried out by Canadian governmental agencies or by nongovernmental entities.150 Where such space activities are carried out by nongovernmental agencies, the Government of Canada is required to authorize and continually supervise those activities.151 The Government of Canada could also be internationally liable to pay compensation for any damage that may occur to foreign countries or entities as a result of the launching of a space object by a Canadian space-faring entity from any place, and also for damage to foreign entities as a result of space activities carried out from within Canadian territory or from a Canadian facility.152 Although the Government of Canada would primarily be internationally liable for the payment of compensation to foreign countries or entities which suffer damage as a result of the above mentioned space activities, there are no statutory provisions under Canadian national law regarding the recovery of the amounts payable as compensation by the Government. In the absence of statutory provisions on the subject, any claim by the Government for recovery of compensation from non-governmental space-faring entities must thus be founded under contract law or common law principles. In most cases, it is likely that the Government, in authorizing the space activity concerned, would enter into a contract of indemnification with the space-faring entity. In such cases, the basis of the claim for recovery by the Government would be contractual and less likely to create any prolonged litigation. Under the rules of contract law the recovery would only be successful if the contract of indemnification is enforceable at law. Where, however, the Government has no contract of indemnification with the space-faring entity, the cause of action for recovery most likely would be founded on the common law tort of negligence, unless the damage occurred as a result of an intentional or criminal act or omission on the part of the space-faring entity, in which case criminal proceedings would be most appropriate. For the Government to successfully recover on a claim based on negligence under common law, the following traditional elements must be established: (a) the existence of a duty of care on the part of the space-faring entity; (b) breach of the duty of care; and (c) damage resulting from the breach.153

150 Outer

Space Treaty, op. cit. supra note 1, Article VI.

151 Ibid. 152 Ibid.,

Artical VII; See also Liability Convention, op. cit. supra note 1, Articles from I to IV.

153 Allen M. Linden, Lewis N. Klar and Bruce Feldthusen, 2004. Canadian Tort Law, Cases, Notes

and Materials, 12th ed. (Lexis Nexis Butterworths, Markham), p. 155.

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5.11 Conclusion and Final Remarks This overview of the space regulatory framework in Canada is an introduction to the complex legal and regulatory regime that Canada has developed progressively over a period of four decades. That regime so far has worked well, but as commercialization increases and the expansion of space activities occurs Canada would need a comprehensive legal regime (either in the form of a single legislation like the 1986 Outer Space Act of the United Kingdom or several interconnected acts) that could effectively implement domestically Canada’s all international obligations under the UN space treaties. In addition, as the outer space becomes congested, there will be some possibilities of commercial operations to retrieve and remove dead satellites or to provide on-orbit servicing with the use of Canadarm. Such activities, not being remote sensing or telecommunications, would not possibly be regulated under the current space laws and regulations in Canada. Canada has not yet fully implemented in domestic law its space treaty obligations. The rationale for that may be that the Government itself assumes the liability risk as a means to promote the start-up of its domestic space industry. This chapter shows how Canada as a medium space power has managed to make a significant progress in space activities while adopting a very practical, coherent and systematic approach to space regulation in step with the needs as they have arisen. The Canadian space regulatory framework may serve as a good model for space law-making for other states, particularly those like-minded countries that have limited space activities. Acknowledgement The author wishes to acknowledge with gratitude the efforts of Mr. Jean-Marc Chouinard of the Canadian Space Agency and Mr. Phillip Baines of the Canadian Department of Foreign Affairs and International Trade for their review and useful comments for the improvement of this chapter. All errors, as always, are the responsibility of the author.

Chapter 6

Regulation of Space Activities in France Philippe Achilleas

6.1 General Philosophy and Processes of Government Regulation 6.1.1 Law-Making Processes In France, the law is a prescriptive text passed by Parliament and promulgated by the President of the Republic. A law may also be passed by referendum. The Prime Minister and the parliamentarians have the power to initiate laws. The French Parliament is the deliberative and legislative branch of the Government. The French parliamentary system is bicameral. The Parliament is composed of (1) the “Upper Chamber” (chambre haute), which is the Senate (Sénat) and (2) the “Lower Chamber” (chambre basse), which is the National Assembly (Assemblée nationale). Before a bill is finally adopted by Parliament, it must be passed in identical terms by the two assemblies. The normal procedure is that the text of the bill is shuttled back and forth between the two “chambers”, each body having the opportunity to amend the text adopted by the other.

6.1.2 Basic Principles of National Laws France is a civil law country. French law can be divided into two main categories: private law (droit privé) and public law (droit public). Private law includes among others, civil law (droit civil) and criminal law (droit pénal); whereas public law encompasses administrative law (droit administratif) and constitutional law (droit constitutionnel). Until June 2008, there was no specific space legislation in France. Space activities were regulated by the general law and also by specific laws applicable to certain activities such as telecommunications and broadcasting. In the year 2000, P. Achilleas (B) Paris-Sud 11 University, Paris, France e-mail: [email protected]

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_6,  C Springer Science+Business Media B.V. 2010

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France started organizing informal working groups in order to explore the possibility of adopting a specific bill on space activities. In 2004, the Prime Minister, M Raffarin, decided to establish a working group of the Council of State in order to prepare the draft of the future French Space Act. The report of the Council of State was published in 2006.1 On the June 3rd 2008, the French Parliament adopted Act no. 2008-518 on Space Operations.2 The objective of the Act is to implement France’s international legal obligations under space law treaties, in particular, those obligations dealing with, responsibility, liability and registration.

6.1.3 Organization of National Space Activities The Ministry of Research, with the support of the French space agency (Centre national d’études spatiales – CNES), is primarily responsible for the development of French space policy. CNES was founded in 19613 as the governmental agency responsible for shaping and implementing France’s space policy. Articles L.331-1–L-331-6 of the Code of Research explain the role of CNES which consists of proposing and implementing French space policy. Furthermore, according to the two Agreements between France and the European Space Agency on the Guyanese Space Centre (Centre spatial guyanais – CSG) of 11 April 2002, the government of France has delegated the responsibility for ensuring safety at CSG to CNES. The Act on space operations of June 3rd 2008 clarifies the role of CNES. First, concerning safety, Article L. 331-6 of the Code of Research has been modified in order to expressly mention that the President of CNES undertakes to implement, on behalf of the State, the Special Policy for the Exploitation of the Facilities of the CSG. As such, it is in charge of the control of the technical risks related to launches carried out from the GSC so as to ensure the protection of property, persons and the environment, both on the ground and during the flight. To this end, the CNES sets out the specific applicable regulations. Furthermore, during a space operation, the President of CNES may take all necessary measures to ensure the safety of persons and property, the protection of public health and the environment, acting on the authority of the Minister in-charge of space affairs. Second, concerning authorization, a decree will designate CNES as responsible for the control of the technical conditions associated with the authorization.

1 Conseil

d’Etat, Pour une politique juridique des activités spatiales, Paris, La Documentation française, 2006. 2 French Official Journal, 4 June 2008. (Hereinafter referred to the 2008 French Space Act). 3 Act no. 61-1382 of 19 December 1961 establishing the National Center for Space Studies (French Official Journal, 20 December 1961).

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6.2 Legal Issues Related to Launch Services (Space Transportation Systems) 6.2.1 Licensing of Launch Services Carried Out by Private Enterprises Until 2008, there was no licensing procedure in the French legal framework for space activities. CSG exercised control over space activities through the safety mission of CNES. As such, CNES exercised indirect control. This control was not based on legislation but on the contracts concluded with Arianespace and also the intergovernmental agreements concluded with ESA. The 2008 Act on space operations establishes a regime of authorization for launch services by private enterprises. The authorization has to be granted by the concerned Administrative Authority to be designated by decree. The authorization procedure concerns: (1) any operator, regardless of nationality, which intends to launch or to return a space object from/to the French territory or using means and facilities that are under French jurisdiction; (2) any French operator which intends to launch a space object or return a space object from/to a location beyond the limits of French territory or using means or facilities that are under foreign country jurisdiction; (3) any French natural or juridical person which intends to proceed with the launch of a space object; and, (4) any French operator which intends to control an object in outer space (Article 2). Furthermore, the transfer to a third party of the control of a space object that has been preliminarily authorized by the Administrative Authority is subject to a second authorization (Article 3). Authorizations are to be granted only after the Administrative Authority has examined the moral, financial and professional guarantees of the applicant, and the compliance of the systems and the procedures he intends to implement with the applicable technical regulations, particularly those relating to the safety of persons and property, the protection of the public health and the environment (Article 4). Authorizations can not be granted when the planned operations are likely to compromise national security or France’s international obligations (Article 4). Any authorizations granted can be made subjected to conditions relating to the safety of persons and property, the protection of public health and the environment, including the prevention of space debris. These conditions may also be enacted in order to protect the interests of national defence or France’s international obligations (Article 5). In particular, any operator subject to an authorization shall have and maintain, throughout the operation, insurance or another form of financial guarantee (Article 6). The authorization granted can be revoked or suspended in the event that the holder contravenes the obligations incumbent upon him, or when the operations for which they were solicited appear likely to compromise national security or France’s international obligations. Additionally, a fine of 200,000 Euros may be imposed for non-compliance under certain circumstances (Article 11). The Act on space operations also deals with liability for damage caused by space objects. Firstly, with respect to liability towards third parties, an operator is

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absolutely liable for the damages caused on the surface of the Earth or in the airspace by a space object linked to an authorized activity (Article 13). This liability cannot be mitigated or avoided unless the victim’s contributory negligence is proved. Furthermore, when the French government has paid compensation according to international space law, it shall have the right to make a claim for indemnification by the operator that has caused the damage to the extent that he has not already benefited from the financial or insurance guarantees up to the compensation amount (Article 14). When an operator has paid compensation to a third party for damage caused by a space object used in connection with an authorized operation, that operator may benefit from a State guarantee within the limitations prescribed by the Finance Act (Article 15) if that operation was undertaken from French territory, from the territory of another Member State of the European Union, or from means or facilities placed under the jurisdiction of France or another Member State of the European Union. Secondly, with respect to liability towards persons taking part in the space operation, the Act establishes a regime of cross-waiver of liability in the case of damage caused by a space operation or by the production of a space object to a person taking part in this operation or in that production (Article 19).

6.2.2 Competition in Launch Services Launch services are not excluded from the scope of French and European competition law. Therefore, the current regime of State guarantee in case of damage caused by a space object attributable to Arianespace might be considered as a public subsidy contrary to competition law. The new law on space operations raises the same question since the operator of any authorized launch conducted from the French/European territory or from means or facilities placed under the jurisdiction of France or another Member State of the European Union can benefit from the State guarantee in case of damage being caused by the space object launched. However, in a note addressed to the drafters of the French Act on space operations, the European Commission has considered that the Act is not incompatible as such with the provisions of the European Union treaty.

6.2.3 National Security Concerns See national security issues associated to the authorization4 and the section on export control.5

4 See 5 See

Section 2(a). Section 5(c).

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6.3 Legal Issues Related to Satellite Telecommunications, Including Satellite Broadcasting Satellite Telecommunications are regulated by the French Code of Post and Electronic Communications. French Telecommunications Law has been influenced by European Telecommunications policy and consists of the transposition of the European Union’s directives on electronic communications adopted in 2002.6 These texts make a clear distinction between electronic communications (telecommunications) and media services.

6.3.1 Licensing of Private Satellite Telecommunications Operators (Both National and Foreign) 6.3.1.1 Use of Satellite Frequencies The fourth title of the Confidence-building Act no. 2004-575 on digital economy of 21 June 20047 is related to satellite systems and modifies the Code of Posts and Electronic Communications in order to create a legal framework for radiocommunications satellite frequency assignments. The procedure is applicable to any private radio-communications satellite system. It does not deal with frequencies used in fulfilling the needs of any governmental administration such as: civil aviation administration, Ministry of Defence, Ministry of Interior, meteorology administration, maritime navigation administration and the Ministry of research. Furthermore, the law is not applicable when France is proceeding on international coordination for the benefit of an international organisation. The administrative body responsible for the international coordination of frequencies is the French Frequencies Agency (Agence Nationale des Fréquences – ANFr), created in 1997. This governmental institution was created as an établissement public à caractère administratif (public entity having administrative and financial autonomy) and it operates under the supervision of the Minister responsible for telecommunications.

6 Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a com-

mon regulatory framework for electronic communications networks and services – Framework Directive (EUOJ L 108, 24.4.2002, pp. 33–50); Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorization of electronic communications networks and services – Authorization Directive (EUOJ L 108, 24.4.2002, pp. 21–32); Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities – Access Directive (EUOJ L 108, 24.4.2002, pp. 7–20); Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services – Universal Service Directive (EUOJ L 108, 24.4.2002, pp. 51–77); Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector – Directive on privacy and electronic communications (EUOJ L 201, 31.7.2002, pp. 37–47). 7 French Official Journal, No. 143, 22 June 2004.

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Any request for space frequency assignment has to be sent to ANFr. On behalf of the government of France, ANFr starts, the international coordination procedure as described in the Radio Regulations. Frequency assignment cannot be used without the prior authorisation of the Minister responsible for telecommunications. Authorisation is given after consultations with the Audiovisual Regulatory Authority (Conseil Supérieur de l’Audiovisuel – CSA) if the frequencies are to be used for broadcasting and with the Post and Electronic Communications Regulatory Authority (Autorité de Régulation des Postes et des communications électroniques – ARCEP) if the frequencies are to be used for voice, data, internet and other telecommunications services. The person requesting authorisation has to prove his/her capacity to control the entire system’s stations in order to react in case of harmful interference, and must pay royalties to ANFr corresponding to work done for the international coordination. The Act lists four grounds that may be used for refusing the authorisation: (1) protection of public order; (2) incompatibility of the request with France’s international obligations relating to radiocommunications, existing or planned services or other requests that ensure a better use of the frequency spectrum; (3) potential interferences with existing systems coordinated through ITU by France; (4) and sanction given to the requesting person dealing with a previous satellite frequency use (exploitation without respecting the associated obligations or impossibility of preventing or stopping harmful interference). Furthermore, the authorisation is null and void if the use of frequencies is incompatible with future coordination agreements. In case of violation of the authorisation procedure or of the associated obligations, the law imposes administrative sanctions, including the complete or partial suspension of the authorisation for one month or more and criminal sanctions, including fines and imprisonment. The holder can make an appeal to the Conseil d’Etat against the decision of the Minister. 6.3.1.2 Provision of Telecommunications Network and Services With the transposition of the European directives of 2002,8 France has replaced individual licenses by general authorizations. Any undertaking that intends to enter the French market is required to submit a notification to the French telecommunications regulatory authority (Autorité de Régulation des Postes et des Communications électroniques – ARCEP). As soon as ARCEP has received the notification, the undertaking is considered as a telecommunication operator in France without having to obtain an explicit decision or any other administrative act from ARCEP. This general authorization gives the undertaking the right to provide electronic communications networks and services, and to negotiate interconnection with other providers. It also makes the undertaking eligible to provide certain universal service functions. ARCEP may establish a special scheme for attributing telecommunications frequencies and numbers. ARCEP must grant rights to use frequencies and numbers, upon

8 Act

no. 2004-669 of 9 July 2004 on electronic communications and audiovisual communication services (JORF no. 159, 10 July 2004, p. 12483).

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request, to any undertaking providing networks or services under the general authorization. The general authorization and the rights of use may be subject only to the conditions listed in the Code relating to: (1) financial contributions to funding of the universal service; interoperability of services and interconnection of networks; (2) accessibility and portability of numbers;9 (3) rules on privacy protection and, more specifically, the protection of minors; obligation to transmit certain television and radio programs (“must carry”); (4) environmental and town and country planning requirements; possible imposition of administrative charges on undertakings; (5) and, restrictions concerning the broadcasting of illegal content. ARCEP may require the telecommunication operator to provide information necessary to verify compliance with the conditions of the general authorization or of rights of use and may impose sanctions in the event of non compliance.

6.3.2 Foreign Investment There is no specific provision on foreign investments in the French legislation.

6.3.3 Competition The European telecommunications market has been open to free competition since 1998. The law has abolished the granting of exclusive or special rights by the Member States of the European Union for the establishment and/or the provision of electronic communications networks, or for the provision of publicly available electronic communications services. French law guarantees each undertaking the right to provide services or exploit networks without discrimination in accordance with the general authorization regime. The market is regulated by ARCEP. This independent administrative authority is required to ensure that there is effective competition in the telecommunications market segments — the so-called “relevant markets” — identified by the European Commission. Upon completion of its analysis, ARCEP must identify any operators with significant market power on these markets and, if appropriate, impose on them regulatory obligations which are justified and proportionate. These obligations relate in particular to: transparency; publication of a reference offer; non discrimination; access to specific network resources and to their use, price controls and obligations regarding the cost accounting system (orientation of prices to costs); and, accounting separation. Where ARCEP concludes that the market is effectively competitive, it shall not impose or maintain any of the specific regulatory obligations. In cases where sector-specific regulatory obligations already exist, it is required to withdraw any such obligations placed on undertakings in that relevant market. Effectively competitive markets are therefore regulated by general competition law. 9 Portability

operator.

means that users have the option to keep their telephone number when they change

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The scope of liberalization also includes directory and directory enquiry services, frequencies, television satellites and cable networks. In the field of satellite communications, France has ensured that any regulatory prohibition or restrictions on the offering of space segment capacity to any authorized satellite earth station network operator have been abolished. Furthermore, European States which are parties to international conventions setting up international satellite organizations shall, where such conventions are not compatible with existing competition rules under the European Union Treaties, take all appropriate steps to eliminate such incompatibilities. This principle led to the transformation of the international organization, Eutelsat, into a French private company in 2001.

6.3.4 Interconnections French law ensures that there are no restrictions which prevent undertakings from negotiating between themselves agreements on access and/or interconnection. In particular, the law clarifies the rights and obligations of telecommunications operators with respect to interconnection agreements. Operators of public communications networks have a right and, when requested by other undertakings, an obligation to negotiate interconnection with each other for the purpose of providing publicly available electronic communications services. Where, following market analysis, ARCEP will impose specific interconnection obligations on any operator who is identified as having significant power in any given market.

6.3.5 Universal Access Universal access is part of the universal service. France ensures that access to telecommunications networks and basic services are made available at a specified quality level and an affordable price to all users in its territory, regardless of their geographical location. To this end, any one or more undertakings may be, and have in fact been designated to provide different elements of universal service and/or to cover different parts of the national territory. France Telecom has been designated by a selection procedure to provide universal service in France.

6.3.6 Rate Regulation ARCEP has the power to impose upon operators with significant market power tariff and rate obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems. In particular, ARCEP has the authority to control tariffs for interconnection.

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6.3.7 Content Regulation (Including Privacy) 6.3.7.1 Privacy Personal data protection has been the law in France since the adoption of Act No. 78–17 of 6 January 1978 on Data Processing, Data Files and Individual Liberties10 and its amendment in 2004.11 This Act founded the French National Commission for Data Protection and the Liberties (Commission nationale pour l’informatique et les libertés – CNIL) as an independent administrative authority which promulgates the rules for personal data processing. According to the Act, personal data processing shall be done according to an explicit end purpose and all fraudulent, unfair or illegal collection of data is prohibited. The Act therefore establishes the following data protection rights. First, the persons whose personal data are collected must be informed of the processing. They also have the right to oppose the processing and the disclosure of the data to a third party. Furthermore, they have free access to all the data processed. At the very least, they can directly require that the data be corrected, completed, clarified, or erased. Data controllers have to notify the implementation of a file and its characteristics to the CNIL. They are also required to enable the exercise of rights by the persons concerned by informing them of the latter and ensuring the security and the confidentiality of data so that it is not altered or communicated to unauthorized third parties. Finally, the Act recalls the European principle according to which personal data can only be transferred to countries outside the European Union that guarantee an “adequate” level of protection. Special rules deriving from the 2002 Directive on privacy and electronic communications12 have been adopted to regulate data protection in the telecommunications sector in France. Accordingly, France ensures the confidentiality of communications made over public electronic communications networks. Furthermore, telecommunications providers are required to safeguard the security of their networks and services. Traffic data relating to subscribers and users processed and stored by the provider must be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication. Traffic data necessary for the purposes of subscriber billing and interconnection payments may be processed. To process traffic and location data for the purpose of marketing electronic communications services or for the provision of value added services, telecommunications providers must inform the users prior to obtaining their consent. Exceptions concerning location data are authorized for emergency services only.

10 JORF,

7 January 1978, p. 227. no. 2004-801 of 6 August 2004 relating to the protection of individuals with regard to the processing of personal data (JORF, 7 August 2004, p. 14063). 12 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (EUOJ L 201, 31 July 2002, pp. 37–47). 11 Act

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On the March 15th 2006, the European Union adopted a Directive on the retention of data generated or processed in connection with the provision of publicly available electronic communications services, or of public communications networks services, which amended Directive 2002/58/EC.13 The amended Directive harmonizes the existing provisions of Member States concerning obligations incumbent on the providers of electronic communications services with respect to data retention. The objective is to ensure the availability of these data for the purpose of investigating, detecting and prosecuting infringements. 6.3.7.2 Content The French broadcasting sector is regulated by the Freedom of Communication Act No. 86-1067 of 30 September 1986.14 This Act includes the transposition of the 1989 EC Council Directive on TV without borders15 which was adopted in order to promote the growth of a regional broadcasting market based on satellite and cable networks. The French Broadcasting Council (Conseil supérieur de l’audiovisuel – CSA) is responsible for the implementation of the law. Concerning the authorization procedure, any satellite TV service intending to broadcast in France or to have its signals distributed in France must sign an agreement with the CSA. However, TV providers whose annual budget is less than 150,000 Euros are only required to send a notification to CSA. With regard to service provision, Europe and France protect free reception for all programs intended for the public regardless of the network used (including satellite). However, in special pre-determined cases, the CSA may temporarily suspend certain programs for the purpose of protecting minors or human dignity. Furthermore, on behalf of the French government, the CSA has the mandate to verify conformity of the content of the programs broadcasted by satellite with French and European laws when the media service provider is established in France or when its programming decisions are made in France. When non-European media service providers are broadcasting in Europe by satellite, they are deemed to be under the jurisdiction of France if they use a satellite up-link situated in France, or if although they do not use a satellite up-link situated in France, they use satellite capacity appertaining to France. Concerning local content programming, the CSA is required to ensure that broadcasters under French jurisdiction reserve at least 51% of their transmission time for European works (productions). Furthermore, satellite media providers have to comply with provisions on (1) advertising, sponsorship

13 EUOJ

L 105, 13.4.2006, pp. 54–63. 1 October 1986. 15 Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (EUOJ L 298, 17 October 1989, pp. 23–30). The directive has been modified by the Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (EUOJ L 332, 18.12.2007, pp. 27–45). 14 JORF,

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and tele-shopping, (2) free-to-air re-transmission of major sports events, (3) and regulations on violent, pornographic programs and programs inciting hatred. In the event of violation of the Freedom of Communication Act, the CSA has the power to impose sanctions (e.g. fines, loss of authorization, etc) on the media service provider.

6.4 Earth Observation Services, Including Data Processing and Distribution Until June 2008, there was no special French legislation governing remote sensing. Therefore, general rules of law regulated military and civilian earth observation activities. In order to regulate this activity when necessary, Chapter VII of the French Space Act contains three articles (Articles 23–25) relating to space-based earth remote sensing data. These articles have to be implemented by decree. The Act does not designate the Administrative Authority responsible for the space data regime established thereunder. It is however obvious that the implementing decree would designate the Prime Minister who, in turn, would also delegate the implementation of the regime to the Deputy Secretary General for National Defence (Secretariat General de la Defense Nationale – SGDN).

6.4.1 Licensing of Remote Sensing Satellite Operators At the moment, there is no licensing procedure for remote sensing activities. The new French Space Act establishes a regime of declarations. Any data provider at a primary stage (that is to say, any person responsible for the satellite programming) must make a declaration, before to start its activity, to the Administrative Authority. The declaration regime deals with any data originating from the sensing of the Earth’s surface from space. The declaration concerns any primary operator of space based remote sensing data, defined as any physical or juridical person responsible for the programming of a remote sensing satellite or responsible for the collection of space based Earth remote sensing data. The French legislation only deals with activities carried on in France by French or foreign persons. The drafters acknowledge that there might be some disputes with companies established in foreign countries, but the issue could be solved on the basis of international cooperation, especially if the foreign country has adopted national legislation establishing data control. Furthermore, CNES is not concerned by the data control procedure. A fine of 200,000 Euros may be imposed on any person providing space-based data without having made the necessary declarations.

6.4.2 Data Distribution In the absence of specific French legislation, the collection and distribution of remote sensing data were first regulated by international space law, in particular, the Treaty on Principles Governing the Activities of States in the Exploration and

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Use of Outer Space, including the Moon and Other Celestial Bodies of 27 January 1967,16 ratified by France; and the Principles Relating to Remote Sensing of the Earth from Outer Space adopted by the UN General Assembly in resolution 41/65 of 3 December 1986. Data collection and distribution are also affected by some two freedoms which have attained constitutional value in France: the freedom of trade and industry which has been proclaimed since the French Revolution (Decree of 2 and 17 March 1791 (so called “loi d ’Allarde”); and, the freedom of information as a consequence of freedom of expression proclaimed in Article 11 of the French Declaration of the Rights of Man and of the Citizen adopted on the 26 August 1789. In addition, legal rules applicable to remote sensing activities derive from contracts concluded between CNES and Spot Image. Even in the absence of a legal text, governmental control has been imposed on the commercial policy of Spot Image in order to ensure the protection of national interests and respect for France’s international obligations. To this end, SGDN has proposed the establishment of an informal working group called GIRSPOT, comprising representatives of SGDN, Ministry of Foreign Affairs, Ministry of Defence, Ministry of Space, Ministry of Research and CNES. The role of GIRSPOT is to make reports on specific situations that could necessitate restrictions on the commercial activities of Spot Image. GIRSPOT would not have the power to impose directives upon Spot Image; it would only be able to make recommendations to the Prime Minister who alone has the power to impose any such limitations. Despite the absence of any legal document, GIRSPOT data control policy works quite well. It is, however, based on the goodwill of Spot Image and on the special relationship between the company and CNES, its major shareholder. Furthermore, apart from the limitations imposed in 1991 during the Gulf War which prevented Spot Image from distributing data concerning Iraqi territory to Iraq (despite Principle XII of the UN Principles on Remote Sensing), activities of GIRSPOT remain confidential. Data control is applied on a non-transparent basis and, in the absence of specific legislation, its legality remained questionable. For these reasons the adoption of a specific legislation was necessary. According to the new French Space Act, the Administrative Authority shall ensure that the primary operators of space based remote sensing data are not interfering with the fundamental interests of the nation, in particular national defence, foreign policy, and compliance with international obligations assumed by France. Restrictions can be imposed to protect the fundamental interests of the nation. The decree to be adopted must define the type of limitations that can be established. A person declared not to be complying with any data restriction imposed may be subject to a fine of 200,000 Euros.

6.4.3 National Security Concerns See previous section.

16 UNTS,

610, p. 205.

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6.5 Intellectual Property and Transfer of Technology 6.5.1 Acquisition of Intellectual Property Rights According to the French Intellectual Property Code, an industrial property title may be granted by the Director of the National Institute of Industrial Property to any invention, conferring on the holder or his successors in title an exclusive right to exploit the invention. Article 22 of the French Space Act adds a special provision to the effect that unless an international agreement to which France is a party so stipulates, this principle is also applicable to inventions invented or used in outer space, including the Moon and other celestial bodies, and incorporated into or onto space objects placed under national jurisdiction according to Article VIII of Outer Space Treaty. It also adds that the rights afforded by the patent shall not extend to the objects to be launched in outer space introduced on French territory.

6.5.2 Mechanism for Exploiting IP Rights See previous section.

6.5.3 Trade and Transfer of Technology According to the French Code of Defence, trade in “military goods”, defined in specific lists, is prohibited unless the Minister of Defence gives his authorization. Different licenses are required depending on the nature of the activity: (a) authorization to manufacture or trade on French territory; (b) license to authorize negotiating and concluding export contracts; and, (c) license to export or import military goods. The regime also applies to the export of “assimilated goods”. The import of military goods requires an authorization from the Ministry of Defence and an import license from the Director General for Customs and Indirect Taxes (Directeur Général des Douanes et des Droits indirects). French law also controls the export of dual-use goods and technology, following the European Council Regulation (EC) No. 1334/2000 of 22 June 2000. Only goods which are considered sensitive and which are defined in control lists are subject to this regime. The license is issued by the Ministry for Economy, Finance and Industry. The import of dualuse goods and technology does not require a specific license. French law establishes criminal sanctions in case of violation of these provisions.

6.5.4 National Legal Barriers to International Transfer of Space Technology Space technologies are regulated under the rules on trade and transfer of technology. Civil and military remote sensing satellites, as well as military telecommunications

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satellites and space launchers are subject to the regime applicable to military goods. Civil telecommunications satellites, their equipment and their ground stations are subject to the dual-use goods and technology control regime.

6.6 Satellite Navigational Services There are no specific regulations on satellite navigational services. Rules dealing with data protection discussed in previous sections of this chapter are applicable to them.17

17 See

Section 3(g).

Chapter 7

Regulation of Space Activities in Germany Stephan Hobe and Julia Neumann

7.1 General Philosophy and Processes of Government Regulations Germany is a civil law country with a comprehensive set of codified laws.

7.1.1 Law-Making Processes At the centre of Germany’s legislation is the Basic Law (Grundgesetz, GG), that is the Constitution of the Federal Republic of Germany which entered into force on May 23rd, 1949. Article 20 GG lays down the basic principles of Government. Pursuant to its Section 1, the Federal Republic of Germany is a democratic and social federal state. All state authority emanates from the people and is exercised by the people through elections and voting, and by specific organs: the legislature, the executive, and the judiciary (Article 20(2) GG). Legislation is subject to the constitutional order; the executive and the judiciary are bound by law and justice (Article 20(3) GG). Thus, the leading constitutional principles are: the principle of democracy; the republican form of government; the existence of federal states; the rule of law; and, the welfare state.1 These constitute the constitutional order of the Federal Republic of Germany and they lay the foundation for the law-making process in Germany. The provisions of the Constitution have priority over all other laws enacted either

S. Hobe (B) University of Cologne, Cologne, Germany e-mail: [email protected] 1 C. Degenhart, Staatsrecht I, Heidelberg 2008, p. 5; H. Maurer, Staatsrecht I, 5. ed., Munich 2007,

§ 6 marginal note 5; R. Herzog in Maunz/Dürig, Grundgesetz: Kommentar, loose-leaf-collection, 53. ed., Munich 2009, Article 20, marginal note 10; K. Stern, Das Staatsrecht der Bundesrepublik Deutschland, Vol. I, Munich 1984, §§ 17–21.

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_7,  C Springer Science+Business Media B.V. 2010

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by the Federation or by the Federal States.2 It follows from the principle of federalism that the authority to enact legislation is divided between the Federation and the Federal States. The distribution of competencies is laid down in Articles 70 et seq. GG. The Federal States have authority to enact legislation, unless the Constitution confers such power on the Federation.3 In practice, however, the Federation enacts more legislation than the Federal States. Its areas of legislative competence are set out in Articles 71–75 GG, as well as in a few other provisions spread throughout the Constitution. Some of these provisions provide for an exclusive legislative competence of the Federation (Articles 71 and 73 GG), whereas others (especially Article 72 GG) set out general rules for overlapping and sometimes competing legislative authority between the Federation and its Federal States. In general, this means that the Federation and the Federal States are both competent to enact legislation in a field of competing competence. However, once the Federation has made use of that competence, the Federal States are excluded from exercising theirs in that specific field.4 The areas of competing competence are set out in Articles 74 and 74(a) GG. So far, Germany does not have a national space law as such. The Basic Law does not provide specific competence for space activities per se. The competence to legislate in the area of air transport is vested exclusively with the Federation, however.5 Moreover, the Federation has the exclusive competence to legislate in the field of telecommunications,6 as well as in the areas of intellectual property rights,7 external relations and defence, including the protection of the civil population8 . Depending on the design of such national space legislation, it may presumably fall under the exclusive competence of the Federation. This is especially true because there would be a strong need for nation-wide regulation. The main aspects of the process of law-making by the Federation are regulated by Articles 76–78 of the Basic Law. Strict adherence to these rules is fundamental in any attempt to enact legislation deemed to be in conformity with the Constitution.9 According to Article 76 GG, the right to initiate legislation lies with the Federal Government, the “Bundesrat”, the upper house of the German Parliament, composed of the prime ministers of the 16 Federal States, and the Members of the “Bundestag”, the lower house of the German Parliament.

2 This

follows from Article 20(3) GG. 70(1) GG. 4 Article 72(1) GG. Article 72(3) foresees some exceptions to this general rule, however. 5 Article 73(1), No. 6 GG. 6 Ibid., No. 7 GG. 7 Ibid., No. 9 GG 8 Ibid., No. 1 GG. 9 C. Degenhart, Staatsrecht I, Heidelberg 2008, p. 72. 3 Article

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Pursuant to Article 77(1) GG, the Bundestag is in charge of the adoption of federal laws.10 Nevertheless, the Bundesrat is always involved at an early stage of the process so as to make its views known in good time.11 If the Federal Government initiates a law – which is usually the case –12 this law will be sent to the Bundesrat for its opinion.13 The Bundesrat may (but is not obliged to) give its opinion generally within 6 weeks.14 Laws initiated by the Bundesrat have to be sent to the Bundestag, which, in turn, has to deliberate upon the piece of legislation and make a decision.15 Following the initial process, the main legislative process starts. The proposal is taken through three readings in the Bundestag.16 These are further regulated in the by-laws of the Bundestag (Geschäftsordnung des Bundestags, GeschOBT). Subsequently, a final vote is taken the result of which is considered as the legislative decision of the Bundestag.17 Without delay, the President of the Bundestag forwards this decision to the Bundesrat.18 The Bundesrat is involved in the legislative procedure at that stage depending on the kind of legislation being considered. The Bundesrat has to positively affirm the legislation only if it is a piece of legislation requiring its affirmation. In general, a piece of legislation would require the affirmation of the Bundesrat if the Basic Law so provides.19 In all other cases, the Bundesrat may object to the legislation, although such objection may be overruled by the Bundestag.20 In the event that the Bundesrat objects to a piece of legislation, the matter is referred to an arbitration panel consisting of 16 members each from the Bundestag and the Bundesrat. The 16 members of the Bundestag have to represent the party majorities in the full Bundestag. If the arbitration panel is not called upon within three weeks after the Bundesrat has received the legislation, the legislation

10 Article

77(1) GG. the involvement of the Bundesrat in the legislatory process, see http://www.bundesrat. de/cln_090/nn_11004/EN/funktionen-en/gesetzgebung-en/gesetzgebung-en-node.html?__nnn= true (accessed: 29 July 2009). 12 Ibid. 13 Article 76(2), sentence 1 GG. 14 Ibid. 15 Article 76(3) GG. 16 Articles 78 et seq. GG. 17 Article 77(1), sentence 1 GG. 18 Ibid., sentence 2 GG. 19 C. Degenhart, Staatsrecht I, Heidelberg 2008, p. 77; H. Maurer, Staatsrecht I, 5. ed., Munich 2007, § 17 marginal note 70; J. Ipsen, Staatsrecht I, 15. ed., Munich 2003, marginal note 349; T. Maunz in Maunz/Dürig, Grundgesetz: Kommentar, loose-leaf-collection, 53. ed., Munich 2009, Article 77, marginal note 6; K. Stern, Das Staatsrecht der Bundesrepublik Deutschland, Vol. II, Munich 1980, p. 144. 20 C. Degenhart, Staatsrecht I, Heidelberg 2008, p. 77; H. Maurer, Staatsrecht I, 5. ed., Munich 2007, § 17 marginal note 69; J. Ipsen, Staatsrecht I, 15. ed., Munich 2003, marginal note 346; T. Maunz in Maunz/Dürig, Grundgesetz: Kommentar, loose-leaf-collection, 53. ed., Munich 2009, Article 77, marginal note 19. 11 For

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is considered to have been accepted.21 If the arbitration panel has been called upon, it will consult on the piece of legislation and may make proposals for amendments. In that case, the piece of legislation is returned to the Bundestag,22 which must, in turn, consult and take a vote on the legislation. Following this decision, or if the arbitration panel has not made any proposals for amendment following the consultation, the Bundesrat may debate and decide on the objection within two weeks.23 If no objection is made during that timeframe, or if the Bundesrat withdraws its objection, the legislation will be considered to have been adopted.24 If the Bundesrat files an objection, however, the piece of legislation is returned to the Bundestag, which must decide without further debate on whether it wants to reject the objection.25 Such decision requires either the simple majority of all possible votes or a 2/3rds majority of all actual votes, but no less than the simple majority of all possible votes. The majority required depends on whether the Bundesrat decided to object by simple majority or 2/3rds majority.26 If the objection is rejected, the piece of legislation is deemed to have been adopted. If a rejection of the objection is not carried with the required majority, the legislation fails irrevocably, but it can be initiated as a new piece of legislation at any time thereafter.27 For legislation requiring the affirmation of the Bundesrat, the Bundestag and the Government may call upon the arbitration panel in case such affirmation is denied.28 If a piece of legislation is adopted, it has to be signed by the President of the Federal Republic of Germany and then published in the Federal Law Gazette after it has been countersigned by the Government, (i.e. the appropriate Federal Minister and the Federal Chancellor).29 With publication in the Federal Law Gazette, the legislative process is finalized.30 The legislation comes into effect either as of the date specified therein or two weeks after its publication.31 As of 9 October 2007, there were 4547 Federal laws and regulations in place.32 In 2003, the Federal Government launched an initiative aimed at reducing the number of laws and regulations.33 21 Article

78 GG. 77(2) GG. 23 Article 77(3) GG. 24 Article 78 GG. 25 Article 78 GG. 26 See Article 77(4), sentence 1 GG. 27 C. Degenhart, Staatsrecht I, Heidelberg 2008, p. 75; T. Maunz in Maunz/Dürig, Grundgesetz: Kommentar, loose-leaf-collection, 53. ed., Munich 2009, Article 77, marginal note 19. 28 Article 77(2), sentence 4 GG. 29 Article 82(1) GG. 30 C. Degenhart, Staatsrecht I, Heidelberg 2008, p. 77; H. Maurer, Staatsrecht I, 5. ed., Munich 2007, § 17 marginal note 93 f. 31 Article 82(2) GG. 32 http://www.bmj.de/enid/8ff9bba765b0a68b31bf2726b22ffa81,2487bf636f6e5f6964092d093437 3538093a095f7472636964092d0933373635/Pressestelle/Pressemitteilungen_58.html (accessed: 29 July 2009). 33 Ibid. 22 Article

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7.1.2 Basic Principles of National Law The basic principles of the German Constitution to be observed in the making of national laws have already been indicated.34 Germany’s legal system has been shaped by constitutional law, but is increasingly being influenced by the laws of the European Community.35 As a civil law country, Germany maintains a clear distinction between “public” and “private” law.36 Public law encompasses constitutional law (Staatsrecht), administrative law, and criminal law. Administrative law particularly deals with the three areas of building, municipality and policing. Many of these laws deal with the prevention and/or protection of the public from hazardous activities. In many respects, the German Aviation Code (Luftverkehrsgesetz, LuftVG) serves these purposes. For instance, it requires a license for the operation of aircraft or of an airport. Such regulation should certainly become part of the future German space legislation with respect to spacecraft and launching sites. In private law, freedom to contract with whomever one likes is a basic guiding principle. The German Civil Code (Bürgerliches Gesetzbuch, BGB) only provides for some limitations where necessary, depending on the kind of contract, but also in tort, ownership rights, real estate etc. The German court system consists of five branches, each with its own supreme court.37 In addition to the hierarchy of the ordinary (civil and criminal) courts, there are separate systems of labour, administrative, social, and finance courts.38 The Federal Constitutional Court exercises the power of judicial review over all these court systems with specific regard to the constitutionality of legislation administered as well as judicial acts,39 and monitors maintenance of the rights set out in the Basic Law.

7.1.3 Organization of National Space Activities In spite of the lack of dedicated national space legislation, Germany is one of Europe’s leading space faring nations. It is a member of the European Space Agency (ESA) and its second largest contributor. Viewed from the perspective of the overall financial volume, about 3/4 of the activities within the German national space

34 See

Section on the law making process above. the relation between EC law and national law, see inter alia S. Hobe, Europarecht, 4. ed., Cologne 2008, p. 79 et seq. 36 Cf. J. G. Apple/R. P. Deyling, A Primer on the Civil-Law System, available at http://www. au.af.mil/au/awc/awcgate/fjc/civil_law.pdf, no date of publication provided (accessed: 29 July 2009) p. 23. 37 J. G. Apple/R. P. Deyling, A Primer on the Civil-Law System, p. 25. 38 Ibid. 39 Ibid. 35 For

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programme are pursued within the framework of ESA.40 Also, in recent years, the European Union has been showing increasing interest in space activities41 and has thereby become a vehicle for German space activities. Moreover, Germany is a member of the European Organisation for the Exploitation of Meteorological Satellites (EUMETSAT). It also cooperates bilaterally with States such as Russia, the United States, Japan and India.42 International cooperation can therefore be said to be a constant feature of German space activities.43 As part of the framework of this international cooperation, Germany takes part in the International Space Station. Germany participates also in the production and use of the Ariane-5 launcher. It operates its own infrastructure for the tracking, telemetry and control (TT&C ) of satellites and also participates in ESA’s TT&C infrastructure. Moreover, Germany has taken a lead role both in the European initiative “Global Monitoring for Environment and Security” (GMES)44 and the European satellite navigation project “Galileo”. Due to the lack of dedicated German military satellite systems,45 capacity is usually rented from civil satellite communication providers or NATO-partners in order to meet the communication needs of German military units involved in UN missions around the world.46 Germany’s national space activities are organized on different levels. In general, national space activities come within the jurisdiction of the Federal Ministry of Economics and Technology (Bundesministerium für Wirtschaft und Technologie BMWiT). The Ministry promotes German national space activities on the national and international level. The Ministry is headed by the Federal Minister of Economics and Technology,47 who is part of the German Federal Government.48 Each Federal Minister conducts the affairs of his department independently and on his own responsibility, albeit within the limits of the general guidelines of policy determined by the Federal Chancellor.49 The Federal Ministries led by the Federal

40 Bundesministerium

für Bildung und Forschung (BMWi), Deutsches Raumfahrtprogramm (German Space Programme), May 2001, p. 9. Available at http://www.dlr.de/Portaldata/ 1/Resources/raumfahrt/weltraum/pdf/drp.pdf (accessed: 29 July 2009). 41 For example the European Space Policy was announced on 22 May 2007 as a result of the 4th Space Council. Available at: http://www.consilium.europa.eu/ueDocs/cms_Data/ docs/pressData/en/intm/94166.pdf (accessed: 29 July 2009). 42 BMWi, Deutsches Raumfahrtprogramm, May 2001, p. 11 et seq. 43 Ibid., p. 13. 44 See N. Rohner/K.-U. Schrogl/S. Cheli, Making GMES better known: Challenges and opportunities, Space Policy 23 (2007) 195 et seq. 45 BMWi, Deutsches Raumfahrtprogramm, May 2001, p. 11. 46 Ibid. 47 Since November 2009, the position is taken by Ralner Brüderle. 48 Article 62 GG: “The Government consists of the Chancellor and the Ministers.” The current Federal Chancellor is Dr. Angela Merkel of the Christian Democratic Party (CDU). 49 Article 65 GG.

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Ministers are supreme federal administrative authorities (oberste Bundesbehörde), and such is the Federal Ministry of Economics and Technology. By means of the Law Governing the Transfer of Responsibilities for Space Activities of 22 August 1998 (Gesetz zur Übertragung von Verwaltungsaufgaben auf dem Gebiet der Raumfahrt),50 the Federal Ministry of Economics and Technology has granted the German Aerospace Center (Deutsches Zentrum für Luft- und Raumfahrt e.V., DLR) the authority to conduct administrative tasks in the field of space activities on its own behalf and in all forms of actions available in public law.51 According to Section 2 of the Law, administrative tasks within the meaning of Section 1 of the Law are: (i) The preparation of the German space strategy; (ii) The implementation of German space programmes, especially by means of awarding contracts and grants; and, (iii) The representation of German interests in space activities at the international level, especially in respect of the European Space Agency.52 In the implementation of these tasks, DLR is accountable to the Federal Ministry of Economics and Technology. Accordingly, German national space activities are managed by the German Aerospace Center DLR. Within DLR, an incorporated society under German law, the management of German national space activities is undertaken by the German Space Agency, which forms part of the DLR. In line with the foregoing, the German Space Agency is responsible for implementing the German space programme. The most recent German space programme was adopted by the Federal Government in May 2001.53 Germany’s space programme foresees Germany’s participation in programmes of the European Space Agency (ESA); it lays out the country’s national programme and refers to DLR’s internal Research & Development programme. The overall management of Germany’s space activities includes the implementation and updating of all programme content in line with budgetary developments. DLR’s space activity management includes planning and implementing projects financed under the national programme, as well as key DLR research projects. Moreover, the Space Agency is responsible for implementing the process of calling for proposals, awarding contracts and coordinating all projects under the national programme. Another DLR management task is to enhance Germany’s position and formulate a national negotiation strategy for all relevant ESA committees. This process takes into account all the relevant political, strategic, programme-related, industrial policy

50 Available

at http://www.gesetze-im-internet.de/bundesrecht/ra_g/gesamt.pdf (accessed: 29 July 2009). 51 Section 1 of the Law Governing the Transfer of Responsibilities for Space Activities. 52 Section 2, ibid. 53 BMWi, Deutsches Raumfahrtprogramm, May 2001.

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and financial aspects. DLR’s tasks include consistently, uniformly and efficiently incorporating and representing these aspects in all ESA committees. The German space agency’s activities currently focus on the fields of Earth observation, navigation, communication, space science, microgravity research, space transportation, the International Space Station (ISS) and Manned Space Flight, and, space technology.54

7.2 Legal Issues Related to Launch Services (Space Transportation Systems) 7.2.1 Licensing of Launch Services by Private Enterprises As already indicated, Germany does not have a substantial national space law as of yet. The Law Governing the Transfer of Responsibilities for Space Activities of 22 August 1998 mentioned above55 only governs the responsibilities with regard to the political level. Accordingly, there are no national laws on the licensing of launch services per se. However, the second sentence of Section 1(2), of the German Aviation Code (Luftverkehrsgesetz, LuftVG) provides that “[s]pacecraft, rockets and related flying objects are deemed to be aircraft as long as they are within the airspace.”56 Therefore, while within German airspace spacecraft, rockets and related flying objects are, in principle, subject to the rules applicable to the licensing of aircraft. German aircraft must be specifically admitted and permitted to engage in air traffic and must be registered in the national register in accordance with the applicable regulations, pursuant to Section 2(1) LuftVG. In order to be allowed to engage in German air traffic, spacecraft must thus obtain an admission to traffic.57 Section 2(1) LuftVG also stipulates that “traffic certification” (Verkehrszulassung) of German aircraft operating within German airspace is subject to further regulations. Such regulations are contained in the LuftverkehrsZulassungs-Ordnung (LuftVZO). Regarding the certification of spacecraft, however, no implementing regulations as envisaged by Section 2(1) LuftVG exist. The LuftVZO it is not adapted to regulate spacecraft and, as such, does not apply to space vehicles. Also, it is impossible to apply the regulations to spacecraft due to the existing technical differences.58 Accordingly, there are no executing provisions

54 http://www.dlr.de/rd/desktopdefault.aspx/tabid-2105/

(accessed: 29 July 2009). footnote 49. 56 Unofficial translation by the authors. 57 K.-H. Böckstiegel, Transporte in den Weltraum durch Privatunternehmen, ZLW 1976, p. 285 (297). 58 Ibid., E. Giemulla, in: E. Giemulla/ R. Schmid (eds.), Frankfurter Kommentar zum Luftverkehrsrecht, Vol. 1.1, LuftVG § 2 marginal note 3; Opposing view: A. Bueckling, Weltraumvertrag und nationale Folgegesetzgebung, ZLW 1968, p. 229 (231 et seq.). 55 Supra

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with respect to spacecraft; certification of spacecraft is currently not regulated in German law. Moreover, Section 14 LuftVZO deals with the registration of aircraft. As this provision is also not applicable to spacecraft, registration of spacecraft cannot be effected in accordance with the regulation.59 Nevertheless, a spacecraft has to be registered in the German national registry of space objects, which is attached to the German aircraft register (Luftfahrzeugrolle). The registry of space objects is maintained by the Federal Aviation Office (Luftfahrtbundesamt, LBA) in Braunschweig, as was notified to the United Nations Secretary-General by means of note verbale of 7 April 1988 of the Permanent Mission of the Federal Republic of Germany.60 There is no law specifying the information required for this register, but the LBA in practice adheres to the requirements provided by Article IV of the Registration Convention.61 The LBA does not require that the information be provided within a specific time period after launch.62

7.2.2 Competition in Launch Services European launch services are concentrated in Arianespace as a common concerted effort in Europe. Germany does not have its own launch facility, but as a Member of ESA it profits from ESA’s launch facilities located in Kourou, French Guyana. There are only a few private launch service providers in Germany, the most well-known of which is Eurockot,63 which provides commercial launch services to operators of Low Earth Orbit (LEO) satellites. 51% ownership of the company is held by EADS Astrium and 49% by Khrunichev State Research and Production Space Center, Moscow, Russia. Eurockot operates from launch facilities located at the Plesetsk Cosmodrome in Northern Russia.64 Against the background of the European market, however, Germany does not have a truly competitive market in launch services.

59 K.-H.

Böckstiegel, Transporte in den Weltraum durch Privatunternehmen, ZLW 1976, p. 285 (299); J. Reifarth, Nationale Weltraumgesetze in Europa, ZLW 1987, p. 3 (9). 60 ST/SG/SER.E/INF/9∗ of 7 April 1988; http://www.unoosa.org/oosa/en/Reports/docsger.html (accessed: 29 July 2009). 61 Convention on Registration of Objects Launched into Outer Space (Registration Convention), entered into force on 15 September 1976. 62 K.-U. Hörl/K. Gungaphul, Problems related to “Change of Ownership” with Respect to Registration: The Industry View, in: S. Hobe/B. Schmidt-Tedd/K.-U. Schrogl, Current Issues in the Registration of Space Objects, 2005, p. 79. 63 See http://www.eurockot.com/ (accessed: 29 July.2009). 64 See http://www.eurockot.com/ (accessed: 29 July.2009).

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7.2.3 National Security Concerns Due to the limited regulation of launch services provided by private enterprises in Germany, as well as the limited competition in the market, and the lack of launch services being provided from German territory, Germany has not yet expressed a particular national security concern regarding the provision of launch services from German territory.

7.3 Legal Issues Related to Satellite Telecommunications, Including Satellite Broadcasting Germany is a country with extensive space technology expertise and continuous technological progress. The German market for satellite telecommunications increased by 4.8% from 2000 to reach a value of Euro 1.4 billion (US$1.3 billion) in 2001. From 1997 to 2002, the market had experienced cumulative growth of 33.4%.65 In terms of legal regulation of the market, satellite telecommunications are regarded part of telecommunications in general and are regulated as such. However, there are specific provisions relating to satellite telecommunications. The German telecommunications market was liberalised and the State monopolist Deutsche Telekom was privatised as part of the postal reforms of 1989, 1994 and 1996.66 As a result, the State’s role with regard to telecommunications has changed significantly and is now one of a guarantor of the necessary infrastructure. The fundamental provision contained in the German Basic Law (Grundgesetz, GG) that lays down this new role with regard to telecommunications is Article 87 (f) GG (introduced by the postal reform II). It represents the major organisational and substantial legal provision concerning telecommunications. Its main objective is the introduction of open competition by private individual companies in the areas of post and telecommunications (Article 87 f (2), sentence 1 GG). Article 87 f (2) GG explicitly allows for the provision of telecommunication services by private companies other than the privatised former State provider, clearly reflecting the objective of establishing a competitive structure for the telecommunications sector. Nevertheless, Article 87 f (1) GG provides that “the Federation shall ensure the availability of adequate and appropriate postal and telecommunications services

65 http://www.reportlinker.com/p03118/Satellite-telecommunications-services-in-Germany.html#

summary (accessed: 29 July 2009). the postal reform II and taking effect on 1 January 1995, Deutsche Telekom was transformed to Deutsche Telekom AG, a public limited company. Its initial public offering took place in November 1996. The German telecommunications market was liberalised with effect as of 1 January 1998.

66 With

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throughout the federal territory”.67 The Federation thus retains the exclusive responsibility and competence to fulfil certain sovereign tasks by its own organs or through immediately subordinated organs (Article 87 f (2), sentence 2, (3)).68 These tasks are especially of a regulatory nature, such as licensing, frequency management, the implementation of the infrastructural guarantee, and data protection.69 The term “telecommunication” as used in the Basic Law refers to the technical aspect, which is characterised by the intangible transmission of signals in a way that the signals transmitted can be recreated at the location of reception.70 This includes the necessary technical and personnel media, irrespective of the technique used, and irrespective of whether it concerns individual (such as voice telephony) or mass communication (such as broadcasting). The contents transmitted are not part of the definition of telecommunications.71 Regarding the mandate of infrastructural safeguards, the Federation is called upon to ensure the availability of adequate and appropriate postal and telecommunications services throughout the federal territory by enacting a federal law requiring the consent of the Bundesrat (Article 87 f (1) GG). The mandate is thus addressed mainly to the legislator to provide the required legal framework. This notwithstanding, the Executive has to pay due regard to the order contained in Article 87f (1) GG.72 Whereas the Federation is thus responsible for guaranteeing the provision of basic or primary services at an appropriate cost across the country, it is not responsible for the provision of an optimal infrastructure.73 Rather, the services have to be of adequate quality and must be available in sufficient quantity. There has to be a tolerable proportion between service and consideration (i.e., in terms of affordability).74

67 Article 87f (1) GG: “Nach Maßgabe eines Bundesgesetzes, das der Zustimmung des Bundesrates

bedarf, gewährleistet der Bund im Bereich des Postwesens und der Telekommunikation flächendeckend angemessene und ausreichende Dienstleistungen.” 68 Article 87f (2), sentence 2 GG: “Sovereign functions in the area of posts and telecommunications shall be discharged by federal administrative authorities.” Article 87f (3) GG: “Notwithstanding the second sentence of paragraph (2) of this Article, the Federation, by means of a federal institution under public law, shall discharge particular responsibilities relating to the firms succeeding to the special trust Deutsche Bundespost as prescribed by a federal law.” 69 B. Holznagel/C. Enaux/C. Nienhaus, Telekommunikationsrecht, 2. ed., Munich 2006, § 1 marginal note 13; W. Spoerr in H.-H. Trute/W. Spoerr/W. Bosch, Telekommunikationsgesetz mit FTEG, Berlin 2001, § 2, marginal notes 6 et seq. 70 BVerfGE 46, 120 (143). 71 B. Holznagel/C. Enaux/C. Nienhaus, Telekommunikationsrecht, 2. ed., Munich 2006, § 2 marginal note 32; P. Lerche in T. Maunz/G. Dürig, Grundgesetz: Kommentar, loose-leaf collection, 53. ed., Munich 2009, Article 87f, marginal note 51. 72 B. Holznagel/C. Enaux/C. Nienhaus, Telekommunikationsrecht, 2. ed., Munich 2006; § 2 marginal note 33 et seq. 73 Ibid.; § 2 marginal note 34. 74 Ibid.

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The fact that the Federation is mandated to safeguard the provision of such services does not, in and of itself, give rise to a human right of each individual to such basic services. Instead, the order to safeguard certain infrastructure is an objective motivated by the welfare state. Accordingly, the Federation has to provide for the maintenance of a certain level of basic services as laid down by the Constitution.75 Pursuant to Article 73 No. 7 GG, the Federation has the exclusive legislative power in the area of postal and telecommunication services. Thus, the Federal States may not legislate in these areas. As already indicated, however, the definition of telecommunication only refers to the technical aspects of transmission. Regarding contents, such as radio broadcasting, the federal States do have certain legislative and administrative competencies.76 In order to implement the mandate of infrastructural safeguards, the Federation enacted the German Telecommunications Act (Telekommunikationsgesetz, TKG) in the course of the “postal reform II”.77

7.3.1 Licensing of Private Satellite Telecommunications Operators Section 3(16) TKG defines the term “telecommunication”. It includes the technical process of sending, transmitting and receiving any kind of message in the form of signs, voice, images or sounds by means of telecommunications systems. The Act therefore applies to satellite telecommunications alike although it does contain some provisions specifically referring to satellite telecommunications. The licensing of private satellite telecommunications operators is undertaken by the Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railway (Bundesnetzagentur, BNetzA). This is a separate higher federal authority within the scope of business of the Federal Ministry of Economics and Technology and it is headquartered in Bonn. The Federal Network Agency’s task is to provide, by liberalisation and deregulation, for the development, inter alia, of the telecommunications market.78 In order to implement the aims of the regulation, the Agency has effective procedures and instruments at its disposal, including rights of information and investigation as well as the right to impose graded sanctions.79 According to Section 116 TKG, the Federal Network Agency undertakes the duties and responsibilities and has the competencies that are assigned to it by virtue 75 Ibid. 76 B.

Holznagel/C. Enaux/C. Nienhaus, Telekommunikationsrecht, 2. ed., Munich 2006; § 2 marginal note 32. 77 B. Holznagel/C. Enaux/C. Nienhaus, Telekommunikationsrecht, 2. ed., Munich 2006; § 2 marginal notes 39 et seq.; W. Spoerr in H.-H. Trute/W. Spoerr/W. Bosch, Telekommunikationsgesetz mit FTEG, Berlin 2001, Einführung I, marginal notes 17 et seq. 78 http://www.bundesnetzagentur.de/enid/5cfacb56914599389d1f8756af35f0b0,0/The_Agency/ Functions_xk.html (accessed: 29 July 2009). 79 Ibid.

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of the Act. The Federal Network Agency’s competencies are set out in Sections 126–131 TKG. According to these provisions, the Federal Network Agency may prohibit companies from undertaking business (Section 126 TKG), request information from companies (Section 127 TKG), conduct investigations and collect evidence as necessary (Section 128 TKG), confiscate objects that might be relevant as evidence (Section 129 TKG), and, order interim measures prior to its final decision (Section 130 TKG). Proceedings of the Federal Network Agency are terminated by a decision (Section 131 TKG). In the field of telecommunications, the Federal Network Agency’s decisions are based on the Telecommunications Act (TKG). The central task of the Federal Network Agency is to ensure compliance with the Telecommunications Act and its ordinances which have the force of law. The Agency ensures liberalisation and deregulation of the telecommunications market by enforcing non-discriminatory access and the efficient use-of-system charges. With regard to satellite telecommunications in particular, Section 56 of the Telecommunications Act (TKG) provides that the execution of any German orbit and frequency usage rights necessitates the transfer of these rights by the Federal Network Agency.80 A precondition to this is the registration, coordination and notification of the satellite system with the Radiocommunication Bureau of the International Telecommunication Union (ITU). The international registration procedure for satellite systems can only be initiated via a Member Administration of the ITU. In Germany, the Federal Network Agency carries out the registration, coordination and notification with the ITU. Official Gazette Administrative Order 8/2005 published in RegTP Official Gazette No. 06/2005, details the procedure for the registration of satellite systems 80

Section 56 TKG:

(1)

Jede Ausübung deutscher Orbit- und Frequenznutzungsrechte bedarf neben der Frequenzzuteilung nach § 55 Abs. 1 der Übertragung durch die Bundesnetzagentur. Die Bundesnetzagentur führt auf Antrag Anmeldung, Koordinierung und Notifizierung von Satellitensystemen bei der Internationalen Fernmeldeunion durch und überträgt dem Antragsteller die daraus hervorgegangenen Orbit- und Frequenznutzungsrechte. Voraussetzung dafür ist, dass 1. Frequenzen und Orbitpositionen verfügbar sind, 2. die Verträglichkeit mit anderen Frequenznutzungen sowie anderen Anmeldungen von Satellitensystemen gegeben ist, 3. öffentliche Interessen nicht beeinträchtigt werden.

(2)

(3)

Für vorhandene deutsche Planeinträge und sonstige ungenutzte Orbit- und Frequenznutzungsrechte bei der Internationalen Fernmeldeunion kann ein Vergabeverfahren auf Grund der von der Bundesnetzagentur festzulegenden Bedingungen durchgeführt werden. Die Übertragung kann widerrufen werden, wenn diese Rechte länger als ein Jahr nicht ausgeübt wurden oder die Voraussetzungen des Absatzes 1 Satz 3 nicht mehr erfüllt sind.

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with the ITU and the procedure for the transfer of German orbit and frequency usage rights. Further details are also provided on the documentation required.81 Apart from that, whosoever operates public telecommunications networks or provides telecommunications services to the public on a commercial basis has to notify the Federal Network Agency of the commencement, the rearrangement and the cessation of such activity as well as of changes in its trade name without delay.82 The notification has to be in writing. Moreover, specific information has to be provided, and a certain form has to be used (Section 6(2) TKG). Upon request, the Federal Network Agency will confirm that the notification is complete and will also certify that the company has all the rights granted by or based upon the Telecommunications Act (Section 6(3) TKG). The Federal Network Agency publishes a register of all reported companies (Section 6(4) TKG). If it is clear that a company has ceased its business and if it has not notified the Federal Network Agency within six months of that cessation, the Agency can declare the cessation ex officio.

7.3.2 Foreign Investment Before the 1998 liberalisation of the German telecommunications market, the German telecommunications sector remained closed to foreign investment.83 Today, there is no special treatment of foreign investors. However, all foreign investments must be reported to the German Central Bank (Bundesbank).84 Nevertheless, there are no restrictions on the repatriation of capital or profits. Notwithstanding the absence of formal barriers, high labour costs have discouraged foreign companies from setting up manufacturing plants in Germany. All the same, across the 10-year period 1991–2001, overall foreign direct investment (FDI) totalled $393 billion, the third highest total in the world.85 In 2004, Germany experienced negative FDI inflows (-$38.6 billion) for the first time since 1992.86 In 2006, FDI inflows

81 http://www.bundesnetzagentur.de/enid/95a395f25b409a754d493917e7dc3a4b,0/Frequency_

Assignment/Satellite_Communiations_18 g.html#registration_satsystems (accessed: 29 July 2009). For an analysis of Administrative Order 8/2005, see I. Baumann/M. Gerhard, New Satellite Communications Regulations in Germany, ZLW 2006, pp. 87–99. 82 Pursuant to Section 6(1) TKG. 83 http://www.nationsencyclopedia.com/Europe/Germany-FOREIGN-INVESTMENT.html (accessed: 29 July 2009). 84 Ibid. 85 Ibid. 86 Germany: FDI inflows reach a low ebb in 2004, UNCTAD/PRESS/EB/2005/010 of 12 October 2005.

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had a plus of approximately C34.2 billion. At the same time, German FDI abroad amounted to approximately C63.3 billion.87

7.3.3 Competition According to Section 2(2) TKG, one of the aims of regulation is to ensure equal opportunity competition and to promote sustainable competition-oriented telecommunications markets in the area of telecommunication services and networks as well as related facilities and services and also in the plain.88 Section 9(1) TKG stipulates that market regulation according to title 2 of the Telecommunications Act (Sections 9–43 TKG) applies to telecommunications markets as defined by the Federal Network Agency in accordance with Section 10 TKG. Companies that have a dominant position in markets as defined in Section 11 TKG will be subjected to certain measures by the Federal Network Agency as provided for in title 2 (Sections 9–43) of the TKG. In 2006, voice telephony services were provided by 165 network operators, 87 of which offered telephone extensions.89 Apart from these, there are resellers and providers of other services such as Voice Over Internet Protocol-based products (VoIP). In 2005 and 2006, the losses in turnover suffered by Deutsche Telekom AG were balanced by its competitors. Satellite telecommunication services in Germany are provided by Luxembourgbased SES ASTRA and Paris-based EUTELSAT. Both systems enable internet access, with an increasing consumer interest in bi-directional transmission (where satellites are used for both channels, as opposed to hybrid transmission). By the end of 2008, such bi-directional transmissions counted approximately 22000 users in Germany.90

7.3.4 Interconnections Pursuant to Section 2 No. 34 TKG, the term “interconnection” is defined as “the network access establishing the physical and logical connection of telecommunications 87 Deutsche Bundesbank, Direktinvestitionen lt. Zahlungsbilanzstatistik für die Berichtsjahre 2003

bis 2006 (Direct Investment according to balance of payments statistics for the years 2003 to 2006), April 2007, pp. 6, 19. 88 Section 2(2) TKG: “Ziele der Regelung sind (. . .) 2. die Sicherstellung eines chancengleichen Wettbewerbs und die Förderung nachhaltig wettbewerbsorientierter Märkte der Telekommunikation im Bereich der Telekommunikationsdienste und -netze sowie der zugehörigen Einrichtungen und Dienste, auch in der Fläche.” 89 Bundesnetzagentur, Tätigkeitsbericht 2006/2007 für den Bereich Telekommunikation (Activity report 2006/2007 for telecommunications), Dec. 2007, available online at http://www.bundesnetzagentur.de/media/archive/12186.pdf (accessed: 29 July 2009), p. 2. 90 Bundesnetzagentur, Jahresbericht (Annual Report), 2008, p. 73. Available at http://www. bundesnetzagentur.de/media/archive/15901.pdf (accessed: 29 July 2009).

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networks to allow users of one company to communicate with users of that same or a different company, or to use services of another company; services may be supplied by the parties involved or by other parties that have access to the network. Interconnection is a specific form of access and is established between providers of public telecommunication networks”.91 Section 16 TKG provides that each public telecommunications carrier shall undertake to make to other carriers of such networks an interconnection offer at their request. In this regard, all parties concerned shall seek to enable and improve communications between and among users of different public telecommunications networks.92 Information obtained in the course of interconnection negotiations are confidential and protected by Section 17 TKG. Moreover, the Federal Network Agency can, under certain circumstances, order public telecommunications carriers that are in control of access to end users and do not have considerable market power to interconnect with other public telecommunications carriers. It may also impose further obligations regarding access (Section 18(1) TKG). The Federal Network Agency may also make orders of transparency regarding the availability of information (Section 20 TKG). Section 19 TKG provides for non-discrimination of interconnection agreements. Pursuant to Section 21(1) TKG, the Federal Network Agency may order public telecommunications carriers with a dominant position upon request or ex officio to grant other companies network access, including local loop unbundling according to demand, especially if the development of a sustainable competition-oriented end user market would be hampered otherwise or such development would conflict with the interests of the end users. Further criteria to be especially considered by the Federal Network Agency are provided in Section 21(1) TKG. If a public telecommunications carrier is ordered according to Section 21 TKG, he has to make an interconnection offer to other companies that request such service in order to be able to offer such service at the latest three months after the order is given (Section 22(1) TKG). Pursuant to Section 22(2) TKG, all interconnection agreements made by a public telecommunications carrier with a dominant position have to be in writing. The carrier has to notify the Federal Network Agency of any access agreements that he participates in as provider. The Agency then publishes where and when the lists containing this information can be consulted (Section 22(3) TKG). According

translation. Section 3 TKG reads: “Im Sinne dieses Gesetzes ist (. . .) 34., Zusammenschaltung” derjenige Zugang, der die physische und logische Verbindung öffentlicher Telekommunikationsnetze herstellt, um Nutzern eines Unternehmens die Kommunikation mit Nutzern desselben oder eines anderen Unternehmens oder die Inanspruchnahme von Diensten eines anderen Unternehmens zu ermöglichen; Dienste können von den beteiligten Parteien erbracht werden oder von anderen Parteien, die Zugang zum Netz haben. Zusammenschaltung ist ein Sonderfall des Zugangs und wird zwischen Betreibern öffentlicher Telekommunikationsnetze hergestellt. 92 Unofficial translation by http://www.iuscomp.org/gla/statutes/TKG.htm#2 (accessed: 29 July 2009). 91 Unofficial

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to Section 23(1) TKG, the Federal Network Agency may also order a public telecommunications carrier to publish a standard interconnection offer. If an interconnection agreement (Section 22 TKG) or an agreement on access services (Section 18 TKG) is not concluded, and yet the preconditions for an obligation to grant access are met, the Federal Network Agency may order the access pursuant to Section 25 TKG, having heard the respective parties and upon request of one party. All measures taken in accordance with these provisions are to be published by the Federal Network Agency, taking due account of the trade secrets of the companies concerned (Section 26 TKG).

7.3.5 Universal Service According to Section 1 of the Telecommunications Act (Telekommunikationsgesetz, TKG), one of the purposes of the Act is to guarantee appropriate and adequate services throughout the country. Section 2(2) in turn points out the aims of regulation. These include, inter alia, to safeguard the interests of users in the areas of telecommunications and radiocommunications as well as to maintain telecommunications secrecy,93 to ensure equal-opportunity and workable competition, in rural as well as in urban areas, in telecommunications markets,94 to ensure provision throughout the Federal Republic of Germany of basic telecommunications services (universal services) at affordable prices,95 and to promote telecommunications services in public institutions.96 Finally, Sections 78 et seq. of the Telecommunications Act further govern universal services. Section 78(1) TKG defines universal services as the minimum set of telecommunications services for the public in respect of which a particular quality has been defined and to which every user shall have access, irrespective of his/her place of residence or place of work, at an affordable price, and the service of which for the public has become indispensable as a basic service.97 Section 78(2) TKG in turn provides a list of services that have been determined to be universal services. The services are described in a rather detailed way, but broadly speaking, they include (i) the connection to a public telephone network at a fixed location with certain technical features further specified, (ii) the availability of a public directory of participants, (iii) the availability of directory assistance, (iv) the provision of public payphones, and (v) the possibility of placing emergency calls free of charge from all public payphones. 93 Section

2(2), No. 1 TKG. No. 2. 95 Ibid., No. 5. 96 Ibid., No. 6. 97 Unofficial translation by the authors. 94 Ibid.,

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The Federal Network Agency may specify the needs of end users regarding universal services as laid down in Section 78(2) TKG, especially with respect to geographical supply, number of telephones, accessibility, and quality of services.98 In order to safeguard the service and the service criteria, the Federal Network Agency may impose obligations on companies providing universal service.99 The companies have a right to be heard prior to any such measures, however.100 Section 79 TKG sets out the criteria for a service to be considered affordable. Under the provision, connection to a public telephone network at a fixed location as specified in Section 78(2) No. 1 TKG is to be considered affordable if it does not exceed the price charged for telephone services that were in average demanded by a private household outside cities with more than 100,000 inhabitants as of 1 January 1998. Universal services according to Section 78(2) No. 2–4 TKG are considered affordable if they are in line with Section 28 TKG (regarding the abuse of market power). If a universal service is not provided, or in the event that its provision appears to be jeopardized, each provider in the relevant market that holds a market share of at least 4% of the total turnover is by virtue of Section 80 TKG obliged to make contributions so that the service can be provided. Section 80 TKG does not specify the character of such contribution, but it follows from Section 83 TKG that the contribution will be of a financial nature. If a company has been mandated to provide a universal service under Section 81(3) TKG, the Federal Network Agency must grant financial compensation to it according to the conditions set out in the call for tenders (Section 82 TKG). If, on the other hand, a company has been mandated to provide a universal service under Section 81(5) TKG, the Federal Network Agency will calculate the compensation to be paid on the basis of the difference in the costs incurred with and without the universal service obligation. Moreover, benefits and earnings accruing to the universal service provider, including immaterial benefits, will be considered (Section 82(2) TKG). If the Federal Network Agency comes to the conclusion that the compensation calculated amounts to an unreasonable burden, it will, upon request, grant to the company the financial compensation it has calculated (Section 82(3) TKG). Most importantly, Section 83 TKG provides for a universal service levy. If compensation has been granted by the Federal Network Agency pursuant to Section 82 TKG, each company that is obliged to provide universal service due to its market share as laid out in Section 80 TKG has to contribute to that compensation. The contribution is calculated according to the ratio of the licensee’s revenues to the total revenues of those obliged in the relevant product market.101 The compensation according to Section 82(1) and (3) are calculated at the end of each legal year and

98 Section

78(4) TKG.

99 Ibid. 100 Ibid. 101 Section

83(1) TKG.

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the shares of contribution is then announced to those companies concerned. The share is calculated by the ratio plus an interest as is usual in the market.102 To the extent that companies provide universal service, end users have a claim to the provision of such services within the limits of the law and the general terms and conditions of reference (Section 84(1) TKG). Further obligations of universal service providers are contained in Section 84(2) and (3) TKG. Section 85 TKG provides for limited instances and certain conditions under which the possibility of ceasing to provide universal services may arise. Section 86 provides for certain rights of the universal service provider if there is cause to believe that the end user will not fulfil its contractual obligations. If a universal service obligation has been ordered pursuant to Section 81(3) or (5) TKG, all the companies active in the relevant product market of the universal service concerned have to notify their respective turnovers to the Federal Network Agency on a yearly basis upon request (Section 87(1) TKG). It should be noted that the European Union also intends, without distortion of competition, to ensure the availability of a minimum set of high-quality services to all users at an affordable price. With the adoption of the so-called “Universal Service Directive”103 in 2002, the EU has laid down obligations with regard to the provision of certain mandatory services, such as the retail provision of leased lines. Moreover, the Directive establishes end-users’ rights and the corresponding obligations of undertakings that provide publicly available electronic communications networks and services. The Universal Service Directive was part of the “Telecoms Package” which, together with four other directives (“framework”, “access and interconnection”, “authorization” and “private life and electronic communications”), aimed at recasting the existing regulatory framework for telecommunications and at making the electronic communications sector more competitive.104 As services traditionally carried by telephone networks become more and more internet-based, the focus of the EU regarding universal service evolves towards providing affordable broadband access links for all.105

7.3.6 Rate Regulation Rate regulation is governed by Sections 27 et seq. TKG. According to Section 27(1) TKG, the purpose of rate regulation is to prevent the abusive exploitation of, interference with or discrimination against end users or competitors by means of pricing 102 Section

83(2) TKG. Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), Official Journal (OJ) L 108 of 24 April 2002. 104 http://europa.eu/legislation_summaries/internal_market/single_market_services/l24108h_en.htm (accessed: 29 July 2009). 105 Press Release on a Report by the European Commission, IP/05/594 of 24 May 2005; see also http://ec.europa.eu/information_society/eeurope/i2010/index_en.htm (accessed: 29 July 2009). 103

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by companies with considerable market power.106 The Federal Network Agency is in charge of ensuring the consistency of rate regulation measures (Section 27(2) TKG), and it has further powers with regard to rate regulation measures according to Section 29 TKG. According to Section 30 TKG, a telecommunications provider with considerable market power may be ordered by the Federal Network Agency to admit competitors’ access to its telecommunications network (Section 21 TKG). Any rates subsequently charged by that company are subject to authorization by the Federal Network Agency (Section 30(1) TKG). Pursuant to Section 40(1) TKG, the Federal Network Agency may oblige companies that have been rated as having considerable market power regarding provision of access to the public telephone network and its use at fixed locations to provide its participants with access to services of all immediately interconnected providers of telecommunication services for the public. If there are facts justifying the assumption that these obligations are insufficient for purposes of achieving the aims laid down in Section 2(2) TKG, the Federal Network Agency may subject companies with considerable market power regarding telecommunications services for end users to the requirement of rate authorization.

7.3.7 Content Regulation (Including Privacy) As already indicated, the regulation of content may fall within the jurisdiction of the Federal States. Questions of content are touched upon in Sections 88 et seq. TKG. However, these provisions refer to secrecy.

7.4 Earth Observation Services, Including Data Processing and Distribution 7.4.1 Licensing of Remote Sensing Satellite Operators Germany has no specific regulations for the licensing of remote sensing satellite operators. Instead, the rules of the TKG apply. Accordingly, the Bundesnetzagentur is the authority in charge of licensing remote sensing operators. The major remote satellite projects are pursued on a European-wide scale, however. The European flagship project GMES,107 for instance, is realized within

106 Section 27(1) TKG: “Ziel der Entgeltregulierung ist es, eine missbräuchliche Ausbeutung, Behinderung oder Diskriminierung von Endnutzern oder von Wettbewerbern durch preispolitische Maßnahmen von Unternehmen mit beträchtlicher Marktmacht zu verhindern.” 107 For a recent discussion on GMES see e.g. N. Rohner/K.-U. Schrogl/S. Cheli, Making GMES better known: Challenges and opportunities, Space Policy 23 (2007) 195 et seq.

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the framework of the European Space Agency, and is thus licensed according to ESA rules.

7.4.2 Distribution of Data The distribution of high resolution remote sensing data has been recently regulated by the Act on safeguarding security interests in distribution of high resolution satellite data (Satellitendatensicherheitsgesetz, SatDSiG) of November 2007. The Act is strongly influenced by national security concerns and will thus be discussed below.

7.4.3 National Security Concerns Extremely high-capacity satellites are currently being developed in Germany, with the objective of commercially distributing the data to be acquired therefrom worldwide.108 With the launch into orbit of the German high-resolution radar satellite TerraSAR-X on June 15th, 2007, the necessity for Germany to safeguard its national security and foreign policy interests was increased.109 Data generated by TerraSARX is of high spatial resolution: the sensor of TerraSAR-X is able to generate data of up to one meter spatial resolution,110 the quality of which could until recently only be attained by military satellites. The effect of weapons or political threats can be considerably aggravated by such remote sensing data.111 At the same time, however, Germany is interested in the broad distribution of data generated by e.g. TerraSAR-X for commercial and scientific purposes.112 Moreover, most high-capacity remote sensing satellite systems rely on U.S.made components. The U.S.A. grant authorization for the export of such components only upon the condition that there are national laws in place which take account of security interests regarding the creation and distribution of remote sensing data.113 108 Entwurf eines Gesetzes zum Schutz vor Gefährdung der Sicherheit der Bundesrepublik Deutschland durch das Verbreiten von hochwertigen Erdfernerkundungsdaten, BT-Drs. 65/07 of 26.01.2007, at p. 1. 109 M. Gerhard/B. Schmidt-Tedd, Germany enacts legislation on the distribution of remote sensing satellite data, in: IISL (ed.), Proceedings of the Fiftieth Colloquium on the Law of Outer Space, 24–28 September 2007, Hyderabad, India, 2008, p. 411. 110 M. Gerhard/B. Schmidt-Tedd, Germany enacts legislation on the distribution of remote sensing satellite data, in: Proc. 50th IISL Coll. 2007, 2008, p. 411. 111 Entwurf eines Gesetzes zum Schutz vor Gefährdung der Sicherheit der Bundesrepublik Deutschland durch das Verbreiten von hochwertigen Erdfernerkundungsdaten, BT-Drs. 65/07 of 26.01.2007, at p. 1. 112 M. Gerhard/B. Schmidt-Tedd, Germany enacts legislation on the distribution of remote sensing satellite data, in: Proc. 50th IISL Coll. 2007, 2008, p. 411. 113 Entwurf eines Gesetzes zum Schutz vor Gefährdung der Sicherheit der Bundesrepublik Deutschland durch das Verbreiten von hochwertigen Erdfernerkundungsdaten, BT-Drs. 65/07 of 26.01.2007, at p. 2.

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Against this background, Germany started the legislative procedure for an Act on safeguarding security interests in distribution of high resolution satellite data (Satellitendatensicherheitsgesetz, SatDSiG). In January 2007, the Federal Ministry of Economics and Technology introduced a final draft in the cabinet of ministers, and the Federal Government concluded deliberations on that legislation on January 24th, 2007.114 Subsequent to the Bundesrat’s comments on the legislation of March 9th, 2007, it went through first hearing at the Bundestag on March 23rd, 2007; the second and the final third hearing took place on September 21st, 2007.115 The Act on safeguarding security interests in distribution of high resolution satellite data was executed and promulgated by the Federal President in November 2007, and it has entered into force according to legislative procedure. After the U.S.A. and Canada, Germany is the third country worldwide and the first European country to have enacted such legislation. The objective of the Act is to address Germany’s security-related and foreign policy interests in the distribution of remote sensing data obtained by German satellites or those operated from German territory.116 Within these limits and to the largest extent possible, the right to freely distribute high resolution satellite data that provides legal certainty for commercial companies involved in such operations shall be ensured. In principle, the authority responsible for the execution of the law is the Federal Office of Economics and Export Control (Bundesamt für Wirtschaft und Ausfuhrkontrolle, BAFA), although security control is the responsibility of the German Federal Ministry of Economics and Technology (Bundesministerium für Wirtschaft und Technologie, BMWT).117 At the core of the legislation is the control or examination of the trade in remote sensing data and data products by the operator of a satellite system or by a distributor. Such examination is only required if the remote sensing satellite system has produced data that are technically capable of jeopardizing German national security interests.118 The Act applies only to advanced remote sensing satellite systems (i.e., systems with the potential to generate data that might be detrimental to the national security or foreign policy interests).119 The general criteria for classifying such data are provided in Section 2(2) of the Act; the precise limits of

114 M.

Gerhard/B. Schmidt-Tedd, Germany enacts legislation on the distribution of remote sensing satellite data, in: Proc. 50th IISL Coll. 2007, 2008, p. 411 (at p. 413). 115 Ibid. 116 Entwurf eines Gesetzes zum Schutz vor Gefährdung der Sicherheit der Bundesrepublik Deutschland durch das Verbreiten von hochwertigen Erdfernerkundungsdaten, BT-Drs. 65/07 of 26.01.2007, at p. 2. 117 Section 24 of the Draft SatDSiG. 118 Entwurf eines Gesetzes zum Schutz vor Gefährdung der Sicherheit der Bundesrepublik Deutschland durch das Verbreiten von hochwertigen Erdfernerkundungsdaten, BT-Drs. 65/07 of 26.01.2007, at p. 2. 119 M. Gerhard/B. Schmidt-Tedd, Germany enacts legislation on the distribution of remote sensing satellite data, in: Proc. 50th IISL Coll. 2007, 2008, p. 411 (at p. 413).

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these criteria are set out by the Ordinance based on the Satellite Data Security Law (Satellitendatensicherheitsverordnung – SatDSiV) dated 26 March 2008.120 The operation of such advanced remote sensing satellite systems must be authorized and are to be supervised. The operator must obtain a license from the Federal Office of Economics and Export Control; the preconditions for obtaining such license are laid down in the Act. They address issues such as the reliability of the operator. Similarly, a data distributor must obtain prior permission to act as such. This permission also has to be obtained from the Federal Office of Economics and Export Control. Regarding the distribution of data, the Act provides for a two-tiered procedure of examining any transaction with respect to its relevance for national security and foreign policy interests. The first tier provides for a sensitivity check to be administered by the operator himself. The operator thus has to examine whether or not a transaction might endanger national security and foreign policy interests.121 In this respect, he has to adhere to specific criteria such as the technical parameters of the data, the sensed territory, the time of generation of the data, the time of delivery and the person the data is to be delivered to. Further details of such criteria are promulgated by the Ordinance on the Satellite Data Security Law. If the examination leads the operator to conclude that German national security and foreign policy interests might be jeopardized, the operator may either deny the transaction or he must obtain authorization for distributing or making available the respective data from the Federal Office of Economics and Export Control. The Office may deny such authorization or grant it subject to certain restrictions.

7.5 Intellectual Property and Transfer of Technology Under the WIPO Convention,122 “intellectual property” includes “the rights relating to: literary, artistic and scientific works; performances of performing artists, phonograms, and broadcasts; inventions in all fields of human endeavour; scientific discoveries; industrial designs, trademarks, service marks, and commercial names and designations; protection against unfair competition, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields”.123 Thus, any intellectual property law basically protects creations of the human mind. Typically, intellectual property laws grant the author of the intellectual creation a

120 Bundesgesetzblatt

2008 Part I, No. 12, p. 508.

121 Ibid. 122 Convention Establishing the World Intellectual Property Organization, signed at Stockholm on July 14, 1967 and as amended on September 28, 1979. 123 Article 2(viii) WIPO Convention.

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set of exclusive rights for exploiting and benefiting from the creation, and these are limited in scope, duration and geographical extent.124 All the aspects of intellectual property as defined in the WIPO Convention are also relevant to space activities.125 However, any national intellectual property laws are, in principle, restricted in applicability to the respective nation’s territory. Nevertheless, states retain jurisdiction and control over their space objects according to Article VIII of the Outer Space Treaty (OST),126 and can therefore extend the applicability of their national intellectual property laws to such space objects.127 Within its participation in ESA space activities in the 1970s and 1980s, Germany was confronted with the full possible economic range of patent disputes in the preparation and implementation of space activities. Problems arose with regard to several satellite launches because of the extension of US patent laws to space activities.128 Germany does not have a law tailored specifically to intellectual property rights and to transfer of technology with regard to space activities. However, the German legislation does not presuppose a certain location for the creation of intellectual property rights. Therefore, several of the existing German intellectual property laws also apply to space activities.

7.5.1 Acquisition of Intellectual Property Rights The manner of acquisition of intellectual property rights depends on the specific kind of intellectual property right involved. Inventions are protected through the granting of patents to inventors and their successors in title.129 By means of a patent, an owner gains the right to exclude others from the making, using, selling or importation of products or processes incorporating the technology covered by the claim of the patent.130 The rights under a patent are limited to the territory under control of the government issuing the patent, and may only be enforced in that

124 A.-M.

Balsano, Intellectual Property Rights and Space Activities, ESA Bulletin No. 79 (1994), p. 36. 125 W. v. Kries/B. Schmidt-Tedd/K.-U. Schrogl, Grundzüge des Raumfahrtrechts, 2002, p. 103. 126 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), entered into force on 10 October 1967. 127 W. v. Kries/B. Schmidt-Tedd/K.-U. Schrogl, Grundzüge des Raumfahrtrechts, 2002, p. 103. 128 For details see W. v. Kries/B. Schmidt-Tedd/K.-U. Schrogl, Grundzüge des Raumfahrtrechts, 2002, p. 103. 129 A.-M. Balsano, Intellectual Property Rights and Space Activities, ESA Bulletin No. 79 (1994), p. 36. 130 Ibid.; see also T. Smith, A Phantom Menace? Patents and The Communal Status of Space, Victoria University of Wellington Law Review 34 (2003).

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territory.131 However, the Convention on the Grant of European Patents (European Patent Convention) of 5 October 1973132 established the European patent, which can be granted for the territory of one or more of the Contracting States.133 In each of the Contracting States for which it is granted, such patent has the effect of and is subject to the same conditions as a national patent granted by that State, unless the Convention provides otherwise.134 According to Section 6 of the German Patent Law,135 “(t)he right to a patent shall belong to the inventor or his successor in title”. Since the location of the invention is irrelevant, an invention realized in outer space may be patented solely in Germany. Moreover, intellectual property covers those rights protecting the financial and moral interests of authors (copyright protection).136 Germany follows the so-called monist approach, according to which economic and moral rights are considered to be so thoroughly intertwined that both aspects of copyright cannot be dissociated from each other.137 As a result, the work is protected by the author’s rights, provided it is original, regardless of the form of expression, merit or destination of the work.138 None of the national patent offices requires the obligatory filing of a work.139 Basically, this system acknowledges two main categories of rights: a moral right and an economic right. The moral right is inalienable, i.e., it cannot be yielded or sold. It is, moreover, perpetual because it is still valid even after the death of the author. And, finally, it is imprescriptible, i.e., it is maintained even when the work has fallen into disuse. The moral right affords the author the right of disclosure, which gives him/her the right to decide whether or not to expose his/her work to the general public. Moreover, he/she obtains the right of withdrawal of the work from public use against payment of compensation for damages caused to any person who has previously received proper authorisation to use the work. Furthermore, the moral right title includes the right to claim authorship of the work, i.e., to have the name of the author and the

131 A.-M. Balsano, Intellectual Property Rights and Space Activities, ESA Bulletin No. 79 (1994) 36; Y. Zhao, Protection of Intellectual Property Rights in Outer Space, in: Proceedings of the FortyNinth Colloquium on the Law of Outer Space, Valencia, Spain, 2–6 October 2006, p. 160. 132 http://www.epo.org/patents/law/legal-texts/epc.html (accessed 29 July 2009). 133 Article 3 European Patent Convention. 134 Article 2(2) European Patent Convention. 135 Patentgesetz, text of December 16, 1980, as last amended by the Laws of July 16 and August 6, 1998. 136 A.-M. Balsano, Intellectual Property Rights and Space Activities, ESA Bulletin No. 79 (1994), p. 36. 137 A. Peukert, Protection of Authors and Performing Artists in International Law – Considering the Example of Claims for Equitable Remuneration Under German and Italian Copyright Law, in: IIC 2004, p. 900. 138 A.-M. Balsano, Intellectual Property Rights and Space Activities, ESA Bulletin No. 79 (1994), p. 36. 139 Ibid.

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title of the work mentioned in connection with the use of the work, and the right to object to unauthorised modification of the work.140 The economic right implies that the owner of the author’s right may grant all public use of the work conditional on payment of remuneration. There are three main prerogatives: (i) The Right of Reproduction such as the making of one or more copies of a work or of a substantial part of it in any material form, for indirect transmission to the general public; (ii) The Public Performance Rights: This is understood as meaning a performance of a work, direct or indirect, which is presented to listeners or spectators not restricted to specific persons belonging to a private group and which exceeds the limits of usual domestic representations; (iii) Finally, the author is the beneficiary of a “droit de suite”. This is the right granted to the author and his heirs to claim a share of the proceeds of each public resale of his work.141 A European Union Directive of 29 October 1993 has harmonised the duration of the protection of author’s right and copyright to “the duration of his/her lifetime and for 70 years following his/her death”. This protection is recognised for all work still protected in a given Member State’s territory. Consequently, the Directive has the effect of prolonging the duration of protection for works which were already in the public domain, since certain Member States of the European Union only recognise a delay of 50 years after the author’s death.142 Once the economic rights have lapsed, the work becomes public property, meaning that anyone can exploit the work free of charge without having first to obtain authorisation (nevertheless, the citation of the author may be imposed).143 The German Law on Copyright and Related Intellectual Property Rights (Gesetz über Urheberrecht und verwandte Schutzrechte, UrhG) is applicable generally also to originators of scientific works (Section 1 UrhG). Section 72 UrhG protects photographs and such produces that are created in a similar manner as photographs. Whereas aerial photographs clearly come under the definition of “photographs”, photographs taken by satellites also come under the provision of Section 72 UrhG at least as products that are created in a similar manner as photographs. According to Section 72(3) UrhG the copyright expires fifty years subsequent to the publication of the photograph, or, if its public presentation took place earlier, subsequent to that presentation; or fifty years subsequent to its creation if the photograph was not published or made public within the given period. Pursuant to Section 69 UrhG, the expiration time starts from the end of the year in which the respective event took place. In general, the originator of photographs has to be asked for permission before making use of photographs. If photographs are provided for free, clarification should be sought before making use of them whether the use is to occur abroad or for a potential commercial purpose.

140 Ibid. 141 Ibid. 142 Ibid. 143 Ibid.

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Generally, raw data are not protected. However, databases and maps (printed or digital) may be protected by provisions such as Section 2(1), no. 7 UrhG, which protects scientific and technical descriptions. Moreover, they can also be protected as database work pursuant to Section 4(2) UrhG. Products and services of one manufacturer or retail merchant are distinguished from those of another by the use of trade marks.144 The German Trade Mark Law145 applies to trade marks, commercial designations, and indications of geographical origins.146 Trade marks are defined in Section 3(1) as “(a)ny signs, particularly words, including personal names, designs, letters, numerals, sound marks, threedimensional configurations, including the shape of goods or their wrapping a well as other packaging, including colours and combinations of colours, which are capable of distinguishing the goods or services of one undertaking from those of other undertakings (. . .)”. No protection as trade marks is granted to “(s)igns which consist exclusively of shape, which results from the nature of the goods themselves, which is necessary to obtain a technical result, or which gives substantial value to the goods (. . .)”.147 Commercial designations protected are company symbols and titles of works.148 The acquisition of both trade mark protection and commercial designation protection confers exclusive rights therein on the proprietor.149 Trade mark protection is obtained (i) by registration of a sign as a trade mark in the Register kept at the Patent Office; (ii) through the use of a sign in the course of trade insofar as the sign has acquired a secondary meaning as a trade mark within the affected trade circles; or, (iii) by notoriety as a trade mark within the meaning of Article 6bis of the Paris Convention for the Protection of Industrial Property.150 The proprietor may forfeit his rights in the trade mark if he does not make use of it within five years preceding rival claims.151 Moreover, a trade mark may be subject to an exclusive or non-exclusive license.152 Research and Development (R&D) projects financed by the German government are subject to the regulations of the Federal Ministry of Education and Research. If such projects have been financed by grants, the regulations provide that the principal (i.e., the Federal Ministry) has all the rights in the results, and that he will ensure the

144 A.-M. Balsano, Intellectual Property Rights and Space Activities, ESA Bulletin No. 79 (1994), p. 37. 145 Law on the Protection of Trademarks and Other Signs (Gesetz über den Schutz von Marken und anderen Kennzeichen, Markengesetz), text of October 25, 1994, as amended by the Law of July 16, 1998. 146 Section 1 Trade Mark Law. 147 Section 3(2) Trade Mark Law. 148 Section 5 Trade Mark Law. 149 Sections 14, 15 Trade Mark Law. 150 Section 4 Trade Mark Law. 151 Sections 25, 26 Trade Mark Law. 152 Section 30 Trade Mark Law.

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fulfilment of his rights and obligations towards the Federal Ministry from the grant agreement towards the agent.153 If they have been financed by assignments, the principal (i.e., the Federal Ministry) gains the exclusive, transferable, irrevocable, free of charge right of use and utilization regarding the results of that project.154 Subject to authorization by the Ministry, the agent may exploit the R&D result subsequent to the production of an exploitation plan and the payment of adequate compensation according to Section 10(2)(c) of the Regulation.155 The agent is obliged to exercise or exploit the R&D result for innovations.156 If the agent does not comply with this obligation, it has to give third persons a right of use and utilization according to the conditions usually applying in the market.157 Moreover, the general contract regulations of ESA apply to ESA projects.158

7.5.2 National Legal Barriers to International Transfer of Space Technology As opposed to what pertains in many other countries, Germany does not have a general prohibition on exports with exemption possibilities, but rather follows the principle of freedom of export as laid down in Section 1 of the Foreign Trade Law (Außenwirtschaftsgesetz, AWG). Thus, in Germany, a constitutional, legally guaranteed freedom of foreign export exists with a legally enforceable individual claim to the issuance of an export permit if a legal claim exists. However, this export freedom is subject to extensive restrictions as contained in the Foreign Trade Law (AWG), the Weapons of War Control Law (KWKG), and the Foreign Trade Regulation (AWV).159 These restrictions are valid regarding the export of space technology insofar as they are applicable.

153 Section 11 of the General Regulations for R&D Contracts by the Donee (grant recipient) of the Federal Ministry of Education and Research (Allgemeine Bestimmungen für Forschungsund Entwicklungsverträge der Zuwendungsempfänger des Bundesministeriums für Bildung und Forschung (BEBF-ZE 98)), status as of March 2000. 154 Section 13(1) of the General Regulations for R&D Contracts by the Federal Ministry of Education and Research (Allgemeine Bestimmungen für Forschungs- und Entwicklungsverträge des Bundesministeriums für Bildung und Forschung (BEBF 98)), status as of September 2005. 155 Section 13(2) of the General Regulations BEBF 98. 156 Ibid. 157 Section 17(1) of the General Regulations BEBF 98. 158 ESA/C/290/Rev. 5. 159 M. Rietz, Germany’s Export Control Law in the New Millennium, April 2002, available online at http://www.isis-online.org/publications/expcontrol/rietz2002.html (date of access 23.12.2007); see also for a general perspective on the constitutional situation in Germany V. Epping, Die Außenwirtschaftsfreiheit, Tübingen et al. 1999.

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7.6 Satellite Navigational Services Germany participates in the European (European Union and European Space Agency) satellite navigation project “Galileo”. The project aims at developing cutting-edge technology in order to enable a user equipped with a receiver to receive signals from several satellites and thus determine his exact position in time and space anywhere at any given moment. Galileo is based on a constellation of 30 satellites placed in a medium earth orbit (at an altitude of approximately 24,000 km) continuously covering the entire surface of the earth. The final component is the ground stations which manage the system.160 Galileo shall be operational in 2013; at the moment the EU and ESA together are actively preparing the call for tenders. The Bremen-based enterprise OHB has won one of the first tenders. Galileo management structures161 include the European Commission and ESA, a committee composed of the 27 member states, a project manager and 6 leaders of the diverse consortia (i) on systems, (ii) on signal control, (iii) on satellite control, (iv) on satellite building, (v) on launchers, and (vi) on the control centres of which one will be in Oberpfaffenhofen, Bavaria, Germany.

7.7 Summary In sum Germany is a middle power in space activities. So far, it has focussed its activities more on participation in European projects than on national activities. As a consequence there is a considerable lack of legislation in a more general sense, whereas for some specific activities, Germany has already built the legal framework. It remains a sincere hope not only of the authors that Germany as a country with relatively scarce natural resources but with relatively high engineering and technical standards, may start to discover more closely the political dimension of spaceflight, a dimension that has clearly been instrumental for the European Union. In its new constitutive Act, the Treaty of Lisbon, the EU has in fact a separate unit on space affairs. In other words, Germany should start on the path to discover that spaceflight has not only a technical and engineering dimension to it but also bears very important (foreign) political consequences. And if Germany starts to rebuild its foreign policy according to these new – necessary – priorities, it will certainly enact its own national space legislation. In any case there should be enough room for a German national space law that would enable Germany, and more

160 Communication from the Commission to the European Parliament and the Council: State of progress of the Galileo programme, COM (2002) 518 final, of 24.9.2002. 161 See for a concise description of the current management structure Frankfurter Allgemeine Zeitung Nr. 294 of 18 December 2007, “Auftragsgerangel am Sternenhimmel”, p. 19.

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importantly enterprises on German territory and German enterprises abroad to participate more actively in space activities than they are today. It should be noted that the German legislator seems to have understood these signs and has voiced intentions to move forward with a national piece of legislation on space activities in the foreseeable future.

Chapter 8

Regulation of Space Activities in India Ranjana Kaul and Ram S. Jakhu

8.1 Introduction Space activities commenced in India in 1963 when the Thumba Equatorial Rocket Launching Station (TERLS) was set up under the stewardship of Vikram A. Sarabhai, the acknowledged father of the Indian space programme.1 Initially the programme was carried out by the Department of Atomic Energy through the Indian National Committee for Space Research, which was reconstituted in 1962 for that specific purpose and subsequently transformed into the Indian Space Research Organization (ISRO). ISRO was charged with the explicit mandate to promote the development and application of space technology and space science for the socio-economic benefit of the nation. Recognizing the critical importance of outer space as a tool for accelerating the sustainable development of the country, successive Governments have made significant financial allocations to the Department of Space (DOS) and to the ISRO for the implementation of specific programmes.2 Consequently, in the past fortyfive years, India has developed an extensive and comprehensive space programme R. Kaul (B) Dua Associates, Advocates & Solicitors, New Delhi, India e-mail: [email protected] 1 For

a detailed description of ISRO’s history and current activities, visit http://www.isro.gov.in (accessed: 23 June 2009). For the ISRO’s Annual Report for 2007–2008, visit http://www. isro.gov.in/rep2008/Index.htm (accessed: 23 June 2009). 2 The Union Budget 2008–2009, presented in Parliament on 29th February 2008, made the following financial allocations for the Department of Space and ISRO respectively: (i) Rs. 125 crore earmarked for ISRO’s manned mission initiatives as it hiked the allocation for the Department of Space (DOS) by nearly 24%; (ii) The DOS has been allocated Rs 4,074 crore for 2008–2009, a Rs. 784 crore hike over the Rs. 3,290 crore allocation last fiscal; (iii) Rs 10 crore set aside for the Space Recovery Capsule Experiment-2; (iv) allocation of Rs. 10,000 crore for technology development and designing facilities for human spaceflight and astronauts; (v) the Indian Institute for Space Technology, taking shape near Thiruvananthapuram (Kerala); and (vi) The Indian Regional Navigation Satellite System got a massive hike from Rs. 94 crore last year to Rs. 270 crore in this fiscal. See, Outcome Budget of the Department of Space, Government of India, 2008–2009. http://www.isro.org/Accounts/OutcomeBudget2008-2009.pdf (accessed: 23 June 2009), 112. Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_8,  C Springer Science+Business Media B.V. 2010

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for peaceful purposes, based on sustained and systematic development of low cost indigenous space capabilities. The impressive array of space technology applications initiated by ISRO has met with resounding success, enabling India to achieve in large measure its objective of applying space science and technology for identified national development objectives. The Indian space programme includes: space science research and development; the indigenous manufacture of reliable, low cost launch vehicles for placing payloads into the polar and the geostationary orbits; the manufacture and operation of satellites for advanced communications, metrological data and weather forecasting, earth observation and navigation satellite system; the lunar mission Chandrayaan I; as well as proposals to launch solar probes and manned space initiatives. Furthermore, the Indian Institute for Space Technology, Thiruvananthapuram (earlier called Trivandrum) in Kerala, inaugurated in 2007, is expected to assist in developing the appropriate human resources and critical space technologies for the future. The Indian space programme is conducted by, and functions under, government control. Perhaps the apprehension that the private sector may not be fully capable of directing and controlling the development of the space sector has been the single most important reason why space activities continue to be controlled by government agencies in many countries. During the early years of statehood following independence in 1947, India identified the development of space capability as an imperative means of achieving its socio-economic development goals. Forty-five years on, ISRO has started inviting private sector participation in certain contracts, and has also begun commercializing certain technologies. However, in India a caveat to the commercialization of space technologies is that the present nascent level of private sector involvement has not yet attained those critical levels at which demands of the space industry and commerce make it imperative for the government to enact national space law(s). Thus, at its core, the Indian space programme remains essentially a government activity. In the broader context, there can be no denying that up until now government strategy to retain space activities as a controlled sector has worked well. However, accelerated commercial application of space technology for civilian use will inevitably require private sector participation in this capital and technology intensive industry that will involve bilateral and multilateral transactions. Consequently, an appropriate legal regime is an important means by which India could encourage balanced development to tap the potential of lucrative domestic space commerce and industry. In order to discuss and analyze the regulation of Indian space activities, we have divided this chapter into eight sections, each of which addresses important aspects of the subject. Section 8.2 analyzes the current decision-making process and Indian state practice with respect to the implementation of international space treaties and to the fulfilment of certain international obligations. Section 8.3 discusses legal issues related to launch services (space transportation systems). Section 8.4 deals with the legal issues related to satellite telecommunications, including satellite broadcasting. Section 8.5 describes issues related to satellite remote sensing (earth observation) services, including data processing and distribution policy. Section 8.6 discusses the intellectual property rights (IPR) regime and transfer of technology issues. And, finally, Section 8.7 deals with satellite navigational services.

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8.2 Decision-Making Process and International Obligations 8.2.1 Organization of and Decision-Making Process Related to Space Activities Since 1972, the Indian space programme has been formally organized under the direct charge of the Office of the Prime Minister. This programme is formulated, carried out and monitored through a hierarchical structure headed by the Prime Minister of India who exercises control through the Space Commission of India and the Department of Space. The Prime Minister is assisted on an ongoing basis by a Minister of State in the Prime Minister’s Office. The Space Commission, which reports to the Prime Minister, is responsible for formulating space policy, while the Department of Space, which is also under the Prime Minister, is responsible for its implementation. Space research and development is carried out mainly through three agencies. These are (i) the Indian Space Research Organisation, (ii) the Physical Research Laboratory (PRL), and (iii) the National MesosphereStratosphere-Troposphere Radar Facility (NMRF). The Antarix Corporation, the marketing arm of ISRO, was incorporated in 1992 with the specific mandate for: international marketing of space products; commercial space launches; the commercialization of other products and services, including the building of satellites; encouraging private sector participation with a view to facilitating the development of domestic space commerce and industry; and, assisting in the import and export of space technology.3 India has not yet formulated and promulgated a specific and comprehensive national space policy. The only “policy” statement with respect to space activities is the “SatCom Policy”, which forms a sub-part of the New Telecom Policy of 1999.4 The “SatCom Policy” deals exclusively with satellite telecommunications.5 However, India’s vision for the use of outer space has always been to achieve socioeconomic development objectives as expressed in the Citizen’s Charter issued by the Department of Space.6 The Charter inter alia specifies that India is committed to achieving indigenous capability for the design and development of spacecraft, technologies for communications, the survey of national resources, research and development in space sciences and associated technologies, and the application of the space programme for national development. In addition, the DOS aims: (i) to carry out research and development in satellite and launch vehicle technology

3 For

details about Antarix Corporation Limited, visit: http://www.antrix.gov.in (accessed: 23 June 2009). 4 New Telecom Policy 1999, visit: http://www.dot.gov.in/ntp/ntp1999.htm (accessed: 23 June 2009). 5 Ibid. Para.3.9 of the Telecom Policy briefly states the SatCom Policy with respect to the use of transponder capacity from both domestic and foreign satellites. 6 The Citizens’ Charter; http://www.isro.gov.in/rep2008/citizens.htm (accessed: 23 June 2009).

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with a goal of achieving self reliance; (ii) to provide national space infrastructure to fulfil the telecommunication and broadcasting needs of the country; (iii) to provide satellite services required for weather forecasting, monitoring, etc.; (iv) to provide satellite imagery required for the survey of natural resources and for national security; (v) to promote research and development in space sciences; and (vi) the development of an applications programme. DOS implements the aforesaid objectives by: (i) providing the required transponder capacity and facilities to meet the satellite communications, broadcasting and national security requirements; (ii) providing adequate earth observation capability in multiple spectral, spatial and temporal resolutions; (iii) developing indigenous capabilities and providing launch services to meet national and commercial needs; and, (iv) providing its products and services in a prompt and efficient manner to all users/clients. That being said, however, the Government of India has not yet initiated the process of enacting specific national space law(s), neither has it mooted any significant amendments to the relevant existing statutes, where necessary and possible, to give effect at the national level to India’s international space treaty obligations. Thus, despite increasingly opening space activities to the private sector, commercial enterprises continue to remain subject to the guidelines and procedures occasionally issued by DOS and such other relevant orders as are/or may be issued by other relevant government departments/ministries. Consequently, the legal rights and obligations of private entities in the commercial space sector are proscribed by other relevant normative laws in force that largely remain un-amended.

8.2.2 International Obligations, the Constitution of India and State Practice The requirement to implement (harmonize) international treaty obligations at the national level is inherent in international space treaties.7 Harmonization represents

7 The following are the most important space treaties: Treaty on Principles Governing the Activities

of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (hereinafter referred to as the “Outer Space Treaty”); 610 UNTS 205 (opened for signature on 27 January 1967, entered into force for India on 18 January 1982; Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the “Rescue Agreement,”); 672 UNTS 119; (opened for signature on 22 April 1968, entered into force for India on 09 July 1979); Convention on International Liability for Damage Caused by Space Objects (the “Liability Convention”); 961 UNTS 187; (opened for signature on 29 March 1972, entered into force for India on 09 July 1979); and the Convention on Registration of Objects Launched into Outer Space (the “Registration Convention”); 1023 UNTS 15 (opened for signature on 14 January 1974, entered into force for India on 18 January 1982). The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Agreement”); 1363 UNTS 3; has entered into force on 11 July 1984. India signed the Agreement on 18 January 1982 and has not yet ratified it. It may be noted that India has been a member of the United Nations’ Committee on Peaceful Uses of Outer Space from its inception in 1958 and has actively participated in the negotiations of all these five treaties governing outer space. For details, see Ram

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the essential link between a nation’s declared stand in the international arena and its national application of the obligations arising therefrom. In its spatial context harmonizing treaty obligations with national law demonstrates the continuing resolve of a nation to support the imperative need for collective measures to manage international affairs in such a way as to ensure that outer space is explored and used in an organized manner by all states as envisioned by the international community in relevant international space treaties. The application of international law implies that each state must fulfil its international treaty obligations in good faith,8 irrespective of whether or not it harmonizes those obligations with its national law. In fact, the decision to implement international treaties by bringing the treaty obligations into harmony with national laws provides a state an important rationale or basis for enacting national law(s) and adopting regulations that suit its unique national circumstances and needs. In this context, it is important to highlight a peculiar attribute of the international space treaties. Although international space treaties do not impose sanctions if the obligations arising from them are not implemented in national law, states parties may be considered, by their act or omission, to be in breach of international law. The treaties provide for consultations through diplomatic channels or through the office of the Secretary General of the UN as the preferred mechanism of resolving space related disputes. The application of this mechanism is, however, limited to the resolution of a dispute or claim as between parties which have adhered to the treaties. Consequently, the absence of specific national legislation related to a corresponding treaty obligation does not absolve states parties from the responsibility of discharging liability and responsibility specifically imposed by the provisions of the 1972 Liability Convention and the 1967 Outer Space Treaty. In India, the current state practice with respect to obligations arising from the international space treaties9 is derived from Article 51 of the Constitution of India. Article 51 directs the Executive (Government of the Union of India) to promote international peace as India’s objective in the international sphere and provides the basis for the national implementation of international treaty obligations.10

Jakhu, “Developing Countries and the Fundamental Principles of International Space Law”, in Girardot, R.G., et al. (ed.), New Directions in International Law (Frankfurt, 1982), pp. 351–373. On the relationship between International Law and Indian domestic law, see P. Chandrasekhara Rao, International Law and Indian Constitution, Taxmann, New Delhi, 1993; V. S. Mani, “Effectuation of International Law in the Municipal Legal Order: The Law and Practice in India,” Asian Yearbook of International Law, vol. 5, 1997, pp. 145–174. 8 The 1969 Vienna Convention on the Law of the Treaties, Article 26: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” 9 See supra note 7. 10 Constitution of India, Part IV, Directive Principles of State Policy: “Article 51. Promotion of international peace and security: The State shall endeavour to: (a) promote international peace and security; (b) maintain just and honourable relations between nations; (c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and (d) encourage settlement of international disputes by arbitration.” http://lawmin. nic.in/coi/coiason29july08.pdf (accessed: 23 June 2009).

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The mandate of Article 51 is implemented through the provisions of Article 53 which empowers the President to exercise the executive power of the Union of India in accordance with the Constitution.11 Article 53 also empowers the President to delegate authority to the Vice-President of India or to the Governors of States (provinces) to exercise executive power on her (his) behalf. The aforesaid is important because Article 51 read with Article 53 enables the Government to fulfil India’s international treaty obligations through the exercise of executive power without imposing the mandatory pre-condition of enacting national laws, except in the four specific exceptional situations discussed below. The Exceptions have to be understood in light of the fact that Article 51 does not lay down the principle that international agreements entered into by India have the force of national law without appropriate legislation; i.e. treaties are not selfexecuting in India. This position was conclusively decided by the Supreme Court of India in Varghese vs. Bank of Cochin12 and Civil Rights Committee vs. Union of India.13 The following are the Exceptions to Article 51: (1) If treaty obligation provides for payment to a foreign entity, which must be withdrawn from the Consolidated Fund of India;14 (2) If treaty obligation affects the justiciable rights of a citizen;15 (3) If treaty obligation requires the taking of private property [Art. 31(1)], taking of life or liberty [Art.21], such as extradition or imposition of a tax [Art. 265], which under the Constitution can be done only by legislation;16 and, (4) If treaty obligation modifies any law of India.17 Thus, except in the four circumstances mentioned above, the Government of India has the authority to fulfil treaty obligations through the exercise of executive power under Article 53. It may be noted that generally, in the absence of legislation, Indian courts would respect rules of international law. However, if an express provision of national legislation is contrary to a rule of international law, Indian courts are bound to give effect to the Indian law. In doing so, courts are directed to interpret

11 Constitution

of India, Part V, The Union: Chapter I: The Executive: The President and VicePresident: “Article 53: The Executive Power of the Union : The Executive power of the Union shall be vested in the President and shall be exercised by him directly or through officers subordinated to him in accordance with this Constitution.” 12 A 1980 SC 470. 13 A 1983 Kant. 85 (Para 18). 14 See the decision of the Allahabad High Court in Moti Lal vs. U.P., 1951 All.257 F.B. 15 See the decision of the Supreme Court of India in Maganbhai vs. Union of India, A.1969 SC 783 (789,807) and in Beubari Union, in re. A 1960 SC 845. 16 In reference to extradition, see the decision by the Supreme Court of India in Ali Akbar vs. U.A.R, A 1966, SC 230 (para 30). 17 See the decision of the Supreme Court of India in State of W.B. vs. Jugal, A 1969 SC 1171 (para 6).

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the law in such a way, if possible, as not to violate any established principle of international law. An example can be found in the amended provisions of Section 86 of the Civil Procedure Code, 1908, which implement the rule of international law with respect to the grant of immunity from prosecution to a foreign state or diplomat in India,18 as has been prescribed under the 1961 Vienna Convention on Diplomatic Relations and the 1967 Vienna Convention on Consular Relations. However, in context to the treaty obligation arising out of the 1968 Rescue Agreement which designates astronauts as the “envoys of mankind”, Section 86 of the Civil Procedure Code has not yet been amended to include astronauts on the list of persons granted immunity from prosecution. This could well present a piquant situation if an astronaut is compelled to make an unintended landing. In the absence of law to the contrary, he would be deemed to have entered Indian territory illegally without due authorization and therefore be subject to the Indian Penal Code, 1860,19 Code of Criminal Procedure, 1973,20 and the Passport Act, 1967.21 As such, it is clear that the rules established by Article 51 of the Constitution have a direct bearing on the current state practice and show the way for the development of national space laws and regulations. The absence of national space law(s) can be attributed to the fact that no occasion has yet arisen under which India has been called upon to discharge treaty obligations through enactment of legislation as required by the constitutional provisions enumerated in the Exceptions to Article 51. However, this cannot be the rationale for the continued absence of national space law(s). For example, although the liability clause under the 1972 Liability Convention has never been invoked against India, such a possibility cannot be precluded in the future, particularly in view of India’s rapidly increasing presence in outer space. Furthermore, it is important to be mindful that the absence of specific national law does not by itself absolve India from the liability or the obligation to pay compensation in liquidated damages should an Indian space object cause damage or loss to the space object, personnel or property of a foreign country or entity. The most important reason for national legislation is that not only will it enable India discharge liability by paying compensation to a foreign state and/or third parties, but also, such a law will establish: (i) actionable legal rights in favour of Indian entities operating in space and Indian citizens to claim compensation for damage sustained; (ii) a regulated claims mechanism; and, (iii) a set claims procedure. The aforesaid aspect of a specific national law is critical for the balanced development of the space industry and commerce in India.

18 Civil

Procedure Code, 1908 [CPC], Section 86: Suits against foreign Rulers, Ambassadors and Envoys. http://www.vakilno1.com/bareacts/CivilProcedure/Civil-Procedure-Code-1908.htm (accessed: 23 June 2009). 19 Indian Penal Code, 1860. http://www.vakilno1.com/bareacts/IndianPenalCode/indianpenalcode. htm (accessed: 23 June 2009). 20 Code of Criminal Procedure, 1973. http://www.vakilno1.com/bareacts/CrPc/CriminalProcedure-Code-1973.htm (accessed: 23 June 2009). 21 The Passport Act, 1967. http://meaindia.nic.in/actsadm/30aa16.pdf (accessed: 23 June 2009).

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The law-making power of the Legislature (Parliament of India) to give effect to international treaties is enshrined in Article 253 of the Constitution.22 In specific context to the Exceptions to the application of Article 51, the following are some circumstances that require specific national law to fulfil international space treaty obligations (a) it is clear that conditions in the 1968 Rescue Agreement fall within the ambit of Exception 2, 3 and 4 to Article 51. The Agreement calls upon states parties to protect the right of astronauts and to provide for the prompt, safe return of astronauts and space objects in the event of accident, distress and unintended landing in territory under the jurisdiction of a Contracting State or on the High Seas.23 Articles I and II of the Agreement give rise to an important legal issue that involves (a) the safe and prompt return of foreign nationals and property involved in unintended landing in the territory of India or if discovered on the High Seas by Indian nationals, and (b) the safe and prompt return of Indian nationals and property involved in unintended landing in the territory of another state or if discovered on the High Seas by foreign. The Exceptions to Article 51 indicate that these goals can only be accomplished through the enactment of national law. Thus, India should consider enacting specific law or amending existing statute in order to create: (i) a classification based on rational differentia to include foreign personnel (astronauts) and property (space objects or parts thereof) that fall within the ambit of the international space conventions and grant them immunity from applicable criminal and other relevant laws in force in India (i.e. Exception 3 and 4); and (ii) as mentioned in the earlier paragraphs, to grant rights to Indian nationals to claim compensation in the event of loss, damage, injury or death sustained by the unintended landing of an astronaut or space object or part thereof. This is relevant and important especially in view of the fact that an increasing number of countries, including India, are launching satellites and proposing space flights, including both un-manned and manned lunar missions.24

22 Constitution

of India, Part XI, Relations Between the Union and the States: “Article 253: Legislation for giving effect to international agreements: Notwithstanding anything in the foregoing provisions of this chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” 23 The Rescue Agreement, op. cit., supra note 7, Articles I and II. 24 It may be noted that on 22nd October 2008, India launched its first un-manned mission to the Moon, the Chandrayaan-1 spacecraft for conducting mineralogical and chemical mapping of the surface of the Moon. This is India’s first mission that has gone beyond the Earth’s orbit. This evidences India’s intention to explore deep space thus dramatically expanding its original mission of using space technology for the economic development of the country. ISRO has also declared the undertaking of a manned mission to the Moon by 2020. For details, see: “PSLV-C11 Successfully Launches Chandrayaan-1,” October 22, 2008, http://www.isro.org/pressrelease/Oct22_2008.htm (accessed: 23 June 2009); “India Can Send Manned Mission to Moon By 2020,”Ahmedabad, India (SPX) December 01, 2008, http://www.moondaily.com/reports/India_Can_Send_Manned_Mission_To_Moon_By_2020_999. html (accessed: 23 June 2009).

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The importance of the legal rule laid down in Exception 1 to Article 51 is especially important for India. Exception 1 requires the Parliament to enact specific law to give effect to an international treaty obligation which requires payment to be made from the Consolidated Fund of India to a foreign entity.25 India already has an established practice of implementing international conventions that carry financial implications. The 1929 Warsaw Convention26 (as amended by the Hague Protocol 1955),27 which determines air carrier liability for damage sustained in the course of international air transportation, provides a good example. Consequent upon the nation’s adherence to the Warsaw Convention and the Hague Protocol, the Indian Parliament enacted the 1972 Carriage by Air Act28 to empower public sector airlines, Air India and Indian Airlines,29 to pay compensation to passengers for injury or death and for loss or damage to cargo in discharge of carrier liability imposed by the Warsaw Convention and the Hague Protocol. In this context, it is useful to compare the “liability” for damage under the 1929 Warsaw Convention30 regarding international air transportation and the liability for damage caused by a space object under the 1972 Liability Convention. While the Warsaw Convention fixes liability for damage on the air carrier, the Liability Convention imposes liability on the launching state.31 The 1967 Outer Space Treaty makes every state internationally responsible and liable for the space activities of both its government and non-government agencies.32 Both Conventions establish two types of liability: (i) absolute liability; and (ii) fault-based liability. Both an air carrier and a launching state carry absolute liability in the first tier. In the case of an air carrier, absolute liability is attached in respect of injury sustained or death caused to a passenger33 and loss or damage caused to baggage and cargo34 25 See

the decision of the Allahabad High Court in Moti Lal vs. U.P., 1951 All.257 F.B.

26 Convention for the Unification of certain Rules Relating to International Carriage by Air, signed

at Warsaw on 12 October 1929 (hereinafter referred to as the Warsaw Convention). to Amend the Convention for the Unification of certain Rules Relating to International Carriage by Air at Warsaw on 12 October 1929, done at The Hague, 28 October 1955: ICAO Doc.7632 (hereinafter referred to as the Hague Protocol). 28 Carriage by Air Act, 1972 (69 of 1972, repealing the Act of 1934). http://www.dgca.nic.in/ nat_conv/NatConv_Chap7.pdf (accessed: 23 June 2009). 29 In 2007 the Government of India merged the two airlines to create the National Aviation Company Limited. Recently national airlines have also been granted permission to fly international routes and are consequently bound by international liability clause in the Carriage by Air Act, 1972. 30 The provision relating to liability in international civil aviation under the Warsaw System has been replaced by the 1999 Montreal Convention with effect from November 2004 in respect to those countries which have ratified it. An important feature of the 1999 Montreal Convention is that it has enhanced the pecuniary limit for absolute liability to 100,000 SDRs. 31 The Liability Convention, Articles I and II, op. cit., supra note 7. According to Article I (c) of the Convention the term “launching state” means: “(i) a state which launches or procures the launching of a space object; (ii) a state from whose territory or facility a space object is launched.” 32 The Outer Space Treaty, Articles VI and VII, op. cit., supra note 7. 33 The Warsaw Convention, Article 17, op. cit., supra note 26. 34 The Warsaw Convention, Article 18, op. cit., supra note 26. 27 Protocol

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and for delay35 in the course of an international carriage by air. In context to space activities, absolute liability for damage caused on earth or to aircraft in flight by a space object or parts thereof is ascribed to the launching state.36 In both cases, absolute liability can be mitigated on proof of: (i) due care by the defendants; and/or (ii) contributory negligence by the claimant.37 However, the 1929 Warsaw Convention fixes a financial limit38 for the liability of an air carrier, while the 1972 Liability Convention leaves it open for the concerned state parties to mutually decide the quantum of compensation that would be payable in order to discharge the liability. In the second tier, fault-based liability is attached to both the air carrier and launching state if the claimant can prove wilful misconduct by the air carrier39 in the course of international civil aviation40 or for damage caused by a space object or its component parts in outer space.41 The Liability Convention establishes a liability regime applicable among the states parties to the Convention. The Convention does not provide or establish a legal regime as between a private individual claiming for damage sustained in the conduct of activities in outer space against either his own state of nationality or another state party. The legal relationship between a private entity and the state party charged with liability can be established mainly through national law and policy directive, because it is the state party of the claimant’s nationality which is internationally responsible and liable for activities carried out in space by its government and private entities. In this regard, a mention of the 1984 U.S. Commercial Space Launch Act (as amended)42 and the 1998 Australian Space Activities Act43 is pertinent. Neither statute jeopardizes the international responsibility of the state and the right of a private entity to file a claim for compensation under respective national laws, regulations and policies. In fact, both statutes have established a matrix of maximum probable loss for the purpose of calculating quantum of damage thus effectively balancing the international and national imperatives. Thus, these statutes have enabled private participation in space activities and the healthy development of the national space industry.

35 The

Warsaw Convention, Article 19, op. cit., supra note 26. Liability Convention, Article II, op. cit., supra note 7. However, there are some exceptions to this rule wherein no liability is fixed on the launching state. 37 The Warsaw Convention, Articles 20 and 21, op. cit., supra note 26; The Liability Convention, Article VI, op. cit., supra note 7. 38 The Warsaw Convention, Article 22, op. cit., supra note 26. It was later enhanced by the Hague Protocol op. cit., supra note 27. 39 The Warsaw Convention, Article 25, op. cit., supra note 26. 40 The Hague Protocol, Article XIII, op. cit., supra note 27. The Hague Protocol 1955 removed the ceiling imposed by Warsaw in respect to fault based liability. 41 The Liability Convention, Article III, op. cit., supra note 7. 42 49 USC Chapter 701: as amended by the “Commercial Space Launch Amendments Act of 2004” (2004 H.R. 5382; 108 H.R. 5382). 43 Act No. 123 of 1998, as amended. 36 The

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Although India has actively entered the international commercial space launch market,44 and as such falls within the ambit of the definition of launching state as contemplated in the Liability Convention, no national statute has, as yet, been enacted in this regard. Furthermore, the 2000 ISRO Guidelines (discussed below) also permit the licensing of private satellite systems. In this perspective, the time may be appropriate for India to enact specific national law to cover the circumstances described in Exception 1 to Article 51 of the Constitution of India, since the payment of compensation for liquidated damages to the foreign entity claimant in discharge of liability would require the withdrawal of funds out of the Consolidated Fund of India. Additionally, it is equally important to establish downstream/upstream legal and procedural linkages to allow claimants to enforce their rights. India would be well served to be mindful of this critical aspect if it intends to develop the commercial space industry any further. Since 1987, the Department of Space, a nodal agency for space research activities in India, maintains the Indian registry of all objects launched into outer space by India and furnishes appropriate information to the Secretary General of the United Nations through the Permanent Mission of India to the United Nations (Vienna).

8.3 Legal Issues Related to Launch Services India has developed reliable Polar Satellite Launch Vehicles (PSLV) and Geostationary Satellite Launch Vehicles (GSLV) and is successfully marketing launch services in the international marketplace.45 The Antarix Corporation Limited has been marketing indigenously developed low cost, reliable space launches, thus consolidating India’s potential of becoming the preferred commercial launch destination in the international space launch market.46 44 See,

“Indian Space Agency Set For First Commercial Launch Of Foreign Satellite”, Bangalore, India (AFP) Apr 12, 2007; http://www.space-travel.com/reports/Indian_Space_ Agency_Set_For_First_Commercial_Launch_Of_Foreign_Satellite_999.html (accessed: 23 June 2009). Also see infra notes 45 and 46. 45 See generally, “PSLV Successfully Launches Four Satellites,” ISRO Press Release, January 10, 2007, http://www.isro.org/pressrelease/Jan10_2007a.htm (accessed: 23 June 2009); “PSLV Successfully Launches Italian Satellite”, ISRO Press Release, April 23, 2007, This launch was unique as it “was the first major commercial launch the contract for which was won against stiff international competition”: http://www.isro.org/pressrelease/Apr23_2007.htm (accessed: 23 June 2009). The first three missions of the GSLV were successful, though the fourth launch failed to place INSAT-4C satellite into Geo-synchronous Transfer Orbit: “GSLV-F02 Failure Analysis Committee Report”, ISRO Press Release, September 6, 2006, http://www.isro.org/ pressrelease/Sep06_2006.htm (accessed: 23 June 2009). 46 According to the Chairman of ISRO, a “launch on [India’s] GSLV–Mark 3 should cost about half the rate charged by France, the US, and Russia”: Anil Ananthaswamy, “India special: Space programme presses ahead,” NewScientist.com news service, 19 February 2005; http://www. newscientist.com/article/mg18524871.000-india-special-space-programme-presses-ahead.html? full=true (accessed: 23 June 2009).With the launch of Israel’s satellite (TECSAR) in January 2008 under a commercial contract worth generally reported price-tag of only US$

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The commercialization of space launch services raises two categories of legal issues; i.e. (i) the first consists of treaty obligations arising out of international space treaties that can only be given effect if the Parliament enacts specific national laws (this has been described in the preceding paragraphs), and (ii) the second consists of legal issues that inevitably arise when the private sector participates in the commercial space sector to meet the ever increasing demand for space enabled applications from national and international markets. The key challenges in developing a commercial space launch industry are focused on the following parameters: (i) capital, including taxation, insurance and indemnification; (ii) liability, including quantum and possible sovereign guarantee issues; (iii) management of technical risk; (iv) regulatory certainty, including issues of authorization, establishment of continuing supervision mechanisms; (v) safety and security of space assets; and, (vi) dispute resolution mechanism. Information related to the terms of agreements between parties or the regulatory mechanisms which govern contracts is not available to the public, particularly with regard to private entity compliance in respect of pre-launch liability; liability during the launch mission; in-orbit liability; liability on ground; liability with respect to damage to aircraft in flight; insurance; indemnification; waivers; monitoring; and, the safety of satellites in orbit. There are four types of risks that are typically involved in commercial space transportation services, whether for the procurement of specific parts, components or systems from the private sector or for a commercial launch to establish national satellite systems. These are the: (i) possibility of damage or injury resulting from faulty launch manufacture or launch vehicle components; (ii) improper performance of the launch mission; (iii) mishaps occurring at the launch site in connection with the provisional launch services; and, (iv) ancillary risks, including delay in performance of the launch mission and unauthorized dissemination of proprietary data. Currently, all of the aforesaid aspects relating to commercial space launches in India are subject to relevant normative laws in force.47

8.3.1 Licensing of Launch Services for Private Enterprises Space launch facilities in India are owned by the Government and launch services are offered to national and foreign entities exclusively by ISRO. Since 2000, 11 million, India has indicated that it could offer launch services on competitive prices. See “India launches Israeli satellite in boost to space business”, January 20, 2008; http:// afp.google.com/article/ALeqM5hGXH2TJse5NQXl4HPtrID3ojhb6w (accessed: 23 June 2009). The latest commercial launch by India has set the world record when on 28th April 2008 a single launch mission successfully launched ten satellites, including eight nano satellites of customers from Canada, Denmark, Germany, Japan and the Netherlands. See “India launches 10 satellites in a day”, April 28, 2008, http://in.reuters.com/article/domesticNews/idINDEL31091920080428 (accessed: 23 June 2009). 47 For example, Law of Contracts, Tort, Intellectual Property Rights, etc.

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the Government of India has permitted commercial satellite and operations facility ownership to national companies with not less than 74% equity. With a view to accelerating growth in the satellite telecommunications and broadcasting sectors, there are no restrictions on the number of launch licenses that may be issued per year to a private company.48 In 2002, the Government issued the first license to M/S Agrani Satellite Services Limited to own a private satellite system which was expected to commence commercial operations in the first quarter of 2003.49 However, the venture failed to take off. As far as is known, the Department of Space has not issued any license to any other private operator since then. Thus, the current status of the regulation of the space launch sector, which is essentially limited to communication satellites, indicates that the Government exercises control through the provisions of the Procedures for SatCom Policy Implementation dated 12th January 200050 and the Norms, Guidelines and Procedures for Satellite Communications issued on 8th May 2000.51 These Procedures and Guidelines simply inform prospective applicants that operating licenses for proposed services are issued by the relevant government departments. However, it is not clear whether licensing requirements for commercial space launches also include the issuance of authorization, continuous supervision mechanism, matters related to insurance, indemnification and dispute resolution. Furthermore, these Procedures and Guidelines are silent about the existence or otherwise of a regulatory and procedural framework to enable transfer of space assets between two parties by way of sale or lease. The absence of a requisite legal regime to deal with this issue might possibly inhibit project finance, insurance and indemnification requirements of private space transportation enterprises.

8.3.2 Competition in Launch Services Presently there is no competition in the national launch services sector since private satellite launch service companies are not permitted in this sector. ISRO is the only agency which offers government and commercial space launch services in India. However, at the international level, competition in launch services has increased as India is now positioned to challenge the U.S., European and Russian dominance in the commercial space launch services market by offering reliable, indigenously developed launch vehicles at a lower cost. China is the other country that is actively attempting to challenge that market dominance by the Western countries.

48 See,

op. cit., infra notes 50 and 51. Business Line, Pact signed for India’s first private satellite, http://www. thehindubusinessline.com/2002/03/21/stories/2002032102730300.htm, 20th March 2002 (accessed: 23 June 2009). 50 http://www.isro.org/pressrelease/Jan12_2000.htm (accessed: 23 June 2009). 51 http://www.isro.org/pressrelease/May08_2000.htm (accessed: 23 June 2009). 49 Hindu

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8.3.3 National Security Concerns Security concerns with respect to commercial launch services have international and national implications that are difficult to distinguish in separate contexts. Typically national security concerns include issues pertaining to: (i) export control regime to prevent proliferation of missile and dual-use technologies; (ii) validation, certification and monitoring systems so as to prohibit access and use of missile and dual use technologies by non-state parties; and, (iii) protection and defence of space assets and systems on ground and in orbit. In India, the control of proliferation and export of missile and dual-use technologies are governed by several laws, regulations and policy directives.52 Of particular interest and relevance is the Weapons of Mass Destruction and Their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (WMD Act).53 The WMD Act was adopted in consequence of India’s commitment made in 2004 pursuant to the United Nations Security Council Resolution 1540, which requires all member states to “take and enforce effective measures to establish national controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery.”54 The WMD Act, according to its Sections 3, and 8–13, applies to natural and legal persons (as well as non-state actors and terrorists), who are prohibited from the “export, transfer, re-transfer, transit, and transhipment of material, equipment, or technology” related to weapons of mass destruction and their delivery systems. Furthermore, an individual is deemed to be in violation of the Act if he or she “knowingly facilitates” a prohibited activity and exports an item “knowing that the item is intended to be used” in missile or WMD related activity. (Section 16 of the WMD Act). The Act imposes severe penalties on individuals who are involved in any unauthorized activity relating to missile technologies and WMD. (Sections 14, 15, and 17 of the WMD Act).

52 For

details see, Ministry of External Affairs, Government of India, “India’s System of Controls over Exports of Strategic Goods and Technology”, 2004; http://mea.gov.in/disarmament/ 01da02.htm (accessed: 23 June 2009); Chairman’s report (Final), “Third Meeting of the CSCAP Export Controls Experts Group,” Tokyo, Japan, February 9–10, 2007; http://www. cscap.ca/Export%20Controls%20-%203rd%20Meeting%20-%20Report.doc (accessed: 23 June 2009); Ziad Haider and Souvik Saha, “Analysis of India and Pakistan’s Export Control Laws,” http://www.stimson.org/southasia/?SN=SA20050713866 (accessed: 23 June 2009); “India’s Export Controls”, http://www.idsa.in/BTWC/IndiaExportControls051206.htm (accessed: 15 January 2007); Seema Gahlaut and Anupam Srivastava, Nonproliferation: Export Controls in India-UPDATE 2005, Center for International Trade and Security, University of Georgia, June 2005, http://www.uga.edu/cits/documents/pdf/CITS%20India%20WV.pdf (accessed: 23 June 2009). 53 No. 21 of 2005, printed in The Gazette of India Extraordinary, Part II, 6 June 2005, p.1 et seq. The text of the Act is available at: http://meaindia.nic.in/disarmament/07da01.pdf (accessed: 23 June 2009). Also see, Weapons of Mass Destruction and their Delivery Systems: Appointment of Advisory Committee and their Powers and Duties Rules, adopted on 17 November 2006. http://mea.gov.in/actsadm/30aa09.pdf (accessed: 23 June 2009). 54 United Nations Security Council, document no. S/RES/1540 (2004) of 28 April 2004.

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Manpreet Sethi, of Export Controls Experts Group of the Council for Security Cooperation in Asia Pacific (CSCAP) – India, believes that “India’s perspective on export controls has changed. Despite suffering from technology denial, New Delhi appreciates the need for strong export controls. Its economic resurgence means that the country is now a user, producer, importer, and exporter of strategic materials and now sees itself as a partner of export control regimes, rather than a target.”55 Sethi states that India’s WMD Act is an “integrated and overarching legislation that includes (among other things) catch-all provisions, transfer and trans-shipment controls, and brokering controls. There is a single unified control list and it is consonant with the NSG (Nuclear Suppliers Group)56 and the MTCR57 (Missile Technology Control Regime).”58 In addition, dual-use technologies, and the conditions under which they can be exported, are placed on a list called the Special Chemicals,

55 Chairman’s

report (Final), “Third Meeting of the CSCAP Export Controls Experts Group,” Tokyo, Japan, February 9–10, 2007, http://www.cscap.ca/Export%20Controls%20-% 203rd%20Meeting%20-%20Report.doc (accessed: 23 June 2007). 56 Nuclear Suppliers Group (NSG) was founded in 1974 in response to the nuclear test conducted by India. The immediate fallout was that economic sanctions were imposed against India. Furthermore, the U.S. encouraged the formation of the NSG as a multinational body concerned with reducing nuclear proliferation by controlling the export and re-transfer of materials that may be applicable to nuclear weapon development and by improving safeguards and protection on existing materials. Presently NSG has 45 members which had initially started with the seven nuclear weapons states. In terms of the NSG Guidelines, only those countries which had signed the Nuclear Non-Proliferation Treaty (hereinafter referred to as NPT) could engage in nuclear trade with the NSG member states. Consequent to its refusal to sign the NPT, which it saw as a discriminatory regime, resulted India continuing under sanctions and effective boycott by the NSG. However, in July 2006, the U.S. Congress allowed U.S. laws to be amended to accommodate civilian nuclear trade with India. Encouraged by U.S. support, in September 2008 the NSG members agreed to grant India a “clean waiver” from its existing rules, which forbid nuclear trade with a country which has not signed the NPT. For details, visit: www.nuclearsuppliersgroup.org (accessed: 23 June 2009). 57 Missile Technology Control Regime (MTCR) is an informal and voluntary partnership among 34 countries to prevent the proliferation of missile technology established in April 1987 by Canada, France, Germany, Italy, Japan, Great Britain, and the United States. The MTCR was created in order to curb the spread of unmanned delivery systems for nuclear weapons, specifically delivery systems that could carry a minimum payload of 500 kg a minimum of 300 km. At the annual meeting in Oslo in July 1992 it was agreed to expand the scope of the MTCR to include all weapons of mass destruction, making the payload/range threshold much less rigid than the original 500 kg/300 km. Prohibited materials are divided into two Categories, which are outlined in the MTCR Equipment, Software, and Technology Annex. In 2002, the MTCR was supplemented by the International Code of Conduct against Ballistic Missile Proliferation (ICOC), also known as the Hague Code of Conduct, which calls for restraint and care in the proliferation of unmanned delivery systems, regardless of range or payload, and has 119 members, thus working parallel to the MTCR with broader restrictions and a greater membership. Since its establishment, the MTCR has been successful in helping to slow or stop several ballistic missile programs. India is not a signatory to the MTCR. For details, visit: http://www.mtcr.info/english/index.html (accessed: 23 June 2009). 58 See op.cit., supra note 55.

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Organisms, Materials, Equipment and Technologies (SCOMET) List.59 The export of dual-purpose items is permitted only under the authority of a valid export license. All dual-use items and technologies covered under the SCOMET are classified into eight categories, of which categories 4 and 5 contain items like rocket propellants, guidance systems, and several other technologies that are related to the production and guidance of rockets, satellites, missiles among others. Furthermore, the Department of Space has established mandatory compliance requirements that must be fulfilled prior to the issuance of a license to a private satellite system operator. These compliances are part of the validation, certification and monitoring mechanisms to ensure that non-state parties cannot access launch services, or that India does not unsuspectingly find its facilities being used and thereby become a “flag of convenience” nation. For example, a security clearance from the Ministry of Home Affairs is a mandatory prior compliance requirement for the issuance of a license to establish a private satellite system as indicated in the Guidelines on the subject issued by the Ministry of Information and Broadcasting.60 Finally, recent international events indicate that there exists a very real possibility that outer space may be weaponized. This development does not auger well for global security, a necessary condition for all countries to have unrestricted and unlimited access to outer space. This is particularly true when one considers that not only are states actively engaged in the development and deployment of space technology enabled and space capable weapons (possibly for use in destroying or temporarily disabling a targeted space asset with a view to denying or negating the access to outer space of an adversary), but that the international community is genuinely anxious that non-state parties and international terrorists may gain clandestine access to such space systems and critical technologies. The issue of control and safety of space assets is vital and the threat must be presumed to exist. Although under Article 51 of the UN Charter, every state has the right to self-defence in the event of an armed attack against it, the fact is that a country cannot defend itself unless it has the capability to do so. Seen in the context of developments in U.S. National Space and National Security policies since 2000, there has been a growing trend for countries to support global security with a strong caveat in respect of national security needs. The Gulf Wars of 1990–1991 and 2003 have also shown that space enabled technologies will be used as force multipliers in a belligerent action or war. In this perspective, India may have to evaluate all aspects of international

59 See

Schedule 2 to Appendix 3 of the Indian Tariff Classification (Harmonized System) – ITC (HS) Classifications of Export and Import Items, 2002–2007; Directorate General of Foreign Trade, Ministry of Commerce and Industry, Government of India. SCOMET Guidelines: http://dgftcom.nic.in/ (accessed: 23 June 2009). 60 Ministry of Information and Broadcasting, Guidelines for Obtaining License for Providing Direct-To-Home (DTH) Broadcasting Service In India, as amended by Order (no. 8/12/2006BP&L) dated 10.09.2007 in Guidelines of DTH Service: http://www.indiantelevision. com/dth/dthreg.htm (accessed: 20 December 2007).

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space treaties and the available military options in context to its geostrategic compulsions to ensure the protection and defence of national sovereignty and security and for safeguarding its national interests.

8.4 Legal Issues Related to Satellite Telecommunications and Broadcasting At the outset, it must be stated that, in comparison to all other space technology applications, satellite telecommunications, including broadcasting, has witnessed the highest rate of development in terms of policy, legal and regulatory regimes. The existing terrestrial telecommunications and broadcasting statutes are, however, inadequate and out of pace with current industry needs. In recognition of this, the Government of India had introduced the Communications Convergence Bill, 2001 in Parliament with a view to providing an appropriate and comprehensive legal framework for the sector. However, due to lack of support for the Bill, it remained on the legislative schedule pending enactment and finally lapsed in 2004. Subsequent to that effort, the Government has not yet articulated a comprehensive policy or specific law to govern satellite telecommunications. Thus, the 1885 Indian Telegraph Act61 and the 1933 Indian Wireless Telegraphy Act,62 which have been amended piecemeal from time to time, remain the principal statutes that regulate both terrestrial and satellite telecommunications and broadcasting. While the New Telecom Policy of 1999 (NTP-99)63 recognized this infirmity, several attempts at enacting appropriate statutes have been unsuccessful. In the absence of a new comprehensive statute, satellite telecommunications and broadcasting are largely regulated through guidelines issued from time to time by the Department of Telecommunications (DoT) for telecommunications services, and by the Ministry of Information and Broadcasting for broadcasting services. The Telecom Regulatory Authority of India (TRAI)64 is the designated Regulator for both sectors.65 In 1991, the satellite telecommunications sector was designated as one of the key sectors in the process of overall liberalization of the Indian economy. The reforms package to be implemented were first articulated in the National Telecom Policy of 61 The text of the Act is available at: http://www.dot.gov.in/Acts/acts.htm (accessed: 23 June 2009). 62 The text of the Act is available at: http://www.dot.gov.in/Acts/acts.htm (accessed: 23 June 2009). 63 http://pib.nic.in/archieve/lreleng/l0399/r300399.html

(accessed: 23 June 2009).

64 Telecom Regulatory Authority of India (TRAI) Act (24 of 1997). The text of the Act is available

at http://www.dot.gov.in/Acts/traiact.htm (accessed: 23 June 2009). This Act has been amended by the Telecom Regulatory Authority of India (Amendment) Ordinance, 2000 (no. 2 of 2000), the text of which is available at http://www.dot.gov.in/Acts/TRAI_amendment_ACT.pdf (accessed: 23 June 2009). 65 The mission of the TRAI is “to ensure that the interests of consumers are protected and at the same time to nurture conditions for growth of telecommunications, broadcasting and cable services in a manner and at a pace which will enable India to play a leading role in the emerging global information society”: http://www.trai.gov.in/Default.asp (accessed: 23 June 2009).

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1994 (NTP-94)66 which was carried forward with substantial revisions by the New Telecom Policy of 1999 (NTP-99) and the 2003 Addendum to NTP-99.67 Despite initial reluctance to do so, satellite broadcasting reforms in India were initiated by the Government in the1990s.68 The need for reforms was first triggered in May 1991 when Hong Kong-based Star TV69 began to beam English language television channels to India via the ASIASAT-1 Satellite which has a footprint in South Asia. Star TV was soon followed by Zee Television70 which began to beam Hindi language channels via the same satellite. Today, the Indian viewers, who had access to only 2 television channels in 1991, have a choice of about 800 channels that include Indian and foreign channels.71 During the early 1990s, cable TV operators sprang up all over the country to provide viewers with a fairly wide range of foreign and national channels at reasonable cost. The prospect of loss of revenue and emergent security concerns associated with the mushrooming growth of independent private cable television networks that were able to access consumers via dish antennas and cable systems72 compelled the Government to act. The Indian Parliament passed the 1995 Cable Television

66 National Telecom Policy 1994. http://www.dot.gov.in/ntp/ntp1994.htm (accessed: 23 June 2009).

National Telecom Policy 1994 was a broad statement of objectives to bring into focus the requirement for promoting development of telecommunications in India through private participation. However, the implementation of the NTP ’94 was unsatisfactory chiefly because of the unrealistically high fixed license fees imposed and the absence of an independent regulator. 67 Addendum to the New Telecom Policy -1999, OM No.808-26/2003-VAS dated 11th November, 2003. http://www.dot.gov.in/ntp/Addendum%20to%20NTP-99_11-11-03.pdf (accessed: 23 June 2009). 68 Reform of the broadcasting sector was first attempted when the Parliament passed the 1990 Prasar Bharti (Broadcasting Corporation of India) Act with the view to free broadcasting from excessive government control by creating an autonomous Broadcasting Corporation called Prasar Bharati to perform the role of a Public Service Broadcaster and to ensure a balanced and fair growth in the media sector. However, in the absence of Notification in the Gazette of India the Act could not be brought into force until 1997. Until then the Ministry of Information and Broadcasting which had monopoly over terrestrial broadcasting operated the main broadcasting services, radio services through the All India Radio and television services through the Doordarshan. These functions are now carried out by Prasar Bharti, which continues to hold monopoly over terrestrial broadcasting. For details, visit: http://www.ddindia.gov.in/ (accessed: 23 June 2009). 69 This company is owned by Rupert Murdoch. 70 Zee Television Limited is an Indian company owned by Subhas Chandra. 71 See, A Snap Shot of Indian Television History. http://www.indiantelevision.com/indianbrodcast /history/historyoftele.htm (accessed: 23 June 2009); Ashish Sinha, “You might soon have 500 TV channels”, 12 December 2008, http://www.rediff.com/money/2008/dec/12you-mightsoon-have-500-tv-channels.htm (23 June 2009); Devi Prasad Mahapatra, “Booming: Television News Channels in India”, http://ezinearticles.com/?Booming:-Television-News-Channels-inIndia&id=83168 (accessed: 23 June 2009). 72 Piyush Joshi, Law Relating to Infrastructure Projects, LexisNexis Butterworths, 2003, 387–480.

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Networks (Regulation) Act,73 a rare example of Government regulation aimed only at providing a legal framework to enable healthy growth of this business activity. The SatCom Policy contained in the NTP-99 is applicable both to satellite telecommunications and broadcasting. The SatCom Policy is implemented through the 2000 Norms, Guidelines and Procedures for Satellite Communications issued by the Department of Space.74 Thus users have been granted permission to access transponder capacity on national and foreign satellites for certain services in the Ku band frequencies.75 The Guidelines empower ISRO to authorize transponder capacity of the INSAT series of satellites: (i) to be leased to non-government Indian and foreign parties; (ii) to be allowed for commercial activities on the INSAT system; (iii) to be up-linked from Indian territory; (iv) for establishing private Indian satellite systems and networks; and, (v) to allow the use of foreign satellites from Indian territory. Arguably, the rapid development and convergence of satellite telecommunications and broadcasting technologies have rendered the current policy and legal regime76 obsolete and inadequate to address the constant pressure of new and emerging issues, particularly those concerning national security. The reforms in the telecommunications and broadcasting sectors have been slow, in large measure as a result of: (i) imbalances in policy initiatives; (ii) reluctance to enact new comprehensive statute(s) to encompass convergence technologies and to replace existing statutes; and, (iii) conflicts between vested interests (including incumbents which are protected by the Government) and powerful private service operators who seek to drive reform to suit their own interests. Although this has impeded overall growth, particularly in relation to the universal service, thereby adversely affecting rural teledensity, as of the end of 2008, the tele-density in urban India stood at 30% and about 20% in the rural areas with an overall 344 million telephone connections in the country.77 In other words, 70–75% of the population comprises potential users whose demand is presently not satisfied. Notwithstanding the fact that India is acknowledged as the fastest growing telecommunications service market in the world and is ranked the third largest in the world and the second largest among the Asia’s emerging economies, India might not be able to exploit its full potential without a well balanced comprehensive satellite communications convergence policy and an appropriate legal regime to implement it.

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of 1995. The text of the Act is available at: http://tdsat.nic.in/books/ THE520CABLE%20TELEVISION%20NETWORKS%20(Regulation)%20Act.doc (accessed: 23 June 2009). 74 See op. cit., supra note 51. 75 Ibid. 76 As established by Indian Telegraph Act, 1885 (13 of 1885) and Indian Wireless Telegraphy Act, 1933, op. cit., supra notes 61 and 62. 77 See, “Raja: Marked rise in urban teledensity in India,” The Hindu, 17 December 2008, http://www.hindu.com/2008/10/17/stories/2008101757601200.htm (accessed: 23 June 2009); Department of Telecommunications, Annual Report 2007-2008, p.ii. http://www.dot.gov. in/annualreport (accessed: 23 June 2009).

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8.4.1 Satellite Telecommunications 8.4.1.1 Licensing of Private Satellite Telecommunications Operators Under and by virtue of its Guidelines and Procedures for the Implementation of the SatCom Policy,78 The Department of Space has designated certain nodal agencies to function as licensing authorities. Thus, the Department of Telecommunications (DoT)79 is the licensing authority for satellite and terrestrial telecommunications, while the Ministry of Information and Broadcasting is the licensing authority for satellite and terrestrial broadcasting.80 The TRAI, a constitutional authority, functions both as the telecommunications and broadcasting regulator. In addition, the Telecom Disputes and Appellate Tribunal (TDSAT) is a specialized forum created by an Act of Parliament, which hears disputes between parties and hears appeals filed against orders passed by the DoT and the TRAI. An appeal against an order made by TDSAT lies before the Supreme Court of India. 8.4.1.2 Basic Licensing Requirements for Satellite Telecommunications A service provider is required to procure four licenses/permissions before commencing business, namely: (i) A Telecom Service License from the DoT; (ii) A WPC License from the Wireless Planning and Coordination (WPC) Wing of the Ministry of Communications, which allocates appropriate radio frequencies as required by the service provider; (iii) A SACFA Clearance from the Standing Advisory Committee on Frequency Allocation81 for the purpose of locating/placing/establishment of wireless equipment at a specific site(s); and, (iv) A Right of Way permission to be obtained separately from such state (provincial) government(s) as may fall within the geographical area of the specific telecommunications circle82 for which a license has been issued. Furthermore, the licensee must also procure the use of a telecommunications backbone from an agency, government or private entity, as the case may be to enable it roll out its services.

78 See

op. cit., supra notes 50 and 51. Department of Telecommunications (DoT) is part of the Ministry of Communications, Government of India, New Delhi. For details, visit: www.dot.gov.in (accessed: 23 June 2009). 80 See op. cit., supra notes 50 and 51. 81 The Standing Advisory Committee on Frequency Allocation (SACFA) is part of the Department of Telecommunications in the Ministry of Communications which coordinates matters pertaining to frequency allocations and related issues. For details, visit: http://74.125.95.132/search?q=cache:DSyD_Fww0MQJ:210.212.79.13/+Standing+Advisory+ Committee+on+Frequency+Allocation+of+DEpartment+of+Telecommunications&cd=2&hl=en& ct=clnk&gl=ca (accessed: 23 June 2009). 82 A geographical area for which DoT issues license and within which a service provider is permitted to provide is called a Telecom Circle. There are 18 Telecom Circles, in addition to the four metro cities of Delhi, Mumbai, Kolkatta and Chennai. http://india.mapsofindia. com/transportation/telecom-backbone-of-india.html (accessed: 23 June 2009). 79 The

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It is the responsibility of the service provider to apply for and obtain each license and permission from the specified Central (federal) or State (provincial) government authority. The issuance of a license for a particular telecommunications circle does not imply that other permissions will be granted automatically. 8.4.1.3 Leasing Foreign Satellite Capacity Permission for leasing transponder capacity on foreign satellites may not be granted if suitable capacity is available on INSAT (or on any other Indian satellite system).83 The DoS may, however, permit the use of foreign satellite transponder capacity for Internet Service Provider (ISP) Gateways. 8.4.1.4 Private Indian Satellite Systems The Indian companies with a foreign equity involvement of less than 74% are allowed to establish Indian satellite systems under 2000 Guidelines and Procedures for Satellite Communications.84 Applications must be filed with the Committee for Authorising the Establishment and Operation of Indian Satellite Systems (CAISS) in order to register satellite systems belonging to such entities. The office of CAISS is located in the SatCom Programmes Office at the ISRO Headquarters in Bangalore. Authorisation to operate a satellite system and the orbit spectrum notification/registration is granted by CAISS. Applications are processed for approval by an Inter-Ministerial Committee under the chairmanship of the Secretary of the Department of Space. The WPC Wing of the Ministry of Communications is charged with the responsibility of representing private operators of Indian satellite systems before the International Telecommunication Union (ITU) in terms of notification and registration of their orbital slots and radio frequencies. It must be noted that the Foreign Exchange Management Act (NO. 42 OF 1999) and the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulations (Notification No. FEMA 32 /2000-RB, dated 26th December 2000) will apply to Indian private satellite company that intends to receive foreign equity investment upto 74% to operate a private satellite system in India. Such investment is allowed after obtaining approval from the Foreign Investment Promotion Board, which is a part of the Department of Economic Affairs within the Ministry of Finance. It may be pointed out, that in spite of the fact that the 2000 Guidelines and Procedures for Satellite Communications allow the establishment of satellite systems by Indian companies with majority foreign held equity, none has been granted permission to do so as yet. In fact, it must be emphasised that in context of encouraging the establishment of private satellite systems and facilitating the development of space commerce, the issue of “long term in-orbit liability” is, by far, the most

83 See

op. cit., supra notes 50 and 51.

84 Ibid.

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complex for the successful operation of private satellite systems, and India needs to address this critical issue. In doing so, the following ought to be dealt with: (i) insurance products that will offer long term coverage for space assets; (ii) comprehensive licensing requirements to facilitate the establishment of private satellite systems; (iii) a monitoring and verification mechanism to enable not only constant supervision but also to ascertain the status of a specific Indian private space asset and the factum of damage caused by or to an Indian private space asset; and, (iv) appropriate legal and procedural mechanisms for Indian private satellite operators to file and defend claims pertaining to their space assets. Dealing appropriately with the issue of liability for damage caused by private space objects is the necessary first step which India must take because under the relevant provisions of the 1967 Outer Space Treaty and the 1972 Liability Convention, the Government of India bears international responsibility and liability for the activities of its public and private entities in space. However, from the information available in the public domain, it appears that India has not yet addressed these legal issues.

8.4.1.5 Telecom Service License Categories From 1994 to 2003, the telecommunications sector operated under a service-specific licensing regime consisting of 23 separate categories. On 11th November 2003, the Government of India issued Addendum 2003 to NTP-99,85 signalling a shift from the existing licensing regime to a unified licensing regime that was to be implemented in two-stages, designed to pave the way for the convergence of the satellite telecommunications and broadcasting in India. This was the first most comprehensive attempt by the Government to rationalize and simplify the licensing regime in the country. Furthermore, in order to facilitate the successful implementation of a unified licensing regime, the Government announced the adoption of the Broadband Policy, 2004,86 to provide the impetus for accelerating broadband and internet penetration as well as the use of personal computers throughout the country.

Unified Access (Basic and Cellular) Services The first phase of the consolidation of the licensing regime was completed with the introduction of the Unified Access Service License (UASL) which merged the basic and cellular service licenses and permitted licensees to provide basic and/or cellular services using any technology in a defined service area. Thus, the technology neutral UASL regime automatically resolved the conflict between service/technology

85 Addendum

to the New Telecom Policy -1999, op. cit., supra note 67. text of the Policy is available at: http://www.dot.gov.in/ntp/broadbandpolicy2004.htm (accessed: 23 June 2009). There was a minor amendment to this Policy, see http://dot.gov. in/ntp/broadbandpolicyamend2004.htm (accessed: 23 June 2009).

86 The

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specific licenses on the one hand and new technological developments which enable inexpensive, efficient and multi faceted solutions, on the other hand.87 For purposes of providing Unified Access Services (UAS), the country is divided into 23 Service Areas, consisting of 19 Telecom Circle Service and 4 Metro Service Areas. UAS operators are free to provide, within their area of operation, services which cover collection, carriage, transmission and delivery of voice and/or nonvoice messages over the licensee’s network by deploying circuit and/or packet switched equipment. Furthermore, a licensee can provide voice mail, audiotex services, video conferencing, videotext, e-mail and Closed User Group (CUG) facilities as value added services over its network to the subscribers falling within its service area on non-discriminatory basis. However, the provision of any other service(s) would require the licensee to obtain a separate licence and prior intimation for the same must be communicated to the licensing authority concerned and TRAI. On 21st February 2004, the DoT issued the Guidelines for Merger of Licences in a Service Area88 to merge basic and cellular telephone services into a single license. Although new entrants were subject to the new licensing regime, the Guidelines also allowed existing licensees the option of continuing operations under the old regime or migrating to the new one.89 The Guidelines mandate at least three service operators in each service area in which a merged license is sought, so as to obviate the possibility of cartelization as a result of consolidation in the industry.90 The Guidelines establish a classification which designates an operator who commands a market share equal to or greater than 30% of the relevant market as a Significant Market Power (SMP) in the context of the Reference Interconnect Offer (RIO).91 As such, Paragraph 10 of the Guidelines stipulates that if as a consequence of a merger, the post-merger entity becomes an SMP, such entity would automatically come within the ambit of applicable SMP rules and regulations. Finally, in a Memorandum 17th March 2004, the DoT notified operators that in order to make intra-circle telecom mergers and acquisitions lucrative, the latter of the two dates of commencement of license of the two merging service providers would be taken into consideration in establishing the effective date for the purpose of calculating the validity period of the license.92 Merged licenses will be valid for a period of 20 years because financial institutions and other institutional financiers that provide financing for telecommunications projects find greater comfort when a license carries a longer period of validity.

87 Piyush

Joshi, op. cit., supra note 72.

88 Ministry of Communications and Information Technology, Department of Telecommunications,

Guidelines for merger of licences in a service area, 21st February 2004. http://www.dot.gov. in/uas/Final%20Merger%20OM%2020-232-04(21.2.04)1.doc (accessed: 23 June 2009) (hereinafter referred to as Merged License). 89 Ibid. 90 Ibid. Para 3. 91 Ibid. 92 Ibid. Refer to Memorandum dated 17th March 2004.

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Unified License Regime The second phase envisaged the implementation of a Unified License Regime which covers every kind of telecommunications service, including cellular, basic, infrastructure providers, INMARSAT, national and international long distance, internet, VSAT, radio paging, radio trunk dialling, GMPCS, INSAT MSS and unified messaging.93 Indian cellular telephone service providers are also permitted to provide geographical location services to consumers.94 The implementation of the Unified License Regime would possibly reduce the categories of licenses to only four. The 2004 Guidelines for Merger of Licences in a Service Area were revised on 22 April 2008.95 Now, mergers are permitted for cellular mobile telephone service (CMTS) licences, UASL, and cellular mobile telephone service (CMTS) licences with UASL. An effective implementation and monitoring of the Unified Licence Regime for satellite telecommunications is important not just for the industry, but also for the efficient use of radio spectrum.

8.4.2 Satellite Broadcasting 8.4.2.1 Broadcasting Service Licenses Only satellite television broadcasting and terrestrial radio broadcasting are open to the private sector in India. Terrestrial broadcasting of television is a monopoly vested in the incumbent Prasar Bharati, the Government owned and controlled public service broadcaster that operates the Doordarshan Television channels and the Akashvani all India Radio. The Ministry of Information and Broadcasting is the nodal government agency for the radio and broadcasting sector. 8.4.2.2 License for Up-Linking from India On 25th July 2000, the Government issued Guidelines for Up-linking from India, which were subsequently amended and consolidated in 2005.96 The Guidelines deal

93 Telecom

Truce: The run-up to the untangling of the telecom wires. http://www.capitalmarket. com/CMEdit/SFArtDis.asp?SFSNO=468&SFESNO=28 (accessed: 23 June 2009). 94 Ministry of Communications and Information Technology, Department of Telecommunications, Cellular Mobile Telephone Service. http://www.dot.gov.in/cmts/cmtsindex.htm (accessed: 23 June 2009). 95 PIB Press Release, 22 April 2008. http://www.dot.gov.in/as/2008/M%A%20Guidelines%20 issued%20on%2022-4-2008.pdf (accessed: 23 June 2009). Also see, “Government revises merger norms for telecom licensees,” 22 April 2008. http://www.domain-b.com/economy/ general/20080422_government.html (accessed: 23 June 2009). 96 Ministry of Information and Broadcasting, Guidelines for Up-linking from India, (File No: 1501/2/2002-TV (I) (Pt.) of 2 December 2005; http://www.scatmag.com/govt% 20policies/GUIDELINES%20FOR%20UPLINKING%20FROM% 20INDIA.doc (accessed: 23 June 2009).

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with licenses to be issued by the Ministry of Information and Broadcasting permitting private Indian companies to set up up-linking hub/teleports for purposes of leasing or hiring out to other broadcasters. The Guidelines permit the up-linking of any television channel from India. It also allows the Indian news agencies to have their own up-linking facilities for purposes of newsgathering and onward distribution. 8.4.2.3 License for Direct-to-Home (DTH) Broadcasting Service In 2001, the Government of India withdrew the prohibition on reception and distribution of television signals in the Ku band. However, it was not until February 2005 that the Ministry of Information and Broadcasting issued Guidelines for Obtaining License for Providing Direct-to-Home (DTH) Broadcasting Service in India.97 Direct-to-Home Broadcasting Service refers to distribution of multi-channel TV programmes in Ku Band transponders from a satellite to provide TV signals directly to subscribers’ premises without passing through an intermediary such as cable operator. The Wireless Planning and Coordination Wing of the Ministry of Communications may issue any number of licenses. The DTH licenses are valid for 10 years from the date of issue. However, the Government reserves the right to cancel or suspend a license if deemed necessary in the public interest or for of national security reasons.98 Foreign Direct Investment of up to 49% of the total issued equity capital of the applicant company is permitted.99 National security is an ever present concern with respect to DTH broadcasting operations. Hence, DTH licensees are subject to certain mandatory terms and conditions attached to the licenses.100 For example, if on the basis of information furnished, the applicant is found eligible to set up a DTH platform in India, the applicant will need to obtain security clearance from the Ministry of Home Affairs in order for his application for the grant of permission to use a satellite to be considered by the Department of Space. Upon receiving confirmation from the licensing authority of its intention to issue license, an applicant is required to apply for clearance from the Standing Advisory Committee for Frequency Allocation (SACFA). Once SACFA clearance is received, the applicant is then required to complete other conditions prior to commencing business. It is only after all clearances and permissions have been secured that the applicant is permitted to pay the non-refundable entry-fee to the Ministry of Information and Broadcasting. In addition, the licensee is required to pay an annual fee equivalent to 10% of its gross revenue as reflected 97 The

Guidelines are available at: http://us.indiantelevision.com/dth/dthreg.htm (accessed: 23 June 2009). The Guidelines have been amended by Order No. 8/3/2004-BP&L of 01/06/2005; Order of 11 May 2006; Order of 31 July, 2006; and Order of 10 September 2007. On 30 January 2008, the TRAI has recommended some improvements to these Guidelines. http:// www.trai.gov.in/trai/upload/PressReleases/540/recom30jan08.pdf (accessed: 23 June 2009). 98 The Guidelines, ibid., Section (iii). 99 Ibid. Schedule To Form – B Terms And Conditions To The Guidelines, Article 1.2. 100 Ibid. Schedule To Form – B Terms And Conditions To The Guidelines, Article 9.

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in the audited accounts of the company for any particular financial year, within one month of the end of that financial year. 8.4.2.4 Content Regulation The Ministry of Information and Broadcasting has issued two Codes to regulate the broadcast content of both the public and private broadcasters. These are the Advertising Code and the Programme Code.101 The Advertising Code prohibits advertisements that: (i) promote sale of tobacco products, pan masala and liquor; (ii) are ultra-vires or contrary to any law in force in India; (iii) are derogatory to the image of women; (iv) threaten the safety of women and children; and, (v) adversely affect the security and integrity of India. The Programme Code prohibits: (i) criticism of friendly countries; (ii) attack on religions or communities; (iii) anything obscene or defamatory; (iv) incitement to violence or anything against maintenance of law and order; (v) anything amounting to contempt of court; (vi) aspersions against the integrity of the President and the Judiciary; and, (vii) anything affecting the integrity of the nation, and criticism by name of any person. The compliance with the Codes is monitored by the Ministry of Information and Broadcasting102 and a violation of the Codes could result in the cancellation of the license.103 Service providers up-linking from Indian territory are required to maintain a record of material uplinked for a period of 90 days. The Government reserves the right to initiate prosecution under criminal or any other laws in force against the licensee company and its officers, if it is deemed appropriate given the facts and circumstances of the case. In pursuance of the principle of non-discriminatory sharing of content, the Government requires DTH operators to give an undertaking of not entering into any exclusive contract for the distribution of TV channels.104 Furthermore, the Ministry of Information and Broadcasting implements a must provide clause among

101 The

Ministry of Information and Broadcasting, “Programme and Advertising Codes.” See at: http://www.mib.nic.in/ShowContent.aspx?uid1=2&uid2=83&uid3=0&uid4=0&uid5=0&uid6= 0&uid7=0 (23 June 2009). Also see, The Advertising Standards Council Of India, “Self-Regulation Guidelines for the Broadcasting” 2008. http://74.125.95.132/ search?q=cache:Q6Gtns1WingJ:mib.gov.in/informationb/CODES/ContentCode100308.pdf+SelfRegulation+Guidelines+for+the+Broadcasting+Sector&cd=4&hl=en&ct=clnk&gl=ca (accessed: 23 June 2009). 102 “Details of Orders/Warnings/Advisories issued to Private TV Channels for Violation of Programme or Advertising Code.” See at: http://www.mib.nic.in/ShowContent.aspx?uid1=2 &uid2=83&uid3=0&uid4=0&uid5=0&uid6=0&uid7=0 (accessed: 23 June 2009). 103 Cable Television Networks (Regulation) Act, 1995, Sections 5 and 6. See at: http://www. mib.nic.in/ShowContent.aspx?uid1=7&uid2=47&uid3=0&uid4=0&uid5=0&uid6= 0&uid7=0 (accessed: 23 June 2009). 104 Section 6.6 of Ammendment/Addition to DTH guidelines vide order No. 8/3/2004-BP&L, dated 1st June, 2005. http://www.mib.nic.in/informationb/CODES/frames.htm (accessed: 23 July 2008).

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broadcasting and cable service providers based on the interconnection regulation promulgated by the TRAI.105 A DTH operator is not permitted to carry the signals of another broadcaster if such other broadcaster has been previously found by the TRAI or a court of law to have refused access on non-discriminatory basis to any other DTH operator.106 8.4.2.5 Very Small Aperture Terminal (VSAT) Operators The Broadband Policy 2004 issued by TRAI indicated that the significant absence of VSAT service providers in India has caused irretrievable loss, not just to the telecom sector, but to the national economy as a whole.107 As such, the recommendation made by TRAI in the Draft Policy that two-way VSAT communications via satellite should be permitted in India was a step in the right direction. The recommendation suggested the removal of the existing adverse regulatory framework, including the prohibition on accessing cheaper transponders on foreign satellites that had for long burdened the sector and inhibited its growth. The policy advocated an open sky approach to enable VSAT operators to provide countrywide coverage that is achievable with the use of a single satellite. It was suggested that the opening up of the VSAT sector was the critical tool for achieving universal access in order to bridge the digital divide in the country, and consequently to fulfil India’s commitment to the UN’s Millennium Development Goals. TRAI had based its recommendations on the proven fact that VSAT technology provides 99.99% reliability; is not prone to power outages for back up connectivity; and is not plagued with the problem of broken lines, bad weather and such other unforeseen vagaries. Furthermore, satellite connectivity would be advantageous for broadcasting, for multi-casting the same information to several parties, disaster management, tele-medicine, tele-education, direct-to-home broadcasting, commercial applications and would also be compatible with new technology application methods. In brief, TRAI identified VSAT technology with direct satellite connectivity as critical to the telecommunications infrastructure roll out in the country. However, the Government did not accept the recommendation. Instead, in July 2007, the DoT issued Guidelines and Application Form for Commercial VSAT Licenses.108 The Guidelines permit a licensee to establish, install, operate and maintain VSAT Closed Users Group (CUG) Domestic Data Network service on a non-exclusive basis within the territorial jurisdiction of India by using the INSAT satellites. However, a licensee is prohibited from connecting to

105 Ibid. 106 Ibid. 107 The

2004 Broadband Policy, op. cit., supra note 86. Guidelines for Issue of License for Commercial VSAT Service Providers and Captive VSAT Service, July 2007. http://www.dot.gov.in/vsat/Guideline%20for%20VSAT%20licenses %20,%20July%20%202007.pdf (accessed: 23 June 2009) 108 Broad

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a public switched telephone network (PSTN). For security reasons, domestic traffic is prohibited from being routed to any place outside India. The applicant must also meet the eligibility criteria of being an Indian company incorporated under the Companies Act, 1956, with the majority shareholders being Indian nationals and with its management control vested in Indian nationals. Furthermore, certain key officers of the applicant company, including members of the Board of Directors and technical personnel must be resident Indian citizens.

8.4.2.6 Global Mobile Personal Communications Via Satellite The Guidelines for Global Mobile Personal Communications via Satellite (GMPCS) was announced as part of the NTP-99,109 although the Government had previously decided to introduce GMPCS service in the country in 1998. According to the Guidelines, an Indian company with up to 49% foreign equity participation could receive a license on a non-exclusive basis, subject to security clearance from the Ministry of Home Affairs. In fact, as early as 28th October 1998, the Government had issued a provisional license to M/s. Iridium India Telecom Limited. However, the company had ceased to operate as from 18th March 2000 due to non-availability of satellite infrastructure from Iridium LLC, of the U.S. As such, presently, GMPCS services are not available in India although Guidelines on the subject remain effective.

8.4.2.7 National Security Concerns Perhaps, national security concerns regarding the Government’s ability to monitor direct satellite enabled VSAT communications has been an important reason why the DoT had earlier rejected the recommendations made by TRAI in relation to this particular space activity. That being said, it is possible that this approach may not be sustained in the long term because ensuring security at the cost of suppressing technological and economic development in the country is not by any measure an appropriate solution. In contemporary times, ensuring national security must necessarily be achieved through technology driven solutions that can be constantly upgraded. It is critical for the country to have immediate access to such surveillance, monitoring, verification and other appropriate technological capabilities which will enable the security apparatus and law enforcement agencies to ensure national security so that India can build upon its development and growth opportunities and remain competitive in the global market place.

109 New Telecom Policy 1999, op. cit., supra note 4. Also see GMPCS Guidelines: http://www. dot.gov.in/gmpcs/GMPCS_guidelines_application.pdf (accessed: 23 June 2009).

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8.5 Legal Issues Relating to Remote Sensing/Earth Observation Satellite Services 8.5.1 The UN Principles Relating to Remote Sensing of Earth from Outer Space Just like in the case of telecommunications satellites, the U.S. and the U.S.S.R. first deployed surveillance satellites for military purposes. However, with the commercialization of space technologies in the late 1970s, remote sensing or earth observation data (satellite surveillance data) also began to find civilian applications. Thus, the need arose for international principles that would govern civilian earth observation activity. Debates in the UN revolved around the issues of sovereignty and national security, ranging from support for the requirement of prior consent to the application of the open skies policy. Typically, developing countries, the erstwhile U.S.S.R., communist block countries and some Western countries favoured the prior consent approach because they held the view that remote sensing by satellite violated the territorial sovereignty of a sensed state. In the end, however, the open skies approach which was strongly supported by the U.S. and other Western countries, carried the day. As such, the UN General Assembly adopted the UN Principles Relating to Remote Sensing of the Earth from Outer Space, on 3rd December 1986 (UNGA Resolution 41/65).110 India adheres to these Principles in its conduct of satellite remote sensing activities. It is important to note that although earth observation data has found many important commercial civilian applications, the easy access by non-state parties and hostile nations to satellite imagery containing detailed geographical and other sensitive information critical to national security is the challenge that all nations have been facing in the post-9/11 world.

8.5.2 Data Distribution Policy in India India has one of the largest fleets of earth observation or remote sensing satellites for civilian use.111 India’s constellation of civilian remote sensing satellites includes IRS-1B, IRS-P2, IRS-1C, IRS-P3, IRS-1D, Oceansat-1, Resourcesat-1, Cartosat-1, Cartosat-2, and Technology Experiment Satellite (TES) remote sensing satellites used for, “a variety of spatial, spectral and temporal resolutions, meeting the needs

110 For a detailed analysis of these Principles, see Ram Jakhu, “International Law Regarding the Acquisition and Dissemination of Satellite Imagery,” 29 (1 and 2) Journal of Space Law,65 (2003). 111 “Commercial Remote Sensing Satellite Market Stabilizing,” May 30, 2006, http://www.spacedaily.com/reports/Commercial_Remote_Sensing_Satellite_Market_Stabilizing. html (accessed: 23 June 2009).

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of many applications.”112 India is also constructing its own radar remote sensing satellite, the Radar Imaging Satellite (RISAT). The global network of ground stations accessing data is being expanded through a network of international ground stations.113 Currently, India does not permit the establishment of private remote sensing satellite systems. The Antarix Corporation receives, processes, stores and/or markets remote sensing satellite data products. The Corporation caters to international market requirements for high-resolution data. Data products from the IRS series of satellites have been distributed globally pursuant to the international marketing contract between Antarix Corporation and Space Imaging Inc. of the U.S.114 By implication, therefore, it is apparent that Indian remote sensing data products available internationally could be subject to U.S. regimes.115 Domestic buyers can purchase IRS data products from the National Remote Sensing Agency (NRSA), located in Hyderabad. A consumer is required to fill out a detailed purchase form, make advance payment and expect delivery in about 7–10 days. It is important to note that under Section 4 of the Remote Sensing Data Policy, 2001 (RSDP),116 topography considered to be “sensitive” is blocked out or edited from the satellite images before being distributed to Indian consumers. Yet unedited remote sensed data which contains locations of “sensitive” positions in the country is freely available via the internet from competing foreign-based service providers. This is possible under the 2001 RSDP which allows IRS data and data about India from foreign satellites to be transmitted via the internet by the foreign-based service providers to both Indian service providers and individual consumers.117 In July 2000, the Government of India negotiated an agreement with Space Imaging Inc., of the U.S., under which the company agreed that “sensitive Indian installations such as military bases and airfields will be blotted out of IKONOS images before they are distributed” in India.118 The aim of the RSDP is to provide remote sensing data to Indian users who are admittedly freely accessing remote sensing data via the internet from foreign and

112 Government

of India: Department of Space, Annual Report 2005–2006, “Earth Observation System,” http://www.isro.org/rep2006/EOS%20System.htm (accessed: 23 June 2009). 113 International Ground Station (IGS) are: Alaska, USA (Space Imaging), China, Germany (Euromap/GAF), Iran, Mobile stations (3), Moscow, Russia (R & D Center ScanEx), Myanmar, Norman(USA) (Space Imaging), Taiwan, San Diego(USA), Louisiana(USA), USA(Rutgers), Malaysia, and Wisconsin (USA). http://www.antrix.gov.in/main/igs.html (accessed: 23 June 2009). 114 See, “Space Imaging Offers Online Shopping Cart At Last”, Denver – January 30, 2003. http://www.spacedaily.com/news/eo-03 f.html (accessed: 23 June 2009). 115 For details, see Ram Jakhu, op. cit., supra note 110. 116 ISRO, Remote Sensing Data Policy (EOS: Policy-01:2001), the text of which is available at http://www.isro.org/Announcement-opportunity/rdsp.pdf (accessed: 23 June 2009). 117 Ibid. 118 K.S. Jayaraman, “India, U.S. Firm Agree to Sale of 1-Meter Imagery”, Space News, 17 July 2000, 1. According to Antrix, “This is a security requirement even for the 5.8-meter resolution imagery from India’s own remote sensing satellites.” Ibid.

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commercial satellite data providers. However, the tedious procedure for acquiring data is from NRSC has not encouraged the ordinary Indian give up the convenience of accessing high resolution unedited data via the internet, easily, free of cost and on and immediate basis. Clearly, the domestic market remains under served and unserved, resulting in lost opportunities for developing new value added businesses in remote sensing data. Should the Government decide to commercialize the IRS products sector, it is suggested that the process should not be initiated without legislating appropriate substantive and procedural domestic laws in respect to remote sensing satellites. Commercialization of remote sensing services, data processing and distribution in the future, will undoubtedly raise IPR protection issues among other legal matters. An important question pertains to whether or not ISRO or private Indian corporate could or should retain jurisdiction over remote sensing data enhanced in a distribution centers and then sold as derived product, e.g. a map. Because copyright does not protect data but protects only its form of expression, it becomes imperative to define what constitutes protectable expression of remote sensing data. There is also the issue of clarifying and exactly defining terms like un-processed data and processed data. An appropriate national treatment for the same would serve national security interest. The aforesaid will also be critical in the event that private remote sensing satellite systems are permitted in the future.

8.5.3 National Security Concerns National security concerns have heavily influenced the present policy on the distribution of satellite imagery to Indian customers. The advent of the internet, satellite telecommunications, broadcasting and radio have made national boundaries redundant through easy and free transnational dissemination of information. Since satellite images are fluid commodities, sensitive information about the entire country can be sold via the internet or radio. Thus, it is suggested that the present policy may need to be revisited to plug the security loopholes of the present RSDP in the national interest. Several national security concerns are being raised in India especially in view of the open and cost-free availability of remotely sensed data, including high resolution imagery of India’s sensitive and critical locations,119 via internet search portals such as Google Earth. Like many other countries, India had to discuss the problem with Google Earth to find a resolution.120 The former President of India, A.P.J. Abdul 119 Dinesh C. Sharma, “Indian president warns against Google Earth”, October 17, 2005. http://news.com.com/Indian+president+warns+against+Google+Earth/2100-1028_3-5896888. html?tag=nefd.top (accessed: 23 June 2009). 120 “India Takes Evasive Action Against Google Earth,” New Delhi (AFP) April 4, 2006, http://www.spacewar.com/reports/India_Takes_Evasive_Action_Against_Google_Earth.html (accessed: 23 June 2009). For a detailed discussion of this issue, see Ram Jakhu, “Comments on K R S Murthi’s Discussion Paper on ‘Asia’s Role in Remote Sensing and Legal Aspects of Access to High-Resolution Satellite Imagery’ ”, in Proceeding of the Conference on Asian Cooperation in

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Kalam, stressed the need for “enactment of a law to govern the use of outer space and regulate the use of data acquired from remote sensing satellites, particularly of sensitive installations.”121 However, so far no national law in this regard has been adopted by India. India adheres to the 1986 UN Principles Relating to Remote Sensing with respect to non-discriminatory dissemination of remote sensing data to all states.122 In order to give effect to these Principles, the adoption of policy and laws is left to individual states. Currently India does not have specific law to govern earth observation satellite services, including the processing and distribution of data collected by Indian remote sensing satellites. Perhaps, this is because the collection, processing and distribution of earth observation satellite data have not yet been fully privatized and commercialized in India. The Government discharges these tasks through administrative decisions taken by the Department of Space, ISRO, Antarix Corporation Limited and the National Remote Sensing Agency under the 2001 Remote Sensing Data Policy. If, in the future, the Government decides to expand the commercialization of the satellite earth observation sector, it is suggested that the process should not be initiated without enacting appropriate substantive and procedural national law, including provisions related to licensing, access, data distribution, security (issues of lowlevel data and high-level data), copyright and the protection of data rights. Other legal issues that need to be addressed in this regard should include good conduct, financial responsibility, obligatory insurance or guarantees, operational know-how, technical competence certification, safety requirements, national security, respect of international obligations, dispute resolution and consequences for violations and offences.

8.6 Legal Issues Relating to Satellite Navigational Services India recognizes that satellite navigation will be one of the key enabling technologies in the twenty first century and the dependence upon foreign satellite navigational service providers for signals exposes the nation to possible denial of access to satellite signals or supply of inaccurate or degraded signals especially in conflict situations. Thus, while participating in satellite navigation systems established by other countries, India has decided to establish its own system, the Indian

Space Activities: A Common Approach to Legal Matters, held on 1–4 August 2006, in Bangkok, Thailand, 2007, (un-paginated). 121 “Enact Space Law To Govern Use Of Remote Sensing Data”, New Delhi, November 23, 2006. http://www.spacemart.com/reports/Enact_Space_Law_To_Govern_Use_Of_Remote_Sensing _Data_999.html (accessed: 24 November 2007). 122 K R S Murthi “ ‘Asia’s Role in Remote Sensing and Legal Aspects of Access to High-Resolution Satellite Imagery’ ”, in Proceeding of the Conference on Asian Cooperation in Space Activities: A Common Approach to Legal Matters, held on 1–4 August 2006, in Bangkok, Thailand, 2007, (un-paginated).

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Regional Navigation Satellite System. Presently, however, India does not have a specific legal regime in place to govern satellite navigation activities.

8.6.1 GPS and GAGAN Satellite navigational services are a new venture in India’s fast developing space sector and ISRO has taken an active lead in developing the same. India is constructing an augmentation satellite system interoperable with the U.S. Global Positioning System (GPS) which will become part of the Global Navigation Satellite System (GNSS) for Communications, Navigation and Surveillance/Air Traffic Management (CNS/ATM) functions to assist in providing accurate navigational information for civil aviation. ISRO is building the Geo-Augmented Navigation (GAGAN) navigational payload which will be installed on GEO-SAT 4 satellite. This is a joint venture between the Airports Authority of India and ISRO. A contract to install the ground-based systems to support GAGAN has been awarded to American aerospace company, Raytheon.123 Raytheon has already supplied ground-based systems of a technology demonstrator for GPS aided GAGAN to improve air traffic and other civil navigation. Raytheon is developing the hardware and software for the system and will build eight reference stations in various cities, in addition to a Master Control Centre and an uplink station.

8.6.2 Indian Regional Navigation Satellite System In May 2006, the Government of India approved the Indian Regional Navigation Satellite System (IRNSS) project. As with European Galileo system (see below), the motivation for an independent satellite navigation system came primarily from the fact that access to foreign owned and/or controlled navigational satellite systems cannot be guaranteed in conflict situations. Designated to function under civilian control, the IRNSS will be used for surveillance, telecommunications, transport,

123 “ISRO awards GAGAN project contract to America’s Raytheon”, 22 November 2004; http:// www.gisdevelopment.net/news/viewn.asp?id=GIS:N_ghfpqvmjax (accessed: 23 June 2009). For more details, see Balaji Reddy, “ISRO opens the door for unprecedented cooperation between India and America in Space exploration,” November 22, 2004; http://www. indiadaily.com/editorial/11-22c-04.asp (accessed: 23 June 2009); “NovAtel Inc. Awarded Contract for SBAS Equipment for Indian GAGAN Program,” Business Wire, March 8, 2005; http://findarticles.com/p/articles/mi_m0EIN/is_2005_March_8/ai_n12413531 (accessed: 23 June 2009); “Raytheon Eyes India’s Global Navigation System For ISRO, AAI,” New Delhi, India (PTI) August 19, 2008; http://www.gpsdaily.com/reports/Raytheon_Eyes_India_ Global_Navigation_System_For_ISRO_AAI_999.html (accessed: 23 June 2009).

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identifying disaster areas and public safety among many other tasks.124 The IRNSS is scheduled to be operational by 2012. The IRNSS will consist of a constellation of seven satellites, the ground segment and user receivers. Three of the satellites in the constellation will be placed in the geostationary orbit and the remaining four in a geosynchronous inclined orbit of 29◦ relative to the equatorial plane. Such an arrangement will ensure that all seven satellites will have continuous radio visibility with Indian control stations. The system is intended to provide a positioning accuracy of better than 20 m throughout India and within a region extending approximately 1,500–2,000 km around the country.

8.6.3 Participation in GLONASS India is also participating in the Russian Satellite Navigation System, GLONASS.125 In 2006 India (ISRO) and Russia (Roskosmos) signed a landmark agreement under which ISRO has undertaken to “launch Russian navigational satellites GLONASS-M using Indian space launch vehicles; to jointly develop with Russia a new generation navigational satellite GLONASS-K, and to allow for the transfer of sensitive space technology to India.”126

8.6.4 Participation in Galileo India has also decided to participate in Galileo, the European Satellite Navigation System.127

124 “India to develop its version of GPS,” 27 September 2007; http://www. ndtv.com/convergence/ndtv/story.aspx?id=NEWEN20070027489&ch=9/27/2007%205:56:00% 20PM (accessed: 23 June 2009). 125 GLONASS Summary, http://www.spaceandtech.com/spacedata/constellations/glonass_consum. shtml (accessed: 29 July 2008). Also see, http://www.glonass-ianc.rsa.ru/pls/htmldb/f?p= 202:20:16181415617897824892::NO (accessed: 23 June 2009). 126 “Putin Clears Space Pact With India,” Moscow, November 07, 2006. http://www. spacedaily.com/reports/Putin_Clears_Space_Pact_With_India_999.html (accessed: 23 June 2009). Also see “India, Russia To Build Navigational Satellite Project,” New Delhi, December 03, 2004, http://www.spacedaily.com/news/india-04s.html (accessed: 23 June 2009). 127 See generally, The GALILEO family is further expanding: EU and India seal their agreement, Brussels, 7 September 2005. http://europa.eu/rapid/pressReleasesAction.do?reference= IP/05/1105&format=HTML&aged=0&language=EN&guiLanguage=fr (accessed: 23 June 2009); “India to invest in Galileo satellite project: EU,” BRUSSELS (AFP) October 30, 2003; http://www.spacedaily.com/2003/031030141843.79tqo71o.html (accessed: 23 June 2009).

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8.6.5 International Legal Regime for GNSS GNSS is subject to the provisions of the Chicago Convention, 1944,128 and to the directives issued by the International Civil Aviation Organization (ICAO),129 a specialized agency of the UN, responsible for international civil aviation. ICAO has encouraged the deployment of GNSS for the purpose of CNS/ATM for civil aviation. ICAO has clarified that the provisions of the Chicago Convention, are compatible and consistent with the deployment of GNSS for CNS/ATM, as a replacement for or supplementary to the existing air navigation systems. Thus, article 28 of the Convention will continue to be the legal basis for the implementation of GNSS. However, in using aeronautical navigational services provided through GNSS, most states will have to rely on signals-in-the-sky provided by one country and augmented by another before it is received by the end-users. Therefore, it is believed that a link between the provider(s) of signals and the states having jurisdiction and responsibility under Article 28 would have to be established. Consequently, India should evaluate the legal implications of deploying GAGAN which is intended to augment GPS signals before making them available to the aviation industry and other end users.

8.6.5.1 Sovereignty The implementation of GNSS may involve the infringement of the sovereignty of ICAO member states.130 Consequently, the ICAO Council has laid down the basic condition that CNS/ATM systems must neither infringe nor impose restrictions upon state sovereignty, authority, or responsibility in the control of air navigation and the promulgation and enforcement of safety regulations.131 Additionally, the ICAO Council requires that in implementing GNSS, state authority must be preserved in the coordination and control of communications and in the necessary augmentation of satellite navigation systems. Under Article 28 of the Chicago Convention, each contracting state has full authority and responsibility with respect to the provision of air traffic control facilities and services within its air space. As such, GNSS operations per se will not necessitate any changes to the existing delimitation

128 Convention

on International Civil Aviation, December 7, 1944, ICAO Doc 7300. http://www.icao.int/cgi/goto_m.pl?/icaonet/dcs/7300.html (accessed: 23 June 2009). 129 International Civil Aviation Organization, a specialized UN Agency, is located in Montreal, Canada. http://www.icao.int/index.html (accessed: 23 June 2009). 130 A. Kotaite, “Sovereignty Under Great Pressure to Accommodate Growing Need for Global Cooperation”, December 1995, 50:10, ICAO Journal, 21. 131 ICAO, Global Air Navigation Plan, 2007, C-4, para 1.16. http://www.icao.int /icao/en/anb/meetings/perf2007/9750%20Global%20Plan,%20final%20unedited%20draft%20.pdf (accessed: 23 June 2009).

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of Flight Information Regions (FIRs), although in the long run, some rationalization or combination of adjacent FIRs could prove to be conducive to economic operations.132 8.6.5.2 Liability The second important legal issue that has been debated over the years is the question as to whether liability can or should be attributed to the GNSS CNS/ATM signal provider and/or the GNSS CNS/ATM augmentation signal service provider. This issue still remains unresolved. A deficiency in signal quality, or absence of the service for any reason or in any manner whatsoever, will result in financial loss and damage of incalculable proportions to the user. Ordinarily, principles of the law of contract would indicate that the failure on part of the signal provider to discharge its responsibility would trigger the liability to pay compensation for any damage or loss caused to the user, the quantum of which could be determined by agreement between the parties. However, the unique circumstances under which GNSS for CNS/ATM will be made available to users around the world have rendered problematic, if not impossible, the establishment of a framework to govern the legal liability of the GNSS signal providers. The U.S. and the European Union have taken opposite stands on the issue. The U.S. opposes the establishment of an international convention on GNSS on the ground that since GPS is provided to users free of cost, no liability should be attached for loss or damage suffered by users on account of failure/absence/degradation/inaccuracy of the GPS signals. The U.S. is supported by a number of developing countries and non-EU states like Brazil and Japan, who propose to set up their own regional satellite navigation systems. On the other hand, the EU is strongly in favour of an international convention for GNSS because, unlike the American GPS, the European Galileo GNSS system is designed to be a commercial enterprise which will impose a user charge. As such, the EU believes that the adoption of an international regime that appropriately addresses issues of “liability” and “compensation” is important and critical for its success.

8.6.6 Application of International Legal Regime to GAGAN and IRNSS The relevant provisions of existing international space treaties to which India is a State Party will apply to GAGAN and the planned IRNSS satellite constellation since they will be Indian space assets. Under the 1967 Outer Space Treaty, the

132 Michael Milde, “Solutions in Search of a Problem, Legal Problems of the GNSS,” in Michael Milde and Paul Dempsey (ed.), Public International Air Law, Vol. II ( Fall 2003), Institute of Air & Space Law, McGill University, Montreal, Canada.

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Government of India bears international responsibility and possible international liability (also under the 1972 Liability Convention) if any of its navigation satellites causes damage to any other State or its natural or legal persons. This would make India liable to pay compensation to the affected foreign party. In this context, it is instructive to recall the above-discussed Indian constitutional provision that in order to discharge its international obligation arising out of the 1972 Liability Convention, India must enact a specific national law to empower the Government to pay compensation to a foreign claimant. If the Airports Authority of India (AAI), the official aeronautical signal provider,133 provides GAGAN-augmented GNSS signals for CNS/ATM purposes, India will have to rely upon the accuracy or otherwise of the original GPS signals provided by the U.S. Thus, it would be appropriate for India and the U.S. to enter into an agreement or arrangement in this regard. As mentioned earlier, the U.S. opposes any legal regimes that ascribe liability to it as a result of providing GPS signals, while current Indian law eschews liability by granting immunity to the AAI.134 It is difficult to foresee whether India will adopt new guidelines or laws that include provisions addressing liability for deficient or defective GAGAN signals-in-the-sky from a user perspective, especially in view of the fact that the cause of the deficiency or defectiveness signals may originate from the primary GPS signals themselves. It may be noted that the U.S. Government has repeatedly indicated its willingness to compensate users for any damage that is demonstrably caused by the faulty provision of GPS service.135 Legal channels exist for such claims under the U.S. Federal Torts Claim Act (FTCA)136 and past experience has revealed that the applicable legal system facilitates full recovery of effective compensation for damages related to negligence of civil servants.137 These arguments have been sporadically echoed by experts from non-provider states which have begun to make use of signals

133 The Airports Authority of India Act, 1994 (NO. 55 OF 1994) as amended by the Airports Authority of India (Amendment) Act, 2003, (hereinafter referred to as AAI Act or the Act). The Object of the Act, as mentioned in its preamble, is “to provide for the constitution of the Airports Authority of India and for the transfer and vesting of the undertakings of the International Airports Authority of India and the National Airports Authority to and in the Airports Authority of India so constituted for the better administration and cohesive management of airports and civil enclaves where at air transport services are operated or are intended to be operated and of all aeronautical communication stations for the purposes of establishing or assisting in the establishment of airports and for matters connected therewith or incidental thereto.” (emphasis added). 134 Ibid. Section 33. 135 Francis P. Shubert, “An International Convention on GNSS Liability: When does it become desirable?,” in Michael Milde and Paul Dempsey (ed.), Public International Air Law, Vol. II ( Fall 2003), Institute of Air and Space Law, McGill University, Montreal, Canada, 213. 136 U.S.C. 1346(b), 2671–2680 (1988). 137 Ibid. Also see, J Epstein, “Global Positioning Systems (GPS): Defining the Legal Issues of its Expanding Civil Use,” (1995) 61, Journal of Air Law and Commerce, 1 at 243–286.

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provided by other countries for Air Navigation Services (ANS). To them, GNSS represents nothing more than another ANS tool for which the existing legal framework offers a satisfactory solution.138

8.6.7 Current Indian Legal Regime Relating to Aeronautical Navigation Services India adheres to the 1944 Convention on International Civil Aviation (Chicago Convention). Consequently, international treaty obligations arising out of Articles 15 and 28 of the Convention and its relevant Annexes with respect to the provision of aeronautical navigation facilities and services in the Indian air space have been incorporated into national law through the enactment of the Airports Authority of India Act, 1994 (as amended in 2003).139 The Act establishes the Airports Authority of India (AAI) as the service provider of the aeronautical navigation facilities and other related services. Thus, the AAI is the national air navigation service provider which facilitates international and national civil air traffic within the Indian air space and also within the Indian Ocean Flight Information Region (FIR) as required of it by ICAO.140 As permitted under Article 15 of the Chicago Convention and the AAI Act, the AAI charges a user fee on a non-discriminatory basis for the air navigation services it provides to both national and foreign civil aviation operators.141 It is accepted that GPS/GAGAN GNSS for CNS/ATM falls within the domain of signals-in-the-sky and not within the domain of the traditional earth based

138 Ibid.

It should be noted that India submitted a Working Paper at the ICAO 36th General Assembly on the subject of evolution of regional guidelines for GNSS. In this paper, the present legal regime that governs Airports Authority of India, the national the air navigation service is also stated. The WP is available at http://www.icao.int/icao/en/assembl/a36/wp/wp134_en.pdf (accessed: 23 June 2009). 139 The Airports Authority of India Act, 1994, op. cit., supra note 133, Section 12. 140 The term “Flight Information Region” (“FIR”) is used to describe airspace with specific dimensions, in which an Information Service and an alerting service are provided. Any portion of the atmosphere belongs to some specific FIR. Smaller countries’ airspace is encompassed by a single FIR, larger countries’ airspace is subdivided into a number of regional FIR. Some FIR may encompass the territorial airspace of several countries. Oceanic airspace is divided into Oceanic Information Regions and delegated to a controlling authority bordering that region. The division among authorities is done by international agreement through the ICAO. There is no standard size for FIR, it is a matter for administrative convenience of the country concerned. In some cases there may exist a horizontal division of the FIR, in which case the lower portion remains named as such, whereas the airspace above is named Upper Information Region, or UIR. 141 Airports Authority of India Act, 1994, op. cit., supra note 133, Section 22 (b) empowers AAI, inter alia, “to charge fees/rent etc for providing air traffic services, ground safety services, aeronautical communications and navigational aids and metrological services at any airports and at any aeronautical communication station.”

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radar/station system currently used for aeronautical navigation service. As mentioned in the preceding paragraphs, Section 33 of the Airports Authority of India Act protects AAI and its officers from liability for “any damage sustained by any aircraft or vehicle in consequences of any defect in any airports, civil enclaves, heliports, airstrips, aeronautical communication stations or other things belonging to or under the control of the Authority.”142 By granting the AAI and its officers immunity from prosecution in any court of law, the statute categorically rejects the principle of the liability of the service provider for its acts and omissions that result in loss or damage to the user. However, the Consumer Protection Act, 1986, (CPA)143 grants legal remedy in addition to such remedies as may be available under any other law in force.144 The CPA grants a petitioner compensation for deficiency of service or defective service by the provider of goods or services. Recently, consumer fora (judicial tribunals) at different levels have been granting relief to petitioners against airlines for deficiency in service including compensation for lost baggage, delayed flights and the like. This has been especially true of various state (provincial) and district level consumer dispute resolution commissions with respect to complaints against airlines. Strictly, such claims should be litigated under the provisions of the Carriage by Air Act, 1972, a statute that is used infrequently because of the low levels of compensation prescribed145 and also the extremely cumbersome procedural law requirements of tort law. Thus, because the CPA offers legal remedy which includes punitive damages in addition to remedies available under any other law in force, petitioners have been approaching consumer fora for redress. In this connection, it must be noted that the Supreme Court of India upheld a decision made in 2004 by National Commission in the case of Geetha Jethani vs. Airport Authority of India and Ors.146 In this case, Geetha Jethani, an eight year old girl had accompanied her parents to New Delhi from Dubai on board an Air India flight. On reaching New Delhi, the family proceeded from the aircraft to the immigration counters. In order to reach the immigration counters, the family was required to descend an escalator. However, because of some defect or malfunction in the escalator, the girl was sucked into the escalator machinery and was crushed to death. The parents filed a case under the Consumer Protection Act against the Airports Authority of India. The AAI pleaded immunity under Section 33 of the Act. AAI also pleaded that the family could not be viewed as a consumer as against the AAI. Notwithstanding the foregoing, the National Commission held that in view

142 Ibid.

Section 33. 68 of 1986. The text of the Act is available at: http://www.vakilno1.com/bareacts/ consumerprotectionact/consumerprotectionact.htm (accessed: 23 June 2009). 144 Ibid. Section 3. 145 India has ratified only the Warsaw Convention, 1929 and the Hague Protocol, 1955, op. cit., supra notes 26 and 27. The Carriage by Air Act, 1972, harmonizes the said international treaties in Schedule I and Schedule II respectively. 146 2004 (3) CPJ 106 (National Commission). 143 Act

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of the user charge imposed by the AAI for the use of its facilities under its governing Act, the AAI could not escape the definition of a service provider within the meaning of the Consumer Protection Act. Thus, legal precedent has been established in India to pierce the veil of immunity from prosecution embodied in Section 33 of the AAI Act and to bring the AAI within the ambit of liability for deficient service under the Consumer Protection Act. This is a clear indication of the direction courts in India might likely take with respect to GAGAN and IRNSS, once implemented. Prior to taking any further steps, India must evaluate various policy options in relation to the satellite navigation systems outlined in the preceding paragraphs, particularly with respect to GAGAN which would form a part of the GNSS platform for providing signals for CNS/ATM. Presently, the full contours of the multimodal dimensions of the IRNSS are not known. Be that as it may, in defining the contours of satellite navigation systems some legal and administrative issues that should be considered are as follows: • Categories of users, including international and national. • Cost allocation so that the burden does not fall disproportionately on any one category of users. • Expanding civil use of IRNSS beyond ANS. • Whether the main GNSS provider and ANS provider will be identical • Whether GNSS for CNS/ATM should be provided free of cost like GPS or priced like Galileo? • If free of cost, will liability be imposed for loss of signals or degraded signals? • If service is priced, what type of liability should be imposed: absolute; fault based or a combination of both. • Limitation of liability. • Waivers and cross-waivers. • Immunity and indemnification. • Linkages with ISRO with respect to liability. • Force Majeure. • Exceptions. • Copyright and patent protection. • Dispute Resolution. • Standardized norms and licensing for hand held receivers. • National Security.

Finally, an appropriate law should be enacted to provide for licensing and standardization of norms for various categories of users. Issues to be addressed by this law may include: (i) due authorization; (ii) liability; (iii) insurance; (iv) indemnity/cross waivers; (v) safety and security of space assets; (vi) contract and transfer of property, stamp duty, sales tax; (vi) continuing supervision mechanism; (vii) spectrum management; and many others.

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8.7 Intellectual Property Rights and Transfer of Technology 8.7.1 Acquisition of Intellectual Property Rights The acquisition and protection of intellectual property rights (IPRs) in space technology, particularly relating to voice, image and data transmission, involves highly complex and important technical and legal issues. However, although India has benefited enormously from harnessing space technologies, the relevant legal regime has not yet been adequately developed. Inevitably, the lack of adequate laws and regulations has adverse implications both for industry and national security. This is particularly true with respect to data protection. For the development of appropriate intellectual property laws which will properly protect the satellite telecommunications and broadcast industry, it is important that the 1957 Indian Copyright Act147 should be revisited to bring the protection of this industry within its scope. The Act clearly defines the rights of the copyright holder; the position on rentals of software; the rights of the user to make backup copies and imposes liability in the form of punishment and fines for infringement of copyright in relation to software. The amendment was welcomed by the information technology (IT) industry as well as international clients who outsource IT services to India. This development also augurs well for the IT applications required in space activities. The Information Technology Act, 2000,148 fulfilled a longstanding industry need for greater efficiency and legal protection of electronically transmitted information and data. In addition, on 8th December 2006, the Personal Data Protection Bill149 was tabled in Parliament; however it is still awaiting enactment. Furthermore, India

147 The text of the Act is available at: http://copyright.gov.in/maincpract.asp (accessed: 23 June 2009). The Copyright Act was amended in 1994 by the Indian Copyright (Amendment) Act in order to bring computer programs within its ambit. The provisions of the Copyright Act is supplemented by the Copyright Rules promulgated in 1958 and are available at: http://copyright.gov.in/CopyrightRules1958.pdf (23 June 2009) 148 The Information Technology Act, 2000, was enacted to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involves the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers’ Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto. http://www.vakilno1.com/bareacts/informationtechnologyact/informationtechnologyact.htm (accessed: 23 June 2009). 149 The Personal Data Protection Bill, 2006, provides for the protection of personal data and information of an individual collected for a particular purpose by one organization, and to prevent its usage by other organization for commercial or other purposes and entitle the individual to claim compensation or damages due to disclosure of personal data or information of any individual without his consent and for matters connected therewith or incidental thereto. http://rajyasabha.nic.in/bills-ls-rs/2006/XCI_2006.pdf (accessed: 23 June 2009).

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is yet to consider adopting a legal regime for protection and dissemination of satellite imagery and data, particularly with respect to the national security concerns associated therewith. Commercialization of remote sensing services, data processing and distribution in the future will undoubtedly raise IPR protection issues among other legal matters. An important question that will have to be addressed pertains to whether or not ISRO or private Indian corporations could or should retain control over remote sensing data enhanced in a distribution centre and then sold as derived product, e.g. a map. An appropriate national treatment for the same would serve national security interests. The aforesaid will also be critical in the event that private remote sensing satellite systems are permitted in the future. As noted above, India markets IRS data both nationally and internationally. However, no information is available as to the terms or conditions that govern the marketing contracts. Thus, it is difficult to ascertain how India protects remote sensing data products. In view of the establishment of private satellite systems to implement the SatCom Policy, the clarification of intellectual property protection for the operation of telecommunications, broadcasting and remote sensing satellite systems also becomes important.

8.7.2 Mechanism for Exploiting Intellectual Property Rights The national mechanism for exploiting IP rights stems from the technology transfers announced by the Antarix Corporation Ltd. It is understood that the DoS has permitted the transfer of several technologies to the industry for commercialisation and has also provided numerous technical consultancies in different disciplines of space technology. As announced on its website, ISRO has been taking several steps “to safeguard the innovations across various ISRO Centres and to initiate relevant measures to increase patent productivity amongst scientists/engineers of ISRO Centres. . . .Concerted efforts are being made for monitoring patent applications and patent alerts are being circulated amongst ISRO Centres. Initiatives are undertaken for identifying and processing various technologies developed in-house for their intellectual property registration. Thrust is being accorded to commercial licensing of IPRs through appropriate licensing agreements.”150 ISRO’s patent portfolio now consists of more than 205 patents, 10 trademarks and 22 copyrights. More than 24 patent applications were filed by ISRO Centres during the period 2007–2008. “Besides patent filings, ISRO scientists are being urged to obtain appropriate copyright protection for the software developed and being utilised for various applications.”151 However, it is not clear how the Department of Space protects IPR in practice.

150 ISRO, “Space-Industry Partnership.” http://www.isro.org/rep2008/citizens.htm (accessed: 23 June 2009). 151 Ibid.

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8.7.3 Trade and Transfer of Technology With respect to space activities and technologies, satellites are relevant to multilateral trading systems primarily in the context of the World Trade Organisation (WTO), specifically the General Agreement on Tariffs and Trade152 (which regulates trade in goods), the Agreement on Technical Barriers to Trade,153 the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIP),154 the General Agreement on Trade Related Investment Measures,155 the Agreement on Government Procurement,156 and the General Agreement on Trade in Services.157 India is a party to all the aforesaid international agreements.

152 The General Agreement on Tariffs and Trade (GATT) was the outcome of the failure of negotiating governments to create the International Trade Organization (ITO). The GATT’s main objective has been the reduction of barriers to international trade. This was achieved through the reduction of tariff barriers, quantitative restrictions and subsidies on trade through a series of agreements. The GATT was a treaty, not an organization. The functions of the GATT were taken over by the World Trade Organization which was established during the final round of negotiations in early 1990s. For details, visit: http://www.wto.int/english/docs_e/legal_e/index_g_e.htm (accessed: 23 June 2009). 153 The objective of Agreement on Technical Barriers to Trade is “to ensure that technical negotiations and standards, as well as testing and certification procedures, do not create unnecessary obstacles to trade.” The text of the Agreement is available at: http://www.wto.int/english/docs_e/legal_e/17-tbt_e.htm (accessed: 23 June 2009). 154 General Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) sets down minimum standards for many forms of intellectual property (IP) regulation. Specifically, TRIPS contains requirements that nations’ laws must meet for: copyright rights, including the rights of performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; monopolies for the developers of new plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also specifies enforcement procedures, remedies, and dispute resolution procedures. The TRIPS introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date. The text of the Agreement is available at: http://www.wto.int/english/docs_e/legal_e/27-trips_01_e.htm (accessed: 23 June 2009). 155 General Agreement on Trade Related Investment Measures (TRIM) is applied by a country to foreign investors, often as part of an industrial policy. Policies such as local content requirements and trade balancing rules that have traditionally been used to both promote the interests of domestic industries and combat restrictive business practices are now banned. It is one of the four principal legal agreements of the WTO trade treaty. TRIMs restrict preference of domestic firms and thereby enable international firms to operate more easily within foreign markets. The text of the Agreement is available at: http://www.wto.int/english/docs_e/legal_e/18-trims_e.htm (accessed: 23 June 2009). 156 Agreement on Government Procurement. The text of the Agreement is available at: http://www.wto.int/english/docs_e/legal_e/gpr-94_01_e.htm (accessed: 23 June 2009). 157 General Agreement on Trade in Services (GATS) extends the multilateral trading system to services, in the same way the GATT provides such a system for merchandise trade. All members of the WTO are signatories to the GATS. The basic WTO principle of most favoured nation (MFN) applies to GATS as well. The text of the Agreement is available at: http://www.wto.int/english/docs_e/legal_e/26-gats_01_e.htm (accessed: 23 June 2009).

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The issue of intellectual property rights in the multi-national trading system assumes particular significance. In the first place, the long standing question of trade in counterfeited goods is increasingly seen by nations as an unfair source of erosion of their competitiveness in the international market. The TRIPs Agreement covers the entire range of conventions on intellectual property, industrial property including patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition (1883 Paris Convention),158 as well as the protection of literary and artistic works, including computer software programmes and industrial designs (1886 Berne Convention),159 the international registration of marks to ascertain origin (Madrid Agreement 1891),160 neighbouring rights, i.e., performance and phonogram rights (Rome Convention, 1961),161 and the protection of IPR in integrated circuits (IPIC Treaty, 1989).162 Inevitably, rules established by these international trade treaties will have a direct impact on space-related activities as space-faring nations, including India, compete to establish dominance in the lucrative and sophisticated international market in space products and services.

8.7.4 National Barriers to International Transfer of Space Technology The export control regime in India deals with goods and services that can or cannot be exported and imported. The EXIM Policy163 and the 1962 Central Customs Act (as amended)164 list the goods which can be freely exported, the goods that can be exported only with prior permission, and goods whose exportation from India are prohibited. The same is true with respect to the goods that can be freely imported under the open general license (OGL), the goods that can be imported only under special license, and the goods which are prohibited for import.165 The Indian 158 Paris Convention, 1883 has been amended several times. The last amendment was in 1979. http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html (accessed: 23 June 2009). 159 Berne Convention, 1886, (as amended in 1979. http://www.wipo.int/treaties/en/ip/berne/ trtdocs_wo001.html (accessed: 23 June 2009). 160 Madrid Agreement, 1891 (as amended). http://www.wipo.int/madrid/en/legal_texts/trtdocs_ wo015.html (accessed: 23 June 2009). 161 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention, 1961). http://www.wipo.int/treaties/en/ip/rome/ trtdocs_wo024.html (accessed: 23 June 2009). 162 Treaty on Intellectual Property in Respect of Integrated Circuits (Done at Washington, D.C., on May 26, 1989, not in force yet). http://www.wipo.int/treaties/en/ip/washington/ trtdocs_wo011.html (accessed: 23 June 2009). 163 India’s Exim Policy 2002–2007; http://exim.indiamart.com/indian-exim-policy/exim-policy2002-07/contents.html (accessed: 23 June 2009). 164 http://exim.indiamart.com/act-regulations/customs-act-1962.html (accessed: 23 June 2009). 165 Ministry of Commerce, Directorate General of Foreign Trade, SCOMET Guidelines. http://dgftcom.nic.in/ (accessed: 23 June 2009).

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export control regime is believed to have ensured non-proliferation of dual-use technologies. India has faced U.S. sanctions. For example, the Russian Space Agency was charged for violating the MTCR by signing the cryogenic rocket-engine deal with India and, consequently, in 1992 trade sanctions were imposed against ISRO and the concerned Russian company, GLAVCOSMOS. Russia was forced to renegade on the deal. Notwithstanding strong arm tactics by the U.S. and the consequent delay in the launch of the Geo-Stationary Launch Vehicle (GSLV), the cancellation proved to be a blessing in disguise, as it galvanized ISRO scientists to proceed with the indigenization of the critical technology required for the GSLV.166 Sanctions were also imposed after India had carried out nuclear tests in 1998 and these sanctions have continued to be in place ever since. In 2001, for example, the Taiwanese plan to launch the ROCSAT 2, a high resolution observation satellite aboard an Indian launcher, was scuttled by the refusal of the U.S. government to grant export licenses for U.S. components which had been used by the European Space Agency to build ROCSAT 2.167 Eventually, Taiwan had no option but to launch ROCSAT 2 from a U.S. launch facility at a higher cost than would have been payable to India. However, with respect to the sanctions against India in the context of international transfer of technology and nuclear trade, the 2005 agreement between India and the U.S. to establish a bilateral relationship under the framework of the Next Steps in Strategic Partnership (NSSP)168 was the watershed that resulted in a step-by-step easing of the restrictions imposed on India. Finally, in July 2006, the U.S. Congress amended relevant U.S. laws in order to accommodate civilian nuclear trade with India. Encouraged by the U.S. support, in September 2008 the Nuclear Suppliers Group members agreed to grant India a “clean waiver” from its existing rules, which forbid nuclear trade with a country which has not signed the NPT.169 One may hope for positive results for the Indian space sector from increased future nuclear technology cooperation between India and the U.S.

166 Aman

Hingorani, “U.S. Sanctions on Indo-Russian Rocket-Engine Deal, A subversion of the Missile Technology Control Regime,” 28(1) Journal of World Trade, 1994, pp. 59–76. 167 See generally, “Taiwan’s new satellite on its way,” 3 December 2003; http://www.gisdeve lopment.net/news/viewn.asp?id=GIS:N_xubzlswd (accessed: 23 June 2009); “Taiwan Drops India to Launch ROCSAT 2 on Taurus”, http://www.spaceandtech.com/digest/ flash2001/flash2001-045.shtml (accessed: 23 June 2009); Also see, “Taiwan To Launch Research Satellite To Take High-Resolution Photos,” Hsinchu (AFP) November 27, 2003. http://www.spacedaily.com/news/eo-03zzzzd.html (accessed: 23 June 2009). 168 CRS, US-India Bilateral Agreements in 2005, p. 8. http://fpc.state.gov/documents/organization/ 53616.pdf(accessed: 23 June 2009);Text of India-US joint statement (July 2005);http:// www.bilaterals.org/article.php3?id_article=2464(accessed: 23 June 2009); “Statement by Prime Minister Atal Bihari Vajpayee Next Steps in Strategic Partnership with USA,” 13 January 2004.http://www.indianembassy.org/pic/pm/vajpayee/2004/pm_jan_13_2003.htm (accessed: 23 June 2009).“Indo-US Strategic Partnership”, 29 January 2004; http://www.indiaonestop.com/ tradepartners/us/indousstrategicpartnership.html (23 June 2009). 169 See supra note 56.

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8.8 Conclusion Rapid changes are taking place in the global space industry and India is emerging as a serious player in the international commercial space market. Taking this view, it needs no reiteration that new opportunities in space application industry, including telecommunications, broadcasting, remote sensing, launch services, satellite navigation industries on the back of ever increasing market demand must be facilitated to change the Indian landscape as soon as possible. Important issues relating to the control and safety of space assets, security of satellites or transponders, national authorization, impact of satellite capacity agreements and dispute resolution mechanisms need to be addressed. The commercialization of the space sector would greatly benefit if an appropriate national space legal regime is put in place, whether this is provided in terms of a single comprehensive law or in terms of sector-specific laws and regulations. Relevant national statutes, including the laws related to contract, transfer of property, stamp duty, registration, copyright and patents must be revisited to bring space-related issues within their ambit, or wherever deemed necessary, appropriate new law(s) and regulations must be enacted. The current practice for implementing obligations arising out of the international space treaties need to be re-examined, particularly with respect to the exceptions to Article 51 of the Constitution of India. The Government of India should take regulatory actions for the authorization and supervision of all space activities conducted by its own agencies and by private entities. In doing so, however, it is important to be mindful not to establish a one-sided approach heavily weighted in favour of industry. A balanced and robust development of this critical and lucrative sector will be possible only by adopting a multi-agency approach that takes into account national security concerns attendant to outer space use.

Chapter 9

Regulation of Space Activities in Japan Setsuko Aoki

9.1 General Philosophy and Process for Government Regulation 9.1.1 Law-Making Process Japan is a constitutional monarchy with a parliamentary system of government. Sovereignty is vested in the Japanese people, and the Emperor is designated as the symbolic head of the state.1 The Diet, sole law-making organ of the state, consists of two Houses: i.e., a House of Representatives and a House of Councillors.2 The concept of separation of powers is adopted as between the Executive, Legislative and the Judiciary, with the Legislative branch, or the Diet being the highest organ of the state.3 The Executive branch is responsible to the Diet4 and the Judiciary is independent.5 Executive power is vested in a Cabinet composed of a Prime Minister and Ministers of state, all of whom must be civilians. The Prime Minister must be a member of the Diet and is designated by his colleagues. The Prime Minister has the power to appoint and remove Ministers, a majority of whom must be Diet members.6

S. Aoki (B) Keio University, Minato, Tokyo, Japan e-mail: [email protected] Contents of the parts of Sections 9.1, 9.2, and 9.3 will be included in a paper by the author for another publication. This chapter was originally completed in July 2007. Because the first Japan’s space legislation, Basic Space Law was voted into a law in May 2008, the author added the minimum necessary addition to the original paper. 1 Article 1 of the Constitution of Japan, promulgated on November 3, 1946, came into force on May 3, 1947. 2 Ibid., Articles 41 and 42. 3 Ibid., Article 41. 4 Ibid., Article 66(3); Article 1(2) of the Cabinet Law, Law No. 5 of January 16, 1947. 5 Article 76 of the Constitution. 6 Ibid., Chapter V, esp. Articles 65–68.

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_9,  C Springer Science+Business Media B.V. 2010

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A bill is to be submitted to the Diet by members of Parliament, a committee of Parliament7 or the Cabinet,8 and it becomes law upon passage by both the Houses, except as otherwise specifically provided by the Constitution.9 After a bill is approved by the House to which it is first submitted, it is transferred to the other House.10 Upon passage by both the Houses, a bill is to be promulgated.11

9.1.2 Basic Principles of National Law Japan belongs to the Civil Law (Continental Law) system, and was greatly influenced by the German laws starting from the late nineteenth century. The Constitution is the supreme law of the nation and no law, cabinet order, regulation or an official act of the government contrary to the provisions of the Constitution, can have the force of law or legal validity. The Supreme Court is the court that has jurisdiction to determine the constitutionality of any law, order, regulation or official act.12 Although technically not impossible, an amendment to the Constitution is very strictly regulated, and Japan has never carried out such amendment since the promulgation of the Constitution in 1946. This situation is rare in the world. Such amendments are to be initiated by the Diet, through a concurring vote of two-thirds or more of all the members of each House. It shall, then, be approved in a public referendum by the affirmative vote of a majority of all votes cast.13 A referendum law was adopted in May, 2007.14 As a nation belonging to Civil Law system, the judicial precedents are supposed to be of no binding value. However, in practice, the judicial precedents emanating from the Supreme Court and the High Courts are cited as persuasive legal authority.15 Japanese government agencies often issue “directions”, “requests”, “warnings”, “encouragements” and “suggestions”, which are not binding in a strict legal sense. Categorized as “administrative guidance”, such governmental measures have been well respected irrespective of their non-binding legal status. 7 Article

56 of the Diet Law, Law No. 79 of April 30, 1947. 72 of the Constitution; Article 5 of the Cabinet Law. 9 Article 59 of the Constitution. 10 Articles 56-IV and 58 of the Diet Law. Article 60 of the Constitution stipulates that the budget shall be first submitted to the House of Representatives. 11 A bill is promulgated by the Emperor with the advice and approval of the Cabinet. The Emperor may not veto or otherwise refuse to approve a law passed by the Diet. Article 7 of the Constitution. 12 Articles 81 and 98 of the Constitution. 13 Ibid., Article 96. 14 Law Concerning the Amendment Procedures of the Constitution of Japan, Law No. 51 of May 18, 2007. This Law would enter into force on May 18, 2010. 15 Japanese court system has 4 tiers: 438 Summary Courts, one District Court in each prefecture (50 Courts), 8 High Courts and the Supreme Court. Family Courts are placed in a different category. 8 Article

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9.1.3 Organization of National Space Activities The important players in national space activities are a few incorporated administrative agencies and some governmental ministries. Thus, an explanation of the framework of authorization, supervision and control exercised towards such agencies which have special relationships with the government is important for purposes of understanding how to implement international space laws in Japan. 9.1.3.1 A Primary Agency to Engage in Space Development: Japan Aerospace Exploration Agency (JAXA) On October 1, 2003, the three formerly independent organizations were merged into one incorporated administrative agency named the Japan Aerospace Exploration Agency (JAXA),16 in order to streamline Japan’s aeronautical and aerospace research, development and practical applications in the face of the challenges posed by the far-reaching administrative reforms. Prior to the integration, the Institute of Space and Astronautical Science (ISAS),17 the National Aerospace Laboratory of Japan (NAL),18 and the National Space Development Agency of Japan (NASDA),19 had each carried slightly overlapping mandates in air and space research and development. ISAS and NAL were supervised by the Ministry of Education, while NASDA was subject to the directions of the Science and Technology Agency (STA).20 The objectives of JAXA are to facilitate: (i) the development of academic research at universities or other institutions,21 (ii) the enhancement of the level of

16 Law

Concerning Japan Aerospace Exploration Agency (hereinafter referred to as “JAXA Law”). Law No. 161 of December 12, 2002. General Provisions Law Concerning Incorporated Administrative Agency (hereinafter referred to as “General Provisions Law”), Law No. 103 of July 16, 1999. General Provisions Law stipulates general rules for all newly founded incorporated administrative agencies in the twenty first century governmental reform. 17 ISAS was founded in the University of Tokyo in 1964, which successfully launched Japan’s first satellite into orbit in 1970 as the 4th nation in the world. In 1981, ISAS was restructured as a joint research organization among Japanese universities. 18 The NAL, originally named as the National Aeronautical Laboratory, was founded in 1955. The space division was added in 1963 and renamed as the National Aerospace Laboratory of Japan. NAL became an incorporated administrative agency in 2001. 19 NASDA, a special public corporation, was established in 1969 to conduct space activities directly related to daily life. NASDA developed liquid propellant rockets to launch and operate application satellites, while ISAS developed solid propellant rockets for scientific satellites. 20 Ministry of Education and STA were integrated into the present Ministry of Education, Culture, Sports, Science and Technology on January 6, 2001 due to the comprehensive Japan’s Central Government reform. 21 For that objective, JAXA is to conduct “academic research concerning Space Science in collaboration with universities or otherwise”. Article 4 of the JAXA Law.

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space as well as aeronautical science and technology,22 and (iii) the promotion of space development and utilization through the development, launching, tracking and operation of Satellites and activities relating thereto.23 The JAXA Law provides different conditions for the conduct of aerospace research on the one hand and aeronautical research, development and use on the other. The law requires the former to be conducted “exclusively for peaceful purposes” and in an integrated and programmatic manner,24 while the latter would have to be carried on simply “in an integrated manner”.25 As explained below in detail, one of the most conspicuous characteristics of the Japanese space programmes had been the strict restriction of its activities to “peaceful purposes” until 27 August 2008 when Japan’s first national space legislation, Basic Space Law, became effective.26 9.1.3.2 Entity to Decide National Space Policy: From Space Activities Commission (SAC) to Council for Science and Technology Policy (CSTP) Established under the Prime Minister’s Office27 in 1968, the Space Activities Commission (SAC), used to plan, discuss and decide upon the comprehensive space policy of Japan, and to submit same to the Prime Minister.28 The SAC’s decisions are to be respected by the Prime Minister.29 The SAC has been very instrumental in the evolution of the national space policy of Japan, also known as the “Outlines of Space Development Policy” in 1978, 1984, 1989 and 1996. The SAC made its last space policy of Japan, titled “Mid-to-Long Term Strategy for Space Development” in December 2000, just before its transfer to the Ministry of Education, Culture, Sports, Science and Technology (MEXT) from the Prime Minister’s Office on 6 January 2001 as part of the central government reforms of that time.30 Under the jurisdiction of MEXT, SAC could authorize and supervise JAXA’s space activities,

22 For

that objective, JAXA is to conduct (i) basic research on aerospace and aeronautical science and technology, and (ii) “Fundamental Research and Development” concerning space and aeronautics. Ibid. “Fundamental Research and Development” is defined in Ibid., Article 2(2). 23 Ibid., Article 4. For the purposes of the JAXA Law, “Satellites” means “satellites (including flying objects to be launched beyond Earth orbit and artificial objects to be placed on celestial bodies) and rockets for their launch”. Ibid., Article 2(3). 24 Ibid., Article 4. 25 Ibid. 26 Concerning the change of the interpretation of “peaceful purposes”, see Section 9.2.3.3. 27 The Prime Minister’s Office was abolished on 5 January 2001. 28 Article 1 of the Act for the Establishment of the Space Activities Commission, Law No. 40 of May 2, 1968. 29 Ibid., Article 3. 30 Law for the Establishment of the Ministry of Education, Culture, Sports, Science and Technology, Law No. 96 of July 17, 1999. Establishment of the new SAC is based on this Law and the Article 8 of the National Government Organizational Law, Law No. 120 of July 10, 1948.

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but not any other space activities of Japan. However, due to the insufficient industrialization and commercialization of space activities and the non-military policy of space use, a comprehensive Japanese Space Policy has become similar in content to the science and technical aspects of space policy that is within the mandates of JAXA. Thus when the “Long-Term Program of Space Activities” was drafted by the SAC as the first space activities plan under the jurisdiction of MEXT,31 it was dealt with as if it were a guideline for a comprehensive national space policy. The “Long-Term Program of Space Activities” was endorsed on 1 September 2003, not only by MEXT, but by Minister of Internal Affairs and Communications (MIC), and Minister of Land, Infrastructure, Transport and Tourism (MLIT) due to the fact that both Ministers also supervised JAXA on a certain mandate of JAXA. With the advent of central governmental reform, the Council for Science and Technology Policy (CSTP) chaired by the Prime Minister was tasked to draft a comprehensive strategy of science and technology to respond to national and social issues. Generally, the CSTP drafts 5-year science and technology basic plans and expresses opinions to the Prime Minister or other Ministers on important issues of science and technology at its discretion.32 The CSTP has submitted basic strategy concerning the development and use of space to the Prime Minister on two occasions: in June, 2002 and September, 2004.33 The CSTP consists of a maximum 14 members, including the Prime Minister (Chairperson), competent Ministers, relevant high-ranking governmental officials and experts, who are appointed by the Prime Minister. The Chief Cabinet Secretary, the MIC, the Minister of Finance (MOF), the MEXT, the Minister of Economy, Trade and Industry (METI) and the Minister of State for Science and Technology Policy are members along with experts from academia and industry. Unfortunately, however, not much attention has necessarily been paid to the basic space strategy adopted by the CSTP, mainly because the CSTP is not authorized to ask for a budget appropriation, and also, it is not a competent authority to supervise JAXA, the agency which conducts most of Japan’s space activities. In fact, as of June 2007, an effective and comprehensive framework to establish, regulate and supervise Japan’s space activities, including academic research, space applications, space industrialization and commercialization and the possible security implications of space use did not exist. Concerned about the non-existence of a real national space policy, the Ruling Coalition Parties – i.e., the Liberal Democratic Party (LDP) and The New Komeito Party – had intensively worked since 2005 to submit a bill for a Basic Space Law to the Diet which would enable the Prime Minister to adopt 31 It

was drafted based on the “Mid-to-Long Term Strategy for Space Development” released in December 2000. 32 CSTP was founded under Articles 18 and 26–36 of the Law for the Establishment of the Cabinet Office, Law No. 89 of July 16, 1999 and the Cabinet Order for the Establishment of the Council for Science and Technology Policy, Cabinet Order No. 258 of June 7, 2000. 33 Only 16 months after the first space strategy was adopted, again the CSTP began studying the long-term strategy of Japanese space, taking the special note of the rapid change of international political ramification and space improvement.

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Japan’s space strategy and to put it into realization. The Bill was finally submitted to the House of Representatives on 20 June 2007.34 However, no Diet discussion was conducted during the next 10 months since other bills were given priority. Although the largest opposition Democratic Party of Japan (DPJ) prepared for its version of the space bill, the agreement was reached in April 2008 between DPJ and the Ruling Coalition Parties on the contents of the bill. Eventually, Basic Space Bill was resubmitted on 9 May 2008 as a bipartisan bill.35 That bill was passed at the House of Representatives on 13 May 2008 and at the House of Councillors on 21 May 2008 both by an overwhelming majority.36 Basic Space Law was promulgated on 28 May 2008 and entered into force on 27 August in the same year. 9.1.3.3 Other Agencies Involved in the Development and Use of Space In addition to MEXT, the MIC, METI and MLIT play an important role in space development in Japan. The MIC deals with the development of communications satellites mainly through its incorporated administrative agency, the National Institute of Information and Communications Technology (NICT), established by the unification in 2004 of the Communications Research Laboratory (CRL), an incorporated administrative agency and the Telecommunications Advancement Organization (TAO), a chartered corporation. The NICT’s mandate is to design, develop, and operate advanced communications satellites, primarily in cooperation with JAXA.37 The METI plays an important role in promoting space industrialization. Currently, projects being undertaken by the METI include the development of the next generation of satellites with advanced sensors for the earth observation. The METI’s mandate of the joint development of a medium-sized rocket with an LNG engine (the “GX rocket”) with JAXA and private companies was completed by 2008.38 The MLIT has been primarily involved in the development and use of meteorological satellites,39 and has also been participating in developing Japan’s navigation system, known as the quasi-zenith satellite systems (QZSS).40 The QZSS, which

34 Bill

No. 50 of the 166th Diet. No. 17 of the 169th Diet. 36 Basic Space Law, Law No. 43 of May 21, 2008. On the legislative process and the summary of the Basic Space Law, see, Setsuko Aoki, “Introduction to the Japanese Basic Space Law of 2008” Zeitschrift für Luft-und Weltraumrecht (ZLW) 57. Jg. 4/2008, at 585–589. 37 The MIC supervises JAXA concerning communications satellites through the mandates of NICT, and endorsed the first and second “Long-Term Program of Space Activities” in 2003 and 2008. 38 Although the METI successfully completed its portion of the development, the GX rocket bas not yet been tested as of August 2009 due to the delay of the development by private companies. 39 MLIT supervised JAXA until July 2005 due to its control of a meteorological satellite developed with NASDA (now JAXA). Therefore, MLIT also endorsed the first “Long-Term Program of Space Activities” in June 2003 with the MEXT and the MIC. 40 MLIT is developing the technology for enhancing precise positioning in the QZSS. 35 Bill

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is to be comprised of three geo-satellites, is a big project involving several governmental agencies apart from MLIT. These include the MEXT, the MIC and the METI. Among the governmental agencies, MEXT plays by far the most important role, and MEXT, through JAXA, is developing the first demonstration quasi-zenith satellite. As of August 2009, the first QZS has not yet been launched into orbit. Cabinet Satellite Intelligence Center (CSICE) under the Cabinet Intelligence and Research Office (CIRO) of the Cabinet Secretariat supervises Information Gathering Satellites (IGS). The government decided to introduce IGS soon after the North Korean ballistic missile, Taepodong-1, overflew the mainland of Japan on 31 August 1998. The IGS is defined as a constellation of “artificial satellites in order to collect imaging information useful for assuring Japan’s safety, addressing large-scale disasters and other important policy matters of the Cabinet”.41 The mandate of CSICE includes the operation of the IGS, analysis of the images collected by the IGS and other satellites as well as of the information collected by any other means.42 Due to the strict interpretation of the “exclusively peaceful purposes” provision of the JAXA (formerly NASDA) Law,43 and more essentially, due to the Diet Resolution of 1969 which strictly restricts Japanese space activities to non-military purposes (as discussed below), jurisdiction over the IGS is exercised not by the Ministry of Defence but by the Cabinet Secretariat. 9.1.3.4 Authorization and Supervision of JAXA As an incorporated administrative agency, JAXA is under the jurisdiction of the competent Ministers who authorize and supervise its activities in accordance with the JAXA Law and the General Provisions Law.44 Since most of the space activities have been conducted directly by JAXA, or in cooperation with other agencies, there is a common understanding within the Japanese space community that the international legal obligations under Article VI of the Outer Space Treaty45 would be appropriately observed in Japan through the existing organizational laws and regulations. Two Ministries have jurisdiction over the JAXA. The MEXT supervises JAXA in respect of all its mandates, and the MIC supervises, authorizes or approves some parts of JAXA’s activities, including the development and operation of telecommunications satellites and facilities not within the sphere of academic research.46

41 Article

4-2(2)1 of the Cabinet Order on the Organization of Cabinet Secretariat, Cabinet Order No. 219 of July 31, 1957, as amended last by Cabinet Order No. 311 of October 10, 2008. 42 Ibid., Article 4-2(2) 2-3. 43 Article 4 of the JAXA Law. 44 Ibid., Article 24. 45 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October 10, 1967) 610 U.N.T.S. 205. 46 Articles 18 and 26 of the JAXA Law; Articles 38, 44, 48 and 50 of the General Provisions Law.

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The authorization and supervision of the space activities of JAXA have been carried out using the following process: A “Long-Term Program of Space Activities”47 is decided upon by competent Ministers in accordance with a resolution adopted by the SAC.48 The “Medium-Term Goal” (for the next 5 years) is then set or changed by the competent Ministers pursuant to the “Long-Term Program.”49 In order to implement the “Medium-Term Goal”, JAXA prepares and submits its concrete plans, named as the “Medium-Term Program”, to the relevant competent Ministers for approval.50 In order to ensure the effective implementation of its “Medium-Term Program”, JAXA submits annual reports to the competent Ministers for evaluation.51 The Evaluation Commission for Incorporated Administrative Agencies of each competent Minister, established under Article 27 of the JAXA Law and Article 35 of the General Provisions Law, evaluates JAXA’s implementation of the “MediumTerm Goal”. For that purpose, each Evaluation Commission evaluates annual reports submitted by JAXA on the “Medium-Term Program”.52 The competent Ministers then obtain the opinions of the Evaluation Commission on the specific matters specified in Article 27(2) of the JAXA Law. Any launches and/or consigned launches undertaken by JAXA are subject to various laws such as Radio Law,53 Powder, etc., Control Law,54 Hi-Pressured Gas Safety Law,55 and Electricity Utility Law,56 which can be regarded as a substitute for the Space Activities Law of Japan.57 JAXA launches space objects pursuant to the “Launch of Artificial Satellites Standards”58 adopted by the competent Ministers.59 Launches and consigned launches undertaken by JAXA are 47 The

“Long-Term Program of Space Activities” have been twice issued after the JAXA became under the control of the MEXT, in 2003 and 2008. The second Long-Term Program was released on 22 February 2008. 48 Article 19 of the JAXA Law; Article 28 of the General Provisions Law. Until July 21, 2005, MLIT also had jurisdiction over JAXA with respect to meteorological satellites. Thus, the First “Long Term Programme” was jointly issued by the 3 Ministers on September 1, 2003. 49 Article 19 of the JAXA Law; Article 29 of the General Provisions Law. The latter article provides that competent Ministers shall set the Medium-Term Goal between 3 and 5 years. In JAXA’s case, it is set for 5 years. 50 Article 30 of the General Provisions Law. 51 Ibid., Articles 31 and 32. 52 Final report shall be submitted by JAXA to competent Ministers within the three months from the completion of the Medium-Term Programme. Ibid., Article 33. Members of the evaluation commission are selected among men of learning knowledge and appointed by competent Minister. Article 2 of the Cabinet Order Concerning Incorporated Administrative Agency. Cabinet Order No. 320 of June 7, 2000. 53 Law No. 131 of May 2, 1950, as amended last by Law No. 22 of April 24, 2009. 54 Law No. 149 of May 4, 1950, as amended last by Law No. 85 of July 10, 2009. 55 Law No. 204 of June 7, 1951, as amended last by Law No. 50 of June 2, 2006. 56 Law No. 170 of July 11, 1964, as amended last by Law No. 50 of June 2, 2006. 57 See e.g., Article 10 of the Cabinet Order on the Implementation Rules of Japan Aerospace Exploration Agency, Cabinet Order No. 368 of August 8, 2003. 58 Launch of Artificial Satellites Standards, JAXA Statute No. 15-37 of October 1, 2003. 59 Article 7 of the JAXA Business Procedures, October 1, 2003.

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conducted under Safety Assessment Standards for the Launching of Satellites by Launch Vehicles issued by the SAC.60 Starting from 1998, NASDA/JAXA regularly takes out insurance contracts in order to protect itself against third-party liability arising from the launching of “Satellites”.61 (Third-party liability is addressed in detail below)

9.1.4 Constitutional Matters (Jurisdiction Over Space Activities) and Implementation of International Treaties in Japan International treaties ratified by the Diet and customary international law have legal force and validity in Japan under the doctrine of general reception. Article 98 of the Constitution specifies that “[t]he treaties concluded by Japan and established laws of nations shall be faithfully observed.” Thus, while there is no domestic legislation with regard to UN treaties on Outer Space to which Japan is a party, such treaties are to be interpreted as legally binding upon Japan. However, it should be noted that such general reception of international law does not necessarily imply that the UN space treaties to which Japan is a party are selfexecuting within Japan. The Japanese Constitution only guarantees the internal legal validity of such treaties, not the direct applicability of specific provisions of the ratified treaties. Accordingly, although relevant agencies carry out their administrative operations in harmony with the UN space treaties to which Japan is a party, this does not imply that a private person can file a lawsuit invoking the provisions of the UN space treaties. In some cases, including situations in which the treaty provisions are not detailed enough or clearly stipulated for direct application or when national laws are required for their application as a requirement of the Constitution (e.g. criminal laws), specific domestic laws are required for national implementation.62

9.2 Legal Issues Related to Launch Services (Space Transportation Systems) 9.2.1 Licensing of Launch Services Provided by Private Enterprises Although Japan is one of the original states party to the Outer Space Treaty (1967), it was not until 1983 that it acceded to the Rescue Agreement (1968),63 the Liability 60 Article

4 of the Launch of Artificial Satellites Standards. 7(3) of the JAXA Business Procedure; “Satellites” in this instrument has the same meaning as that of Article 2(3) of the JAXA Law. 62 For instance, see Article 31 of the Constitution. 63 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (entered in to force on December 3, 1968) 672 U.N.T.S. 119. 61 Article

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Convention (1972)64 and the Registration Convention (1975).65 Before acceding to those three treaties, however, the SAC set up a special working group on UN space treaties in 1975 to commission a study as to whether Japan needed to adopt domestic space laws in order to implement such UN space treaties. The conclusion reached in the following year was that, as far as the following three conditions remained, it was not necessary to enact new national laws on space activities: (1) launch vehicles were owned and operated only by NASDA and ISAS, both being legal persons either with specific ties to the government (NASDA) or being a governmental agency (ISAS); (2) telemetry, tracking, and control (TT&C) of space objects were conducted solely by NASDA; and, (3) manned space activities were not included in the national space plan.66 Based on the various assessments, including the one just mentioned above, the Cabinet finally agreed at a meeting held on 7 June 1983, that three of the UN treaties would be acceded to without the need to enact any additional domestic laws, and that a national law would be swiftly adopted through close cooperation among the relevant authorities in cases where the necessity exists or arises.67 Among the three conditions referred to in the SAC Report of 1976, the second condition ceased to be fulfilled with the emergence of private satellite operators which independently came to own and manage their own TT&C systems. Likewise, starting from the last decade of the twentieth century, the first condition also began to slowly disappear. The first such indication was the setting up of a private company, Rocket Systems Corporation (RSC) in July 1990 to be responsible for the delivery of commercial launch services and for the production of launch vehicles such as TR-1A, H-II and H-IIA rockets jointly manufactured by a number of private companies for supply to NASDA (later JAXA).68 With the participation of RSC in the launch sector, responsibilities were split between the two entities; i.e. NASDA was responsible for the design and the development of its launch vehicles, while RSC was responsible for the production, management/control, quality assurance of these launch vehicles. In other words, a hierarchy of responsibility was introduced. By virtue of which NASDA/JAXA controls RSC, and RSC controls various manufacturers of launch vehicles.69 64 Convention

on International Liability for Damage Caused by Space Objects (entered into force on September 1, 1972) 961 U.N.T.S. 187. 65 Convention on Registration of Objects Launched into Outer Space (entered into force on September 15, 1976) 1023 U.N.T.S. 15. 66 Special Working Group on the UN Treaties on Outer Space of the SAC, Report on the Necessary National Laws on Space Activities for the Accession to the UN Treaties on Outer Space (June 22, 1976), at 2–3. 67 Oral Agreement of the Cabinet Meeting, titled “Accession and Implementation of the 3 Outer Space Treaties”, issued on March 29, 1983. 68 NASDA/JAXA continued to hold final responsibility for the quality control and safety assessment of such rockets. 69 Mitsubishi Heavy Industries (MHI) manufactured first and second stages and engaged in the integration of H-IIA, while, e.g., Kawasaki Heavy Industries, Ltd., made faring parts and IHI Aerospace, solid rocket boosters.

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The launch plan of MTSAT-1R using an H-IIA 7 rocket in February 2004 provides a good example of the allocation of responsibility as between the entities.70 The MLIT consigned the launch of its MTSAT-1R (made by Space Systems/Loral (SS/L))71 into GTO to RSC, and RSC in turn consigned the launch of H-IIA 7 to JAXA. RSC was responsible for (i) integration of the rocket, (ii) interface of the satellite and faring, and (iii) obtaining data about ignition and re-ignition, whereas JAXA was responsible for (i) safety assurance for countdown, (ii) technical assistance of the integration of the rocket until 5 days before the launch, (iii) maintenance of the launch range within 4 days prior to the launch, and (iv) obtaining flight data.72 After RSC obtained the first commercial launch service contracts from two US satellite manufacturers in 1996,73 the necessity to adopt legislation for purposes of allocating liability between NASDA and RSC in order to fulfil accountability for taxpayers was recognized. As a state party to the Outer Space Treaty and the Liability Convention, Japan is absolutely liable to pay compensation for damage caused to foreign states and their nationals by Japanese space objects. Instead of enacting a new law, two provisions (Articles 24-2 and 24-3) relating to third-party liability and insurance requirements were added to NASDA Law74 in 1998. Those two provisions were later incorporated in Articles 21 and 22 of the JAXA Law. While it is certain that without such provisions, Article 1 of the Governmental Tort Liability Law75 and Civil Code76 would apply in case of an accident causing damage or loss to a foreign and Japanese victim, the newly-introduced obligation of NASDA/JAXA to purchase insurance cover could guarantee prompt payment of appropriate amounts of compensation to victims without any need for court trial. In addition, the merits of the amendment to the NASDA Law are that the victim would not have to prove the fault (culpa) of NASDA or RSC, an essential requirement when proceeding under the Civil Code (Article 709 et seq.) or Article 1 of the Governmental Tort Liability Law.77 The amended NASDA Law (later JAXA Law)

70 JAXA,

Rocket Launch Plan in the Winter Season of 2005, published on February 2, 2005 (documents submitted to SAC). 71 TT&C was to be conducted by SS/L. Ibid., at 9. 72 Ibid., at 2. 73 Commercial Launch contracts with Hughes Space & Communications Inc. (HSCI) and Space Systems/Loral, each 10 launches, were adopted in November 1996. Because of the delay of the H-IIA development, the launch contract with HSCI was subsequently cancelled in May 2000. 74 Law concerning the National Space Development Agency of Japan (NASDA Law). Law No. 50 of June 23, 1969, as amended last by Law No. 50 of June 23, 2002. NASDA Law was repealed by the entering into force of the JAXA Law. 75 Law No. 125 of October 22, 1957. 76 Book 3, Chapter 5 (Article 709 et seq.) of Civil Code, Law No. 89 of April 27, 1896, as amended last by Law No. 78 of June 21, 2006. 77 If Article 2 of the Governmental Tort Liability Law is invoked relating to the governmental responsibility of the appropriate management/control of public establishment, non-fault liability would be applied.

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is sometime referred to by entities such as the UN Office of Space Affairs (OOSA) as Japan’s national space legislation.78 In May 2002, the CSTP decided to privatize Japan’s primary large-scale launch vehicle, or H-IIA rocket. In November of the same year, Mitsubishi Heavy Industries, Ltd. (MHI) was selected as the sole contractor for H-IIA launch services as well as the prime contractor of H-IIA Launch Vehicle manufacturing and launch operations through the public tenders carried out under the auspices of NASDA. Accordingly, RSC was to be replaced by the biggest rocket manufacturer in Japan. In February 2003, a basic agreement was adopted between NASDA and the MHI for H-IIA launch services. Following the final working group report on the privatization of H-IIA issued by MEXT in April 2003, the H-IIA Transfer of Technology Contract between NASDA and MHI was finalized in September, 2003. In that contract, the technology for the manufacture of H-IIA launch vehicles remains the property of NASDA (currently JAXA), and MHI has an exclusive right to use it. With the completion of the transfer of H-IIA to MHI, the whole business of RSC was also absorbed by MHI. The RSC was dissolved on March 31, 2007,79 and its entire responsibilities were passed on to MHI, effective April 1, 2007. Under a newly introduced project for the development of an advanced H-IIB launcher, JAXA is to focus on the development of a rocket, while MHI is the sole private company to be responsible for its manufacture.80 H-IIA Launch Service would be conducted by the following agreements and contracts: first, a launch service contract would be adopted between MHI and a prospective user of the launch service, who could be any of the various entities from JAXA, to governmental ministries e.g., MLIT, METI and Ministry of Environment, to international organizations and private companies, both national and foreign. In the launch service agreement, MHI contracts to make its best efforts to furnish launch services for the purpose of delivering a satellite into orbit. Secondly, a launch consignment contract is to be adopted between MHI and JAXA, and thirdly, manufacturing contracts would be made between MHI and a number of aerospace companies. Since an H-IIA rocket must pass JAXA’s final examination and the last- minute operation to launch a payload is conducted by JAXA personnel at launch facilities in the Tanegashima Space Center (TNSC) owned by JAXA, there is a common understanding amongst the Japanese space community that the combination of JAXA Law and the administrative guidance would suffice to address the international responsibility and liability requirements, because the authorization and continuous supervision of MHI by the MEXT through JAXA is to be appropriately conducted.81 78 See

for example UN Office for Outer Space Website: http://www.unoosa.org/oosaddb/browse_ country.jsp?country=JPN (last visited 30 May 2007). 79 MTSAT-2, successfully launched on 18 February 2007, was the last launch service RSC conducted. 80 MHI would also be heavily involved with the H-IIB project from the design and development phase. 81 JAXA’s another launch vehicle, the M-5 rocket launched from Uchinoura Space Center also in Tanegashima island was never privatized until its final launch in September 2006.

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In accordance with Article 35 of the Basic Space Law, Space Activities Bill has been drafted in order to provide for the conditions of the participation in space activities such as licensing system for any private launching companies. Under Articles 21 and 22 of the JAXA Law, no launch or consigned launch shall be conducted by JAXA without the appropriate amount of insurance having been taken out.82 The competent Ministers have defined this amount as 20 billion yen83 for H-IIA pursuant to Article 21(2). The consignor, or MHI, may purchase insurance on behalf of JAXA.84 JAXA may assume the entire liability of the parties related to a consigned launch provided that MEXT and MIC have granted prior authorization.85 When such special arrangements relating to a consigned launch are approved, a consignor would have to enter into insurance contracts on behalf of JAXA.86 As provided for in the JAXA Law, the liability and insurance conditions imply that there is no obligation upon entities launching non-JAXA rockets to enter into insurance contracts and that the above-mentioned assistance to the industry could be granted exclusively to MHI, and not to any possible new venture companies which may build their own rockets. Comparing the Japanese conditions with those provided for in the commercial space launch legislation of foreign countries87 the conditions specified in Article 22 of JAXA Law could put the future Japanese space launch industry in a less advantageous position. Space Activities Law, now in the making, may change the situation. That bill is scheduled to be submitted to the regular Diet session starting in January 2010. The two articles on liability and insurance, which are sometimes referred to as the only provisions for commercial space activities in Japan, are as follows: Article 21 (Conclusion of Insurance Contracts relating to Launch of Satellites) 1 The Agency shall not launch any Satellites without entering into an insurance contract by which it can secure the amounts necessary to compensate for damage caused to others as a result of the launch of the Satellites. 2 The amounts to be secured by the insurance contracts set forth in the preceding Paragraph shall be defined by the competent Ministers, taking into account the amount that the insurers are able to underwrite and other relevant matters, so that those amount may be appropriate from the viewpoint of protection of the victims. 3 In the event that the launch of Satellites is to be performed by the Agency as a result of the consignment (hereinafter in the immediately following Article referred to as the “Consigned Launch”), the insurance contract set forth in Paragraph 1 hereof may, notwithstanding the provision of said Paragraph, be entered into by a person or entity which has consigned the

82 Article

21(1) of the JAXA Law. 200 million US dollars calculated as 1 dollar about 100 yen. For M-5 rocket, ceased to be in operation in September 2006, the obligatory amount of insurance was 5 billion yen, or approximately 50 million US dollars calculated as 1 dollar about 100 yen. 84 Article 21(3) of the JAXA Law. 85 Ibid., Art 22(1) and (2). 86 Ibid., Article 22(3). 87 Examples would be US Commercial Space Launch Act and French Space Operation Law, passed as Law No. 518 on June 3, 2008. 83 Approximately

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launch of such Satellites (hereinafter in the immediately following Article referred to as the “Consignor”) for and on behalf of the Agency. Article 22 (Special Arrangements Relating to Consigned Launch) 1 In the event that the Agency enters into an agreement with a Consignor with respect to a Consigned Launch, the Agency may, upon obtaining authorizations of the competent Ministers, enter into the following special arrangements with respect to its liability for compensation for damage caused by the Consigned Launch to any persons or entities other than those related to the Consigned Launch: (1) If the Agency is held liable for compensation for damage caused by the Consigned Launch to any persons or entities other than those related to the Consigned Launch, and the parties related to the Consigned Launch are also liable for compensation for such damage, the Agency shall assume the entire liabilities of those parties related to the Consigned Launch for compensation for the damage; and (2) In the case of the preceding Item, if such damage is caused by a wilful misconduct of any of the parties related to the Consigned Launch, the Agency shall have the right of claiming compensation from such parties for the expense already paid by the Agency for such damage. 2 For the purpose of the preceding Paragraph, the “parties related to the Consigned Launch” mean the Consignor and any person or entity designated by the Agency and the Consignor in the said special arrangements as the persons or entities which are related to the Consigned Launch. 3 When the Agency enters into the special arrangements set forth in Paragraph 1 hereof, notwithstanding the provisions of Paragraphs 1 and 3 of the immediately preceding Article, the insurance contracts set forth in Paragraph 1 of that Article shall be entered into by the Consignor for and on behalf of the Agency.88

9.2.2 Competition in Launch Services As mentioned above, it is only MHI that is allowed to engage in H-IIA rocket production and launch services as consignor, and there has been no competition in launch services provision in Japan. The GX launch vehicle89 has been developed by Galaxy Express Corporation (GALEX) comprising seven major Japanese spacerelated companies,90 and the US manufacturer Lockheed Martin Corporation, in cooperation with JAXA and the METI since 2001. A medium-sized GX rocket is scheduled to be launched in 2011 from the TNSC.91 Since JAXA is involved in the development of GX rockets and TNSC would be used as a launch site, it may be 88 The

unofficial English translation is made available by the former Science and Technology Agency (STA). 89 The GX launch vehicle has 4 ton launching ability to 200 km orbits, and 2 ton into sunsynchronous orbits of about 800 km. 90 GALEX was established in 2001 as an entrepreneur in space industrialization and commercialization. GALEX was formed by Ishikawajima-Harima Heavy Industries Co., Ltd, IHI Aerospace Co. Ltd., Mitsubishi Corporation, Kawasaki Heavy Industries, Ltd., Japan Aviation Electronics Industry, Limited, Fuji Heavy Industries Ltd., NEC Toshiba and Space Systems, Ltd. 91 It has been suggested that the first launch might be conducted in the United States since December 2008. The place of the test launching is to be decided by the end of 2009.

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possible for JAXA to classify the said rocket as a consigned launch pursuant to the decision of the competent Ministers. Established in 2002 and having attained a non-profit organization status in January 2003, the Hokkaido Aerospace Science and Technology Incubation Center (HASTIC), has expressed an ambitious plan to launch a small satellite from its own launch center to be constructed in Hokkaido, using a completely private rocket. It also plans to begin a commercial sub-orbital flight. Although HASTIC is still at the stage of developing a small hybrid (liquid and solid) engine for a sounding rocket named CAMUI that would fly up to 200 m, if it is to launch a private rocket from a private spaceport, then a comprehensive licensing system for commercial space launches would have to be seriously needed in Japan. Space Activities Act, the second of Japan’s space legislation, will meet such requirement.

9.2.3 National Security Concerns 9.2.3.1 Export Control Laws and Policy National security concerns in launch services have been addressed through the regulation and control of exports and inward direct investments. The unique policy of “Three Principles on Arms Export” declared as a unified governmental policy is also relevant. The Japanese export control system is comprehensively managed by the METI mainly through the Foreign Exchange and Foreign Trade Act (FEFTA),92 which, in general, is positively evaluated given its simple licensing procedures and the ease of information sharing in making administrative rules, licensing, inspection and law enforcement associated with it.93 Information is closely exchanged between the METI and the MOF (relating to custom matters), as well as between the METI and the Ministry of Foreign Affairs (MOFA) (with respect to matters on international export control regimes). Since Japan is a member of all the international export control regimes,94 the provisions of FEFTA and related rules and regulations are in accordance with the international export control lists. The list control systems in the FEFTA had been strengthened through the 1990s and starting on April 1, 2002,

92 Act

No. 228 of December 1, 1949 as amended last by Act No. 59 of June 24, 2009. (Originally FEFTA was named as Foreign Exchange and Foreign Trade Control Act in 1949.) 93 Trade and Economic Cooperation Bureau of the METI is responsible for all export control matters. Under that Bureau, the Security Export Control Policy Division is involved with research, rule-making and review of detailed licensing rules, while the Security Export Licensing Division issues the licenses and approvals. Security Export Inspection Office engages in law enforcement and capacity building. 94 Export Control Regimes include Zanggar Committee, Nuclear Suppliers Group, Missile Technology Control Regime, Australia Group, and Wassenaar Arrangement. Japan was an original member of all 5 regimes. Japan has also been a member of COCOM (1949–1994) since 1952.

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Japan adopted the complete Catch-All system95 which essentially is in line with North American and European practices. The FEFTA provides that any person who intends to export specific kinds of goods to specified regions (Article 48) or a resident who intends to conduct transactions involving technology pertaining to the design, manufacture or use of specific kinds of goods with a non-resident (Article 25) must obtain permission from the METI when such goods or technology is specified by the Export Trade Control Order96 and Foreign Exchange Order97 as capable of being used to obstruct the maintenance of international peace and security. The specific kinds of goods are listed in the Appended Table 1 (Re: Articles 1 and 4) of the Export Trade Control Order, among which goods pertaining to launch services are enumerated in Category 4 which is updated regularly pursuant to changes to the control list of the Missile Technology Control Regime (MTCR). There are 21 sub-categorized items specified in that Order, which appropriately contain MTCR category I list (Items 1 and 2) and category II list (Items 3–20).98 Examples of such items are rockets, equipment or tools for their production, test equipment or components thereof, individual rocket stages, rocket propulsion equipment, navigation equipment, jet mills, special powders and launch pads.99 In addition to FEFTA and related rules, the unified governmental view, widely known as the “Three Principles on Arms Export” constitutes another major restriction upon arms exports. Under the FEFTA, permission-based arms export is possible, and such “arms” are specified in category 1 and category 15 of the Appended Table 1.100 However, the “Three Principles on Arms Export” policy virtually prohibits Japan from exporting any arms to any region of the world. Originally declared in 1967 by the then Prime Minister,101 it was strengthened in 1976 to extend (i) the region of the export ban of arms to any place in the world, 95 Even

if a certain item is not included in the control lists which require filing for an export license, an exporter, nevertheless, needs a license when METI requires it (informed condition) or an exporter has reasonable grounds to have doubts about the trade in terms of proliferation of the weapons of mass destruction (objective condition, that is similar in nature to “know requirements” in the United States system). States belonging to all the export control regimes are not the subjects for Catch-All systems. Those 26 states are cited in Appended Table 4-2 (relating to Article 4) of the Export Trade Control Order, Cabinet Order No. 378 of December 1, 1949 as amended last by Cabinet Order No. 182 of July 15 2008). 96 Ibid. Appended Table 1 relating to Articles 1 and 4 of the Export Trade Control Order. 97 Appended Table relating to Article17 of the Foreign Exchange Order, Cabinet Order No. 378 of December 1, 1949 as amended last by Cabinet Order No. 123 of April 22, 2009. Both Export Trade Control Order and Foreign Exchange Order were adopted at the same time with the same Cabinet Order number in 1949. 98 MTCR/TEM/2006/Annex/002/Addendum No. 1, December 17, 2006. 99 Category 4 of Appended Table 1 relating to Arts 1 and 4 of the Export Trade Control Order. 100 Category 1 relates to arms in general and category 15 to the “sensitive” items listed by the Wassenaar Arrangement. 101 Prime Minister Sato declared that arms export should not be undertaken in cases (i) when it is to communist countries, (ii) when the designated destination is a country which is the object of an arms embargo by the UN resolution, and (iii) when the designated destination is under the armed conflicts or seems imminent to engage in armed conflicts.

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and (ii) the object of the ban from arms only to arms plus equipment related to arms production. The complete arms ban was, however, relaxed exceptionally in favour of the US in relation to the export of arms technology in 1983. With the change of security ramifications, several minor exceptions were also approved by the government.102 In December 2003, Japan decided to jointly develop a ballistic missile defense (BMD) systems with the US. A year later, in December 2004, the chief cabinet secretary released a statement in relation to the “Three Principles on Arms Export”, which said, “if Japan decides that it will engage in joint development and production of ballistic missile defence systems with the US, the Three Principles will not be applied, under the condition that strict control is maintained, because such systems and related activities will contribute to the effective operation of the Japan-US Security Arrangements and are conducive to the security of Japan.”103 In December 2005, Japan decided to begin the Japan-US cooperative development of advanced SM-3 missile for BMD, which would be used for midcourse interception, and may be regarded as one type of military use of outer space, which could be problematic in Japan. As mentioned below,104 Basic Space Law effective as of 27 August 2008 addressed the problem on the legality of the development, production, deployment and the use of SM-3 missile. 9.2.3.2 Inward Direct Investment The Cabinet Order Concerning Inward Direct Investments, promulgated in 1980 pursuant to Article 27 of the FEFTA,105 prescribes that a foreign investor shall notify in advance the MOF and the Minister having jurisdiction over the business, of the business purposes, amount, time of making the investment, and such other matters as may be specified by that Cabinet Order, if such an investment is considered to have the potential of impairing national security.106 Specified investments which may be deemed to compromise national security if carried out without prior examination by the Ministers concerned are listed in the Table 2 (Re: Article 5) appended to the Ministerial Ordinance Concerning Inward Direct Investments.107 With respect to space-related business, space technology for producing parts, equipment, and any goods related to rockets (other than sounding rockets), space flying objects, propulsion mechanisms, among others fall under the category of investments requiring prior notification. 102 Such alleviation was approved to strengthen the relations with the US, Japan’s only ally (1996), to participate in the UN peace-keeping activities, to implement the international convention (2000) and UN Security Council (SC) Resolutions including SC Res. 1368 (2001) and SC Res. 1483 (2003). 103 MOFA, Diplomatic Bluebook 2006, at 133. 104 See Section 9.2.3.3. 105 Cabinet Order No. 261 of October.11, 1980, as amended last by Cabinet Order No. 42 of March 17, 2006. 106 Ibid., Article 3(2)-(5). 107 Ministerial Ordinance No. 1 of November 20, 1980, amended last by Ministerial Ordinance No. 2 of April 28, 2006.

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9.2.3.3 Peaceful Uses: From Non-Military to Non-Aggressive Uses When the NASDA Law was passed in 1969, the Diet adopted Resolutions in both the Houses to assure that Japanese space activities would be conducted “exclusively for peaceful purposes”.108 Internationally, the interpretation of “exclusively for peaceful purposes” is not necessarily restricted to “non-military” uses of outer space. On the contrary, it is widely understood that “all military uses are permitted and lawful as long as they remain ‘non-aggressive’ as per Article 2(4) of the UN Charter, which prohibits ‘the threat or use of force’ ”.109 However, in the case of the Japanese Diet Resolutions, both of which were adopted unanimously, it was repeatedly stated during the discussions that irrespective of the standard international interpretation of “exclusively for peaceful purposes”, in Japan, it shall be accorded a strict “non-military” uses interpretation.110 The “non-military” uses restriction caused a series of difficulties for the practical use of space by the Self-Defence Forces (SDF). First, the question was asked if, for its telecommunications needs, the SDF could use a civilian CS-2 satellite operated by the International Telegraph and Telephone Corporation (KDD), a public corporation.111 Then, the legality of the SDF’s requisition for a budgetary allocation for the acquisition of UHF equipment in order to use US military Fleetsat telecommunication satellites in the planned joint training came up for discussion.112 Against this backdrop, the unified governmental view was released in February 1985 and it stated that SDF could be a user of the satellites which had already been widely used in the everyday life of Japan’s civil society and such other satellites with similar functions.113 Based on that unified view, the SDF is a user of the IGS constellation which has been operated since March 2003. In order to observe the conditions imposed on the SDF by the unified governmental view of 1985, the resolution of the images provided by the IGS should not be any better than that of the images available in the market. Likewise, early warning satellites are beyond the reach of the SDF since those kinds of satellites cannot be widely used in civil life.114

108 Minutes

of Special Committee on the Science and Technology Promotion Measures, House of Representatives, No. 2 (9 May 1969), at 8; Minutes of Special Committee on the Science and Technology Promotion Measures, House of Councillors, No. 9 (13 June 1969) at 1. 109 Ivan A. Vlasic, “The Legal Aspects of Peaceful and Non-Peaceful Uses of Outer Space” in Bupendra Jasani, ed., Peaceful and Non-Peaceful Uses of Space, (Taylor & Francis, 1991), at 40. 110 Minutes of the Special Committee on Science and Technology Promotion Measures, House of Representatives, No. 2 (8 May 1969), at 6 and 8; Minutes of the Special Committee on Science and Technology Promotion Measures, House of Councillors, No. 7 (15 May 1969), at 2. 111 Minutes of the Standing Budget Committee, House of Representatives, No. 5 (5 February 1983), at 14; Ibid., No. 12 (18 February 1983), at 14-19. 112 Ibid., No. 4 (5 February 1985), at 4. 113 Ibid., No. 5 (6 February 1985), at 3. 114 That restriction ended theoretically by the entry into force of the Basic Space Law on 27 August 2008.As of August 2009, however, the jurisdiction of the IGS constellation remains in the hand of civilian CSICE of the Cabinet Secretariat.

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As described briefly in Section 9.1.3.2, Basic Space Law was passed in May 2008 and entered into force on 27 August 2008. Article 2 of the Basic Space Law provides that space development and use shall be conducted in accordance with international treaties and other international agreements including the Outer Space Treaty, and pursuant to the pacifism of the Constitution of Japan. Article 14 stipulates the responsibility of the government to take the necessary measures to promote space development and use to ensure international peace and security as well as to contribute to the national security of Japan. Those 2 Articles are deemed to change the interpretation of “peaceful” from “non-military” to “non-aggressive” uses. Note has to be taken, however, that such “non-aggressive” uses are permitted only within the limits of Article 9 of the Japanese Constitution that prohibits Japan from maintaining “land, sea, and air forces, as well as other war potential”.115 Governmental interpretation of Article 9 also forbids that Japan resort to collective self-defense recognized by Article 51 of the UN Charter. Therefore, the permissible scope of military uses is narrower, at least in the concept, than that of other space-faring nations.

9.3 Legal Issues Related to Satellite Telecommunications, Including Satellite Broadcasting 9.3.1 Licensing of Private Satellite Telecommunications Operators (Both National and Foreign) In Japan, the Radio Law116 has been the most important domestic law for purposes of authorizing and continuously supervising the space activities of nongovernmental entities. This is because through the licensing processes established under the Radio Law, the MIC can control the activities of a private person who wishes to operate a telecommunications or broadcasting satellite. Any person who wishes to establish “a radio station as an artificial satellite station” for telecommunications must submit an application to the MIC together with a document describing: (i) the purpose; (ii) the need to establish the radio station; (iii) the person(s) with whom the radio communication is to be conducted and communication subjects; (iv) the location of radio equipment, or orbit or the position; and, (v) the desired frequency range and antenna power, and expected commencement date of operation.117 Likewise, such person must provide information about the scheduled launching time, term of normal operation, and area of position enabling its station to fulfil the mission.118

115 Article

9(2) of the Constitution. supra, note 53. 117 Articles 4 and 6(1) of the Radio Law. 118 Ibid., Article 6(6). 116 See,

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Any person who wishes to obtain a license for a radio station on board an artificial satellite for broadcasting purposes is obliged to submit an application to the MIC containing such information as broadcast subjects, service area, business plan, etc., in addition to the particulars to be filed in the application for the license for telecommunication services.119 The detailed particulars to be provided in the form are found in the tables annexed to the Licensing Procedural Rules relating to Radio Stations.120 Before the liberalization of the telecommunications services sector, no radio station licenses were ever granted to: (i) persons not holding Japanese nationality; (ii) a foreign government or its representative; (iii) a foreign juridical person or organization; and, (iv) a juridical person or organization which is represented by any person referred to in the preceding three cases, or one third or more of whose officers are such persons, or one third or more voting rights of which are made up of the aggregate of voting rights held by such persons.121 At that time, the only situation under which a foreign government could obtain a license was when it exclusively used it for radio communication service between specific fixed points through a foreign satellite.122 The Fourth Protocol to the General Agreement on Trade in Services (the Basic Telecommunications Freedom Agreement)123 which entered into force on January 1, 1998 has, however, changed the situation by entitling foreign nationals to establish radio stations on the basis of reciprocity. Prior to accepting the Fourth Protocol, Japan amended its Radio Law in 1997 and the amendment became effective on February 5, 1998, the very day the Basic Telecommunications Freedom Agreement entered into force for Japan.124 Disqualification clauses for a person not holding Japanese nationality are no longer applied in respect of radio stations to be established for the purpose of conducting telecommunications service,125 and radio stations to be established on land for the purpose of controlling position and attitude, etc. of an artificial satellite equipped with radio equipment of a radio station for the purpose of conducting telecommunications service.126 With respect to a broadcasting station, the disqualifications for foreign nationals and foreign governments have been maintained except when such artificial

119 Ibid.,

Article 6(2)

120 Especially, “license unit” (Article 2(9)), and “attached documents, Tables 2-5 and 2-6” (Article

4(2))) of the Licensing Procedural Rules relating to Radio Station by the Rule of the Radio Administrative Committee, the MIC Ordinance No. 15 of November 30, 1960, as amended last by the MIC Ordinance No. 21 of March 9, 2007. 121 Article 5(1) of the Radio Law. 122 Yoshiaki Imaizumi, Radio Law: A Commentary, 5th ed., (Telecommunication Promotion organization, 2006) at 48. 123 WTO/S/L/20 (96-1750), April 30, 1996. 124 Radio Law as amended by Law No. 100 of June 20, 1997. 125 Ibid., Article 5(2)(vii). 126 Ibid., Article 5(2)(viii).

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satellite stations broadcast their programmes under entrustment with other persons.127 “Entrusted domestic and overseas broadcasting” started in June, 1994.128

9.3.2 Foreign Investments Inward direct investment could be restricted when the type of business in which the investment is intended is specified in a Cabinet Order made pursuant to Article 27 of the FEFTA. Apart from businesses that have implications for national security, maintenance of public order and the protection of public safety are the reasons for governmental examination based on prior notification.129 The category of investments restricted on the basis of public order include telecommunications and broadcasting, electricity, gas, energy provision, railroad and passenger transportation. Within this category, individual laws specify the maximum limit of foreign direct investments. The specific limits applicable to telecommunications and broadcasting businesses are discussed in detail below. With the amendment of the Telecommunications Business Law (TBL),130 the Radio Law and other related laws and regulations so as to implement the Basic Telecommunications Freedom Agreement of the WTO in February 1998, all restrictions on foreign investment were lifted in regard to telecommunications businesses, with the exception of Nippon Telegraph and Telephone Corporation (NTT) and KDD.131 For the NTT and KDD, the maximum permissible level of foreign investment was set at one-fifth of the aggregate of voting rights. In June 1998, the restriction of foreign investments in KDD was also lifted.132 Following the amendment of the TBL and NTT Law in June 2001, which entered into force in November 2001, the restriction on foreign investments with respect to the NTT was relaxed from on-fifth to one-third of the aggregate of voting rights. Article 4(1) of the NTT Law provides that the government shall always hold onethird or more of the total number of the issued shares of the NTT.133 The aggregate of the ratios of the voting rights directly or indirectly held by non-Japanese nationals shall not exceed one-third.134 127 Ibid.,

Article 5(4). Article 2(ii)-2-3 of Broadcast Law, Law No. 132 of May 2, 1950, as amended by Law No. 74 of June 29, 1994. Last amended by Law No. 107 of November 2, 2005. Article 2(ii)-2-3 provides that “ ‘[e]ntrusted domestic and overseas broadcasting’ means broadcasting entrusted by others and intended to be received domestically and overseas. Such entrusted programmes are broadcast by an artificial satellite stations without any editing.” 129 Article 27(3)(i) of FEFTA, and Article 3(2)(i) of the Cabinet Order Concerning Inward Direct Investments, supra, note 105. 130 Law No. 86 of December 25, 1984, as amended last by Law No. 50 of May 30, 2008. 131 The amendments to both laws were promulgated in June 1997, but entered into force in February, 1998. 132 This was accomplished through the annulment of the KDD Law. 133 Law Concerning Nippon Telegraph and Telephone Corporation, etc., Law No. 85 of December 25, 1984, as amended by Act No. 87 of July 26, 2005. 134 Article 6(1)–(4) of the NTT Law. 128

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9.3.3 Competition, Interconnection, Universal Access, and Rate Regulation It was not until 1985 that the monopoly held by NTT and KDD was terminated and competition was introduced concerning not only domestic but also international telecommunications business. After that, the principle of fair competition was steadily advanced through a series of amendments to the TBL. Then, in 2003, the TBL and NTT Law were dramatically amended to the extent that almost half of the entire provisions of the TBL, (about 100 articles) were changed.135 Alongside the abolishment of the previous distinctions made between service providers,136 the conditions for participation by all providers in telecommunications markets were relaxed considerably, thereby further strengthening competition. The decreasing cost of constructing hardware for telecommunications services due to the rapid advancement of internet technologies, including IP networks, and active foreign participation in international telecommunications services in Japan has made it unnecessary to categorize providers and to use different procedures for authorization and supervision of the sector. In general, the 2003 amendment abolishes the previous licensing requirements, and establishes a prior notification and registration system. In principle, rate regulation was abolished, except in respect of basic telecommunications services nationwide which are considered indispensable for people’s daily lives.137 The prior notification requirement was abolished in respect of interconnections except for the providers who had constructed telecommunications facilities designated either as category I or category II facilities under the previous regime (Articles 33 and 34).138 Instead, strengthened dispute settlement procedures have been introduced139 and the MIC has been given the right to issue orders for the improvement of operational methods of business activities within the sector.140

9.3.4 Content Regulation (Including Privacy) Article 21 of the Constitution provides that “. . .speech, press and all other forms of expression are guaranteed. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.”

135 Law

No. 125 of July 24, 2003. I providers mean those with the facilities and equipment for telecommunication services and category II, a provider without the hardware for telecommunications services. 137 Article 7 of the TBL. 138 Ibid., Articles 33 and 34. 139 Ibid., Article 160 et seq. 140 Ibid., Article 29. 136 Category

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The TBL specifically prohibits censorship141 and orders the protection of secrecy of communications from any person engaged in telecommunications business, even after this person’s retirement from office.142 The purpose of the Broadcast Law is to regulate broadcasting for the public welfare, and to strive for its sound development in accordance with the assurance of the freedom of expression through broadcasting to the people.143 Thus, broadcast programmes must not be interfered with or regulated by any person, except where it is done under the authority of law.144 However, because the broadcasting business inevitably involves the use of valuable and limited radio frequency spectrum, and also because of the fact that widely disseminated content influences the daily lives of the people, some restrictions on the freedom of broadcasting have to be imposed in the interest of public security, good morals and manners.145 Likewise, political impartiality and the prohibition of distortion of facts in broadcasting news must also be observed.146 A clear, evident and repeated violation of the above-mentioned requirements could lead to the suspension of the operation of a radio station for a specific period in accordance with the Radio Law.147 However, such restrictions have to be restricted as minimum as possible in order to respect the freedom of speech and expression.148 With respect to broadcast programmes carried by foreign satellites into Japanese territories, or the so-called “broadcast beyond territories”, there was considerable difficulty in determining whether such programmes could be re-transmitted to Japanese audiences as “broadcasting”, due to the protection of secrecy in radio communications provided for in the Radio Law.149 In 1993, the standard for determining whether a transmitted programme is broadcasting or not was decided as follows: unless the competent Minister of state prohibits Japanese people from receiving such program, it would be regarded as broadcasting and could be re-transmitted.150

141 Article3

of the TBL. Article 4(1) and (2). 143 Article 1 of the Broadcast Law. 144 Ibid., Article3. 145 Ibid., Article 3-2(1). 146 Ibid., Article 3-2(1) (ii) and (iii). 147 Article 76(1) of the Radio Law provides that the MIC may order the licensee, etc. to cease the operation of the radio station for a specified period of not exceeding 3 months or suspend all or part of validity of the registration, or imposes a limitation to the permitted operations hours, frequencies or antenna power for a specified period. 148 Kaoru Kanazawa, Broadcast Law: Commentary (Telecommunications Promotion Organization, 2006), at 57. 149 Article 59 of the Radio Law. This Article stipulates that no one shall intercept, divulge or take advantage of the existence or contents of radio communications that is conducted for any specified person unless otherwise specified by law. 150 Kanazawa, supra, note 148, at 36. 142 Ibid.,

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9.4 Earth Observation Services, Including Data Processing and Distribution In Japan, there is no regulation with respect to the licensing of remote sensing operators and the distribution of data. As explained above, the FEFTA and relevant rules and regulations address national security concerns with respect to satellite transactions. In exporting satellites and related goods and technologies, permission from the METI is required as long as such goods and technologies pertaining to goods are specified in the Appended Table 1 (Re: Articles 1 and 4 ) of the Export Trade Control Order.151

9.5 Intellectual Property and Transfer of Technology Other than as already mentioned in the section on space transportation above, there are no other rules relevant to space activities in Japan, including the acquisition of intellectual property rights, the mechanism for exploiting IP rights and trade and transfer of technology. It remains to be discussed, as of August 2009, if a prospective Space Activities Bill in the making shall provide for the intellectual property rights, etc.

9.6 Satellite Navigation Services A Basic Act for the Promotion of the Use of Geographic Information (GIS Act)152 was adopted on May 30, 2007. The relevance of 21-article GIS Act to satellite navigation services lies in the obligation of the government to take effective measures to promote the development and use of satellite navigation services for providing the Japanese people with safer and more convenient transportation systems. Articles 20 and 21 of the GIS Act specifically refer to satellite navigation services, not GIS in general. Article 20 provides that the government shall designate the competent Minister to operate a global satellite navigation system. Article 21 reiterates the governmental obligation to develop satellite navigation systems. Although the QZSS had been planned as a public-private joint project since around the turn of the century, neither the relevant Ministries nor the private companies were ready to take a leading role due to the need for a big budget allocation in a Ministry and the substantial investments on the part of private companies. As 151 Examples of goods that are subject to export permission would be found in category 5(1) (products of fluorine compounds designed for use in aircraft, satellites, or other types of spacecraft for space development), category 11(4) (devices including gyro-astro compasses and to derive position or orientation of satellites), category 13(2) (satellites or other types of spacecraft for space development or components thereof) and category 15(6) (optical detectors specially designed for space applications). 152 Act No. 63 of May 30, 2007.

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a result, the public-private project was dissolved in March 2006. While proceeds from the operation of the CZSS cannot be expected at least in the near future, such navigation satellites constellation is thought to be important for constructing a “safe and secure society” in Japan and the surrounding areas. Thus, it was decided that the MEXT, through JAXA, would take the responsibility to construct the first QZS.153 The first demonstration satellite is scheduled to be launched in 2010.

153 See

Section 9.1.3.3.

Chapter 10

Regulation of Space Activities in The Netherlands From Hugo Grotius to the High Ground of Outer Space Frans von der Dunk

10.1 The General Background: The Netherlands and Outer Space The Netherlands, being aware of its relative size when compared to the major spacefaring nations not only globally but also in the European context, has always addressed outer space and space activities from the perspective of the role it could feasibly play. It has thus concentrated on a few niche areas which were either closely aligned to existing capabilities and experience or seemed to offer possibilities for mid-size economies and societies to play an important role. From this perspective, firstly the scientific and technical sector might be mentioned. Throughout history, a number of Dutch astronomers and astronomy institutions have become famous across the world; and considerable know-how in those areas has been consequently accumulated. Hence, the Netherlands was always particularly interested in the scientific exploration of the universe – even if it did not require actual space activities to be undertaken. The Dutch government had only two satellites launched on its own account, which were completely Dutch-built, and both of them for scientific purposes: the ANS (which stood for “astronomical satellite of the Netherlands”) in 1974 and the IRAS (Infra-Red Astronomical Satellite) in 1983. Both were launched using US launch vehicles. Since then, the Dutch involvement in satellite and other space projects has been only collaborative, and not autonomous or leading. The same was true also for the two Dutchmen who have so far travelled to outer space. Both Wubbo Ockels and André Kuipers were part of the international manned spaceflight projects in the context of European cooperation in space, notably as astronauts of the European Space Agency (ESA)1 – even as Kuipers’ F. von der Dunk (B) University of Nebraska-Lincoln, Lincoln, Nebraska, USA e-mail: [email protected] 1 The

European Space Agency was established in 1975 by means of the Convention for the Establishment of a European Space Agency (hereafter ESA Convention), Paris, done 30 May 1975, entered into force 30 October 1980; 14 ILM 864 (1975).

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_10,  C Springer Science+Business Media B.V. 2010

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first flight was paid for by the Dutch Ministries of Education and Science as well as Economic Affairs. Similarly, in line with the long-time engineering traditions in the Netherlands, a distinct interest in space from the technical perspective has always thrived – from government and academic institutions such as the Dutch aerospace agency NIVR and the Technical University of Delft, to companies such as Fokker Space, later Dutch Space, and Stork, finding niche markets in such areas as robotic arms and solar panels. Again, strictly speaking this was not about space activities, but rather (in this case) about building hardware as subcontractors to other non-Dutch main contractors, or in the context of the Dutch membership of ESA and the various joint cooperative projects undertaken within that framework. Secondly, it was the international orientation, specifically in the context of an international legal order flying the banner of peace and prosperity, which to a large extent determined the manner in which the Netherlands became involved in activities related to or carried out within outer space. This was a tradition going back as far as the seventeenth-century. Hugo Grotius, one of the founding fathers of international law, had written some of his most famous works on international peace and wars, respectively on the “outer space of his days” that was the realm of the high seas. Most of the Dutch activities focused, indeed, on ESA or other international cooperative projects under bilateral or multilateral treaties, preferably within a sound framework of international conventions and international law to guarantee that power and money would not be the only decisive factors in determining the shape and outcome of any such activities.

10.2 The Specific Background: The Netherlands and International Space Law The longstanding focus on scientific/technical aspects of space activities on the one hand, and on an international/legal context for them on the other, constitutes the key for understanding the approach of the Netherlands towards international space law, as well as to the possibility, desirability or even the need to create national space legislation as the main topic of the present book. Clearly therefore, it was natural for the Netherlands to be interested primarily in the international treaties thereby establishing primacy of the rule of law over power politics. With no capabilities or even intention to play a leading role in activities in outer space and in the absence of any private involvement in whatever space activities were undertaken, the existence of a substantial body of international law as such would generally be considered sufficient with no necessity of further national implementation. Thus, to start with, the Netherlands became – as one of only a handful of states globally – a party to all the five treaties specifically developed with a view to outer space and space activities (commonly referred to as the corpus juris spatialis internationalis). Not accidentally, that development took place at the United Nations as

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the prime global body tasked to maintain the rule of law and a minimum of peace and prosperity among nations. Firstly, the 1967 Outer Space Treaty2 was domestically approved by national law on 12 June 1969, its ratification with the depositories took place on 10 July 1969 and it entered into force for the Netherlands three months later, on 10 October 1969.3 Secondly, the 1968 Rescue Agreement4 was approved by the Dutch Parliament on 10 July 1980,5 as was the 1972 Liability Convention6 and the 1975 Registration Convention.7 Finally, the Netherlands is one of thirteen states currently party to the 1979 Moon Agreement,8 the last space treaty to see the light of day within the UN context. All these treaties, however, become relevant only when the intention exists to enter into outer space with a man-made space object.9 As, moreover, the only space activities (in the above sense) undertaken by the Netherlands were carried out under the direct control of the government, the need to establish any form of “authorisation and continuing supervision” of “national activities in outer space” conducted by “non-governmental entities”10 was practically absent. Likewise, the need to deal with the consequences of international state liability for damage caused

2 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,

including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967). 3 See Nederlandse Staatswetten, Editie Schuurman & Jordens, 104a (1981), at 3. 4 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, London/Moscow/Washington, done 22 April 1968, entered into force 3 December 1968; 672 UNTS 119; TIAS 6599; 19 UST 7570; UKTS 1969 No. 56; Cmnd. 3786; ATS 1986 No. 8; 7 ILM 151 (1968). 5 See supra note 3, 104a (1981), at 12. 6 Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971). See supra note 3, 104a (1981), at 18. 7 Convention on Registration of Objects Launched into Outer Space (hereafter Registration Convention), New York, done 14 January 1975, entered into force 15 September 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975). See supra note 3, 104a (1981), at 29. 8 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, New York, done 18 December 1979, entered into force 11 July 1984; 1363 UNTS 3; ATS 1986 No. 14; 18 ILM 1434 (1979). 9 This is essentially the case for the liability regime, where also failed launches could lead to application of that regime; cf. esp. Article I(b), Liability Convention. Most rules, rights and obligations contained in the corpus juris spatialis internationalis even start to become relevant, de jure or de facto, only once a space object has actually entered the realm of outer space – wherever that may begin. 10 These concepts and terms are the ones used by Article VI, Outer Space Treaty, to indicate international responsibility for space activities for certain states exists, which would almost automatically suggest a need for such states to control those activities if not undertaken by the states themselves.

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by space objects (also) if privately launched, owned and/or operated11 was basically absent, since there was no private launch, ownership or operation which the Dutch government needed to be concerned about from that angle. Because of the Dutch interest in maintaining international peace and security by means of the rule of law, the Netherlands furthermore became a party to such treaties as the 1963 Partial Test Ban Treaty12 and the 1996 Comprehensive Test Ban Treaty,13 both of which have a specific bearing on the regime applicable to outer space and space activities. At the same time, neither of them requires much attention from the perspective indicated above with regard to the establishment of national space legislation. In a similar vein, since the Dutch focus is on international cooperation, especially when the pooling of financial and technical resources would result in added value and synergies, the Netherlands became a member, in addition to ESA, of the major international organizations undertaking space activities. This concerned, most importantly, INTELSAT14 , INMARSAT15 and EUTELSAT,16 all international satellite consortia prior to their privatization. Also EUMETSAT,17 the cooperative organization in Europe for satellite meteorology, counts the Netherlands as one of its members. As for ESA itself, in the context of its optional programmes which 11 This is the consequence of the space liability regime offered by Article VII, Outer Space Treaty,

and the various clauses of the Liability Convention. 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. 13 Comprehensive Test Ban Treaty, New York, done 24 September 1996, not yet entered into force. 14 INTELSAT was originally established by means of the Agreement Relating to the International Telecommunications Satellite Organization (INTELSAT), Washington, done 20 August 1971, entered into force 12 February 1973; 1220 UNTS 21; TIAS 7532; 23 UST 3813; UKTS 1973 No. 80; Cmnd. 4799; ATS 1973 No. 6; 10 ILM 909 (1971), and the corresponding Operating Agreement Relating to the International Telecommunications Satellite Organization (INTELSAT), Washington, done 20 August 1971, entered into force 12 February 1973; 1220 UNTS 149; TIAS 7532; 23 UST 4091; UKTS 1973 No. 80; Cmnd. 4799; ATS 1973 No. 6; 10 ILM 946 (1971). 15 INMARSAT was originally established by means of the Convention on the International Maritime Satellite Organization (INMARSAT), London, done 3 September 1976, entered into force 16 July 1979; 1143 UNTS 105; TIAS 9605; 31 UST 1; UKTS 1979 No. 94; Cmnd. 6822; ATS 1979 No. 10; 15 ILM 1052 (1976), and the corresponding Operating Agreement on the International Maritime Satellite Organization (INMARSAT), London, done 3 September 1976, entered into force 16 July 1979; 1143 UNTS 213; TIAS 9605; 31 UST 1; UKTS 1979 No. 94; Cmnd. 6822; ATS 1979 No. 10; 15 ILM 233, 1075 (1976). 16 EUTELSAT was originally established by means of the Convention Establishing the European Telecommunications Satellite Organization (EUTELSAT), Paris, done 15 July 1982, entered into force 1 September 1985; Cmnd. 9069; Space Law – Basic Legal Documents, C.II.1, and the corresponding Operating Agreement Relating to the European Telecommunications Satellite Organization (EUTELSAT), Paris, done 15 July 1982, entered into force 1 September 1985; Cmnd. 9154; Space Law – Basic Legal Documents, C.II.2. 17 Convention for the Establishment of a European Organization for the Exploitation of Meteorological Satellites (EUMETSAT), Geneva, done 24 May 1983, entered into force 19 June 1986; as amended 14 July 1994, entered into force 27 July 1994; Cmnd. 9483; Space Law – Basic Legal Documents, C.III.1; 44 ZLW 68 (1995). 12 Treaty

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allow for opting out with regard to any space programme in which a state is not particularly interested,18 the Netherlands has contributed (usually with a modest share) to many of such programmes, including that of building the International Space Station.19 In all such cases, however, Dutch contributions either take the form of direct governmental involvement or, if private, of subcontracting at the level of hardware or software development. Thus, in none of these cases was particular attention necessary for implementation of the relevant clauses of the corpus juris spatialis internationalis at the domestic level.

10.3 New Developments: The Changing Dutch “Spacescape” Such was the situation regarding the Dutch “spacescape” roughly until well into the 1990s. It may be noted that, until that point, amongst the Western-European countries, only Norway20 (in a very perfunctory fashion), Sweden21 and the United Kingdom22 had bothered to establish their respective national space laws. Then, however, several developments started to converge to create a new environment for space activities in the Dutch context. One development of global dimensions concerned a general tendency to increasingly accept private parties as proper partners in space endeavours also outside the United States (which had already in 1984 enacted its first national space act providing for the licensing of private space actors).23 This development was certainly stimulated by the breakdown of communism in the Soviet Union, and the 1991 collapse of the Soviet Union itself, causing the most significant international opposition to capitalism and private enterprise in general (as well as the Cold War 18 Cf.

Artt. V(1.b), XIII(2), ESA Convention.

19 Hence, the Netherlands is one of the eleven ESA member states parties to the Agreement among

the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America concerning Cooperation on the Civil International Space Station, Washington, done 29 January 1998, entered into force 27 March 2001; Space Law – Basic Legal Documents, D.II.4. 20 Act on launching objects from Norwegian territory into outer space, No. 38, 13 June 1969; National Space Legislation of the World, Vol. I (2001), at 286. 21 Act on Space Activities, 1982: 963, 18 November 1982; National Space Legislation of the World, Vol. I (2001), at 398; Space Law – Basic Legal Documents, E.II.1; 36 Zeitschrift für Luftund Weltraumrecht (1987), at 11; and Decree on Space Activities, 1982: 1069; National Space Legislation of the World, Vol. I (2001), at 399; Space Law – Basic Legal Documents, E.II.2; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 11. 22 Outer Space Act, 18 July 1986, Chapter 38 ; National Space Legislation of the World, Vol. I (2001), at 293; Space Law – Basic Legal Documents, E.I; 36 Zeitschrift für Luft- und Weltraumrecht (1987), at 12. 23 This concerned the Land Remote Sensing Commercialization Act, Public Law 98-365, 98th Congress, H.R. 5155, 17 July 1984; 98 Stat. 451; Space Law – Basic Legal Documents, E.III.4; shortly followed by the Commercial Space Launch Act, Public Law 98–575, 98th Congress, H.R. 3942, 30 October 1984; 98 Stat. 3055; Space Law – Basic Legal Documents, E.III.3.

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calling for governmental control over space activities) to disappear almost entirely. Russia, as the Soviet Union’s main successor, established a national space law providing for a licensing system for private space actors in 1993,24 whereas the Ukraine, number two in the line of succession, followed suit in 1996.25 A second development concerned, for Europe, the increasing involvement of the European Community, later European Union, in the area of space activities. Whereas until 1985 the ESA served as the exclusive framework for the determination and implementation of any European space policies (as distinct from national space policies of the member states), the European Community under the 1986 Single Act26 received its first – albeit marginal – measure of competence in the area of space, to the extent that space activities could be subsumed under the heading of “research and development”. The increasing commercialisation of the telecommunications sector as a whole, and the specific sub-sector of satellite communications following closely on its heels, caused such involvement to shift into higher gear. The 1987 Green Paper on the liberalisation of telecommunications27 had explicitly excluded satellite communications, but this omission was soon remedied by another Green Paper three years later.28 The favourable reactions to the policy proposals of the Commission in the 1990 Green Paper for the purpose of liberalising and privatising satellite communications then led the Commission to establish the baseline for that process by means of the 1994 Satellite Directive,29 to be followed in due course by more Directives and Regulations guiding the process further along.30 As a result of such measures, an Internal Market for telecommunications in general, but also for

24 Law

of the Russian Federation on Space Activities, No. 5663-1, 20 August 1993, effective 6 October 1993; National Space Legislation of the World, Vol. I (2001), at 101. 25 Law of the Ukraine on Space Activities, No. 502/96-VR, 15 November 1996: National Space Legislation of the World, Vol. I (2001), at 36. 26 Single European Act, Luxembourg/The Hague, done 17/28 February 1986, entered into force 1 July 1987; 25 ILM 506 (1986); OJ L 169/1 (1987). 27 Towards a Dynamic European Economy – Green Paper on the Development of the Common Market for Telecommunications Services and Equipment, Communication from the Commission, COM(87) 290 final, of 30 June 1987; OJ C 257/1(1987). 28 Towards Europe-wide systems and services – Green Paper on a common approach in the field of satellite communications in the European Community, Communication from the Commission, COM (90) 490 final, of 20 November 1990. 29 Commission Directive amending Directive 88/301/EEC and Directive 90/388/EEC in particular with regard to satellite communications, 94/46/EC, of 13 October 1994; OJ L 268/15 (1994). 30 Examples concerned the Commission Directive amending Directive 90/387/EEC with regard to personal and mobile communications, 96/2/EC, of 16 January 1996; OJ L 20/59 (1996); the Commission Directive amending Directive 90/388/EEC with regard to the implementation of full competition in telecommunications markets, 96/19/EC, of 13 March 1996; OJ L 74/13 (1996); and the Decision of the European Parliament and of the Council on a coordinated authorization approach in the field of satellite personal communications systems in the Community, No. 710/97/EC, of 24 March 1997; OJ L 105/4 (1997).

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satellite communications in particular, was gradually arising within the European Community, then Union. Finally, these developments within the European context mirrored closely related developments at the global level. In the mid-1990s the World Trade Organisation (WTO),31 almost as soon as it was established, started to apply the General Agreement on Trade in Services (GATS)32 to the telecommunications sector, by means of the 1997 Agreement on Basic Telecommunication Services33 and the individual schedules of commitments to open up national markets on a reciprocal basis. Increasing pressure also upon the incumbent international satellite organizations INTELSAT, INMARSAT and EUTELSAT could gather steam in these contexts, leading to their ultimate but inevitable privatization by the turn of the century. For the Netherlands, these developments brought the prospect of private space activities for commercial gain to the fore and the possibility for the country to benefit from such developments. The privatisation process left its mark, for example, on the incumbent national telecommunications service provider PTT, later KPN, both in relation to its own status and as to its hitherto exclusive access to the international satellite communication infrastructure offered by INTELSAT, INMARSAT and EUTELSAT for the Dutch market. However, this did not trigger much thought on any need or desirability for a Dutch national space law, since there did not seem to be any newcomers waiting in the aisles to enter the Dutch market yet. Furthermore, the clustering of private space companies from major European states looking for a neutral home for their overarching construction led to the legal establishment of the European Aeronautic Defence and Space company (EADS) as the holding consortium in the Netherlands, headquartered in Amsterdam, though it should be noted that this concerned the manufacturing industry only. Therefore, the two single most important developments in this area which finally triggered discussion within the Netherlands towards the end of the 1990s on the desirability or even the need for a national space law and accompanying licensing system were the establishment of two new private companies of a rather different nature.

10.4 Mircorp and New Skies Satellites By the turn of the century, an exciting new prospect in terms of manned spaceflight loomed. With the Russians strapped for cash and their Mir space station hanging on against all odds following a few serious incidents, the possibility of extremely rich 31 The

WTO was created under the Agreement Establishing the World Trade Organization, Marrakesh, done 15 April 1994, entered into force 1 January 1995; 1867 UNTS; UKTS 1996 No. 57; ATS 1995 No. 8; 33 ILM 1125, 1144 (1994). 32 General Agreement on Trade in Services, Marrakesh, done 15 April 1994, entered into force 1 January 1995; ATS 1995 No. 8. 33 Agreement on Basic Telecommunications Services, Geneva, done 15 February 1997, entered into force 5 February 1998; ATS 1998 No. 9; 36 ILM 354 (1997).

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private individuals paying for their own trip to, and stay on board an orbiting space station followed by a safe homebound journey, was all of a sudden becoming very real. A small company was established in the Netherlands, called MirCorp, for the purpose of brokering appropriate deals between the Russian Space Agency and potential customers willing to pay sums of money in the range of US$ 20,000,000 for a one-week trip to the Russian space station. In the final resort, though Mir itself had to be de-orbited prematurely (from this perspective) in early 2001, this initiative resulted in the first-ever tourist in outer space, Dennis Tito, being sent to the ISS in April 2001. The final stretch of the deal no longer saw MirCorp in charge, as in the meantime it had been somehow restructured and replaced by Space Adventures, with the business operation thus essentially being relocated to the United States. Nevertheless, the prospect of a private company which, because of its headquarters and formal place of establishment, was to be considered a Dutch company for the purposes of international law34 (including space law),35 suddenly brought the possibility of the legal involvement of the Netherlands under international space law to the fore. MirCorp’s clients would be launched “by” Russia, (i.e., the Russian Space Agency) on board a Soyuz spacecraft from the Bajkonur launch base, which qualified as a Russian launch facility on Kazakh territory. Hence any damage caused by those Soyuz flights would, under the Liability Convention, lead to joint and several liability of Russia and Kazakhstan.36 The fact that MirCorp, as a Dutch company for the purposes of international (space) law, was actually the launch customer, however, raised the question whether this would in addition qualify the Netherlands as the state “which (. . .) procure[d] the launch”37 – and thus the spectre for the Netherlands to be faced with claims that it would be jointly and severally liable for such damage, too. There is no clear guidance on the international level as to what extent a “State which (. . .) procures the launch” would, should or could, for the purpose of the Liability Convention, be considered to include a state whose company procures the launch, though it would be fair to say that most authors on the subject would, indeed, uphold the broader interpretation.38 Therefore, with a view to the possibility of such

34 Cf.

e.g. the famous dictum of the International Court of Justice in the Barcelona Traction Case; Case Concerning the Barcelona Traction Light and Power Company, Limited (Second Phase)(Belgium v. Spain), International Court of Justice, 5 February 1970, I.C.J. Rep. 1970, 4, at 42, § 70. 35 Cf. Article III of the Outer Space Treaty. 36 Cf. Articles I(c) and V of the Liability Convention. 37 Article I(c), sub (i) of the Liability Convention. 38 It should be kept in mind that the Liability Convention just refers to “a state which (. . .) procures” (Article I(c) (i); emphasis added), not to “a state which procures or whose private entities procure”; references to private enterprise should not be simply read into a case where explicitly only reference is made to “states”. With reference furthermore to the manner in which individual states have implemented this clause, as it turns out most states have actually refrained from

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a claim being actually brought forward at some point in time, it was clear that the Netherlands would do well to consider domestic implementation, including a system of licensing, liability reimbursement and insurance provisions, of the relevant elements of the Liability Convention at the very minimum. As indicated, MirCorp was relocated to the United States before any such implementation could take effect, but this is where the other new, private company of interest came in: New Skies Satellites. New Skies Satellites originated in the bosom of INTELSAT, which in the course of the mid-1990s faced the combined pressure of calls for privatisation and its own inability to appropriately and flexibly handle high-end value-added commercial satellite services. As one consequence of those developments, it was announced on 31 March 1998 that New Skies Satellites would be established as an independent private company, with its legal incorporation in the Netherlands and its headquarters in The Hague. It was bequeathed with six of INTELSAT’s twenty-four then-operational satellites as start-up capital assets. By itself, the establishment of New Skies Satellites and the transfer of six satellites in orbit to it would have called for a measure of “authorization and continuing supervision” as the operation of the satellites and the leasing of transponders on board by the company would certainly qualify as “national activities in outer space” for which the Netherlands would bear international responsibility.39 Also, the mere fact of legal incorporation and establishment of physical headquarters in the Netherlands gave the Dutch authorities the actual opportunity to exercise the necessary measure of control (“authorization and continuing supervision”) over the company. At the time, however, existing business operation requirements under general Dutch law were considered sufficient to take care of any potential risk that New Skies Satellites’ activities would come into conflict with the provisions of the Outer Space Treaty and other rules of space law without the Dutch authorities being aware of such conflicts. Consequently, the Netherlands would be able to comply with and take care of its voluntarily assumed international obligations. Next to the general accountability which Article VI of the Outer Space Treaty imposed on the Netherlands, however, there was no need to cover international liabilities under the Liability Convention. The six satellites had been launched as INTELSAT satellites, which under the Liability Convention’s premise of “once a launching state, always a launching state” meant that the later transfer of ownership of the satellites in orbit did not change anything regarding their status under that Convention.40 requiring a license merely for the procurement by a private company of a launch, which means that those states apparently consider private procurement not to be included, so that it is not necessary to domestically cover themselves against presumed international consequences under the Liability Convention. As a matter of fact, the UK Outer Space Act is the only domestic space law that explicitly requires a license for the mere activity of procuring a launch (as per Section 1(a)). While most authors, as indicated, hold an opposite view, an unequivocal interpretation of the Liability Convention’s text by states is clearly absent. 39 Article VI of the Outer Space Treaty. 40 It should be kept in mind that the Liability Convention does not take any other state into consideration for apportionment of liability but the state(s) involved in the launch as “launching states”, and

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Since INTELSAT itself had not made use of the option under Article XXII of the Liability Convention to accept the substantive rights and duties of the Convention by a special Declaration,41 presumably the totality of member states of INTELSAT should be seen as jointly fulfilling the criterion of states having procured the launches of those six satellites. The Netherlands was thus only one amongst many, and any potential claim would have been dealt with by applicable internal INTELSAT procedures. The effect of any contractual arrangements on this matter between New Skies Satellites on the one hand and INTELSAT / the INTELSAT member states on the other would there remain exclusively internal in effect, and not change the situation vis-à-vis third states under the Liability Convention. This fundamentally changed in 2002 however, a year after the launch of the first space tourist as originally arranged by MirCorp. New Skies Satellites was experiencing continuous market growth and prospering as a consequence, and soon was in need of additional satellite capacity. Thus, in April 2002, the company had its first new satellite launched, and more would follow, and this time there was little doubt that New Skies Satellites was directly involved in the manufacture and launch of satellites itself. There was some discussion at that time whether the “turn-key” contract which New Skies Satellites had concluded with the satellite manufacturer, which tasked the latter to arrange for and buy the launch and hand over the “keys” to the satellite only once it was in orbit, would qualify the Dutch company as the “procuring entity”. However, the better view is clearly that, even if New Skies Satellites was not directly paying for the launch, its interest in having the satellite launched was the sole reason why it was launched, so that this would, at the very least, constitute “procurement by proxy”. As discussed earlier, once the company would be considered to have procured the launch, most authors would agree that this would effectively mean that (in this case) the Netherlands would qualify as the procuring state for purposes of the Liability Convention. Thus, this development finally set the train in motion leading to the ultimate drafting of a Dutch national space law. The Dutch Ministry of Economic Affairs, triggered by an “alert” from the Ministry of Foreign Affairs that amongst others the above developments might involve international responsibility and liability for the Dutch state under the applicable treaties, took the lead. It firstly commissioned two studies, one by the International Institute of Air and Space Law in Leiden on the narrower legal aspects

neither Liability Convention nor Registration Convention have allowed for qualification as launching / liable state after the launch, e.g. by in-orbit take-over. Even more crucially, the Registration Convention does not even formally allow for re-registration. 41 It may be noted, that Article XXII(1), Liability Convention, specifically required a majority of INTELSAT member states (some 140 at the time) to be parties to the Outer Space Treaty and the Liability Convention itself, which is a quite stringent condition – even as of 1 January 2006, the Outer Space Treaty had 98 states parties, the Liability Convention 83. See the website of the UN Office for Outer Space Affairs, at http://www.unoosa.org/oosa/en/SpaceLaw/treaties.html.

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and one by a British consultancy firm Actinus on the broader economic and political ramifications and parameters. Without much hesitation, both studies recommended the drafting of a stand-alone framework national space law, rather than the amendment of existing regulations pertaining to general licensing of businesses, as the specifics of the international “spacescape” would not be easily taken account of in sufficient measure under the latter approach. Next, as part of a broader process within the Ministry of Economic Affairs of reinvigorating Dutch involvement in all sorts of space activities and applications, especially as pushed by Minister Brinkhorst during the period in which he was at the helm (which lasted from 2003 to 2006), the Ministry of Economic Affairs supervised the process of actual drafting, in cooperation with other relevant Dutch Ministries such as those of Foreign Affairs, Transport and Waterworks (in view of their key role in telecom and navigation applications), Agriculture (in view of agricultural applications of space), Education and Science, Defence, and Justice. As a result, on 24 January 2007 the Dutch Space Activities Act (Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry of Space Objects)42 was officially enacted by the Dutch Parliament and published on 6 March 2007. By decision of 30 November 2007, the Act finally entered into force together with the Decision on the Register for Space Objects (Besluit register ruimtevoorwerpen) which elaborated the relevant part on establishment of a national register.43 The accompanying explanatory memorandum44 explains the background of the Act by making specific reference to the Actieplan Ruimtevaart [Netherlands Space Action Plan].45 As elaborated in the Actieplan, Dutch space activities will continue to be conducted predominantly in an international context, taking into consideration the character of the space sector as a high-technology industry characterized by high investment and long payback times. The Actieplan then outlines the key ambitions of, and priorities for, the Dutch government as being science (specifically listing astrophysics, planetary research, gravitational research, atmospheric and climate research, and microgravity research), operational usage of space activities (with a focus on earth observation, satellite navigation and satellite communications), and infrastructure development (from launch vehicles to satellite platforms and the International Space Station).

42 See

80 Staatsblad (2007), at 1. 492 Staatsblad (2007). 44 The Dutch version thereof can be found in Tweede Kamer der Staten-Generaal, Vergaderjaar 2005-2006, 30 609, nr. 3. As with the Space Activities Act itself, the English translation used for the purposes of this article, which is on file with the author, was an unofficial one; it was made official however later in the course of 2007. 45 See Tweede Kamer der Staten-Generaal, Vergaderjaar 2004–2005, 24 446, nr. 27. 43 See

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10.5 The Dutch Space Activities Act The Dutch Space Activities Act, as becomes already clear from its full title, effectively incorporates two main aspects. It deals in particular with private space activities for which the Netherlands could be held internationally responsible and/or liable under the corpus juris spatialis internationalis, and the more specific issue of establishing a formal registration procedure and a national register of space objects with a view to, inter alia, dealing with the same set of space activities. The Act comprises 28 sections, spread out over seven chapters.

10.5.1 Chapter 1: General Provisions Chapter 1 comprises the General Provisions. Section 1 lists the relevant definitions, of which the most interesting ones from the perspective of international space law concern “space activities” (defined as “the launch, the flight operation or the guidance of space objects in outer space”)46 and “space object” (“any object launched or destined to be launched into outer space”).47 While it may be considered unlikely that space activities involving the launch of a space object will take place from the Dutch territory (at least as far as the territory of the Netherlands itself is concerned), the same does not apply to the flight operation or the guidance of space objects in outer space. Navigation, tracking and control of space objects during the launch phase and in outer space require a control centre using remote-control technology, which could certainly be established on, and hence the relevant activities conducted from, Dutch territory. Section 2 warrants comprehensive quotation, as it defines the scope of the Act in terms of its licensing system. It provides as follows: 1. This Act applies to space activities that are performed in or from within the Netherlands or else on or from a Dutch ship or Dutch aircraft. 2. By Order in Council this Act can also be declared wholly or partly applicable to: (a) designated space activities that are performed by a Dutch natural or juridical person 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; (b) the organization of outer-space activities by a natural or juridical person from within the Netherlands. 46 Section 1(b), Space Activities Act. It may be noted, that the term “space activities” as such is not

to be found in the space treaties, only closely related ones appear; Article I, Outer Space Treaty, for example refers to “the exploration and use of outer space”, whilst Article VI, Outer Space Treaty refers to “activities in outer space”. 47 Section 1(c), Space Activities Act. This definition is of interest inter alia with a view to Article I (d), Liability Convention, and Article I(b), Registration Convention, which only offer a rudimentary definition of the term “space object”.

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Firstly, it should be pointed out that “the Netherlands” in this context refers only to that part of the territory of the Kingdom of the Netherlands which is situated in Europe. Whilst for the purpose of international law including the space treaties, the Netherlands as a state includes the overseas territories of Aruba and the Dutch Antilles, and hence would be internationally responsible and liable also for space activities conducted from those territories, the approach has been taken internally to allow those two territories to make up their own minds.48 It may be noted here, that the government of Aruba has stated that it intends to draft regulations designed to bar space activities from the territory of Aruba, whereas the government of the Dutch Antilles plans to draft legislation that will be closely modelled on the provisions of the Dutch Space Activities Act. Secondly, the mere organization of space activities “from within the Netherlands” does not automatically fall within the scope of the Act.49 This is especially interesting in the light of the discussion on the “procurement” of launches referred to above, where the Dutch authorities consider that the mere organization of activities in the Netherlands does not lead to liability for the Netherlands under the Liability Convention. The explanatory memorandum specifically refers to the commercial organization of space tourist flights as one of the activities under this heading which might in the not-too-distant future require application of the Space Activities Act. It should be pointed out, that once space tourist flights themselves are conducted from the territory of the Netherlands, this would obviously fall within the scope of Section 2(1) of the Act, and hence the Act would automatically apply. Thus, in terms of delimiting its scope, the Space Activities Act applies the territorial criterion in a broad sense in that it also encompasses activities to which Dutch jurisdiction applies on a quasi-territorial basis, such as Dutch ships and Dutch aircraft.50 The criterion of nationality is only applied, under Section 2(2), in case the 48 As

a consequence of this particular structure of the Kingdom of the Netherlands, the instrument of a “Kingdom Act” is available to ensure that certain laws apply to the comprehensive Kingdom of the Netherlands, that is including the overseas territories. Whilst the space treaties have been implemented by means of such Kingdom Acts, it was decided not to use this instrument in case of the Space Activities Act. Furthermore, it should be noted that currently major constitutional changes in the status of the Dutch Antilles are taking place. 49 In other words: also the Netherlands in principle does not consider “procurement” by a private party to require a license for Liability Convention-purposes; although a possible exception might be made in the future for space tourism. 50 The terms “Dutch ship” and “Dutch aircraft” are defined by Section 1(d) and (e) respectively, in both cases with reference to Dutch law. Space activities conducted “from a Dutch space object” are not considered feasible for the time being, hence do not require inclusion in this clause at this point. In addition, it should be noted that formally space objects do not acquire a “nationality”, but merely a “state of registration” by virtue of Article VIII, Outer Space Treaty, and Article II, Registration Convention. This is different for ships and aircraft; see resp. Article 5(1), Convention on the High Seas, Geneva, done 29 April 1958, entered into force 30 September 1962; 450 UNTS 82; TIAS 5200; 13 UST 2312; UKTS 1963 No. 5; Cmnd. 584; ATS 1963 No. 12; and Article 91(1), United Nations Convention on the Law of the Sea, Montego Bay, done 10 December 1982, entered into force 16 November 1994; 1833 UNTS 3 & 1835 UNTS 261; UKTS 1999 No. 81; Cmnd. 8941; ATS 1994 No. 31; 21 ILM 1261 (1982) for ships; and Article 17, Convention on

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territory of a state not party to the Outer Space Treaty is concerned, in order to fill any gaps in international responsibility resulting from that latter scenario. Clearly then, the Netherlands views the reference to “national activities in outer space” in Article VI of the Outer Space Treaty to refer principally to “activities conducted from Dutch territory”, and only under special circumstances, almost as a generous gesture to help prevent any gaps in international responsibility from occurring, to “activities conducted in the territory of another State by Dutch nationals, whether juridical or natural.”

10.5.2 Chapter 2: Licences Chapter 2, comprising Sections 3–10, outlines the licensing regime which is established by the Space Activities Act. Section 3 is the key section. Subsection 1 constitutes the baseline, as it decrees the fundamental illegality of conducting any of the space activities to which Section 2 makes reference without a proper license. Section 3(2) reiterates the focus of the Act on private space activities, as activities performed by or under the responsibility of the Dutch government do not require a license. Subsection (3) prescribes the main conditions to which a license may be subject, as far as the Act itself is concerned. It provides as follows: Regulations and restrictions can be attached to the license for the following purposes: (a) (b) (c) (d) (e) (f)

the safety of persons and goods; protection of the environment in outer space; financial security; protection of public order; security of the State; fulfilment of the international obligations of the State.

Those are quite general requirements which are found in most other national space laws and licensing systems in one form or another. Other Sections, however, add more specific or elaborate requirements. Section 3(4), for example, adds another key condition for procuring a license; i.e., the licensee shall insure himself against any liability “arising from the space activities for which a license is required”. A reasonability-criterion is built into the Act, as per the estimate of the authorities.51

International Civil Aviation, Chicago, done 7 December 1944, entered into force 4 April 1947; 15 UNTS 296; TIAS 1591; Cmd. 6614; UKTS 1953 No. 8; ATS 1957 No. 5; ICAO Doc. 7300 for aircraft. At the same time, in view of the resulting jurisdiction and the prohibition of double registration, for all practical purposes the registration of space objects should be deemed to lead to the same result as the granting of nationality thereto. 51 See Section 3(7), Space Activities Act, allowing imposition of further rules “in order to implement the provisions of Subsection 4”.

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Next, Section 6 contains a list of grounds upon which the issuance of a license must or may be refused, which of course also translates into requirements to be fulfilled for such a grant. A license will be refused if “(a) this is necessary in order to comply with a treaty or a binding decision of an international institution; (b) (. . .) the safety of persons and goods, environmental protection in outer space, the maintenance of public order or national security might be jeopardized by issuing the licence; (c) its issuance would contravene rules laid down by or pursuant to this Act.”52 In addition, a license, may be refused for certain self-evident or procedural reasons, namely if: “(a) a previously issued licence has been revoked owing to infringement of rules laid down by or pursuant to this Act or of the regulations attached to the licence; (b) the applicant has not discharged his obligations under a previously issued licence; (c) the application or the applicant does not comply with the rules laid down by or pursuant to this Act; (d) there is good reason to fear that the applicant will not act in accordance with the rules laid down by or pursuant to this Act; (e) this is necessary in order to protect the interests referred to in Section 3, Subsection 3.”53 So, the Act essentially is a framework law, leaving considerable flexibility for the Dutch authorities to add further requirements as expertise grows, concurrently with the possibility to draft tailor-made provisions and requirements for specific types and categories of space activities. For example, the Act allows the Minister to impose additional requirements, which may relate to “(a) the applicant’s knowledge and experience; (b) authorization for the use of frequency space [spectrum]”.54 Chapter 2 also contains a number of provisions which are essentially procedural in nature. For example, there is a 6 month time limit within which a license application has to be decided upon.55 Section 7 provides, in extended fashion, for reasons for which a license may be revoked,56 and the applicable procedures for revocation. Licenses are not transferable, although provision is made for cases in which the license has been issued to “a juridical person that is merged, divided or changes its name”, which is of course common practice in general business environments.57

52 Section

6(1), Space Activities Act. 6(2), Space Activities Act. 54 Section 4(3), Space Activities Act. 55 See Section 5, Space Activities Act. 56 Thus, the license will be revoked amongst others if that is necessary “to comply with a treaty or a binding decision of an international institution” (Section 7(1.b)), or if “the safety of persons and goods, environmental protection in outer space, the maintenance of public order or national security” (Section 7(1.c)) would be jeopardised. Similarly, the license may be revoked amongst others if the relevant rules have been infringed, if “the space activities have not been commenced within the stipulated time limit” (Section 7(2.b)), if “the purpose of the space activities for which the licence was issued has changed substantially” (Section 7(2.c)), or if “this is justified by a change in the technical or financial capabilities of the licence-holder” (Section 7(2.d)). 57 Section 8 of the Space Activities Act. 53 Section

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Section 9 leaves open the possibility for the authorities to charge a fee for administrative services offered, viz. activities undertaken in the context of the licensing process, without any reference to an amount or even a method for calculating it. One reason for the vagueness of this provision was the lack of experience hitherto in the Netherlands with license applications in such a special sector as space, and the resulting unpredictability of most details of such applications. In the accompanying explanatory memorandum, a very rough estimate of relevant costs for the administrative body is made, referring to application costs being in the range of 500–1,000 Euros, non-recurring costs in the range of 3,000–6,000 Euros and ongoing costs in the range of 2,000–4,000 Euros per year. Finally, Section 10 was drafted to focus on what is currently termed “Disasters” but should more properly have been labelled “Incidents”. It casts a duty upon the licensee to take steps to the greatest extent possible, to prevent any jeopardy to safety of persons and goods, the environment of outer space, the maintenance of public order and national security or damage that might result from the licensed activities at issue. 58 This is essentially the definition of the concept of “incident” as it is used in this Section. The unlikelihood of manned space activities being conducted from the Netherlands (as opposed to being organised from the Netherlands)59 is evident from the fact that the usual distinction in comparable regimes such as the Australian national space law60 between “accidents” (where people actually get hurt or even killed) and “incidents” (where such injury has been merely threatened but in the end has remained absent) has not been used in this context. The section also imposes the obligation to provide the Dutch authorities with information on “a. the causes of the incident and the circumstances under which the incident occurred; b. the relevant information that is needed in order to assess the nature and the seriousness of the consequences of the incident; c. the steps that have been taken or are being contemplated in order to prevent, limit or rectify the consequences of the incident; and d. the steps that have been taken or are being contemplated in order to prevent such an incident recurring during a space activity”.61

10.5.3 Chapter 3: Registry of Space Objects As mentioned above, the second major reason for establishing the Dutch Space Activities Act relates to the establishment of a national register for space objects in 58

See Section 10(1) of the Space Activities Act. the discussion supra, on the de facto exclusion in particular of space tourist activities from the scope of the Act. 60 Cf. Sections 85, 86, ff., An act about space activities, and for related purposes, No. 123 of 1998, assented to 21 December 1998; National Space Legislation of the World, Vol. I (2001), at 197, as amended by Act No. 100 of 2002. 61 Section 10(2) of the Space Activities Act. 59 See

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fulfilment of relevant obligations under the Outer Space Treaty and the Registration Convention. To be sure, the relevance of such a national register was not limited to the private activities which constitute the main target of the Act, as any space object launched with the involvement of the Netherlands with the status of a “launching State” immediately raises the issue as to whether the Netherlands should also act as the state of registry (and in the hypothetical case where the Netherlands would qualify as the only launching state, simply results in an obligation to do so).62 And, indeed, during the discussions on the development of the Space Activities Act, it was repeatedly asserted that, in case a decision is made not to draft such an Act, the need for the establishment of a national registry would remain independently of such an Act. If the Act would not come about, other less administratively burdensome but also less transparent and legally secure, means should be found to achieve the desired result. As it is, now Section 11 provides for the registration obligation as follows: 1. Our Minister shall maintain a registry with information concerning space objects that are being used in connection with space activities as referred to in Section 2. 2. The licence-holder shall, at times to be determined by Order-in-Council, furnish the information required for the registry. 3. Our Minister will be responsible for registering space objects that are being used in connection with space activities that are performed under the responsibility of one or more of Our Ministers. 4. Rules will be laid down by or pursuant to an Order-in-Council with a view to implementing this section.63 As the explanatory memorandum makes clear, the information to be included in the national register must, at any rate, include the information that the Netherlands in turn would be obliged to provide to the UN Secretary-General for the purposes of fulfilling obligations assumed under the Registration Convention.64 Article IV of the Registration Convention in this regard provides for the following parameters: (a) (b) (c) (d)

Name of launching State or States; An appropriate designator of the space object or its registration number; Date and territory or location of launch; Basic orbital parameters, including: (i) Nodal period; (ii) Inclination; (iii) Apogee; (iv) Perigee; (e) General function of the space object.

62 Cf.

esp. Article II of the Registration Convention. Minister” is the standard legal phrase referring effectively to the government; the “our” referring in the form of a pluralis majestatis to the Queen of the Netherlands. 64 See Articles III and IV of the Registration Convention. 63 “Our

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The specific character of this chapter becomes clear once more where Section 11(3) of the Space Activities Act provides that governmental space activities fall within the scope of the Act for this particular purpose.

10.5.4 Chapter 4: Redress Chapter 4 harks back on the most significant scenario within the context of the risk that licensed space activities cause damage of a possible catastrophic nature and size as has been touched upon already;65 namely situations in which the liability regime under the corpus juris spatialis internationalis becomes applicable. The sole section in this chapter, Section 12, starts by establishing the primary obligation of reimbursement – if the Netherlands “is obliged to pay compensation under Article VII of the Outer Space Treaty or the Liability Convention, the State is entitled to recover this sum, in full or in part, from the party whose space activity has caused the damage”.66 It may be recalled, that the liability regime under the Liability Convention essentially provides for unlimited compensation.67 The principle of unlimited compensation however is qualified, or more precisely the burden resulting from that principle for the licensee is mitigated by the clauses limiting the liability of the licensee as well as the actual reimbursement of the Dutch government “to the value of the sum insured”,68 referring back to Section 3(4) under which the Dutch government is given the discretion to determine “the maximum possible cover”. From the explanatory memorandum it transpires that the Dutch government is effectively contemplating the use of a loosely-defined version of the Maximum Probable Loss-concept as used in comparable clauses in US and Australian national licensing regimes.69

65 See

Section 3(3) with the most fundamental requirements for the granting of a license, and Section 3(4) referring more specifically to the liability and insurance issues at stake. 66 Section 12(1) of the Space Activities Act. 67 Cf. Article XII of the Liability Convention, which specifies that “The compensation which the launching State shall be liable to pay for damage under this Convention shall be determined in accordance with international law and the principles of justice and equity, in order to provide such reparation in respect of the damage as will restore the person, natural or juridical, State or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred.” 68 Section 12(2), (3) of the Space Activities Act. 69 Cf. for the United States, Section 16(a)(1)(A), Commercial Space Launch Act, Public Law 98-575, 98th Congress, H.R. 3942, 30 October 1984; 98 Stat. 3055; Space Law – Basic Legal Documents, E.III.3, as amended by Commercial Space Launch Act Amendments, Public Law 100657, 100th Congress, H.R. 4399, 15 November 1988; 49 U.S.C. App. 2615; 102 Stat. 3900; Space Law – Basic Legal Documents, E.III.3, 13 ff. and now codified as Section 70112(a.3), Commercial Space Transportation – Commercial Space Launch Activities, 49 U.S.C. 70101 (1994); and for Australia, Section 48(3), An act about space activities, and for related purposes, No. 123 of 1998, assented to 21 December 1998; National Space Legislation of the World, Vol. I (2001), at 197, as amended by Act No. 100 of 2002.

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In the alternative (depending, of course, on the manner in which the insurance contract is drafted), the Netherlands can exercise its right of redress directly against the insurer.70 In any event, the Dutch government is certain that any claim for compensation made against it under applicable liability regimes of international space law as a result of a licensee’s activities can, at least as to its substantive financial consequences, be subrogated to the extent of the sum insured.

10.5.5 Chapter 5: Enforcement Chapter 5 encompasses eleven sections, from Sections 13 to 23, dealing with various elements of enforcing the Space Activities Act and its licensing regime at the domestic level. It includes some procedural aspects of determining whether infringements have occurred and of imposing the relevant sanctions. For example, the power to impose penalties will lapse five years after the infringing act has been committed; whereas objections and appeals are allowed for in due form.71 By their very nature, many of these provisions refer back to existing elements of Dutch national law. In view of the international nature of the space industry, an interesting clause is contained in Section 20(2). For any oral discussion on potential infringements of the Act and/or sanctions imposed as a consequence, a person “who does not adequately understand the Dutch language” is entitled to an interpreter, “unless it can reasonably be assumed that this is not necessary”. Perhaps the most interesting section within this chapter is Section 15 that deals with sanctions. Generally, violations of any of the licensing obligations contained in Sections 3, 7 and 10 can be sanctioned with administrative penalties up to a maximum of 450,000 Euros or 10% of the “relevant annual sales of the company in the Netherlands, whichever is the greater”.72 Violations of the regulations pertaining to the registration of relevant space objects can be sanctioned with administrative penalties up to 100,000 Euros.73

10.5.6 Chapter 6: Amendments to Other Legislation The sole Section comprising Chapter 6, which is Section 24, represents an effort to ensure coherence and compatibility with existing Dutch national legislation while maintaining the key benefit of the Space Activities Act, i.e., providing potential space entrepreneurs with a one-stop licensing regime. In particular, the offence resulting from Section 3 as regards the illegality of undertaking space activities without a license respecting the conditions mentioned in Subsection 3, the safety of persons and goods, protection of the environment in outer 70 Section

12(4) of the Space Activities Act. 17(1) resp. (2) of the Space Activities Act. 72 Section 15(1) of the Space Activities Act. 73 Section 15(2) of the Space Activities Act. 71 Section

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space, financial security, protection of public order, security of the Netherlands, and fulfilment of the international obligations of the Netherlands, as well as a failure to comply with necessary instructions as regards the activities under the license under Section 7(3) or a failure to comply with the obligations of the licensee once an incident has occurred under Section 10, are now all included in the scope of the Economic Offences Act.74 Likewise, violations of the licensee’s obligations with regard to the registration of licensed space objects are now incorporated in the Economic Offences Act (notably as part of Section 1(4)) through Section 24(2) of the Space Activities Act).

10.5.7 Chapter 7: Concluding Provisions Chapter 7 comprising Sections 25–28, offers a surprisingly small number of concluding provisions, including one clause referring to another Dutch Act (the General Administrative Law Act) with a view to an impending amendment of that Act which would cause some procedural clauses of the Space Activities Act to cease to apply.75 Section 25 is the most interesting provision in this chapter. It provides for a transitional arrangement, which, in view of the fact that at that point in time only New Skies Satellites was a matter for consideration, is a very succinct one. Activities already ongoing at the point in time when the new Act enters into force may continue for another twelve months without a license – but then would require a license to be allowed to proceed.76

10.6 The Netherlands: A New Gateway to Outer Space? It may seem that the process of domestic implementation of some key provisions of the corpus juris spatialis internationalis in the Netherlands has only just begun. The 2007 Space Activities Act is a framework law for all practical purposes, even if it manages to provide for a sufficient measure of implementation for the time being. As the last formalities required before the Act can enter into force were being cleared away, a process of further implementation by means of drafting a set of guidelines was set in motion. At this stage, it would be premature to go much further in view of the relatively scarce experience with private space entrepreneurship so far within the Netherlands and the resulting uncertainty as to what the next application for a license would look like in detail, let alone what common requirements could find their way into a high-level comprehensive legislation.

74 See

Section 24(1) of the Space Activities Act. Reference is made here to Section 1(1) of the Economic Offences Act. 75 See Section 26 of the Space Activities Act. 76 Section 25(1) of the Space Activities Act.

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At the same time, beyond New Skies Satellites which appears to be the most, perhaps even the only visible player in this game at this stage, various new developments can be discerned by those looking at close range. Allusions have been expressed about a second player in that very same game waiting in the wings for a proper transparent legal regime to arise. Charting different territories, a small company Isis has been established to broker piggy-back deals for small satellites amongst other efforts to open up new and niche markets. And with the commercial interest in space tourism spreading like wildfire, at least one venture is now seeking out the Netherlands, notably its Caribbean dependencies, as a legal basis for their operations. Of course, many of such activities or initiatives would not automatically be Dutch in nature. Yet, it is interesting to note that the Netherlands, with its national space law well in place and on the verge of being activated, has now joined a still relatively small group of Western states. As a matter of fact, since the mid-1980s when the United Kingdom joined Norway and Sweden, just one more Western European state had drafted national space law before the Netherlands caught on – the southern neighbour of the Dutch: Belgium, in 2005. Such major spacefaring nations within Europe as France, Germany, Italy and Spain, though all to some extent involved in discussions regarding the establishment of a proper national act dealing with, in particular, private space activities, interestingly enough have not yet achieved that feat. Even France, indeed Western Europe’s foremost space power and enjoying the presence since many years of Arianespace and SpotImage, key players in the global private space arena, has only realised a national space act after the Dutch did.77 From that perspective, it will certainly be interesting to follow the development of the national legal framework for private space activities within the Netherlands. It has turned out possible elsewhere too, for a mid-sized economy like the Netherlands to become very prominent in proportional terms by the sheer means of offering legal transparency in addition to international orientation, business acumen and a focus on high-key technologies, and transport- and telecommunication-related applications. Maybe the low lands of the Netherlands will indeed provide an interesting springboard into the high ground of outer space – provided of course, honouring the tradition of Hugo Grotius, that space will largely be preserved for peaceful and commercial purposes.

77 This concerns the Law on Space Activities (Loi relative aux opérations spatiales); Loi No. 2008-

518 du 3 juin 2008; 34 Journal of Space Law (2008), at 453; unofficial translation 34 Journal of Space Law (2008), at 453.

Chapter 11

Regulation of Space Activities in the People’s Republic of China Yun Zhao

11.1 General Philosophy and Processes of Government Regulation 11.1.1 Law-Making Processes China’s current law-making process is a multi-leveled system. According to the Constitution and the law governing all legislation (hereafter the Legislation Law) of the People’s Republic of China, national legislation is divided into three categories: (i) Laws enacted by the National People’s Congress (NPC) and its Standing Committee, the body exercising the legislative power of the State,1 (ii) Administrative Regulations formulated by the State Council, the national administrative organ, (iii) Departmental Regulations formulated by the Ministries and Commissions of the State Council, the People’s Bank of China, the State Audit Administration as well as other organs endowed with administrative functions directly under the State Council. All laws and regulations go through four stages: proposal of the draft; deliberation of the draft; adoption of the draft and promulgation. The first category of laws requires a longer period of deliberation before approval. The procedures for other categories of laws are slightly simpler and faster. The legislative procedures of the Standing Committee of the NPC are discussed in detail here as an example to further elaborate the Chinese law-making process. (i) Proposal of draft: a legislative bill may be submitted to the Standing Committee for possible deliberation by the Council of the Chairmen of the NPC, the State Council, the Central Military Commission, the Supreme People’s Court, the Supreme People’s Procuratorate or a special committee of the NPC, or ten or more

Y. Zhao (B) University of Hong Kong, Pokfulam, Hong Kong e-mail: [email protected] 1 Legislation

Law of the People’s Republic of China (Order of the President No. 31), Article 7.

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_11,  C Springer Science+Business Media B.V. 2010

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of the members of the Standing Committee.2 (ii) Deliberation of draft: the draft of a legislative bill placed on the agenda of a meeting of the Standing Committee is delivered to the members of the Standing Committee 7 days before the meeting is held.3 The bill is put to vote after it has been deliberated upon at three meetings of the Standing Committee.4 (iii) Adoption of draft: the Law Committee of the NPC may further revise the draft on the basis of opinions delivered by members of the Standing Committee during the deliberations before preparing a draft to be voted upon; then, the Council of Chairmen requests the Standing Committee to put the draft to vote at a plenary meeting, and the draft is adopted by the votes of a simple majority of the total membership of the Standing Committee.5 (iv) Promulgation: a law adopted by the Standing Committee is promulgated by Order of the President signed by the President of the People’s Republic of China.6 China launched its first satellite (DFH-1) using a Long March launch vehicle in 1970 and became a full member of the United Nations Committee on Peaceful Uses of Outer Space (UNCOPUOS) 10 years later. China has always placed high emphasis on space activities and space regulation. Due to several historical reasons, China has so far concentrated on technological development in outer space; development and research of space law has been lagging far behind. On various occasions, China has acknowledged the importance of space law in the development of space exploration and taken steps to advance efforts in this area. Membership of the UNCOPUOS has accelerated China’s pace in space legislation. The Chinese Government ratified the Outer Space Treaty in 1983 and the other three space treaties (except the Moon Agreement) in 1988.7 Initial efforts towards drafting of a dedicated national space legislation started around 1994, but the most substantial work was carried out after 1998 when China reformed its administrative system for industries. Currently, there is no comprehensive and specific national space law in China. But several regulations have been passed concerning registration and licensing of space objects (e.g., the Provisions and Procedures for the Registration of Space Objects of February 8, 2001; and the Interim Measures on the Administration of Permits for Civil Space Launch Projects of November 21, 2002). At the moment, the adoption of a dedicated space legislation is among the highest priorities on the agenda of the China National Space Administration (CNSA). A special task force was set up within the CNSA to study the issue of national space legislation. It has been agreed that the process leading to the adoption of space

2 Legislation

Law, Articles 24–25. Article 26. 4 Ibid., Article 27. 5 Ibid., Article 40. 6 Ibid., Article 41. 7 China acceded to the Outer Space Treaty on December 30, 1983; the Rescue Agreement on December 14, 1988; the Liability Convention on December 12, 1988; the Registration Convention on December 12, 1988. 3 Ibid.,

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legislation in China should move gradually. The administrative structure, mode of action and code of conduct concerning space activities in China are still in the process of improvement; rules and regulations on specific aspects of space activities are to be given the utmost priority in any space legislation. Such specific regulations may address issues such as investment and financing, insurance and indemnification, commercial operations and management, and international cooperation and coordination. Once the regulations prove to be efficient and practicable, a comprehensive law on outer space may then be easily drafted and adopted. The ultimate goal for China is to have a national space law, complemented by a set of administrative regulations and departmental rules. With this goal in mind, China has drafted legislation on liability issues and the draft is presently under discussion.8 This new draft legislation intends to concretize and implement the obligations assumed by China under the 1972 Liability Convention. This initiative demonstrates the Chinese Government’s firm effort in carrying out international obligations regarding space issues and its commitment to achieving legal transparency in relation to outer space.

11.1.2 Basic Principles of National Laws Chinese national laws are made in compliance with the basic principles laid down in the Constitution, with economic development as the central task, adhering to the socialist road and the people’s democratic approach, upholding the leadership of the Communist Party of China, upholding Marxism-Leninism, Mao Zedong Thought and Deng Xiaoping theory, pursuing reforms, and opening up China to the outside world.9 Chapter 1 of the Constitution of the People’s Republic of China defines 32 General Principles which guide all of China’s national laws. In addition to the above mentioned constitutional principles, three articles of the Legislation Law provide certain basic principles that govern the law-making process: (i) all laws must be made in accordance with the statutory limits of power and procedures, on the basis of the overall interests of the State and for the purpose of safeguarding the uniformity and dignity of the socialist legal system;10 (ii) all laws shall be made in order to embody the will of the people, enhance socialist democracy and guarantee that the people participate in legislative activities through various channels;11 and, (iii) all laws are to be premised upon reality and they must scientifically and rationally prescribe the rights and duties of citizens, legal persons and other organizations, and the powers and responsibilities of State organs.12

8 The

Provisional Regulation on Liability for Damage Caused by Space Objects has been placed on the agenda. 9 Legislation Law, Article 3. 10 Ibid., Article 4. 11 Ibid., Article 5. 12 Ibid., Article 6.

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China’s space activities aim to explore outer space, and enhance understanding of the Earth and the cosmos; to utilize outer space for peaceful purposes, promote human civilization and social progress, and to provide benefits for the whole of mankind; to meet the demands of economic construction, scientific and technological development, national security and social progress; and, to raise the scientific quality of the lives of the Chinese people, protect China’s national interests and rights, and build comprehensive national strength.13 In line with the foregoing, the White Paper on China’s Space Activities adopted in 2006 identifies the principles to be followed for the development of China’s space industry as follows: maintaining and serving the country’s overall development strategy, and meeting the needs of the state and reflecting its will; upholding independence and self-reliance policy, making innovations independently and realizing leapfrogging development; maintaining comprehensive, coordinated and sustainable development, and bringing into full play the functions of space science and technology in promoting and sustaining the country’s science and technology sector, as well as economic and social development; adhering to the policy of opening up to the outside world, and actively engaging in international space exchanges and cooperation.14 The above aims and principles apply generally to national space legislation in China.

11.1.3 Organization of National Space Activities With the approval by the 8th National People’s Congress of China in 1993, the China National Space Administration (CNSA) was established as a governmental institution to develop and fulfill China’s international obligations in relation to space. Five years later, the 9th NPC designated CNSA as an internal organ of the Commission of Science, Technology and Industry for National Defense (COSTIND).15 The CNSA performs the following main responsibilities: signing of governmental agreements in the space area on behalf of the organization, inter-governmental scientific and technical exchanges; and also being in-charge of the enforcement of national space policies and managing national space science, technology and industry.16 Accordingly, the CNSA is the main administrative body in charge of the national space industry and civil space activities. It is also the most important authority responsible for preparing and formulating regulations on the space industry, for

13 The

State Council Information Office, China’s Space Activities in 2006 (White Paper), October 2006, Beijing, China. 14 Ibid. 15 The COSTIND was reorganized and renamed in 2008 during the 11th NPC as the Bureau of Science, Technology and Industry for National Defense. This Bureau is placed under the Ministry of Industry and Information Technology, a new ministry established in 2008. For easy reference, the abbreviation “COSTIND” is still used in this chapter. 16 China National Space Administration, online .

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making policies on space industry and technology, and for setting up development plans and standards for the space industry. Currently, there are four departments within the CNSA. They are: the Department of General Planning, the Department of System Engineering, the Department of Science, Technology and Quality Control, and the Department of Foreign Affairs.17

11.2 Legal Issues Related to Launch Services (Space Transportation Systems) 11.2.1 Licensing of Launch Services by Private Enterprises The Interim Measures on the Administration of Permits for Civil Space Launch Projects released by the COSTIND in 2002, established the licensing regime for all spacecraft launches within the territory of China, excluding launches for military purposes and the entry of such spacecraft over which natural or legal persons or other organization(s) of China have had a proprietary interest by means of on-orbit delivery into outer space from outside of the territory of China.18 The COSTIND is the authority responsible for examining, approving and supervising all civil space launch projects.19 The general project contractor must apply to the COSTIND with relevant documents at least 9 months before the launch of the project.20 The COSTIND organizes the examination of the project within 30 days of receipt of the application documents and notifies the applicant and the relevant departments of its decisions in writing.21 The permit, if granted, includes the following contents: the name of the applicant and its legal representative, the registration address of the applicant’s domicile, main contents of the project, the date of launch, the validity period of the permit, the organ issuing the permit and the date of issuance.22 An application for modification or cancellation of a permit must be filed 90 days before expiry of the validity of the original permit.23 The permit holder must purchase third party liability insurance and other relevant insurances for launching a space object.24 For a project to be executed at a domestic launching site, the permit holder must report the launching plan 6 months before the

17 Ibid. 18 Interim

Measures, Article 2. Article 4. 20 Ibid., Articles 5–6. 21 Ibid., Article 7. 22 Ibid., Article 10. 23 Ibid., Articles 13–14. 24 Ibid., Article 19. 19 Ibid.,

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date of launch and file an application for approval to leave the factory with relevant materials before entering the stage of a launching site.25 The Interim Measures further provide for penalties and criminal liability for acts such as concealing the truth, practicing frauds or damaging the benefits of the state, undertaking unauthorized projects, neglecting duties or abusing powers and thereby causing losses to the state.26

11.2.2 Competition in Launch Services China launched its first satellite, the DFH-1, with a Long-March 1 rocket as far back as 24 April 1970.27 Since 1985, China’s Long March rocket series has been made available for international commercial launch services, and the first foreignmade satellite was successfully launched in 1990.28 Twenty-three launches have been completed since then with primarily commercial payloads as marketed by the China Great Wall Industry Corporation.29 The latest commercial launch was carried out in April 2005 after a 6 years gap when the AsiaSat-6 satellite was launched atop a Long March 3-B carrier rocket from a launch center at Xichang in the southwestern province of Sichuan.30 All these launches were carried out under bilateral contracts. Domestically, the China Great Wall Industry Corporation is the only launch service provider, and there is no competition or competition regulation in launch services in China. Established in 1980, the Corporation is the sole organization authorized by the Chinese Government to provide satellite in-orbit delivery services, commercial launch services and aerospace technology applications.31 In 1989, noting that China was close to its first commercial launch, the United States negotiated a 6-years agreement with China restricting the number of Chinese commercial space launches. Witnessing China’s success in attracting more prospective business following its sixth foreign-satellite launch, the United States

25 Ibid.,

Article 20. Articles 24–26. 27 Alexandra Witze, Here Comes the Space Competition, The Dallas Morning News, 7 September 2003, online (accessed: 3 July 2009). 28 China to Export First Chinese Satellite, Xinhua General News Service, Xinhua News Agency, 12 April 2005; China to Launch Another Satellite for Hong Kong Firm: Space Firm, Xinhua General news Service, Xinhua News Agency, Beijing, 13 April 2005. 29 Stephen Clark, China Launches First Commercial Spacecraft in Six Years, Spaceflight Now, 13 April 2005, online (accessed: 3 July 2009). 30 China Launches New Commercial Communications Satellite, Beijing, Agency France Press, 12 April 2005. 31 China Great Wall Industry Corporation: Company Profile, online (accessed: 7 July 2009). 26 Ibid.,

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renegotiated its agreement with China in October 1994, thereby allowing China to launch nine commercial satellites into Geostationary Earth Orbit (GEO).32 The two countries then signed a bilateral space launch agreement replacing the 1989–1994 one. China made major gains compared to the previous agreement. However, the two agreements basically serve the same function: establishing pricing levels and launch quotas. Under the new agreement, China is required to price its launches within 15% of what Western countries charge. The issue of launch quotas constitutes the major part of the new agreement. According to the new agreement, the launch quota was set at 15 geostationary satellites through 2001; if the annual average of commercial launches exceeded 20 over the next 3 years, the quota could rise to 17; however, the quota shall not exceed 20 under any circumstances.33 No express limit was provided on Low Earth Orbit (LEO) launches, but the United States preferred to review Chinese LEO launches on a case-by-case basis.34 This agreement expired on December 31, 2001 and no new agreement has since been negotiated.

11.3 Legal Issues Related to Satellite Telecommunications, Including Satellite Broadcasting So far, there are no national laws on telecommunications services in China. However, several regulations have been made by the State Council and the relevant ministries. The Regulations of the People’s Republic of China on Telecommunications (Telecommunications Regulations) are the most important and they were promulgated by the State Council in September 2000. They provide the most important guidelines for telecommunications services in China. However, with China’s accession to the WTO, several new regulations have been made to meet China’s commitments under the WTO framework.

11.3.1 Licensing of Private Satellite Telecommunications Operators (Both National and Foreign) China classifies telecommunications business operations according to the nature of the telecommunication business (i.e., basic services and value-added services), and implements an appropriate licensing system in respect of each service

32 Franceska

O. Schroeder, Developments in Agreements on International Trade in Commercial Launch Services, ECSL News No. 16, May 1996, online (accessed: 3 July 2009). 33 J. Barry Patterson, China’s Space Program and Its Implications for the United States, A Research Report Submitted to the Faculty in Fulfillment of the Curriculum Requirement, Air War College, Air University, Maxwell Air Force Base, Alabama, 19 April 1995. 34 Satellite Launches in the PRC-Loral, The Robinson Rojas Archive: China’s Intelligence on US Nuclear Arsenal, online (accessed: 3 July 2009).

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accordingly.35 In order to engage in the provision of basic telecommunications services or value-added telecommunications services with coverage over more than two provinces, autonomous regions, or municipalities directly under the Central People’s Government, the operator(s) must be examined and approved by the administrative departments of the State Council in charge of the information industry and must also obtain either a License to Operate Basic Telecommunications Services or a License to Operate Trans-regional Value-added Telecommunications Services as the case may be. In order to engage in trial telecommunications services that are not listed by the Catalogue of Telecommunications Business Classification with new technology, the operator shall record (register) his business at the telecommunications administrative authority of the relevant province, autonomous region or city under the direct control of the Central Government.36 An operator providing basic telecommunications services must possess certain qualifications. The operator must: (i) be a specialized company engaged in the basic telecommunications business that is established according to law and with the Chinese stock rights of not less than 51%; (ii) have a feasibility study report and network construction scheme; (iii) have appropriate funds and professionals engaged in the operation; (iv) have places and corresponding resources engaged in operation; (v) have good reputation or capacity to provide long-term service for users; and (vi) other qualifications as may be required by the State.37 The administrative departments of the State Council in charge of the information industry carry out an inspection and make the decision regarding the approval or disapproval within 180 days of receipt of the application.38 The elements to be considered during the inspection include the State security, telecommunications network security, continuous use of telecommunications resources, environmental protection, and the maintenance of competition in the telecommunications market.39 In order to operate the value-added telecommunications services, an operator must possess the qualifications discussed below. The operator must: (i) be a company established in accordance with the law; (ii) have appropriate funds and professionals engaged in the operation; (iii) have good reputation or capacity to provide long-term service for users; and, (iv) possess other qualifications as may be required by the State.40 The administrative departments in charge of information industry of the State Council or provinces, autonomous regions and municipalities directly under the Central People’s Government, carry out the inspection and make a decision regarding the approval or disapproval within 60 days of receipt of the application.41

35 Telecommunications 36 Ibid.,

Article 9. 37 Ibid., Article 10. 38 Ibid., Article 11. 39 Ibid., Article 12. 40 Ibid., Article 13. 41 Ibid., Article 14.

Regulations, Article 7(1).

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11.3.2 Foreign Investment Currently, while the rest of the world is going through an economic downturn, China continues to gear up for foreign investment in telecommunications infrastructure. During this period, some of the largest telecom companies entrenched themselves in the Chinese market through various means. China’s WTO membership has no doubt led to an upsurge in investments. For the foreign investors joint ventures (referred to as “localization” in the telecommunications industry) have been considered as one of the best ways to invest. They can take advantage of China’s considerably low labor costs and bypass the tariff and non-tariff barriers. Formerly, to evade the prohibition upon direct involvement of foreign investors in this field, the so-called “foreign-ChineseChinese” joint venture was constructed.42 Under that mechanism, the foreign investors would usually negotiate a pre-determined rate of return with Unicom and then link with a local partner in a joint venture, which then funds Unicom.43 However, after a drastic change in the policy of the Chinese government, this practice was considered to be illegal.44 A statement was released stating that such contracts executed between Unicom, a local telecommunication corporation in China, and foreign investment enterprises were contrary to State policy and regulation.45 With China’s WTO commitments allowing for foreign investments the era of joint ventures could be revived again in a more direct form: foreign-China. Closely related to this development are the two regulations preventing foreign investment in telecommunications that were repealed on December 11, 2001. On the same date, the State Council promulgated the Provisions on the Administration of Foreign-Invested Telecommunications, permitting foreign investments in the telecommunications sector in the form of a Chinese-foreign structure. Moreover, in anticipation of the arrival of foreign direct investments, the Ministry of Information Industry (MII) has introduced several regulations.46 These regulations tighten the management strings to joint ventures of licensed carriers, thereby

42 M. O’Neill, Beijing May Scrap Unicom Foreign-Investment Formula, South China Morning Post-Business Post, September 23, 1998, at 4. 43 R. Janda, Benchmarking a Chinese Offer on Telecommunications: Context and Comparisons, 3 International Journal of Communications Law & Policy, 5 (Summer 1999). 44 For further discussion, see L.D. Chuang, Investing in China’s Telecommunications Market: Reflections on the Rule of Law and Foreign Investment in China, 20 Journal of International Law & Business 516–522 (Spring 2000); see also M. Forney and S. Webb, China Phone Firm Remains Ensnared by Bureaucracy, Wall Street Journal, June 13, 2000. 45 China: Telecoms Firm Told to Abandon Foreign-Funded Joint Ventures, BBC Monitoring Asia Pacific-Political Supplied by BBC Worldwide Monitoring, February 4, 1999. 46 One set of rules, entitled Framework Regulations on Liberalizing Last Mile Broadband Access, targets the growing number of unlicensed broadband operators, who must reapply for a license. Another Regulation bans companies from extending their licenses to their joint-venture units without approval.

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acknowledging the legality of foreign direct investments.47 The regulations stipulate that for joint ventures set up by basic telecom operators and other domestic State-owned firms, if the licensed carrier holds less than 51% of the shares, the joint venture should apply to the MII for a license before engaging in any telecom business; and if the licensed carrier holds more than 51% of the shares, the joint venture should register with the MII if it wants to operate a telecom business.48 It is clear from the regulations that such investments are limited to high-profit foreign firms and high-profit Chinese firms, so this will narrow the pool of foreign firms qualified to benefit from China’s market access commitments.49 Some may argue that such a regulation restricts the threshold requirements for qualified foreign firms. However, as long as all the foreign firms are treated equally under the same process, there is no violation of the Most-Favored-Nation (MFN) principle.50 Moreover, such restrictions are in line with international practice and thus cause no violation of the national treatment principle.51 Another change is that more and more telecommunications companies are publicly listed on foreign stock markets.52 This has been one efficient way of absorbing capital from international channels and benefiting from the experience of modern enterprise management. For foreign investors, public listing also presents a unique opportunity to invest in Chinese telecommunications.53 The highest possible amount of foreign investments must comply with the progressive process of China’s WTO commitments.

47 D. Bhattasali et al. (eds.), China and the WTO: Accession, Policy Reform, and Poverty Reduction

Strategies 67–168 (Oxford University Press, 2004). Telecom Market, Legislation Undergoing Changes as Country Readies for Global Trade, online (accessed: 2 July 2009). 49 As provided, the select group of foreign firms must have telecom revenues greater than $10 billion during the last two years prior to applying to operate in China; Chinese partner should be appointed as chairperson of the joint venture. See further Telecommunications Regulations of the People’s Republic of China (Guowuling No. 291), September 25, 2000; see also M. Forney, Chinese Investors Offer Static on Telecom Rules: Smaller Foreign Investors May Get Shut Out, Asian Wall Street Journal, September 26, 2000. 50 L.B. Sherman, China After the WTO, What You Need to Know Now: The Impact of China’s WTO Entry on the Telecommunications and IT Sectors, PLI Order No. A0-0095, at 230–231 (February 2001). 51 See further R. Abramson, Catching Flies with Chopsticks: China’s Strategic Leap into Wireless Telecommunications, 11 Minnesota Journal of Global Trade 31 (Winter 2002). 52 For example, China Unicom sold more than a twenty percent share on the New York and Hong Kong stock exchanges, raising 5.65 billion dollars. See P. Wonacott, China Maps IPO to Gird for Foreign Telecom Invasion, Wall Street Journal, December 6, 2000. 53 See for example China Unicom’s IPO Rings up $ 4.92 Billion, Asian Wall Street Journal, June 19, 2000, at 14; see also R. Lachica, China Unicom Gets Strong Welcome in First Session, Asian Wall Street Journal, June 22, 2000, at 2. 48 China’s

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A new regulation has been adopted regarding foreign capital in the profitable sector.54 This regulation was issued after China’s formal entry into the WTO and reiterated its commitments to the WTO. According to Article 6, the limits for foreign investment in basic and value-added telecommunications services are set at 49 and 50% respectively. Applications should be made to responsible departments of the MII, which are required to examine and make decisions within 180 and 90 days for the basic and value-added services respectively.55 The establishment of time limits for making decisions is intended to avoid the long delays in the previous era that effectively prevented the entry of foreign competitors. The other new regulations include the Administrative Regulations on Operational Licenses for Telecom Business,56 and the MII Rule on Management of Telecom Business Operating Licenses.57 The foreign investment requirements of all the new regulations are closely aligned with China’s WTO commitments and this has allowed the MII to gradually lift equity and geographic restrictions in accordance with China’s WTO commitments.58

11.3.3 Competition The object of the WTO as an organization promote the liberalization of trade. This can be realized through different means. An important way has been to promote a competitive environment. In certain situations, competition and liberalization have been used interchangeably and in the present context, competition is believed to be one way of achieving liberalization. As defined in the WTO Reference Paper, principles have been laid down to promote competition. A direct reference can be made to the first principle under which competitive safeguards exert less direct (almost indirect) effects in establishing a competitive environment for telecommunications. Since China has formally committed to this Paper, domestic measures should be undertaken to stay within the confines of these obligations. Just as the Minister in-charge of the MII stated, China would not only continue to reinforce regulatory efforts in the telecommunications industry by carefully examining the qualifications of all foreign investors, but would also facilitate orderly competition according to the relevant regulations.59 54 The

Regulation on the Management of Foreign Investment in Telecommunications Enterprises was promulgated on December 11, 2001 and came into force on January 1, 2002. 55 Article 11 of the Regulation. 56 It is issued by the MII on December 26, 2001 and took effect on January 1, 2002. 57 See MII Order No. 19. 58 One exception is the Administrative Measures for International Gateway Facilities, which was issued on June 26, 2002 and took effect on October 1, 2002. This regulation restricts operation of gateway facilities to wholly state-owned telecommunications providers, thus was claimed not to be in accordance with the market access commitments. 59 See D.Z. Cass et al. (eds.), China and the World Trading System: Entering the New Millennium 282 (Cambridge University Press, 2003).

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The process began even before China’s formal entry in the WTO. Several structural modifications were carried out in February 1999 when the State Council adopted the plan to restrict China Telecom;60 three group corporations-China Mobile, China Telecom and ChinaSat were established in December 1999, January 2000 and June 2000 respectively. Meanwhile, Unicom was also restructured to include Paging Corporation. Competition was introduced by allowing two or more corporations to be involved in each type of basic services. However, with various connections between China Telecom and the MII, China Telecom has taken an advantageous position compared with the other service providers and it is, in essence, a monopoly. It controls 90% of the market share while China Unicom holds less than 10%. Furthermore, China Railcom, another basic telecommunications service provider, is still in its infancy in China’s national telecommunications market. So far, ChinaSat carries out business focusing mainly on Satellite-based communication and Internet services.61 To a large extent, all of these developments actually restrict competition. Faced with an imminent expansion of the liberalization process, intensive reforms were introduced only after China’s formal entry into the WTO. On 16 May 2002, two Corporations finally came into being: China Telecom and China Netcom. This restructuring was carried out on a territorial basis.62 The former China Telecom was divided into two parts: the northern part was grouped as China Netcom and the Southern part retains the same name as China Telecom. Consequently, the former 7big-power structure (including China Paging) turned into a “5+1” structure, namely, China Telecom, China Netcom, China Mobile, China Unicom, China Railcom, plus ChinaSat. The aim of this reform was clear from the beginning: i.e. to establish a competitive environment and maintain the character of a complete and harmonized network. The new China Telecom and China Netcom are approximately equal in strength; both have their own nation-wide fixed-line backbone telecommunications networks. Moreover, the government permits both of them to penetrate into other’s market. It is obvious that this reform has substantially reformulated the competitive structure for the provision of basic services in China. Competition in the real sense has been introduced in the Chinese market, though such competition is restricted to Chinese service providers. In order to expand the number of foreign service providers, it is necessary to formulate a coherent telecommunications policy to safeguard competition, which will avoid cross-subsidy, distorted tariffs and highly concentrated markets.

60 C.B. Chuan et al., Telecommunications and Information Technology, in J.J. Williams et al. (eds.),

Business Opportunities in Northeastern China 244 (1999). to Open Up Its Basic Telecommunications Sector, 17 September 2002, online (accessed: 3 July 2009). 62 L. Chang and M. Pottinger, China Telecom, Once Split, will Service Separate Regions; IPO may be Speeded, Wall Street Journal, October 17, 2001; H. Zhao, Telecom Needs Competition, China Daily June 10, 1999. 61 China

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Furthermore, three levels of competition should exist in the telecommunications services sector: competition between telecommunications expenses and other expenses of consumers; competition among service providers and competition among interconnection providers.63 It is only when these three platforms are totally open for competition will the telecommunications market experience full and true liberalization. The restriction on liberalization in any one platform will distort the logic of the market economy.

11.3.4 Interconnections Efficient interconnection is vital to the entry of foreign providers. Formerly, China was reluctant to impose compulsory interconnections.64 Various obstacles have been created to delay or deny interconnection to other service providers.65 A Temporary Regulation on Telecommunications Network Interconnection was issued earlier by the MII. However, this Regulation was considered to be insufficient as compared to the requirements of the WTO’s Reference Paper. For example, the requirement of sufficient unbundling is missing; nothing in the Regulation touches upon the issue of number portability.66 Thus, it is necessary to seek the views of the existing service providers and to offer a complete legal framework for interconnection which meets the requirements stated in the Reference Paper that competitors are permitted to interconnect with public telecommunications networks at any technically feasible point and under non-discriminatory terms.67 Interconnection rates must be nondiscriminatory, cost-oriented, transparent, reasonable, economically feasible, and sufficiently unbundled. Furthermore, interconnection procedures and agreements must be made publicly available.68

11.3.5 Universal Access Universal service is of paramount importance to China. These policies are not regarded as anti-competitive per se if they are administered in a transparent, 63 How

to Greet the WTO Accession? A Tentative Analysis of Competitive Framework for Telecommunications, online (accessed: 3 July 2009). 64 R.B. Chong and W. Chow, Financing Telecommunications Project in Asia: A Promising Regulatory Perspective, 52 Federal Communications Law Journal 14 (1999). 65 Reform of Telecommunications with the Accession of WTO, online (accessed: 3 July 2009). 66 For discussion on number portability, see B. Petrazzini, Global Telecom Talks: A Trillion Dollar Deal, 64 (Washington D.C.: Institute for International Economics, 1996). 67 See Reference Paper to the Fourth Protocol to the General Agreement on Trade in Services, April 30, 1996, 36 I.L.M., at 2. Interconnection. 68 Ibid., at 2.2(a) (b); 2.3 and 2.4.

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non-discriminatory and competitively neutral manner, and are not more burdensome than necessary.69 Deciding on how to provide services to the western part of China is a challenge for the Chinese government.70 The harsh natural conditions and sparse population has led directly to costly services. The “Grand Exploitation of Western Areas” Movement mobilized by the Chinese government can serve as an impetus to achieve this goal. Favorable policies have been adopted for the promotion of investments in western areas, but it is important in this regard to prevent cream-skimming and fairly allocate the universal service obligation among the targeted telecommunications service providers in accordance with the requirements of the Reference Paper.

11.3.6 Rate Regulation Telecommunications rates are based on costs and other factors including the requirements of the national economy and social development, the development of telecommunications industry, and the bearing capacity of users.71 Telecommunications charges are divided into market adjusting price, governmental guidance price and rated price set by the Central government. Only market adjusting price is applicable to telecommunications services with full market competition; the administrative classification catalogue for telecommunications charges reflected by the above three types of charges must be formulated and promulgated by the administrative departments in charge of information industry of the State Council based on comments and suggestions received from the administrative departments in charge of price control.72 For the standard range of telecommunications charges with rated price by the governments or governmental guidance price, hearings and other consultations must be undertaken after taking into account comments received from telecommunications business operators, telecommunications users and other relevant parties.73

69 FCC

Memo, Connecting the Globe: A Regulator’s Guide to Building a Global Information Community, Universal Service, Part VI, June 16, 1999, online (accessed: 3 July 2009). 70 J. Ure, China’s Telecommunications: Options and Opportunities, in P.S.N. Lee (ed.), Telecommunications and Development in China 248 (1997); L. Ladany, Law and Legality in China: The Testament of a China-Watcher 17 (University of Hawaii Press, 1992); Z. He, A history of Telecommunications in China, Development and Policy Implications, in P.S.N. Lee (ed.), Telecommunications and Development in China 84 (1997). 71 Telecommunications Regulations, Article 23. 72 Ibid., Article 24. 73 Ibid., Article 26(1).

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11.3.7 Content Regulation (Including Privacy) Any organization or individual shall not make, copy, distribute, and propagate information on any class of contents specified below by means of telecommunications: (i) opposing basic principles confirmed by the Constitution of the People’s Republic of China, (ii) endangering state security, divulging state secrets, subverting state political power, breaching state unity, (iii) damaging state reputation and benefits, (iv) instigating nationality enmity, nationality discrimination, and undermining the nationality solidarity, (v) undermining the state religious policy, preaching unauthorized religion and feudal superstition, (vi) disseminating rumors, disrupting public order and social stability, (vii) disseminating obscenity, eroticism, gambling, violence, homicide, horror or abetting crime, (viii) humiliating or slandering others, and infringing legal rights and interests of others, and (ix) other contents that are prohibited by laws or administrative regulations.74 In the course of providing public information services, if the transmission of any such information is discovered, the telecommunications operators must immediately stop transmission of such information, keep the concerned record, and report them to the appropriate authorities.75 Any organization or individual must not endanger the security of telecommunication networks and information security by (i) deleting or modifying the functions of telecommunications networks and the data stored, processed and transported and the application programs thereof, (ii) engaging in activities involving stealing or undermining information of others and damaging legal rights and interests of others, (iii) intentionally copying, promulgating computer virus or attacking telecommunications networks and other telecommunications facilities by any means, and (iv) other acts endangering telecommunications network security or information security.76 The license-issuing authorities may revoke the License to Operate Telecommunications Business of anyone who commits any of the above-mentioned acts seriously, and will notify the enterprise registration authorities later.77 It must be emphasized that the freedom to use telecommunications services according to law and the confidentiality of communications are protected by laws. An organization or individual must not scrutinize the telecommunications contents of others for any reason, unless the public security organizations or state security organizations or the people’s procuratorates inspect such contents for the purpose of state security or investigating criminal offences in accordance with the law. Telecommunications operators and their staff must not provide users’ content transmitted over their telecommunications networks to others without prior permission from the State.78

74 Ibid.,

Article 57. Article 62. 76 Ibid., Article 58. 77 Ibid., Article 78. 78 Ibid., Article 66. 75 Ibid.,

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11.3.8 Intellectual Property and Transfer of Technology 11.3.8.1 Acquisition of Intellectual Property Rights Intellectual property (IP) protection is vital to economic development, social progress, scientific and technological innovation and cultural prosperity. China has made great progress in IP protection over the past few years. A relatively complete system of laws and regulations has been established, including Patent Law, Trademark Law, and Copyright Law. Patent rights are the most relevant for the present discussion. Thus, this section will focus on the patent protection regime in China. Originally promulgated in 1985, the Chinese Patent Law was revised three times in 1992, 2000, and 2008. It provides that any invention or utility model for which a patent right may be granted must possess the characteristics of novelty, inventiveness and usefulness.79 No patent right is to be granted for scientific discoveries, rules and methods for intellectual activities, methods for the diagnosis or treatment of diseases, animal and plant varieties, and substances obtained by means of nuclear fission, etc.80 For a patent application, relevant documents must be submitted. Any applicant who claims the right of priority must make a written declaration when the application is filed, and submit, within 3 months, a copy of the patent application documents that was first filed.81 When the application is found, upon preliminary examination, to be in conformity with the requirements of the Patent Law, the patent administrative department of the State Council publishes the application promptly after the expiration of 18 months from the date of filing.82 So there is statutory 18 months delay between filing and publication. Upon the applicant’s request, the patent administration department of the State Council may carry out substantive examination of any invention made at anytime within 3 years from the date of filing of an application.83 If, after completing the substantive examination of an invention patent application, the patent administration department of the State Council finds no reason for rejection, it makes a decision granting a patent right for the invention in question, issues an invention patent certificate, and at the same time, registers and publicly announces it. The invention patent right is effective from the date of public announcement.84

79 Patent

Law, Article 22(1). Article 25. 81 Ibid., Article 30. 82 Ibid., Article 34. 83 Ibid., Article 35. 84 Ibid., Article 39. 80 Ibid.,

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11.3.8.2 Mechanism of Exploiting IP Rights After the grant of the patent right, no unit or individual may exploit the patent without the authorization of the patentee. Exploitation here includes: manufacturing, using, selling, agreeing to sell, importing the patented product or using the patented process for production or business purpose and using, selling, agreeing to sell or import a product which has been manufactured directly in accordance with the patented process.85 However, the patent administrative department of the State Council may, upon the application of an eligible entity or individual, grant a compulsory license for the exploitation of the said invention patent or utility model patent under two circumstances: (1) the patentee, after the lapse of 3 full years from the date patent is granted and after the lapse of 4 full years from the date when a patent application is filed, fails to exploit or to fully exploit its or his patent without any justifiable reason; or (2) the patentee’s act of exercising the patent rights is determined as a monopolizing act and it is to eliminate or reduce the adverse consequences of the said act on competition.86 In cases where a state of emergency or extraordinary circumstances exist in the country or when the public interest so demands, the patent administrative department of the State Council may grant a compulsory license.87 A unit or an individual that has obtained a compulsory license for exploitation does not have exclusive exploitation rights and has no right to allow another person to exploit the patent.88 The unit or the individual shall pay to the patentee a reasonable fee or deal with the fee issue under the relevant international treaties to which China has acceded; the monetary value of the fee shall be agreed upon through negotiation. When the parties cannot reach an agreement, the patent administrative department makes the decision.89 11.3.8.3 National Legal Barriers to International Transfer of Space Technology There are some regulations that relate to military space activities.90 The Regulations on Control of Military Products Export, first released in 1997 and revised in 2002, were instituted to strengthen unified management over military products export and to protect the normal order of military products export.91 Several principles have been established for the export of military products, including: (i) the usefulness of 85 Ibid.,

Article 11. Article 48. 87 Ibid., Article 49. 88 Ibid., Article 53. 89 Ibid., Article 57. 90 Space Law: China’s Regulations, World Security Institute, China-US Dialogue on Space, online (accessed: 3 July 2009). 91 Regulations on Control of Military Products Export, Article 1. 86 Ibid.,

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the product to the self-defense capability of the recipient country, and (ii) the fact that it is not contrary to the peace, security and stability of the relevant region of the world. The Government must keep its hands off from the recipient country’s internal affairs.92 As required by the above Regulation, the COSTIND and the People’s Liberation Army (PLA) General Armament Department (GAD) further drafted the Military Products Export Control List in 2003.93 The list includes launch vehicles, missile weapon systems and military satellites.94 To further strengthen the export control system and prevent the proliferation of missiles and other delivery systems that can be used to deliver weapons of mass destruction,95 the State Council published the Regulations of the People’s Republic of China on Export Control of Missiles and Missile-related Items and Technologies in 2002, together with the Missiles and Missile-related Items and Technologies Export Control List. According to the regulation, items like rockets, unmanned air vehicles, missiles (ballistic and cruise missiles) and missile-related items and technologies are subject to export control.96 A licensing regime is established for the export of the above items and technologies. The exporter must apply to the competent foreign economic and trade department of the State Council using a specified application form with relevant documents attached. The department examines the application (possibly jointly with other relevant departments of the State Council and of the Central Military Commission) and makes a decision within 45 days after the receipt of the application.97 The regulation provides for possible penalties and criminal liability for certain illegal acts.98

11.4 Other Matters The Provisions and Procedures for the Registration of Space Objects, published in 2001 by the Commission of Science, Technology and Industry for National Defense (COSTIND) and the Ministry of Foreign Affairs (MFA), are the first domestic administrative regulations in China on space activities. The main purpose of these regulations is to fulfill China’s commitments under the Registration Convention, while taking into account the practical situation in China. All space objects launched from the territory of China, or launched abroad but with China as a co-launching State, must be registered with the COSTIND within

92 Ibid.,

Article 5. Article 2(2) provides that the military products export control list shall be formulated, adjusted, and promulgated by the state department in charge of military products export. 94 The Military Products Export Control List. 95 Regulations on Export Control of Missiles and Missile-related Items and Technologies, Article 3. 96 Ibid., Article 2. 97 Ibid., Article 10. 98 Ibid., Articles 15–22. 93 Ibid.,

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60 days after the space objects are launched into orbit. The COSTIND maintains the National Registration Booklet. Modification to the registration are done within 60 days after the occurrence of a change of circumstances, such as changes in orbit, disintegration, end of operation, return or re-entry into the atmosphere. The COSTIND provides to the MFA relevant registration data within 60 days after domestic registration. The MFA then registers with the United Nations Secretary-General. With regard to the special case of Hong Kong and Macao, a special Sub-Registration Booklet is established with the registration procedure stipulated separately.99

99 As

identified by Xiaohong Liu and Xiaoqing Wang in the paper on “The First Administrative Regulation on Space Activities in China”, presented at the United Nations/International Institute of Air and Space law (IIASL) Workshop on Capacity Building in Space Law during November 18–21, 2002 in the Hague, the registration procedure include open end; possibility of being amended after certain period of implementation; and possibility of being upgraded into administrative law or regulation in the future.

Chapter 12

Regulation of Space Activities in South Africa Justine Limpitlaw

12.1 Introduction South Africa has been involved in space exploration and space-related activities for over five decades and is one of the African Continent’s leading space nations. South Africa’s clear night skies (especially in its sparsely populated semidesert Karoo areas) make it an ideal base of astronomers and its first permanent observatory was established outside Cape Town in 1820. From the 1950s to 1970s, American and Russian satellites were tracked to determine the effects of the upper atmosphere on their orbits. A satellite telemetry, tracking and control facility was established in Kempton Park in 1958 with a more permanent facility being built near Hartebeeshoek in 1961. The establishment of this facility was funded by NASA (as one of its Deep Space Network Stations) and staffed by South Africans. The facility “participated in most of the seminal US space activities including tracking and communication with the Mercury, Gemini and Apollo missions.”1 Indeed, the first images of the surface of Mars from Mariner IV were received at NASA Deep Space Station 51 at Hartebeeshoek.2 In 1974, this station ceased to operate as a NASA Deep Space Network Station, and in 1975, the facility, “with its 26 m dish, became the Hartebeeshoek Radio Astronomy Observatory.”3

J. Limpitlaw (B) University of Pretoria, Pretoria, South Africa e-mail: [email protected] 1 Chris Alden, “South Africa’s space programme: past and present”, Strategic Review for Southern

Africa, vol. 29, no. 1 (2007). 2 http://www.space.gov.za/spaceinza/index.php

(accessed: 06 June 2008). Martinez, “Ways and means of coordinating national space-related activities – the African experiences: Coordination of Space Science and Technology in South Africa” in Meeting International Responsibilities and Addressing Domestic Needs – Proceedings of the UN/Nigeria Workshop on Space Law (2006) http://www.unoosa.org/pdf/publications/st_space_32E.pdf, 310. (accessed: 10 June 2008). 3 Peter

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_12,  C Springer Science+Business Media B.V. 2010

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The Council for Scientific and Industrial Research established the Satellite Applications Centre in 1975, also at Hartebeeshoek, providing commercial telemetry, tracking and command services to international satellite operators and launch providers.4 In the 1980s, at the height of the Apartheid regime’s international isolation, the South African government supported the development of its own space programme. This evolved “alongside, in many respects, in the shadows of the concerted effort to develop a nuclear capacity and the means to deliver it.”5 Alden states that by the early 1980s, the South African government “had committed itself to developing rocket-based delivery systems and a domestic launching capacity which, though primarily aimed at military applications, were recognised to have commercial potential as well.”6 South Africa’s rocket technology efforts were assisted by Israel. According to Sokolski, Israeli officials admitted that they had exported Jericho 1 ballistic missiles.7 The RSA-3 Rocket was a three stage all-solid orbital launch vehicle with “genuine sub-orbital capabilities.”8 It is estimated that over five billion Rands were spent on the space programme which comprised the military component and also Greensat, a civilian programme which ran in tandem with the military programme, the aim of which was to develop the commercial possibilities of satellite launching services.9 South Africa’s space capacity was developed particularly in the Western Cape at the University of Stellenbosch and also at the Houwteq Satellite Integration Facility which had a rocket launch site, a tracking station and, nearby, an engine testing facility.10 In 1993, some years after the Government committed itself to negotiations leading to democracy, South Africa announced that it was suspending development of its space launch vehicle programme.11 This followed 2 years of action by the United States aimed at sanctioning South Africa for having imported ballistic missile technology from Israel.12 Later that year (which is only a year before the transition to a democracy) the Government enacted the Non-Proliferation of Weapons of Mass Destruction Act13 and also the Space Affairs Act,14 the latter establishing a council to manage and control space affairs in the Republic. In 1995, South Africa “became an adherent to the Missile Technology Control Regime (MTCR) and formally abandoned all work on the development of launch vehicles.”15 The Houwteq facility 4 Ibid. 5 Op.

cit. note 1.

6 Ibid. 7 Henry

Sokolski “Ending South Africa’s Rocket Program: A Non-proliferation Success” 1993. http://www.npec-web.org/Frameset.asp?PageType=Writings (accessed: 11 July 2008). 8 Op. cit. note 1. 9 Ibid. 10 Ibid. 1. 11 Op. cit. note 7. 12 Ibid. 13 Act 87 of 1993. 14 Act 84 of 1993. 15 Op. cit. note 3 at 311.

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was taken over by the Department of Communications which used it as the site for the Institute for Satellite and Software Applications (“ISSA”). While the space launch vehicle programme was put on hold indefinitely, other space-related activities continued. In 1999 South Africa’s first satellite, Sunsat, a micro-satellite developed by local engineers at the University of Stellenbosch, was launched by NASA in the US.16 The satellite had “a small imager, a packet radio communications payload, magnetometer, GPS-array and a retro-reflector array.”17 Sunsat led to the establishment of a commercial company, Sun Space and Information Systems (Pty) Ltd, to try to develop commercial capabilities in the micro-satellite field. A second micro-satellite, SumbandilaSat, was due to be launched in 2007 from Russia but the launch has been delayed and is, at the time of writing, scheduled for July 2009. In April 2002, Mark Shuttleworth, a South African Internet entrepreneur, flew to the International Space Station, a feat that ignited significant pubic interest in space activities. As Martinez states, 2003 saw a number of developments that “helped to shape a more strategic view of space by the South African Government.”18 South Africa began to play a role in earth observation activities. In 2003, South Africa was elected as one of the co-chairs of the Group on Earth Observation. The Government has “initiated the development of a South African Earth Observation Strategy (SAEOS) involving all the providers and users of in situ and space-based Earth observation data in South Africa.”19 Also in 2003 was the establishment of the National Working Group on Space Science and Technology. This is an ad hoc inter-departmental initiative to improve coordination in the South African space arena. It was jointly established by the Departments of Trade and Industry, Communications, Science and Technology and of Foreign Affairs. The working group also “supported national discussions towards the establishment of a South African Space Agency.”20 Recently there has been a great deal of development with regard to space-related activities. South Africa has developed into one of Africa’s leading astronomical research states with projects including: • The South African Large Telescope (SALT) was built in Sutherland in the Cape and although ground breaking began in 2000, SALT was officially opened in September 2005. According to the official SALT website: SALT is the largest single optical telescope in the southern hemisphere, with a hexagonal mirror array of 11 m across. It will be able to record distant stars, galaxies and quasars a billion times too faint to be seen with the unaided eye.21 16 http://www.space.gov.za/wsw/whoswho.html

(accessed: 23 June 2008). cit. note 3 at 211. 18 Op. cit. note 3 at 312. 19 Op. cit. note 3 at 313. 20 Op. cit. note 3 at 314. 21 http://www.salt.ac.za/ (accessed: 20 June 2008). 17 Op.

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• The South African Astronomic Observatory has a number of telescopes in Sutherland beside SALT, with mirrors ranging in diameter from 0.5 to 1.9 m. The telescopes detect visible light and infrared radiation.22 • The Square Kilometre Array is the world’s radio astronomy community working together to conceptualise the Square Kilometre Array (“SKA”) – the largest and most sensitive radio telescope ever. It is likely to consist of thousands of dishes, each 10–15 m in diameter. Special antenna tiles in the core of the array will form a “radio fish eye lens” for all sky monitoring at low frequencies. South Africa is one of two countries (the other is Australia) remaining on the shortlist to provide the site for this mega telescope. A final decision on the site is expected by 2010 and construction should start in 2014.23 • The Karoo Array Telescope (“MeerKAT”) aims to be one of the world’s premier mid-frequency radio astronomy facilities that will put South Africa at the cutting edge of radio astronomy. The telescope will be constructed in phases:24 ◦ The first phase, a one-dish prototype, has already been constructed at the Hartebeeshoek Radio Astronomy Observatory (HartRAO) in Gauteng. ◦ KAT-7, a seven-dish engineering test bed and science instrument in the Northern Cape Province, will be commissioned towards the end of 2009. ◦ The full array of 50 or more dishes should be ready by 2012. A high speed data transfer network will link the telescope site in the Karoo to a remote operations facility. In recognition of the importance of protecting the special characteristics of land/skies suitable for telescopes such as the SKA and MeerKAT, South Africa’s Parliament recently passed the Astronomy Geographic Advantages Act25 which is in force.26 South Africa also has observatories in Hermanus (home of the Hermanus magnetic observatory), Bloemfontein (home of the Boyden Observatory, the third largest optical telescope in South Africa) and Johannesburg. The South African National Antarctic Programme has a physical sciences programme, many aspects of which are space-related, conducted all year round at the SANAE IV base at Antarctica. There are currently six projects underway there, including:27 ◦ Southern Hemisphere Auroral Radar Experiment (“SHARE”): This is a high frequency coherent array radar experiment and data from the radars are combined to provide information about electric fields, velocities and

22 http://www.esastap.org/esastap/pdfs/spacews_maru_dec2005.pdf (accessed: 15 June 2008) and http://www.saao.ac.za/ (accessed: 02 July 2008). 23 http://www.ska.ac.za/aboutska/index.shtml (accessed: 01 July 2008). 24 http://www.ska.ac.za/meerkat/index.shtml (accessed: 01 July 2008). 25 Act 21 of 2007. 26 Proclamation 28 in Government Gazette No. 32163 dated 24 April 2009. 27 http://www.sanap.org.za/research.html (accessed: 11 July 2008).

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irregularities in the upper atmosphere over a large region of Antarctica and is part of the world-wide Super Dual Auroral Radar Network (SuperDARN). Antarctic Magnetosphere, Ionosphere Ground-based Observations (“AMIGO”): a collaborative programme between the University of Natal’s Space Physics Research Institute and North West University’s Potchefstroom Space Research Unit. AMIGO aims to investigate energy transfer processes in the magnetosphere and ionosphere, especially those associated with sub-storms, LVF-particle interactions, radio propagation, hydro-magnetic waves, ionospheric irregularities and disturbances; Antarctic Research on Cosmic Rays (“ANOKS”): which investigates transport and acceleration of solar and galactic cosmic ray charged particles in the heliosphere from neutron monitor recordings and to integrate these recordings with data obtained by, inter alia, satellite and spacecraft observations; Astrid Satellite Telemetry Station: The South African National Arctic Expedition runs the Southern Hemisphere’s telemetry for Swedish satellite Astrid 2. It provides simultaneous ground based aurora, magnetometer and VLF radio wave measurements; Upper Atmosphere Physics: two projects measure total column ozone and UV fluxes as there is a complex relationship between ozone depletion and UV fluxes and these observations are used to complement measurements of ozone; GPS Project: A receiver (trimble 4000ssi with choke ring antenna, installed in 1997) station has become part of the world wide network of IGS (International GPS Service for Geodynamics) stations and is also used for local geodetic surveys.

In October 2007, South Africa hosted the Second African Leadership Conference on Space Science and Technology for Sustainable Development with the theme being “Building African Partnerships in Space”. The Department of Science and Technology recently launched the National Space Science and Technology Strategy28 with three key focus areas: environmental and resource management;29 innovation and economic growth;30 and, safety and security.31

28 http://www.dst.gov.za/Draft%20National%20Space%20Science%20and%20Technology%20

Strategy.pdf (accessed: 02 July 2008). eight discreet sub-topics: environmental and geospatial monitoring; ocean, coastal and marine management; land management; rural development and urban planning; topographic mapping; hydrological monitoring; climate change mitigation and adaption; and meteorological monitoring. Op. cit. note 28 at 15 and 16. 30 With six discreet sub-topics: tourism and recreation; communications; space science and exploration; mining; agriculture; space technology transfer and spin-offs. Op. cit. note 28 at 16 and 17. 31 With seven discreet sub-topics: disaster monitoring and relief; hazards forecasting and early warning; cross-border risk; disease surveillance and health risk; asset monitoring; regulatory enforcement; and defence, peacekeeping and treaty monitoring. Op. cit. note 28 at 17 and 18. 29 With

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On 15 December 2008, the South African National Space Agency Act32 was enacted although it only comes into force on a date to be determined by the President which, at the time of writing, has not yet occurred. The Department of Trade and Industry has recently released the National Outer Space Policy,33 the aim of which is to guide the activities of the National Space Agency once it has been established.34

12.2 General Philosophy and Processes of Government Regulation Since 27 April 1994, South Africa has been a constitutional democracy - trying to overcome the legacies of apartheid. South Africa has a sophisticated and welldeveloped legal system. The origins of South African law, reflecting the country’s colonial history, are Roman-Dutch and English law as well as customary law. English law was the model used for South Africa’s corporate, tax, banking and insurance law. While customary or traditional law is also applicable, it is usually invoked to settle matters such as inheritance and matrimonial disputes. South Africa has a common law system underpinned by the Constitution of the Republic of South Africa Act, 199635 (“the Constitution”), the supreme law. The Constitution contains a Bill of Rights that protects a number of important civil and socio-economic rights. The Constitution provides for the separation of governmental powers between the three branches of government: the Legislature, the Executive and the Judiciary.

12.2.1 Law-Making Process The legislative authority at the national level of Government is vested in the Parliament,36 consisting of the National Assembly and the National Council of Provinces. Both the National Assembly (whose members are elected in general elections in accordance with the principle of proportional representation) and the National Council of Provinces (composed of nine provincial delegations comprising ten delegates each) participate in the process of passing legislation. The National Assembly has the power to pass legislation on any matter except for matters falling with the functional areas of exclusive provincial legislative competence.37 This arises out of South Africa’s history where a commitment to certain federalist

32 Act

36 of 2008.

33 http://www.space.gov.za/downloads/Nat_Space_Policy.pdf

(accessed: 6 July 2009). cit. note 33 at 10. 35 Act 108 of 1996. 36 Section 43(a) read with Sections 42(1) and 44 of the Constitution. 37 These are set out in Schedule 5 to the Constitution. 34 Op.

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principles was agreed to at the negotiating table, giving the country’s nine provinces a significant degree of latitude over so-called “provincial competency” matters. The Constitution provides in detail for the passage of certain different types of legislation,38 including, Bills to amend the Constitution,39 Bills affecting Provinces,40 Money Bills41 (for example, one that appropriates money or imposes taxes), and Ordinary Bills Not Affecting Provinces.42 Suffice it to say that there are various ways in which different types of legislation are required to be passed by Parliament.

12.2.2 Basic Principles of National Laws and Their Interaction with International Law The Constitution deals with International Law in Chapter 14 headed “General Provisions”. The national executive is responsible for negotiating and signing all international agreements.43 An international agreement binds South Africa only after it has been approved by resolution in both houses of Parliament, unless it is an international agreement of a technical, administrative or executive nature, or is an agreement which does not require either ratification or accession in which case it is required only to be tabled within a reasonable time before both houses of Parliament.44 Further, an international agreement becomes law in the Republic when it is implemented through national legislation.45 An example of an international agreement that has been enacted into national law is the Convention of International Interests in Mobile Equipment Act.46 South Africa is bound by all previous international agreements which were binding on the Republic when the Constitution took effect.47 In relation to the five main International Space Law Treaties: South Africa has ratified the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (“the Outer Space Treaty”) and the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (“the Rescue Agreement”). Further, South Africa has signed but not ratified the

38 See

Sections 73–82 of the Constitution. 74 of the Constitution. 40 Section 76 of the Constitution. 41 Section 77 of the Constitution. 42 Section 75 of the Constitution. 43 Section 231(1) of the Constitution. 44 Section 231(2) read with Section 231(3) of the Constitution. 45 Section 231(4) of the Constitution. 46 Act 4 of 2007, which came into force on 24 August 2007. 47 Section 231(5) of the Constitution. 39 Section

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Convention on International Liability for Damage Caused by Space Objects (“the Liability Convention”). South Africa has not signed the Convention of Registration of Objects Launched into Outer Space (“the Registration Convention”) or the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (“the Moon Agreement”).48 Interestingly, the National Space Policy 2009 (“National Space Policy”),49 recently released by the Department of Trade and Industry, clearly indicates (in its Supporting Document, titled “Domestic and International Regulatory and Strategic Frameworks for South African Space Activities”) that “as a responsible user of Outer Space, South Africa should ratify all the main treaties.”50 More specifically, the Draft Policy clearly indicates that South Africa intends to ratify both the Liability Convention51 and the Registration Convention.52 Further, it also states that South Africa “should . . . consider ratifying [the Moon] Agreement.”53 Section 24 of the Space Affairs Act54 specifically provides that the President may add a Schedule to the Act in which the provisions of an international convention on space affairs which has been ratified by South Africa may be included. On the date of commencement of the proclamation, the relevant convention shall have the force of law. The section also provides for all such proclamations to be laid before Parliament within 14 days of publication. To date, no such Schedules have been added so the international Space Law Treaties and Conventions do not yet have the force of law in South Africa.

12.2.3 Organisation of National Space Law South Africa has passed a number of statutes relating to space activities. Some of these were enacted immediately prior to the transition to democracy and some have been enacted in the post-1994 democratic era, after a 10-year hiatus in space policy development. Although many of the specific provisions of the different pieces of legislation will be dealt with in more detail elsewhere in this Chapter, it is important to have a sense of the legislative landscape as a whole and for this reason I set out below brief descriptions of the key features of South Africa’s domestic space-related legislation.

48 United Nations treaties and principles on outer space and related General Assembly Resolutions

Addendum: Status of international agreements relating to activities in outer space as at 1 January 2008. ST/SPACE/11/REV.2/ADD.1 http://www.unoosa.org/pdf/publications/ST_SPACE_ 11_Rev2_Add1E.pdf (accessed: 20 February 2008) at p. 14. 49 Op. cit. note 33. 50 At 8. 51 At 11. 52 At 12. 53 At 13. 54 Act 84 of 1993.

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12.2.3.1 The Space Affairs Act55 (“The Space Affairs Act”) The Space Affairs Act came into force on 6 September 199356 and was amended by the Space Affairs Amendment Act 1995.57 The Act provides that the Minister of Trade and Industry is responsible for determining general policy in regard to meeting South Africa’s international commitments in respect of the peaceful utilization of outer space.58 The Space Affairs Act establishes the South African Council for Space Affairs,59 appointed by the Minister,60 to implement space policy and to take care of the interests and obligations of South Africa regarding its space-related activities.61 The key tasks of the Council for Space Affairs include appointing inspectors62 to monitor compliance with the Act and licensing space activities.63 12.2.3.2 The Non-Proliferation of Weapons of Mass Destruction Act64 (“The Non-Proliferation Act”) The Non-Proliferation Act came into force on 16 August 1993.65 The Act provides that the Minister of Trade and Industry is responsible for determining general policy in regard to, among others, the taking of measures to prevent the development and proliferation of weapons of mass destruction and the control of dual-purpose capabilities.66 The Non-Proliferation Act establishes the South African Council for NonProliferation of Weapons of Mass Destruction appointed by the Minister,67 to control, register, verify and inspect controlled goods;68 i.e. those that the Minister, on the recommendation of the Council for Non-Proliferation, declares to be goods which may contribute to the development of weapons of mass destruction.69 The key tasks of the Council for Non-Proliferation include carrying out investigations and issuing permits.70

55 Act

84 of 1993. R80 published in Government Gazette No. 15096 dated 3 September 1993. 57 Act 64 of 1995. 58 Section 2. 59 Section 4. 60 Section 6. 61 Section 5. 62 Section 10. 63 Section 11. 64 Act 87 of 1993. 65 Proclamation R71 published in Government Gazette No. 15059 dated 13 August 1993. 66 Section 2. 67 Section 4. 68 Section 5. 69 Section 13(1). 70 Section 6. 56 Proclamation

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12.2.3.3 The National Conventional Arms Control Act71 (“Conventional Arms Control Act”) The Conventional Arms Control Act came into force on 1 May 2003.72 The Act establishes the National Conventional Arms Committee73 appointed by the President74 to implement Government policy regarding trade in conventional arms. The National Conventional Arms Committee’s key tasks include overseeing inspections and issuing permits to trade in conventional arms which include certain dual use goods; i.e. technologies, which besides their normal use and application for civilian purposes, can also be used for the furtherance of general military capability.75 12.2.3.4 The Spatial Data Infrastructure Act76 (“Spatial Data Infrastructure Act”) A number of sections of the Spatial Data Infrastructure Act came into force on 8 May 2006.77 The remaining sections are, at the time of writing, yet to come into operation. The Act establishes a Committee for Spatial Information appointed by the Minister for Land Affairs.78 The key objectives of the Committee are to advise government structures on matters regarding the management of spatial information.79 The Spatial Data Infrastructure Act also establishes the South African Spatial Data Infrastructure as the framework for facilitating the capture, management, distribution and use of spatial information and which is administered by the Director General of the Department of Land Affairs.80 12.2.3.5 The Electronic Communications Act81 (“Electronic Communications Act”) The Electronic Communications Act came into force on 19 July 2006. It repealed the Telecommunications Act82 and the Independent Broadcasting Authority Act.83 71 Act

41 of 2002. R41 published in Government Gazette No. 24816 dated 29 April 2003. 73 Section 2. 74 Section 5. 75 Section 1. 76 Act 54 of 2003. 77 Proclamation R19 published in Government Gazette No. 28788 dated 28 April 2006, which brought into operations Sections 1–11, 13, and 19–22. 78 Section 5. 79 Section 6. 80 Section 3. 81 Act 36 of 2005. 82 Act 103 of 1996. 83 Act 153 of 1993. 72 Proclamation

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The Electronic Communications Act attempts to provide for the convergence of electronic communications platforms although it still has an entirely separate licensing regime for broadcasting. The Act is administered by the Independent Communications Authority of South Africa (ICASA), an independent body appointed by the Minister with the approval of Parliament.84 The Electronic Communications Act provides for the granting by ICASA of four types of licences, namely:85 • Electronic Communications Network Services licences – when an electronic communications network is made available; • Electronic Communications Services licences – services that are provided to the public consisting of the conveyance of electronic communications over a network. Note that broadcasting is specifically excluded from this definition; • Broadcasting licences – including both subscription and free-to-air services; and, • Radio Frequency Spectrum licences – required if a service or a network makes use of the radio frequency spectrum. 12.2.3.6 The Astronomy Geographic Advantage Act86 (Astronomy Geographic Advantage Act) The Astronomy Geographic Advantage Act was assented to on 11 June 2008, published87 in the Government Gazette, and came into force on 24 April 2009.88 The Act aims generally to provide measures to advance astronomy and related scientific endeavours in South Africa.89 The Act empowers the Minister of Science and Technology to declare particular areas in South Africa to be astronomy advantage areas.90 There are three types of astronomy advantage areas: core,91 central92 or coordinated.93 This is to ensure that geographic areas in South Africa that “are highly suitable for astronomy due to, for example, high atmospheric transparency, low levels of light pollution, low population density or minimal radio frequency interference are protected, preserved and properly maintained.”94

84 See

Independent Communications Authority of South Africa Act, Act 13 of 2000, at Sections 4 and 5. 85 See generally, Chapters 3 and 5 of the ECA. 86 Act 21 of 2007. 87 Government Gazette No. 31157 dated 17 June 2008. 88 Government Gazette No. 32163 dated 24 April 2009. 89 Section 2(a). 90 Section 5. 91 Section 7. 92 Section 9. 93 Section 11. 94 Section 2(d).

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The management of these astronomy advantage areas must be assigned by the Minister of Science and Technology to a public entity or an organ of state which is then designated as a management authority.95 Such an authority will be responsible for developing a management plan for the area, if requested in writing to do so by the Minister.96 The Astronomy Geographic Advantage Act contains detailed provisions limiting: • access to core astronomy advantage areas,97 including requiring written permission to reside or even to enter a core astronomy area; • declared activities in a core or central astronomy advantage area,98 including mining, industrial processes, electricity generation, transmission or distribution, and activities causing light pollution; • declared activities in a core or central astronomy advantage area,99 including fixed radio frequency interference sources and activities causing light pollution; • use of the radio frequency spectrum in core or central astronomy advantage areas100 including the possibility that the Minister of Science and Technology may, with the concurrence of the Independent Communications Authority of South Africa, prohibit or restrict the use of specific frequencies; require the conversion of analogue transmissions to digital transmissions, or require migration to different frequencies; and, prescribe national standards of measure for the control or minimization of radio frequency interference;101 and • use of aircraft in astronomy advantage areas.102 Note that such an area includes the airspace above it up to a height of 18,500 m. The Minister of Science and Technology may, with the concurrence of the Civil Aviation Authority, prohibit or restrict overflight by any aircraft of any core or central astronomy advantage area. 12.2.3.7 The Technology Innovation Agency Act103 (Technology Innovation Agency Act) The Technology Innovation Agency Act came into force on 24 April 2009.104 In brief, it provides for the establishment of a Technology Innovation Agency,105 the Board of which is appointed by the Minister of Science and Technology in 95 Section

15. 16. 97 Section 20. 98 Section 23. 99 Section 24. 100 Section 22. 101 Section 37(1)(b). 102 Section 21. 103 Act 26 of 2008. 104 Proclamation 25 published in Government Gazette No. 31235 dated 24 April 2009. 105 Section 2. 96 Section

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consultation with the National Assembly.106 The duties of the Agency are to, among other things, finance research into technological innovation; establish companies for the purpose of developing or exploiting any technological innovation; draw together and integrate the management of different technological innovations, incubation and diffusion initiatives in South Africa; and, develop the national capacity and infrastructure to develop and exploit intellectual property derived from research financed by the Agency.107 12.2.3.8 The South African National Space Agency Act108 (South African National Space Agency Act) While the South African National Space Agency Act has been enacted,109 it is not yet in force and will come into force upon a date to be proclaimed by the President. The South African National Space Agency Act establishes the South African National Space Agency,110 the Board of which is appointed by the Minister of Science and Technology from the short list drawn up by the National Assembly after a public nominations process.111 The objects of the Agency are, among others, to promote the peaceful use of outer space, support the creation of an environment conducive to industrial development in space technology, and advance scientific, engineering and technological competencies, and foster international cooperation.112 The functions of the Agency include: implementing any space programme in line with policy determined in terms of the Space Affairs Act, advising the Minister of Science and Technology on the development of national space science and technology strategies and programmes, and implementing national space science and technology strategy. One issue that has not been sufficiently addressed in the South African Space Agency Act is its relationship to the Space Affairs Act (discussed above) as both the Agency and the Space Affairs Council appear to be required essentially to implement space policy.113 The respective roles, functions and responsibilities of the Agency and the Space Affairs Council need to be more explicitly delineated.

106 Section

5. 4. 108 Act 36 of 2008. 109 Notice 1385 published in Government Gazette No. 31729 dated 15 December 2008. 110 Section 2. 111 Section 7. 112 Section 4. 113 See Section 5 of the Space Affairs Act and Section 5 of the South African National Space Agency Act. 107 Section

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12.3 Legal Issues Related to Launch Services (Space Transportation Systems) 12.3.1 Licensing of Launch Services Provided by Private Enterprises The licensing of launch services is provided for in the Space Affairs Act. In terms of Section 11 of the Space Affairs Act, the following activities, among others, require a licence to be issued by the South African Council for Space Affairs: • launching114 from South African territory; • any launching from the territory of another state by or on behalf of a juristic person incorporated or registered in the Republic; • the operation of a launch facility; and • the participation of juristic persons in space activities that would entail State obligations in terms of international Conventions etc. Unfortunately, this critical aspect of the Space Affairs Act does not appear to be complied with. Although the Act was in force when the Sunsat micro-satellite was launched in the US in 1999, the Council for Space Affairs did not license the launch of Sunsat, probably because the Space Affairs Council was allowed to become dormant for a number of years in the late 1990s and was only reconstituted in 2006. However, it is also important to point out that, at the time of writing, the Council for Space Affairs still has not issued any licences, despite SumbandilaSat (a second Sunsat micro-satellite) being ready for launching. Further, no one involved in the launching of Sunsat or SumbandilaSat has been charged with an offence115 in terms of Section 23 of the Space Affairs Act for violating the provisions of Section 11, indicating that it is likely that the lack of licensing activity is due to the Council for Space Affairs rather than the organizations involved in the launching of these micro-satellites. It is important to note the provisions of Section 14 of the Space Affairs Act which deal with duties and liabilities of a licensee. These allow for the imposition of licence conditions relating to, among other things, liability of the licensee resulting from international conventions.116 In this regard, it appears that the intention of the Space Affairs Act is to entirely do away with state liability in relation to the licensing of launching activities as Section 21 of the Space Affairs Act specifically provides that the State shall not be liable in respect of anything done under this Act. It is instructive to note that the Draft National Outer Space Policy correctly, in my view, 114 Defined

in Section 1 as “the placing or attempted placing of any spacecraft into a suborbital trajectory of into outer space, or the testing of a launch vehicle or spacecraft in which it is foreseen that the launch vehicle will lift from the earth’s surface”. 115 Note that in terms of Section 23(1), the penalties for a conviction of the offence of failing to comply with the licensing requirements of the Space Affairs Act are a fine to a maximum of R1, 000, 000.00 and/or imprisonment for up to 10 years. 116 Section 14(1)(b).

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states that these provisions are not consistent with the provisions of the Liability Convention and suggests that these be amended or repealed.117

12.3.2 Competition in Launch Services There is nothing in the Space Affairs Act which would indicate that launch services may be provided on an exclusive or monopoly basis. Indeed, the licensing provisions are broadly framed, that is, they allow anyone to apply for a licence to engage in launch activities. This is in keeping with the economic development goals of South Africa’s National Space Science and Technology Strategy and National Space Policy, and is also in keeping with the broad aims118 of the South African Competition Act,119 which include: to promote the efficiency, adaptability and development of the economy and to provide consumers with competitive prices and product choices. It is important to note, however, that there are provisions in Section 12 of the Space Affairs Act empowering the Council for Space Affairs to order a licence applicant to service notice of the application on any government institution or any other person or authority who has an interest in the proposed space activity to allow that institution, person or authority to make representations on the licence application. Again, this section has not been used in practice. It may be further noted that the Government is clearly re-thinking the termination of its previous rocket launching programme and is considering becoming a launch-capable state again, within the framework of the Missile Technology Control Regime. However, this particular political decision has yet to be taken, according to a recent interview with Dr. Val Munsami, Space Science and Technology Manager within the Department of Science and Technology.120

12.4 Legal Issues Related to Satellite Telecommunications, Including Satellite Broadcasting121 12.4.1 The Licensing of Private Satellite Telecommunications Operators, including Satellite Broadcasting Satellite Telecommunications and Broadcasting are both governed by the Electronic Communications Act (hereafter “the ECA”). 117 Op.

cit. note 33 at Paragraph 3.2.3. Section 2. 119 Act 89 of 1998. 120 http://www.engineeringnewsectionco.za/article.php?a_id=127993 (accessed: 20 June 2008). 121 Much of the material on the telecommunications aspects of this section of the chapter is taken from the “South Africa” chapter I wrote (under my maiden name of Justine White) for Global Telecommunications Law and Practice. Colin Long (Ed) vol. 2, Chapter 30. R. 13: September 2006. 118 See

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One of the most important aims of the ECA is to do away with verticallyintegrated licences; i.e. licences that bundled the permission to build a network and other telecommunications infrastructure with permission to provide a particular telecommunications service over that network, which was the case in respect of major telecommunications services licensed under the now-repealed Telecommunications Act. The ECA model of licensing, designed to promote convergence as well as increased competition, is for an operator to have a number of stand-alone licences authorizing discreet aspects; e.g., network infrastructure, the provision of electronic communications or broadcasting services, and use of the radio frequency spectrum. The ECA provides that unless a service is exempt, no person may provide a service without a licence.122 The ECA aims to create a technologically neutral licensing framework.123 Hence, there are no specific satellite-related licensing provisions in the ECA for telecommunications or broadcasting. However, the Broadcasting Act,124 in Section 5(2), makes provision for different categories of broadcasting licences and mentions “satellite subscription broadcasting services.” This categorisation is flawed because there is no provision for satellite free-to-air broadcasting services. These licence categories have never been used in practice by the regulator, the Independent Communications Authority of South Africa (“ICASA”) and new regulations introduced in terms of the ECA do away with any reference to technology platforms.125 Interestingly, however, the Minister of Communications has recently issued a new draft policy direction126 which calls for public comments on a proposed policy direction directing ICASA to issue an invitation to apply for, accept and consider applications for licences to provide satellite infrastructure. The ECA makes provision for four types of licences, namely: electronic communications network services (“ECNS”)127 licences, electronic communications

122 Section

7. 2(b). 124 Act 4 of 1999. 125 Regulation 1138 of 2007. 126 In terms of Section 3(2) read with Section 5(6) of the ECA. See Notice 832 published in Government Gazette No. 31217 dated 7 July 2008. 127 ECNS are defined in Section 1 of the ECA as: “a service whereby a person makes available an electronic communications network, whether by sale, lease or otherwise123 Section

(a) for that person’s own use for the provision of an electronic communications service or broadcasting service; (b) to another person for that person’s use in the provision of an electronic communications service or broadcasting service; (c) for resale to an electronic communications service licensee, broadcasting service licensee or any other service contemplated by this Act, and ‘network services’ is construed accordingly.” Clearly, both the space and ground segments of satellite infrastructure would form part of an ECNS.

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services (“ECS”)128 licences, broadcasting services129 licences and radio frequency spectrum130 licences. Within each of the four types of licences, there are three categories of licences: individual, class or exempt. Section 5(1) of the ECA grants ICASA general powers to grant both individual and class licences.

“Electronic communications network” is defined in Section 1 of the ECA as any system of electronic communications facilities (excluding subscriber equipment), including without limitation – (a) satellite systems; (b) fixed systems (circuit- and packet-switched); (c) mobile systems; (d) fibre optic cables (undersea and land-based); (e) electricity cable systems (to the extent used for electronic communications services); and (f) other transmission systems, used for conveyance of electronic communications. 128 ECS are defined in Section 1 of the ECA as “any service provided to the public, sections of the public, the State, or the subscribers of such service, which consists wholly or mainly of the conveyance by any means of electronic communications over an electronic communications network, but excludes broadcasting services.” “Electronic communications” is defined in Section 1 of the ECA as “the emission, transmission or reception of information, including without limitation, voice, sound, data, text, video, animation, visual images, moving images and pictures, signals or a combination thereof by means of magnetism, radio or other electromagnetic waves, optical, electromagnetic systems or any agency of a like nature, whether with or without the aid of tangible conduct, but does not include [a] content service”. Note “content service” is not defined in the ECA. 129 “Broadcasting” is defined in Section 1 of the ECA as “any form of unidirectional electronic communications intended for reception by -

(a) the public; (b) sections of the public; or (c) subscribers to any broadcasting service, whether conveyed by means of radio frequency spectrum of any electronic communications network or any combination thereof, and ‘broadcast’ is construed accordingly”. A “broadcasting service” is defined in Section 1 of the ECA as “any service which consists of broadcasting and which is conveyed by means of an electronic communications network, but does not include: (a) a service which provides no more than data or text, whether with or without associated still images; (b) a service in which the provision of audio-visual material or audio material is incidental to the provision of that service; or (c) a service or a class of service, which the Authority may prescribe as not falling within this definition”. 130 “Radio frequency spectrum” is defined in Section 1 of the ECA as “the portion of the electromagnetic spectrum used as a transmission medium for electronic communications”.

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Although not couched in the same language, it is clear that the ECA envisages that a radio frequency spectrum licence is also to take the form of an individual licence. Section 31(1) of the ECA provides that no person may transmit any signal by radio or use radio apparatus to receive any signal except under and in accordance with a licence granted by ICASA to such person in terms of the ECA. Similarly, Section 32(1) provides that no person may possess any radio apparatus without a radio frequency spectrum licence. Section 31(2) of the ECA provides that a radio frequency spectrum licence is required in addition to any service licence contemplated in Chapter 3 of the Act (i.e., an ECNS or ECS licence), where the provision of such service entails the use of radio frequency spectrum. Further, ICASA is empowered to prescribe procedures and criteria for the awarding of radio frequency spectrum to competing applications in instances where there is insufficient spectrum available to accommodate demand.131 In licensing radio frequency spectrum, ICASA must give high priority to applicants who propose to make use of digital communications facilities.132 ICASA also has the power to prescribe licence exemptions in respect of all ECS, ECNS and radio frequency licences in terms of Section 6(1) read with Section 6(2)(f) of the ECA. Broadcasting services cannot be licence exempt in terms of the ECA. It is clear that ICASA is the final arbiter of what kind of licence is required for a particular service, and that this will form the subject of regulations to be made under the provisions of the ECA. Given that there are no specific provisions governing satellite broadcasting or telecommunications, it is important to note that satellite operators would be governed by the regulatory provisions applicable to particular types of services provided via satellite, whether these are ECNS, ECS or broadcasting. In South Africa, satellite operators providing transponder capacity only have traditionally not been licensed. They sell transponder capacity to licensees in South Africa (for example to broadcasting signal distributors or to telecommunications network services operators (now ECNS licensees). ICASA is responsible for the setting of licence conditions in terms of the ECA. This is done as follows: • Individual Licences: ◦ ICASA has prescribed standard licence terms and conditions to be applied to individual licences and these terms and conditions vary according to the different types of individual licences;133 i.e., individual ECNS, ECS, broadcasting and radio frequency spectrum licence. Section 8(2) of the ECA sets out a range of issues that may be taken into account by ICASA in setting such standard terms and conditions;134 131 ECA

2005, Section 31(3). 2005, Section 30(2)(c). 133 ECA, 2005, Section 8(1) and Regulation 1138 of 2007. 134 There are fourteen of them set out in the ECA, including: whether the services are intended for the public or a limited group, licence area, duration, protection of end-user, interference, universal 132 ECA

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◦ ICASA may prescribe additional terms and conditions applicable to any individual licence taking into account the provisions of Chapter 10 of the ECA (this chapter deals with fair competition issues);135 ◦ ICASA may prescribe the designation of licensees to whom universal service and access obligations are to apply;136 and, ◦ ICASA may also impose any other licensee-specific terms and conditions resulting from undertakings made by the applicant in applying for the licence.137 • Class Licences: ◦ ICASA has prescribed standard licence terms and conditions to be applied to class licences and these terms and conditions vary according to the different types of class licences.138 Section 8(2) sets out a range of issues that may be taken into account by ICASA in setting such standard terms and conditions;139 ◦ ICASA may prescribe additional terms and conditions applicable to any class licence taking into account the provisions of Chapter 10 of the ECA (this chapter deals with fair competition issues);140 and, ◦ ICASA may prescribe the designation of licensees to whom universal service and access obligations are to apply.141 • Exempted Licences: Regulations providing for licence exemptions may contain terms and conditions applicable to exempted ECNS, ECS and radio frequency spectrum use.142 Licence terms have also been determined by ICASA subject to a maximum of 20 years for individual licences143 and 10 years for class licences.144 service obligations, disaster management, public health, international obligations, competition, efficiency etc. 135 ECA, 2005, 2. 8(3). 136 ECA, 2005, 2. 8(4). 137 ECA, 2005, 2. 9(7). 138 ECA, 2005, Section 8(1) and Regulation 1122 of 2007. 139 There are fourteen of them set out in the ECA, including: whether the services are intended for the public or a limited group, licence area, duration, protection of end-user, interference, universal service obligations, disaster management, public health, international obligations, competition, efficiency etc. 140 ECA, 2005, 2. 8(3). 141 ECA, 2005, Section 8(4). 142 ECA, 2005, Section 6(3) and see Regulation 432 of 2008 published in Government Gazette No. 30955 dated 7 April 2008. 143 ECA, 2005, Section 5(10)(a) and Regulation 1138 of 2007. In terms of the Regulations, the licence terms for individual licences are: 15 years for public or commercial free-to-air television and subscription broadcasting services; 10 years for public or commercial free-to-air sound broadcasting services; 20 years for ECNS and 15 years for ECS. 144 ECA, 2005, Section 19(1) and Regulation 1122 of 2007. In terms of the Regulations, the licence terms for class licences are: 5 years for community and low power sound broadcasting licences; 7 years for community television licences; and 10 years for ECS and ECNS licences.

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12.4.2 The Licensing Process The licensing process differs considerably between individual and class licences. The different processes are as follows: • Individual licensing process: ◦ ICASA is required to prescribe regulations regarding:145 the process and procedures for applying for, amending, transferring or renewing individual licences; the documentation that applicants must include in their applications; applicable licence fees; terms and conditions for granting special temporary authorisations for testing purposes, demonstrations, research and development; and any other licensing process matter. ◦ It is clear that the ECA generally puts ICASA in charge of the entire licensing process: ICASA accepts applications, duly considers them in the prescribed manner and decides whether to grant or refuse the licence sought.146 This is a significant improvement upon the licensing process for the acquisition of major licences under the erstwhile Telecommunications Act which reserved significant powers to the Minister (including the actual granting of licences). However, there is one important means by which the Minister plays a role in the licensing process under the ECA. With regard to individual ECNS licences, ICASA may only accept and consider applications therefor if a policy direction to that effect has been issued by the Minister.147 The ECA provides that this is done “[i]n consideration of the implementation of managed liberalisation policies.”148 The effect of this is that the Executive is able to control when the infrastructure market will be opened up to competition. Interestingly, however, the Minister of Communications has recently issued a new draft policy direction149 which calls for public comments on a proposed policy direction directing ICASA to issue an invitation to apply, and to accept and consider applications for individual ECNS licences to provide satellite infrastructure. The policy direction goes far beyond the Minister’s statutory authority under the provisions of the ECA by purporting to set out

145 ECA,

2005, Section 5(7) and see Regulation 398 of 2008, published in Government Gazette No. 30916 dated 31 March 2008. 146 ECA, 2005, Section 5(2). 147 ECA, 2005, Section 5(6). 148 ECA, 2005, Section 5(6). 149 In terms of Section 3(2) read with Section 5(6) of the ECA. See Notice 832 published in Government Gazette No. 31217 dated 7 July 2008.

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requirements to be met by such satellite infrastructure licensees, including the requirements that the licence: must be operated on an open access, transparent and non-discriminatory basis; should be based in and operated from South Africa; should, upon request, carry other South African licensees including broadcasting services at cost-based prices; must have local ownership, particularly from historically disadvantaged communities. It is very hard to know what to make of this policy direction as it appears to be at odds with the provisions of the ECA which provide that licensing is to be technology neutral and, as already stated, is almost certainly ultra vires the Minister’s powers in terms of her purported licensing requirements. It is also important to note that Ministerial Policy Directives do not always materialise as licensed services available to the South African public. For example, Ministerial Directions for Global Mobile Personal Communications by Satellite (“GMPCS”) were issued in 2002150 and while ICASA did pass regulations providing for GMPCS151 and issued invitations to apply for various GMPCS-related licences, no licensing of such services has taken place in South Africa. ◦ Applicants must be South African citizens or companies registered in South Africa and having their principal place of business in South Africa.152 ◦ In granting a licence, ICASA must ensure that ECNS and ECS, viewed collectively, are provided by persons from a diverse range of South African communities and must promote historically disadvantaged persons, including, women, the youth and persons with disabilities.153 In this regard, the ECA provides that the percentage of equity ownership by persons from historically disadvantaged groups must be not less than 30% or such higher percentage as may be prescribed.154 ◦ Applications for individual licences are to be made in the prescribed manner upon invitation by ICASA.155 ◦ Once an application has been received:

150 Notice

3425 published in Government Gazette No. 24170 dated 10 December 2002. 2393 published in Government Gazette No. 2393 dated 20 December 2001. 152 ECA, 2005, Section 5(8). 153 ECA, 2005, Section 5(9). 154 ECA, 2005, Section 9(2) (b). 155 ECA, 2005, Section 9(1). 151 Notice

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ICASA gives notice156 thereof in the Government Gazette and invites interested parties to make written representations thereon.157 Note that applications are open to public inspection unless parts thereof have been granted confidential status by ICASA;158 ICASA may hold a public hearing;159 and ICASA decides on the application and must notify the applicant of its decision, the reasons therefor and any applicable licence conditions. ICASA must publish this information in the Government Gazette.160 ◦ The ECA contains specific provisions regarding the amendment, renewal, surrender, transfer or change of ownership and suspension or cancellation of an individual licence.161 It also contains specific provisions regarding the amendment and withdrawal162 of a radio frequency spectrum licence.163 • Class licensing process: ◦ ICASA is required to prescribe regulations regarding;164 the process and procedures for registering, amending, transferring or renewing class licences; the documentation that applicants must include in their applications; applicable licence fees; terms and conditions for granting special temporary authorisations for testing purposes, demonstrations, research and development; and any other licensing process matter. ◦ Registrants must be South African citizens or companies registered in South Africa and having their principal place of business in South Africa.165 ◦ In granting a licence, ICASA must ensure that ECNS and ECS, viewed collectively, are provided by persons from a diverse range of South African communities and must promote historically disadvantaged persons, including, women, the youth and persons with disabilities, in accordance with the ICT Charter.166

156 This notice contains a range of information including the percentage of equity to be held by persons from historically disadvantaged groups, proposed licence conditions etc. 157 ECA, 2005, Section 9(2). 158 ECA, 2005, Section 9(4). 159 ECA, 2005, Section 9(2)(e). 160 ECA, 2005, Section 9(5). 161 ECA, 2005, Sections 9(10)–(14). 162 This can occur when the radio frequency spectrum is not being used by a licensee in accordance with the applicable licence conditions. 163 ECA, 2005, Sections 31(4) and (8)–(10). 164 ECA, 2005, Section 5(7) and see Regulation 397 of 2008, published in Government Gazette No. 30914 dated 31 March 2008. 165 ECA, 2005, Section 5(8). 166 ECA, 2005, Section 5(9).

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◦ Importantly, registration can take place at any time,167 that is, unlike the situation regarding individual licences, there is no requirement that an invitation to apply or to register be issued by ICASA. ◦ ICASA is required to keep a register of class licences and to make it available to the public.168 The register is to be updated at least annually and lists of licences are to be published therein indicating: contact details of licensees; nature of services provided; and, applicable licence terms and conditions.169 The licensee has a duty to ensure that the information in the register is accurate by filing updated licensee information.170 ◦ Registrations are to be made in writing in the manner prescribed.171 ◦ ICASA may refuse to accept a registration if: the registration does not contain the required information; the applicant is in contravention of the ECA, the related legislation or licence conditions of other licences it holds; or the registration contains false or misleading information.172 ◦ ICASA has 60 days within which to refuse to accept a registration and to provide the registrant with written notice of its decision, the reasons therefor and an opportunity to correct and resubmit the registration.173 If ICASA delays the grant of the licence beyond the 60 day period, it must give the registrant notice of the delay and reasons therefor,174 failing which the licence is deemed to have been granted by ICASA on the 61st day after receipt of the registration notice.175 ◦ The ECA contains specific provisions regarding the cession or transfer; surrender; and renewal of a class licence.176 It is interesting to note that in fact the class licensing process provided for in the ECA and discussed above does not follow a traditional class licensing model which eschews pre-approval in any form. In fact, ICASA is required to approve a registration notice before a registrant can say it is a licensee with a class licence under the ECA.

12.4.3 Foreign Investment The ECA contains few provisions regulating ownership and control interests with regard to electronic communications services (“ECS”) and electronic 167 ECA,

2005, Section 16(2). 2005, Sections 16(3) and (4). 169 ECA, 2005, Section 16(5). 170 ECA, 2005, Sections 16(6), 17(6)(a) and 19. 171 ECA, 2005, Section 17(1). 172 ECA, 2005, Section 18(1). 173 ECA, 2005, Section 18(2). 174 ECA, 2005, Section 17(4). 175 ECA, 2005, Section 17(5). 176 ECA, 2005, Sections 9(10)–(14). 168 ECA,

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communications network services (ECNS),177 but the situation is very different in respect of broadcasting services. When granting an ECS or ECNS licence, ICASA must ensure that ECS and ECNS are provided from a diverse range of communities in South Africa and must ensure the empowerment of historically disadvantaged persons, including, women, the youth and people with disabilities.178 Applicants must also be South African citizens or companies registered in South Africa and having their principal place of business in South Africa,179 but this is not in itself a bar to such a company being a wholly-owned subsidiary of a foreign entity. The ICASA Act,180 however, contains provisions authorising ICASA to regulate various ownership and control issues. ICASA is empowered to make regulations in respect of, inter alia: • any matter consistent with the objects of the ICASA Act and the ECA.181 One of the objects of the ECA is the promotion of the empowerment of historically disadvantaged persons, including Black people, with particular attention to the needs of women, opportunities for youth and challenges for people with disabilities;182 • empowerment requirements in terms of the Broad-Based Black Economic Empowerment Act183 (“the Black Economic Empowerment Act”).184 The issue of Black Economic Empowerment (“BEE”) is a key government policy. It is central to redressing historical imbalances in the economy. ICASA and its predecessor regulators have used BEE as a guiding factor in determining who is awarded licences etc. The Government has passed the Black Economic Empowerment Act to boost BEE throughout the economy and not just in highlyregulated sectors such as electronic communications where BEE can be boosted through the grant of licences and in the setting of licence conditions. The ICT sector began to develop a Transformation Charter for the electronic communications sector – the ICT Charter in 2003, the latest draft of which is the fourth working draft.185 According to the preface to that draft, it was intended that the ICT Charter would become effective on 1 March 2005. However, this had not happened and the ICT Charter has yet to be gazetted by the Minister of Trade and Industry as required by the Black Economic Empowerment Act. It is said

177 Chapter 9, Broadcasting Services, does contain such provisions but these related to broadcasting services only. 178 ECA 2005, Section 5(9). 179 ECA, 2005, Section 5(8). 180 Act 13 of 2000. 181 ICASA Act 2000, Section 4(3)(j). 182 ECA 2005, Section 2(h). 183 Act 53 of 2003. 184 ICASA Act 2000, Section 4(3)(k). Defined in Section 1 of the Black Economic Empowerment Act as “a generic term which means Africans, Coloureds and Indians”. 185 http://www.dti.gov.za/bee/beecharters/ICTCHARTERDraft4.pdf#search=%22ICT%20Charter %22 (accessed: 21 September 2006)

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that one of the main reasons for the lack of finalisation was resistance by foreign telecommunications operators to the effective local ownership requirements. It is important to note that ownership and control regulations made by ICASA under the now-repealed Telecommunications Act continue to remain in force unless specifically repealed by ICASA in terms of Section 95 of the ECA. There are certain exceptions to this requirement, namely: ◦ shares which are publicly traded and which do not result in a transfer of a control interest in a licensee; ◦ transfers of ownership or control interests in a non-concentrated market; ◦ transfers of ownership interests held by the Government; ◦ transfers of ownership interests where such transfer does not result in a transfer of a control interest. ICASA has passed ownership regulations186 but these are not applicable to broadcasting licensees. 186 Notice 105, published in Government Gazette No. 24288, dated January 16, 2003. Sections 1(1),

2, 3, 4, 5, 7 and 8 of the regulations provide that: • an “ownership interest” is defined as “any direct or indirect ownership of issued share capital or more than 5 percent in a licensee”; • a “control interest” is defined as meaning that “a person has a control interest if, in the absence of proof to the contrary, that person directly or indirectly: (a) beneficially owns more than twenty-five percent of the issued share capital of the licensee; (b) is entitled to vote a majority of the votes that may be cast at a general meeting of the licensee or has the ability to control, either directly, indirectly or through an affiliate the casting or a majority of those votes of the licensee; (c) is able to appoint or veto the appointment of a majority of the directors of the licensee; (d) is a holding company and the licensee is a subsidiary of that company; (e) in the case where the licensee is a trust, has the ability to control a majority of the votes of the trustees, to appoint the majority of the trustees, to appoint or change the majority of the beneficiaries of the trust; (f) in the case where the licensee is a closed corporation, owns more than twenty-five percent of the members’ interest, or controls or has the right to control the member’s votes in the closed corporation; or (g) has the ability to direct or cause the direction of the management or policies of the licensee in the manner similar to any of the Paragraphs (a)–(f), whether through the direct or indirect ownership of issued share capital, by contract, by securities, or otherwise”; • “historically disadvantaged persons” are defined as “natural persons, who before the Constitution came into operation, were disadvantaged by unfair discrimination on the basis of race, gender, disability, sexual orientation or religion.” Juristic historically disadvantaged persons are entities where more than 25% of the shares or votes are controlled by historically disadvantaged natural persons; • “concentrated market” means any telecommunication service category in which there are fewer than five licensees or which the Authority determines is concentrated; • no person who holds an ownership or control interest is a licensee in any telecommunication service category in a concentrated market shall hold an ownership interest in another licensee in the same category, except for the government or passive institutional investors;

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The regulatory strictures on foreign investment are very different in respect of broadcasting services. In terms of Section 64 of the ECA, which is titled “Limitations on Foreign Control of Commercial Broadcasting Services”, a foreigner may not, whether directly or indirectly, exercise control over a commercial broadcasting licensee or have a financial interest or an interest either in voting shares or paid up capital in a commercial broadcasting licensee, exceeding 20%. Further, not more than 20% of the directors of a commercial broadcasting licensee may be foreigners. There are, unfortunately, no statutory mechanisms giving ICASA discretion to grant an exemption from these restrictions on good cause shown although there is growing recognition that this section restricts foreign direct investments in the broadcasting sector and, indeed, has led to ridiculous government policy flip-flops to try to avoid the effects of the provisions. For example, ICASA recently undertook a long-overdue overhaul of the licensing process for subscription broadcasting services, including satellite operators. One of the (hitherto) unlicensed operators which had been providing services was WorldSpace, an American satellite sound broadcasting service providing both free-to-air and subscription services. It was clear that WorldSpace was going to fall foul of the statutory foreign ownership restrictions • telecommunication service licensees must maintain accurate and detailed records of ownership and control interests which reflect: ◦ the ownership and control interests held by historically disadvantaged persons during the first two years of the initial grant of the licence; ◦ issued share capital traded on public stock exchanges, • and these must be submitted by 31 January each year; • a licensee has to obtain prior written approval from ICASA in any cases where a transfer results in: ◦ the transfer of a control interest in a licensee; ◦ a decrease in the ownership interests held by historically disadvantaged persons in a licensee within the first two years of the initial grant of the licence where the licensee proposed such ownership in its application for the licence in response to an invitation to apply issued by the Minister in terms of Section 34 of the Telecommunications Act; There are certain exceptions to this requirement, namely: ◦ shares which are publicly traded and which do not result in a transfer of a control interest in a licensee; ◦ transfers of ownership or control interests in a non-concentrated market; ◦ transfers of ownership interests held by the Government; ◦ transfers of ownership interests where such transfer does not result in a transfer of a control interest. • applications for ICASA’s prior written approval for approval of a transfer of an ownership or control interest must be made in accordance with the prescribed procedure which include a public notice and comment procedure and public hearings; and • transfers of ownership or control interests which are effected not in accordance with the regulations shall be void.

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during the licensing process. However, the Minister of Communications stepped in and issued a policy directive187 to the effect that ICASA was to allow WorldSpace to operate without a licence and without being brought under the ownership provisions of the ECA. The policy direction was not challenged and ICASA duly complied with it despite the clear illegality of both WorldSpace’s situation (given that a satellite licensing framework was in place) and the Minister’s policy direction.

12.4.4 Competition Competition issues in respect of electronic communications are dealt with in a number of ways. While South Africa has ICASA, a sector specific regulator that deals with competition issues in respect of electronic communications, it also has generally applicable competition legislation that is enforced by competition authorities and that applies to the electronic communications sector too. The Competition Act188 (“the Competition Act”) regulates competition generally in South Africa. It establishes a number of bodies, namely, the Competition Commission, the Competition Tribunal and the Competition Appeals Court to enforce the Competition Act. The Competition Act applies to all economic activity in South Africa189 and makes provision for concurrent jurisdiction in respect of an industry subject to a sector specific regulator, such as telecommunications.190 In brief, the key features of South African competition law as prescribed in the Competition Act are: • restrictive horizontal practises, such as price fixing, collusive tendering, division of markets or any other agreement substantially lessening competition, are prohibited;191 • restrictive vertical practises, such as minimal price resale maintenance or any other agreement substantially lessening competition, are prohibited;192 • abuse of dominance by a dominant firm is prohibited.193 Examples of abuse of dominance contained in the Competition Act include: ◦ charging excessive prices; ◦ refusal to give a competitor access to an essential facility; and ◦ engaging in various exclusionary acts without a pro-competitive gain, for example, selling goods or services below marginal cost, inducing a supplier or customer not to deal with a competitor and tying arrangements;

187 Notice

876 published in Government Gazette No. 30308 dated 17 September 2007. 89 of 1998. 189 Ibid., Section 3(1). 190 Ibid., Section 3(1A). 191 Ibid., Section 4(1). 192 Ibid., Section 5. 193 Ibid., Section 8. 188 Act

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• price discrimination by a dominant firm is prohibited;194 • exemptions from the above prohibited practises can be granted by the Competition Commission where the conduct contributes to any of the following objectives;195 ◦ maintenance and promotion of exports; ◦ promotion of the ability of small and black-owned businesses to compete; ◦ stopping a decline in an industry; or ◦ promoting the economic stability of a designated industry; • corporate mergers196 above a particular threshold197 are required to be approved by the competition authorities, with or without conditions, before they may be implemented,198 and if they are implemented without approval, divestiture can be ordered;199 • any person may initiate a complaint in respect of an alleged prohibited practice,200 and the Competition Commissioner must direct a competition inspector to investigate the complaint, and must within 1 year refer the complaint (assuming it has substance) to the Competition Tribunal for adjudication.201 Interim relief202 and consent orders203 are available and the Competition Tribunal has wide powers to make appropriate orders in the event it finds that a person or firm has engaged in a prohibited practise, including interdicts, administrative penalties, declaratory orders and ordering access to essential facilities and ordering the supply of goods and services;204 • concurrent jurisdiction between the Competition Commission and ICASA must be managed in accordance with an agreement between them.205 Competition issues are dealt with in a single chapter in the ECA, which is headed “Competition Matters”. This is made up of a single long section which empowers ICASA to make a number of pro-competitive interventions. In brief, these are as follows:

194 Act

89 of 1998, Section 9. Section 10. 196 In terms of Section 12, a merger occurs “when one or more firms directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another firm.” 197 In terms of Section 11, these are determined from time to time on the basis of combined annual turnover or assets. 198 Ibid., Section 13A. 199 Ibid., Section 60. 200 Ibid., Section 49B. 201 Ibid., Section 50. 202 Ibid., Section 49C. 203 Ibid., Section 49D. 204 Ibid., Section 58. 205 Ibid., Section 3(1A)(b). 195 Ibid.,

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• ICASA may give cease and desist orders to licensees (or persons exempted from having a licence) that engage or intend to engage in acts that are likely to substantially prevent or lessen competition, for example, giving undue preference to or causing undue discrimination against any other licensee.206 • ICASA is required to prescribe regulations to regulate the cease and desist orders, including207 : ◦ defining acts that are likely to substantially prevent or lessen competition; ◦ detailing procedures for complaints and the monitoring and investigation of acts that are likely to substantially prevent or lessen competition; and ◦ imposing penalties for such acts. The cease and desist regulations must empower ICASA to refrain from making such orders where ICASA finds as a question of fact that, to refrain would be consistent with the objects of the ECA contained in Section 2. However, it may only do so in situations where ICASA is satisfied that the service in question is subject to sufficient competition to protect the interests of users.208 The ECA requires ICASA to prescribe regulations defining relevant markets and market segments that have ineffective competition and determining that procompetitive conditions may be imposed upon licensees having “significant market power.”209 The ECA defines “significant market power” as situations where ICASA finds the licensee is dominant, has control of essential facilities or has a vertical relationship that could harm competition in the market or market segments applicable to the licensee.210 The regulations to be made by ICASA are required to: ◦ define the uncompetitive retail or wholesale markets or market segments in which ICASA intends to impose pro-competitive measures;211 ◦ set out the methodology to determine the effectiveness of competition in such markets.212 This methodology must include an assessment of the following:213 the non-transitory entry barriers to the relevant markets (structural, legal or regulatory) and the dynamic character and functioning of such markets;214 key factors to be taken into account, including:

206 ECA

2005, Section 67(1). 2005, Section 67(2). 208 ECA 2005, Section 67(3). 209 ECA 2005, Section 67(4). 210 ECA 2005, Section 67(5). 211 ECA 2005, Section 67(4)(a). 212 ECA 2005, Section 67(4)(b). 213 ECA 2005, Section 67(4). 214 ECA 2005, Section 67(6)(a). 207 ECA

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• •

an assessment of relevant market share of the licensees in the defined market or market segment;215 a forward looking assessment of the market power of each of the market participants over a reasonable time in terms of: existence of competitors (actual and potential); collusion in the market; size of market participants; control of essential facilities; technological advantages or superiority of a given market participant; degree of countervailing power in the market; easy or privileged access to capital markets and financial resources; dynamic characteristics of the market (growth, innovation, products and services diversification); economies of scale and scope; nature and extent of vertical integration; ease of entry into the market including barriers to entry,216

◦ set out the pro-competitive measures ICASA may impose in order to remedy perceived market failure in the market or markets found to have ineffective competition,217 including:218 obligations to act fairly and reasonably in the way in which the licensee responds to requests for access, provision of services, interconnection and facilities leasing; a requirement to comply with licence obligations and pro-competitive conditions timeously, failing which a penalty may be imposed; a prohibition against discriminating in respect of access, provision of services, interconnection and facilities leasing; obligation to publish information to ensure transparency in relation to access, interconnection, facilities leasing or the provision of services offered by the licensee applicable to the relevant market or market segment; obligations to maintain a separation for accounting purposes between access, interconnection, facilities leasing or the provision of services offered by the licensee applicable to the relevant market or market segment as well as retail and wholesale prices and obligations in relation to the accounting methods to be used to maintain such separation for accounting purposes; price controls, including those applicable to retail and wholesale prices, in relation to access, interconnection, facilities leasing or the provision of services offered by the licensee applicable to the relevant market or market segment; the keeping of accounts, records or other documents to be made available for inspection by ICASA.

215 ECA

2005, Section 67(6)(b)(i). 2005, Section 67(6)(b)(ii). 217 ECA 2005, Section 67(4)(c). 218 ECA 2005, Section 67(7). 216 ECA

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◦ declare licensees in the relevant market or market segment that have significant market power and the pro-competitive conditions applicable to each such licensee;219 ◦ set out a schedule in terms of which ICASA is to undertake periodic reviews of: the markets and market segments; the determinations in respect of the effectiveness of competition; and the application of the pro-competitive measures in those market;220 and ◦ provide for the monitoring and investigation of anti-competitive behaviour in the relevant market and market segments.221 While ICASA has published draft competition-related regulations it has yet to publish binding regulations. The ECA provides that where ICASA undertakes its reviews of pro-competitive conditions imposed upon a licensee, ICASA must review the market determinations made previously and decide whether to modify the pro-competitive market conditions.222 Where ICASA determined that a licensee no longer possesses significant market power it must revoke the applicable pro-competitive conditions.223 ICASA is also empowered to modify pro-competitive conditions where ICASA finds that they are no longer proportional due to changes in the competitive nature of the of the market or market segment.224 Section 67(9) of the ECA is an odd provision which provides that the Competition Act is to apply to the electronic communications industry, subject to the provisions of the ECA. This makes little sense. The Competition Act already applies to the electronic communications industry by virtue of its own provisions. Further, the Competition Act recognises the existence of concurrent jurisdictions with sector-specific regulators such as ICASA. It is not clear what the intention behind this section was. Further, Sections 67 (11) and (12) essentially recognises this concurrent jurisdiction as these subsections provide for mutual assistance and advice to be given by the Competition Commission and ICASA. ICASA and the Competition Commission have entered into a memorandum of understanding (“the Memorandum”) which provides for cooperation in respect of competition issues. Each of these bodies makes a separate and independent determination on the basis of their respective legislation225 in respect of approvals required and complaints lodged. Even where a transaction requires the approval of only

219 ECA

2005, Section 67(4)(d). 2005, Section 67(4)(e). 221 ECA 2005, Section 67(4)(f). 222 ECA 2005, Section 67(8)(a). 223 ECA 2005, Section 67(8)(b). 224 ECA 2005, Section 67(8)(c). 225 Notice 1747, published in Government Gazette No. 23857, dated September 20, 2002, Section 2.2. 220 ECA

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one of these bodies, the Memorandum provides for consultation with the other body to ensure consistent application of competition principles.226 A joint working committee has been established to manage the relationship.227 ICASA, and its predecessor body, SATRA, have had extremely poor track records of dealing effectively with complaints regarding anti-competitive conduct. Indeed, some complaints lodged in the mid 1990s have yet to be dealt with and it is widely recognised that ICASA needs to improve the time frames within which it conducts and concludes investigations into alleged anti-competitive conduct. Industry observers generally have welcomed the Competition Act and agree that the Competition Commission is likely to be more successful than ICASA in dealing with abuse of competition issues.

12.4.5 Interconnection Interconnections are regulated under Chapter 7 of the ECA (“Interconnection”). By virtue of Section 37(1) of the ECA, all electronic communications network service (“ECNS”) licensees are under an obligation to interconnect, upon request, to any other person licensed (or exempted from holding a licence) under the ECA, unless the request is unreasonable or unless ICASA has found228 that the ECNS licensee does not have significant market power in the relevant market or market segment in accordance with Chapter 10 of the ECA (which deals with competition issues). A request for interconnection is reasonable if it is technically and financially feasible, and will promote the efficient use of electronic communications networks and services.229 ICASA is very much involved in the interconnection process. If there is a dispute as to the reasonableness of the request for interconnection, ICASA makes a determination on this.230 If an ECNS licensee is unwilling or unable to negotiate or agree on terms and conditions of an interconnection agreement within the time frames prescribed by ICASA, ICASA may:231 • impose terms and conditions consistent with Chapter 7 of the ECA; • propose terms and conditions consistent with Chapter 7 of the ECA which the parties can negotiate and agree upon; and, • refer the dispute to the Complaints and Compliance Committee (“the CCC”) for resolution in accordance with ICASA’s interconnection regulations. A decision

226 Ibid.,

Section 2.4. Section 4. 228 ECA 2005, Section 38(5). 229 ECA 2005, Section 37(3). 230 ECA 2005, Section 37(2). 231 ECA 2005, Section 37(4). 227 Ibid.,

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by the CCC is binding on the parties unless an order of court is granted against the CCC’s decision.232 The ECA provides that interconnection must be non-discriminatory as among comparable types of interconnection, and cannot be of a lower technical standard and quality than that provided by the ECNS licensee to itself or to an affiliate.233 In terms of Section 38(1) of the ECA, ICASA must prescribe regulations to facilitate the conclusion of interconnection agreements by stipulating principles for such agreements which may include: • a framework234 for the establishment and implementation of wholesale rates to be charged for interconnection services or for specified types of interconnection and associated interconnection services, taking into account the provisions of Chapter 10 of the ECA; and, • an interconnection offer containing model terms and conditions.235 ICASA must also prescribe general interconnection regulations236 which may include the time frame and procedures for the negotiation, conclusion and technical implementation of interconnection agreements. Section 39 of the ECA also contains provisions regarding the filing of interconnection agreements. In brief, these are as follows: • interconnection agreements must be in writing and must be submitted to ICASA in order to be effective and enforceable unless a court orders otherwise or, unless upon review thereof, ICASA issues a written notice of non-compliance which after it has determined that a term or condition of the interconnection agreement is inconsistent with the interconnection regulations. In such a case, ICASA’s notice must direct the parties to agree on new terms and conditions consistent with the interconnection regulations;237 and, • ICASA must furnish copies of interconnection agreements upon request and upon the payment of a fee.238 • It is important to note that interconnection regulations made by ICASA (or its predecessor) under the now-repealed Telecommunications Act continue to remain in force unless specifically repealed by ICASA under Section 95 of the ECA. The South African Telecommunications Regulatory Authority (the predecessor

232 ECA

2005, Section 40. 2005, Section 37(6). 234 ECA 2005, Section 41. 235 ECA 2005, Section 38(2). 236 ECA 2005, Section 38(3). 237 ECA 2005, Sections 39(1), (2), (4) and (5) 238 ECA 2005, Section 39(3). 233 ECA

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to ICASA) prescribed interconnection guidelines239 (“the interconnection guidelines”) and supplementary interconnection guidelines.240 These are extremely detailed and do not warrant an-in depth analysis here.

12.4.6 Universal Access The ECA contains a number of objects241 that demonstrate a commitment to increasing access to electronic communications services. These include: • promotion of the universal provision of electronic communication networks and electronic communications services and connectivity for all; • promotion of an environment of open, fair and non-discriminatory access to broadcasting services, electronic communication networks and to electronic communication service; • ensuring the provision of a variety of quality electronic communications services at reasonable prices; and, • promoting the interests of consumers with regard to the price, quality and variety of electronic communications services. Chapter 14 of the ECA continues the existence of the Universal Service Agency established under the Telecommunications Act but renames it as the Universal Service and Access Agency (“the Agency”).242 The Agency has three main aims,243 namely, to: • promote the goal of universal service and universal access; • encourage schemes to provide universal access or universal service; • foster the adoption and use of new methods of attaining universal access and universal service. The Agency is statutorily required to be under the direction and control of a CEO who is appointed by the Board and who is responsible for matters such as the appointment of staff.244 The Minister appoints the Agency’s board of seven members to provide oversight and guidance to the Agency.245 Thus, in practise the Agency is a little more than a wing of the Department of Communications, the department in the executive branch of government responsible for communications matters. The Agency’s actual functions are somewhat vague. One of the most important is to make recommendations to enable the Minister to determine what shall 239 Notice

1259 published in Government Gazette No. 20993 dated 15 March 2000. 784, published in Government Gazette No. 23458, dated May 24, 2002. 241 ECA 2005, Sections 2 (c), (g) (m) and (n). 242 ECA 2005, Section 80(1). 243 ECA 2005, Section 82(1). 244 ECA 2005, Section 83(1) 245 ECA 2005, Section 80(2). 240 Notice

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constitute universal access by all areas and communities to electronic communications services and electronic communications network services and what shall constitute universal provision for all persons of electronic communications services and access to electronic communications networks.246 Some of the other functions of the Agency include:247 • conducting research on ICT and electronic communication services and facilities; • making policy recommendations to the Minister regarding universal service or universal access; • advising ICASA on any matter relating to universal service or universal access; and • evaluating the effectiveness of the ECA towards achieving universal service. Another important function of the Agency is to administer the Universal Service and Access Fund248 (“the Fund”). However, in administering the Fund, the Agency is subject to the control of the Minister and must act in accordance with her or his instructions.249 The Fund’s main source of revenue is the prescribed annual contribution that all licensees have to pay in addition to licence fees.250 This issue is controversial as the ECA is unclear as to who has the final say over the contribution payable. Section 89(2)(a) of the ECA provides that it is ICASA’s role to prescribe the basis and manner of determining the universal service fund contributions, which may not exceed 1% of a licensee’s annual turnover. However, the very same subsection goes on to provide “or such other percentage of the licensee’s annual turnover as may be determined by the Minister”. This is another example of the lack of regulatory clarity that exists regarding the respective roles of the Agency, ICASA and the Minister with regard to universal service and access issues. ICASA has issued regulations to determine the universal service and access fund contributions of licences.251 These regulations provide that every holder of a licence granted in terms of Chapter 3 of the ECA or converted in terms thereof, is required to pay an annual contribution of 0.2% of the annual turnover derived from the provision of the licence activity to the Fund,252 calculated on the licensees audited financial statements for the previous year.253 These contributions are payable in full within 3 months of the licensee’s financial year end.254 The money in the Fund must be used exclusively for the payment of subsidies to further universal service and access to electronic communications services, namely:255 246 ECA

2005, Section 82(3)(a). 2005, Section 82(4). 248 ECA 2005, Section 82(5). 249 ECA 2005, Section 87(4). 250 ECA 2005, Section 89 (1). 251 Notice 1270 published in Government Gazette No. 31499 dated 10 October 2008. 252 Ibid., Section 3(1). 253 Ibid., Section 4(4). 254 Ibid., Section 4(1). 255 ECA 2005, Section 88(1). 247 ECA

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• for the assistance of needy persons toward the cost of the provision to them of broadcasting and electronic communications services. It is important to note however that while the Agency administers the fund, it is the Minister who determines the categories of needy people to whom assistance may be given and the persons to whom subsidies shall be paid:256 • to any broadcasting service and electronic communications network service to finance the construction or extension of electronic communications networks in under-serviced areas. Again it is important to note that the Minister determines which of these shall make application for assistance and to whom the subsidies shall be paid:257 • to educational institutions for the procurement of broadcasting, electronic communications and electronic communications network services; or • for the establishment and operation of broadcasting services and centres where access can be obtained to electronic communications networks. It is also important to have regard to Section 90 of the ECA, which requires the Agency to provide incentives to electronic communications network licensees to construct and operate electronic communications networks in under-serviced areas through the award of project grants. The subsidy for these project grants is paid out of the Fund.258 From its inception, the Agency’s main focus has been the setting up of telecentres, at the urging of the Department of Communications. By September 2006, some 133 Agency telecentres had been established,259 the majority of which were in rural areas.260 As Benjamin points out though, most of the Agency’s telecentres “are faltering or failing”,261 and he describes the Agency’s telecentre programme as having had “a minimal impact on national universal access.”262 Lately, the Agency has been involved in other projects, developing a different version of these telecentres. It has been involved in the establishment of Community Digital Hubs and has also established 235 Cyberlabs in schools country wide.263 Importantly, the Agency has been the key funder of the Under Serviced Area Licensees, small, medium and microenterprises which aim to provide telecommunications services in rural and other under-services areas. Having a far greater impact on universal service and universal access than the activities of the Agency are the community service obligations that were imposed on

256 ECA

2005, Sections 88(4) (a) and (c). 2005, Sections 88(4) (b) and (c). 258 ECA 2005, Section 90(4). 259 See http://www.usa.org.za/hubsectionhtml (accessed: 19 September 2006). 260 Benjamin “Reviewing Universal Access in South Africa” in The Southern African Journal of Information and Communication, vol. 2, no. 1, p. 54. 261 Ibid., 63. 262 Ibid., 68. 263 See http://www.usa.org.za/hubsectionhtml (accessed: 19 September 2006). 257 ECA

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telecommunication service licensees and specified in the individual licences. These are to continue in the converted ECS and ECNS licences.

12.4.7 Rate Regulation Currently, only two existing telecommunications market segments are subject to pricing regulation, namely, Public Switched Telecommunication Services (“PSTS”) and Mobile Cellular Telecommunications Services (“MCTS”). (Note these licence categories were provided for in the now-repealed Telecommunications Act). ICASA has previously published regulations containing a Chart of Accounts and Cost Allocation Manuals264 which is effectively applicable to one of the PSTS265 licensees, the incumbent Telkom SA (Pty) Ltd., and two of the MCTS266 licensees (Vodacom and MTN). These regulations have not been repealed by the ECA and so they continue to be in force although once the existing licences have been converted into ECA-licences, it is not clear how these will, in practice, apply to converted licensees. In relation to actual price regulations, only Telkom is, at the time of writing, under a price regulation regime.267 The price regulation regime consists of a classic price cap regime based on a general price control formula.268 The ECA now deals with price regulation under Section 67, titled “Competition Matters”. Briefly, in market segments where there is ineffective competition, ICASA may impose what are said to be pro-competitive measures such as price controls (including requirements relating to the provision of wholesale and retail prices) in relation to the provision of access, interconnection and facilities leasing or the provision of services offered by the license applicable to the relevant market or market segment.

12.4.8 Content Regulation There is no content regulation in respect of traditional telecommunications services. There is, however, content regulation in respect of broadcasting services including satellite services.

264 Notice

1282 published in Government Gazette No. 23632 dated 19 July 2002 and Notice 1302 published in Government Gazette No. 26520 dated 5 July 2004. 265 Currently there are two PSTS licensees. 266 Currently there are three MCTS licensees. 267 See R675 published on 9 July 2005. 268 Section 8(1) read with Sections 3 and 4 of the Regulations and see Thorton and Hodge “Telecommunications Pricing Regulation” in Thornton et al Telecommunications Law in South Africa. STE Publishers, 2006, at p. 201 ff.

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12.4.8.1 Codes of Conduct Under Sections 54(2) and (3) of the ECA, all broadcasters must comply with a Code of Conduct. There are currently two applicable Codes of Conduct – one prescribed by ICASA,269 and the other developed by the National Association of Broadcasters (NAB),270 to which almost all broadcasters belong, and approved by ICASA. They are virtually identical. The NAB has recently adopted a Code of Conduct aimed specifically at subscription broadcasters (which would probably be the relevant Code for most satellite broadcasters) but at the time of writing this had not been formally approved by ICASA as required by Section 54(3) of the ECA and so it is not yet in force. Further, while the Subscription Broadcasting Regulations271 envisage that ICASA will publish a Code of Conduct for subscription broadcasters, this, also, has not happened. The effect of this is that the existing Codes will be applicable to subscription broadcasters. Both the existing ICASA and NAB Codes of Conduct contain provisions restricting or prohibiting the broadcasting: of violent material, including violence against women and specific groups; grossly offensive language; and, sexual conduct. The Codes also prohibit paying a criminal for information. The Codes contain a number of prohibitions or requirements regarding programming aimed at children, particularly in respect of violent material. The Codes provide for a watershed period during which material aimed at adult audiences may be broadcast. The period is from 21h00 to 05h00 although subscription broadcasters’ watershed period starts at 20h00 not 21h00. The Codes also contain provisions regarding fair comment, controversial issues of public importance, elections, privacy (acknowledging that while individuals have rights to privacy these may be overridden by a legitimate public interest). Alleged violations of the NAB Code are dealt with by the Broadcasting Complaints Commission of South Africa, an industry self-regulatory body, and alleged violations of ICASA’s Code are dealt with by ICASA’s Complaints and Compliance Committee. 12.4.8.2 Local Content The ECA makes provision for local content requirements for sound and television services, including both free-to-air and subscription services. The focus here is on regulatory provisions applicable to subscription services as this is likely to be of greater relevance to satellite broadcasters.

269 Notice 446 published in Government Gazette No. 24394 dated 14 February 2003 as amended by Notice 723 published in Government Gazette NO. 25012 dated 14 March 2003. 270 Find the Code of Conduct at http://www.bccsa.co.za/ (accessed: 24 June 2008). 271 Notice 152 published in Government Gazette No. 28452 dated 31 January 2006, at Section 6.1.

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Under regulation 3.4 of the South African Sound Music Content Regulations272 (“the Music Regulations”), a sound subscription broadcaster which devotes more than 15% of its broadcasting time between 05h00 and 23h00 to the broadcasting of music must ensure that a minimum of 10% of its bouquet consists of channels made up of South African music content.273 Section 4 of the Music Regulations contains formulas for determining the value of content such as interviews with local musicians, live broadcasts, promoting new musicians etc. ICASA is empowered to exempt a licensee from the Music Regulations under Section 3.6. In terms of Section 5.4 of the South African Television Content Regulations274 (TV Content Regulations), satellite subscription television broadcasting licensees must ensure that a minimum of 10% of their channel acquisition budget is spent on channels with South African television content275 that are compiled and uplinked from South Africa. Further, under Section 6 of the TV Content Regulations, subscription television broadcasting licensees must ensure that at least 40% of the South African content programming consists of independent television productions276 spread across arts, documentaries, informal knowledge-building, children’s and educational programming. However, merely carrying South African terrestrial channels on their bouquets will not contribute towards meeting the broadcaster’s local content requirements.277 Section 8 of the TV Content Regulations contains formulas for determining the value of content including categories such as: drama, African-language drama, children’s programming, arts programming, diversity in commissioning, African language content and repeats. There are no provisions granting ICASA a discretion to exempt satellite subscription television broadcasters from complying with the TV Content Regulations. There is a significant lacuna in the TV Content Regulations as they are silent on the local content requirements for satellite free-to-air television broadcasters. 12.4.8.3 TV Sports Rights Section 60(1) of the ECA denies subscription broadcasting services the right to acquire exclusive rights that prevent or hinder the free-to-air programming of national sporting events. These national sporting events have been identified in the Sports Broadcasting Rights Regulations.278 Although the events are available on free-to-air television, they are often broadcast on a delayed basis and the regulations

272 Notice

153 published in Government Gazette No. 28453 dated 31 January 2006. detailed definition of South African music content is contained in Section 61(2)(c) of the ECA. 274 Notice 154 published in Government Gazette No. 28454 dated 31 January 2006. 275 The detailed definition of South African television content is contained in Section 61(2)(a) of the ECA. 276 Ibid., Section 61(2) (b) of the ECA. 277 Section 5.5. 278 Notice 1044 published in Government Gazette No. 27728 dated 28 June 2005. 273 The

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and statutory regime are seen as not protecting the rights of free-to-air broadcasters (particularly the public broadcaster) appropriately. 12.4.8.4 Advertising In terms of Section 55(1) of the ECA, all broadcasters are required to adhere to the Code of Advertising Practice administered by the Advertising Standards Authority of South Africa (“the ASA”). Complaints are adjudicated either by the ASA or, where a broadcaster is not a member of the ASA, by ICASA’s Complaints and Compliance Committee. ICASA has also passed regulations279 to govern the definition of advertising and to regulate infomercials and programme sponsorships, and these are generally applicable to sound and television broadcasters and do not make specific mention of satellite broadcasters. ICASA has passed Subscription Broadcasting Regulations280 in terms of which subscription broadcasters are required to file details of all subscription, advertising and sponsorship revenue on an annual basis.281 Doubtless, this is designed to ensure that the prohibition against subscription broadcasters deriving more revenue from advertising and sponsorship than from subscription revenue contained in Section 60(4) of the ECA is being complied with. 12.4.8.5 Election Broadcasting Sections 56–59 of the ECA regulate election broadcasting. These only become relevant during an election period as party political broadcasting is otherwise prohibited. Essentially, a commercial broadcaster is not required to broadcast party election broadcasts, but if it chooses to do so, it must do so in accordance with the election broadcasting regulations promulgated by ICASA for that specific election. Similarly, a commercial broadcaster is not required to carry political advertising but if it chooses to do so, it must afford all political parties the opportunity to so advertise. There are also provisions regarding equitable treatment of political parties during election periods. 12.4.8.6 “Must Carry” Obligations For the sake of completeness, it is important to note that ICASA has published Draft “Must Carry” Regulations282 in under Section 60(3) of the ECA. The Draft regulations are intended to be applicable to subscription broadcasting licensees with at least 30 channels.283 While these are in draft form and the final regulations have 279 Regulation

426 dated 1 April 1999 and amended by Regulation 551 of 10 May 2002. 152 published in Government Gazette No. 28452 dated 31 January 2006. 281 Section 5 of the Subscription Regulations. 282 Government Gazette No. 31081 dated 22 May 2008. 283 Section 5(1) read with Section 9(1)(b) of the Draft Regulations. 280 Notice

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not yet been finalized or published, it is important to note that essentially the 30th and every additional 20th channel on such a subscription broadcasting bouquet must be a channel of the public broadcasting licensee284 and such channels must be broadcast at the subscription broadcaster’s cost.285 12.4.8.7 Channel Authorisation ICASA has passed Subscription Broadcasting Regulations286 (the Subscription Regulations) under which, every channel on a subscription broadcasting service is required to be authorised by ICASA.287 The Subscription Regulations require a formal approval process for such authorisation including: the nature of the channel and its content, the country where the channel was packaged, the name of the channel supplier etc.288 Authorisation is deemed to have been granted after 60 days from application if ICASA has not responded to such application.289

12.5 Earth Observation Services, Including Data Processing and Distribution 12.5.1 Licensing of Remote Sensing Satellite Operators There are no specific statutory provisions for the licensing of remote sensing satellite operators and these will be licensed in terms of the Space Affairs Act discussed in Section 12.3 above.

12.5.2 Distribution of Data There are, however, statutory provisions regarding spatial information which are contained in the Spatial Data Infrastructure Act.290 The Act governs291 all organs of state292 which hold spatial information,293 and also all users of spatial information. Many of the provisions govern the activities of a “data custodian” which is defined as including “an independent contractor or person engaged in the exercise of public power or performance of a public function”. 284 Section

9(1)(c) and (d) of the Draft Regulations. 5(2) of the Draft Regulations. 286 Notice 152 published in Government Gazette No. 28452 dated 31 January 2006. 287 Section 3.1 of the Subscription Regulations. 288 Section 3.2 of the Subscription Regulations. 289 Section 3.5 of the Subscription Regulations. 290 Act 54 of 2003. 291 Section 2. 292 Including, for example, the Satellite Applications Centre. 293 Defined in Section 1 as “information about spatial objects or features and their attributes”. 285 Section

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The Spatial Data Infrastructure Act also establishes the South African Spatial Data Infrastructure (SASDI) as a framework to facilitate the capture, management, integration, distribution and use of spatial information, the objectives of which include: promoting effective management and maintenance of spatial information, promoting the use and sharing of spatial information in support of spatial planning, socio-economic development and related activities; eliminating duplication in the capturing of spatial information; promoting universal access to such information and facilitating the protection of copyright of the state in works relating to spatial information.294 The Minister for Land Affairs is given a number of powers regarding the regulation of spatial information including:295 prescribing standards and measures on the sharing and integration of spatial information;296 determining fees, costs, charges etc payable for spatial information records (and exemptions from the payment thereof); and establishing and maintaining an electronic “metadata”297 catalogue. The Minister also appoints the Committee for Spatial Information298 whose functions include:299 facilitating, promoting and safeguarding a conducive environment for the efficient collection, management, distribution and utilisation of spatial information; monitoring and acquiring information relating to the functioning of the SASDI; and, printing, circulating, selling and administering the publication of any material relating to spatial information. In this regard, the Committee for Spatial Information has developed a Draft Policy on the Pricing for and Copyright of Spatial Information Products and Services300 (the Draft Pricing Policy). The Draft Policy contains guidelines for the provision of spatial information by the public sector301 and the pricing principle adopted therein for generally available information is Cost of Fulfilling User Request (COFUR) in respect of making copies, preparing for dispatch, postage and packaging.302 However, for information that is not generally available, the actual costs associated with making the special information available to a requester are to be paid by the requester.303 With regard to Copyright, the Draft Policy provides that, in respect of spatial information products originated by the State, all private; i.e., non-state users must be made aware of the existence of the state’s ownership and copyright but shall not require authorization to use same. However, state copyright 294 Section

3. 4. 296 See also Section 11. 297 Defined in Section 1 as “a description of the content, quality, condition and other characteristics of spatial information”. 298 Section 5. 299 Section 6. 300 http://www.nsif.org.za/Documents/Proposed%20pricing%20policy%20spatial%20info%20 public.pdf (accessed: 11 July 2008). 301 Ibid., Paragraph 1. 302 Ibid., Paragraph 4.1. 303 Ibid., Paragraph 4.2. 295 Section

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must be acknowledged by such user.304 The Draft Pricing Policy also contains a limitation of liability clause which should accompany all digital spatial information data supplied by public organizations.305 There are also a number of provisions in the Act that regulate the activities of data custodians and users. These provisions are not yet in force. In brief, they provide for the following: • there is an obligation upon data custodians to capture and create metadata for any spatial information held by them and must ensure that such metadata is available to users by making it available to the Department of Land Affairs for inclusion in the national metadata catalogue and in the manuals required by the Promotion of Access to Information Act;306 • the appointment by data custodians of data vendors to supply products derived from the data custodians dataset;307 • that data custodians are accountable for the integrity of unmodified spatial information derived from their dataset;308 • that data custodians or data vendors must supply spatial information in the prescribed manner and with the relevant metadata;309 • that data custodians or data vendors may enter into licensing agreements with regard to the use of spatial information including legal protection of the copyright of the State and other interested persons;310 • that data custodians may exchange spatial information under a collaborative maintenance agreement providing for the regular updating of base datasets311 within an agreed period;312 • that users of spatial data and data vendors must report any deficiency in the quality of spatial information supplied to the data custodian or vendor concerned and if the relevant data custodian or vendor does not respond, then the Committee for Spatial Information may take remedial action;313 and • that data custodians must take reasonable steps to effect appropriate security against the loss of spatial information in their custody or unauthorized access to and modification or disclosure of that spatial information, and to ensure protection of the copyright of the State and other interested parties in spatial information.314 304 Ibid.,

Paragraph 5. Paragraph 7. 306 Section 12. 307 Section 14(1). 308 Section 14(2). 309 Section 14(3). 310 Section 15. 311 Defined in Section 1 as those themes of spatial information which have been captured or collected by a data custodian. 312 Section 16. 313 Section 17. 314 Section 18. 305 Ibid.,

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Another important initiative is the Department of Science and Technology’s drive to establish a South African Earth Observation System (“SAEOS”). A Strategy Document has been developed.315 Its key provisions are: • to coordinate the collection, assimilation and dissemination of earth observations, in order that their full potential may be realized; • to coordinate South Africa’s existing earth observation capacities and link these to the Global Earth Observation System of Systems; • that, while there is a certain level of overlap between the mandates of SASDI (discussed above) and SAEOS, there are obvious distinctions between spatial information and earth observations, necessitating the two initiatives; • that the SAEOS Board will approve the annual plans of the SAEOS Operating Agency; • that SAEOS will establish an Earth Observation Data Centre to ensure secure archiving and curatorship of earth observation data in accordance with the requirements of the Spatial Data Infrastructure Act; and, • that SAEOS will create a SAEOS Portal i.e., a web-accessible software entity, hosted on a server system to provide earth observation data and metadata to potential users and to collect SAEOS usage statistics and information.

12.6 Intellectual Property and Transfer of Technology 12.6.1 Acquisition and Exploitation of Intellectual Property Rights South Africa is party to a number of World Intellectual Property Organisation (“WIPO”) treaties including: The WIPO Convention, the Paris Convention (Industrial Property), the Berne Convention (Literary and Artistic Works), PCT (Patents) and the Budapest Treaty (Deposit of Micro-Organisms).316 South Africa has strong domestic intellectual property laws, both in terms of statute law and common law. The key intellectual property statutes that are likely to be of relevance to space-related activities317 are as briefly set out below. 12.6.1.1 Copyright Act318 The Copyright Act recognizes319 that certain original works are eligible for copyright. Such works include: literary, musical, artistic, cinematographic films, sound

315 http://www.space.gov.za/space2006/SAEOS_STRATEGY.DOC

(accessed: 10 July 2008). (accessed: 25 June 2008). 317 Note that there are others protecting intellectual property rights of, for example, performers, or in cinematograph films section 318 Act 98 of 1978. 319 See Sections 2 and 2A. 316 http://www.wipo.int/about-ip/en/ipworldwide/pdf/za.pdf

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recordings, broadcasts320 and programme-carrying signals,321 published editions and computer programs. There are no provisions for the registration of copyright in the Copyright Act. The Copyright Act details the nature of the copyright in the various works; i.e., the exploitable aspect of the copyright in the work. These are different for each type of work.322 The time periods for the duration of copyright also vary although they are generally valid for a period of 50 years. 12.6.1.2 The Designs Act323 The Designs Act allows for the proprietor of a design which is new and original, in the case of an aesthetic design, or new and non-commonplace in the art in question, in the case of a functional design, to apply for the registration of such design in the register of designs at the designs office.324 The effect of registration is that the registered proprietor is able to exclude others from making, importing, using or disposing of any article embodying the registered design so as to ensure that the proprietor shall “have and enjoy the whole profit and advantage accruing by reason of the registration.”325 The duration of a registration is 15 years for an aesthetic design and 10 years for a functional design.326 12.6.1.3 Patents Act327 The Patents Act allows an inventor to apply for a patent in respect of any new invention which involves an inventive step and which is capable of being used or applied in trade, industry or agriculture.328 A patent is recognized by the granting of a patent which is sealed with the seal of the patent office.329 The effect of a patent is that the patentee is able to exclude others from making, importing, using or disposing of the invention so that the patentee shall “have and enjoy the whole profit and advantage accruing by reason of the invention.”330 Generally patents are valid for 20 years. 12.6.1.4 The Trade Marks Act331 The Trade Marks Act allows for the registration of a trade mark provided such trade mark is capable of distinguishing the goods or services of a person from the goods or 320 If

made in South Africa, Section 4(1)(b). emitted to a satellite from South Africa, Section 4(1)(c). 322 See Sections 6–11B. 323 Act 195 of 1993. 324 Section 14. 325 Section 20. 326 Section 22. 327 Act 57 of 1978. 328 Section 25. 329 Section 44. 330 Section 45. 331 Act 194 of 1993. 321 If

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services of another person.332 Trade marks are registered in particular classes333 by the registrar of trade marks. A trade mark endures for 10 years and is renewable.334 Besides the commonly identified intellectual property statutes discussed above, recent statutes and bills indicate a far greater awareness of the importance and potential profitability of intellectual property rights, particularly with regard to activities of the state. Many of these would have application to space-related activities. These include as follows. 12.6.1.5 The Spatial Data Infrastructure Act335 (“The SDI Act”) While only parts of the SDI Act are currently in operation,336 it is important to note that one of the objectives of the South African Spatial Data Infrastructure, established by the SDI Act, is to “facilitate the protection of the copyright of the state in works relating to spatial information”.337 Further, in terms of the Committee for Spatial Information’s Draft Policy on the Pricing for and Copyright of Spatial Information Products and Services,338 all private users of spatial information products originated by the state must be made aware of the existence of state copyright, and state copyright must be acknowledged by such users.339 12.6.1.6 The Intellectual Property Rights from Publicly Financed Research and Development Act340 (“The Intellectual Property Rights Act”) The Intellectual Property Rights Act (which is not yet in force) aims to ensure that intellectual property341 developed from publicly financed research and development is utilized and commercialised for the benefit of society, whether it be for a social, economic, military or any other benefit.342 The Act provides for the establishment of a National Intellectual Property Management Office (“NIPMO”) within the Department of Science and Technology.343 Section 4 of the Act provides that intellectual property arising from publicly-financed research shall be owned by the recipient of such funding.

332 Section

9. 11. 334 Section 37. 335 Act 54 of 2003. 336 Op. cit. note 77. 337 Section 3(2)(g). 338 Op. cit. note 300. 339 Op. cit. note 304. 340 Act 51 of 2008, published in Government Gazette No. 31745 dated 22 December 2008. 341 The definition of intellectual property specifically excludes conventional academic work. 342 Section 2. 343 Section 8. 333 Section

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However, should that person not wish to retain ownership in the intellectual property, there are various ways in which NIPMO can take over ownership of such intellectual property. NIPMO must promote the statutory protection, management and commercialization of intellectual property that it acquires from a recipient of public funding.344 12.6.1.7 The Technology Innovation Agency Act345 (Technology Innovation Agency Act) A number of the provisions of the Technology Innovation Agency Act which came into force on 24 April 2009346 deal with intellectual property matters. A number of the powers and duties of the Agency to be established involve intellectual property issues, including:347 ◦ establishing companies to exploit technological innovations ◦ developing national capacity and infrastructure to protect and exploit intellectual property derived from research financed by the Agency; ◦ acquiring rights to any technological innovation supported by the Agency; ◦ applying for patents; and ◦ instituting legal action in respect of intellectual property right infringements.

12.6.2 Barriers to Trade and Transfer of Technology There are a number of statutes which limit the transfer of space-related technology. The Non-Proliferation of Weapons of Mass Destruction Act348 empowers the Minister of Trade and Industry to determine general policy to, among other things, control the use, transit or export of “dual use capabilities.”349 These are defined in Section 1 as “those capabilities relating to technology, expertise, service, material, equipment and facilities which can contribute to the proliferation of weapons of mass destruction, but which can also be used for other purposes, including conventional military, commercial or educational use”. Of relevance to space-related activities, is the fact that the Minister of Trade and Industry has declared350 all items listed in the Missile Technology Control Regime (“MTCR”)’s Equipment and Technology Annex to be “controlled goods” requiring trade therein to take place only under a permit issued by the South African Council for the Non-Proliferation of Weapons of Mass Destruction. 344 Section

9. 26 of 2008. 346 Notice 25 published in Government Gazette 32135 dated 24 April 2009. 347 Section 4(1). 348 Act 87 of 1993. 349 Section 2(e). 350 Notice 429 published in Government Gazette No. 23308 dated 10 April 2002. 345 Act

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The Space Affairs Act351 also empowers352 the Minister of Trade and Industry to determine the general policy with a view to controlling and restricting the development, transfer, acquisition and disposal of “dual-purpose technologies.”353 The National Conventional Arms Control Act354 prohibits trade in conventional arms355 if one is not registered with the National Conventional Arms Control Committee and does not have a permit to do so.356 The Minister of Defence has made regulations357 requiring a permit for the dual use goods, technologies and munitions listed in the Annexure358 to the Regulations. Category 9 in the Annexure is titled “Propulsion”, and it includes, among other things, space launch vehicles, spacecraft, types of liquid rocket propulsion systems, types of solid rocket propulsion systems, certain components specially designed for solid rocket propulsion systems, hybrid rocket propulsion systems, certain components specially designed for launch vehicles, launch vehicle propulsion systems or spacecraft; ramjet, scramjet or combined cycle engines and specially designed components therefor, and certain unmanned aerial vehicles.

12.7 Conclusion South Africa is currently a hive of activity in space matters, particularly on the regulatory front. Although the country experienced a lack of focus on space affairs in the mid 1990s, this has changed fundamentally and the soon-to-be launched Space Agency is likely to play a leading role in coordinating the country’s space activities.

351 Act

84 of 1993. 2(1)(b). 353 Defined in Section 1 as “space technologies which can contribute to the proliferation of weapons of mass destruction”. 354 Act 41 of 2002. 355 Defined in Section 1 as including “dual use goods” which is defined as “products, technologies, services or other goods, which, besides their normal use and application for civilian purposes, can also be used for the furtherance of general military capability, and which are contained in a list published by the Minister by notice in the Gazette.” 356 Section 13. 357 Notice 634 published in Government Gazette No. 26372 dated 28 May 2004. 358 The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies section. 352 Section

Chapter 13

Regulation of Space Activities in the Russian Federation Sergey P. Malkov and Catherine Doldirina

13.1 History and General Overview 13.1.1 Space Legislation History Although the Union of the Soviet Socialist Republics (Soviet Union) was the first country in the world to launch an artificial earth satellite on October 4, 1957, as well as the first spacecraft with a man on board on April 12, 1961, there were no laws regulating space activities in the Soviet Union for a long time. Up to the time when the Soviet Union collapsed, legal regulations governing space activities were embodied in special resolutions and decisions of such state and political bodies as the Politburo of the Central Committee of the Communist Party of the Soviet Union, the Council of Ministers of the Soviet Union, the Military and Industrial Committee of the Presidium of the Council of Ministers of the USSR and others. The most important issues of space activities in the Soviet Union were regulated by the joint resolutions of the Central Committee of the Communist Party of the Soviet Union and the Council of Ministers of the Soviet Union. The following resolutions on space activities of the soviet period may serve as an example of the regulations that existed during that time: (1) the Council of Ministers Resolution on Preparation of a Man for Space Flight;1 (2) the Central Committee of the Communist Party and the Council of Ministers’ Resolution on Creation of Automatic Interplanetary Space Stations for Landing on the Moon and Flights to Venus and Mars;2

S.P. Malkov (B) Saint-Petersburg State University, Saint Petersburg, Russia e-mail: [email protected] 1 Number 2 Number

569-264 from 02.09.1958. 1386-618 from 10.12.1959.

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_13,  C Springer Science+Business Media B.V. 2010

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(3) the Central Committee of the Communist Party and the Council of Ministers’ Resolution on the Further Exploration of the Moon;3 (4) the Central Committee of the Communist Party and the Council of Ministers’ Resolution on the Work Regarding the Exploration of the Moon and Outer Space.4

13.1.2 Current Legislation After the collapse of the Soviet Union in 1991, the Commonwealth of Independent States (CIS), comprised of almost all the former soviet republics, was formed. As a result of the disintegration of the Soviet Union, significant transformations started to shape the political and economic life of Russia. One of the new realities was the necessity to establish Russian national legislation establishing an appropriate framework for conducting space activities. On February 25, 1992, the President of Russian Federation adopted Decree  185 on Space Activities Administration Structure in the Russian Federation. Corresponding to this presidential decree, the Federal executive body responsible for space activities – the Russian Space Agency (Roscosmos) – was formed. On August 20, 1993 the Supreme Council of the Russian Federation passed the Law on Space Activities. It was the first law to govern space activities in the history of Russia since the space endeavour started back in the 1960s. The Law has been amended several times since its adoption, the latest being in December 2006. At present, a new branch of the national legal system – Russian Federation space legislation – has already passed through its first stages of formation and development. The Russian Federation space legislation consists of the Law on Space Activities, other federal laws containing legal norms connected with space activities (the Civil Code, the Air Code, the Land Code of the Russian Federation etc.), presidential decrees, governmental regulations and other normative acts governing space activities conducted under the jurisdiction of the Russian Federation.5

13.1.3 Hierarchy of Norms Governing Space Activities in Russia Russian space activities are governed by the Constitution of the Russian Federation, general principles and norms of international law, international treaties concluded by the Russian Federation, the Law on Space Activities, as well as by other federal

3 24.09.1962.

It settled the decision of the organs mentioned to conduct the landing of the piloted space vehicle on the surface of the Moon. 4 Number 655-268 from 03.08.1964. The Resolution for the first time to regulated the sovietpiloted space programme for the exploration of the Moon and pointed out that landing of the Soviet cosmonaut on the surface of the Moon is a priority goal of the Soviet cosmonautics. 5 See the list of the legislation related to space activities in the Section 13.7 to this chapter.

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laws and normative acts of the Russian Federation.6 In the case of an inconsistency between the norms of Russian legislation and those of foreign countries, the former has priority if it has not been overridden by a relevant international treaty.7 Interestingly enough, the list of legal sources governing the activities of Roscosmos does not mention general principles of international law at all,8 but since the Law on Space Activities does mention general principles of international law as a binding source of law governing space activities of and in the Russian Federation, and inferior legislative enactments cannot overrule provisions laid down by laws, this particular provision overrides the priority of the general principles of international law in governing the activities of Roscosmos.

13.2 Principles and Overview of the Current Programmes The status of the federal space programme is laid down in Article 7 of the Law on Space Activities. It is a long-term plan document drafted by Roscosmos and approved by the President, and it serves as a basis for the formation of the state order for the development, manufacture and use of space equipment for scientific and national economy purposes.9 The programme is based on the proposals of the interested Federal executive bodies reflecting the results of space project competitions.10 General information about the programme and its implementation reports are regularly published in the media. Each Federal space programme must take into account the following: the goals, tasks and principles of space activities; State interests; the economic situation of the country; the state of space science and industry; the need for a complex development of the space and the ground segment of space infrastructure; the interests of users and producers of space equipment and technology; the state of and trends in the development of cosmonautics; the state of the world space market; and, international obligations of the Russian Federation including the task of expanding international cooperation. The current Federal space programme was adopted in 2006 and covers the period from 2006 till 2015.11 The aim of the programme is to meet the growing needs of state structures, regions and citizens regarding space goods and services by virtue of expansion of the application of space technologies to resolve issues in economic, social, scientific, education and other fields, through expanding international cooperation, as well as building upon existing Russian space potential. Its 6 Article

1 of the Law on Space Activities. 28 of the Law on Space Activities. This norm is applicable in cases where foreign legislation is applicable to space activities undertaken by subjects of the Russian Federation, both juridical and natural persons. 8 Paragraph 3 of Regulation No. 314 of 26.06.2004 on Federal Space Agency. 9 It follows from the wording of the Article that military aspects of space exploration and use are not included in the scope of the programme. 10 Article 7(3) of the Law on Space Activities. 11 Adopted by the Federal Government Resolution No. 635 of 22.10.2005. 7 Article

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main objectives are the development, expansion and maintenance of orbital grouping of space objects in the interests of socio-economic development, science and state security; development, manufacture and exploitation of the Russian segment of the International Space Station for various research purposes; maintenance of the Russian segment of the KOSPAS-SARSAT search and rescue system; development of effective launchers; maintenance and development of the Baikonur spaceport; and, manufacture of rocket and space equipment of the highest world standards. Furthermore, the programme contains detailed provisions of scheduled measures that will lead to the achievement of the objectives. It also allocates funds to fulfil the programme, enumerates priority directions of space industry development, and, as well as analyses anticipated results of the implementation of the programme.

13.3 Authorities in Charge of the Regulation of Space Activities in Russia According to Article 71 of the Constitution of the Russian Federation,12 outer space activities fall under the exclusive jurisdiction of the Russian Federation. This is explained by the fact that space activities constitute an economic branch that is important for the whole country and contributes to the development of other fields of the national economy. As the national space activities can only be financed by the Federation, they are to be administered by central governmental bodies.13 Article 5(1) of the Law on Space Activities reaffirms the constitutional provision by assigning the conduct of space activities to the authority of the Russian Federation. It is, therefore, within the competence of the President of the Russian Federation, the Federal Government, as well as of Roscosmos and the Ministry of Defence. The respective rights and obligations of each of those actors are laid down in Articles 5–7 of the Law on Space Activities. Although the competencies of each of these governmental agencies are quite clearly defined in the Law, especially regarding the governance of space activities in military and civilian spheres, there are some areas that require joint, or permit overlapping governance by the Ministry of Defence and Roscosmos. The most important of such overlapping competences is the deployment of dual-use technologies.

13.3.1 The President In accordance with Article 5(2) of the Law on Space Activities, the President of the Russian Federation has overall responsibility for space activities. For the 12 12.12.1993. 13 Kutafin

O. (ed.) Clause-by-clause Scientific-practical Commentary to the Constitution of Russian Federation (Moscow, 2003) online: (in Russian).

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purpose of fulfilling this responsibility, the President examines and approves the main provisions of state policy documents regarding space activities and resolves the most important issues concerning the space policy of the Russian Federation. Furthermore, the President assigns presidential status to space projects and programs of particular significance.

13.3.2 The Government Article 5(3) of the Law on Space Activities sets out the competences of the Federal Government. Its first responsibility is to implement national space policy in the interests of science, technology, different sectors of the economy and international cooperation activities of the Russian Federation. This is the reason why the Federal Government puts forward proposals, in accordance with established procedure, for the funding of the Federal Space Programme and, ensures favourable conditions for the long-term development of space technology and techniques and implements a policy of state support for the rocket-engineering and space sector. Furthermore, the Federal Government coordinates the work of federal executive bodies and organizations involved in space activities and international cooperation activities undertaken by the Russian Federation in the field of space. It also exercises supervisory responsibility for the development and conduct of international space projects undertaken by the Russian Federation. The Federal Government examines and approves Federal Space Programmes, long-term space programmes, the state order for the development, manufacture and delivery of space equipment and space infrastructure facilities, and the state defence order for the development, manufacture and delivery of space arms and military equipment. Finally, the Government, within the limits of its competence, approves legislative acts regulating the procedure for the development, design, testing and use (exploitation) of space technology, and appoints government committees on the testing of space technology.

13.3.3 The Federal Space Agency Article 6 of the Law on Space Activities outlines the competence of the Federal executive body responsible for the execution of space activities in Russia. The competent body was established as early as 1992 and was called the Russian Space Agency.14 Throughout the decade, the body took several steps aimed at advancing the development of space activities in Russia. In 1999, it was transformed into the Russian Aero-Space Agency.15 However, on March 9, 2004, presidential decree No. 314 14 Presidential

Decree No. 185 of 25.02.1992 on Space Activities Administration Structure in the Russian Federation. 15 Presidential Decree No. 651 of 25.05.1999 on Federal Executive Power Bodies Structure.

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transformed the Russian Aero-Space Agency into the Space Agency of the Russian Federation, which is now responsible for the overall conduct of space activities. It exercises this responsibility in the interests of science, technology and the different sectors of the economy by organizing activities for the development of space technology with scientific and socio-economic applications. Roscosmos is responsible for drafting the Federal Space Policy as well as its implementation through the use of space equipment. It places state orders for the development, manufacture and delivery of space equipment and space infrastructure facilities with scientific and socio-economic applications. Furthermore, it has a number of responsibilities regarding the development and approval of programmes on the development of space equipment, infrastructure and technology, some of which are performed in cooperation with other governmental bodies. Another important function of Roscosmos is the organisation, coordination and implementation of commercial space projects. Part of this function is the responsibility to issue licenses for various types of space activities. Furthermore, Roscosmos is in charge of space equipment and technology certification as part of its overall responsibility to ensure the safety of space activities. It also has the mandate and authority to sign international agreements on space related issues. In addition, the Government may assign Roscosmos with such other functions as it deems appropriate. The principles that govern the fulfilment of these functions and the organisation of the Roscosmos’ activities are laid down in the Federal Government Resolution on Regulation on the Federal Space Agency.16 The Regulation divides Roscosmos’ space related functions into six groups, namely: realisation of the national policy; normative regulation of space activities; delivery of state services and governance of state property; international cooperation in the field of realisation of joint projects and programmes; governance of the work in the field of rocket and space industry; and, general coordination of the activities conducted at Baikonur kosmodrome (launch site). The document further gives detailed explanations of the functions listed in the Law on Space Activities.

13.3.4 The Ministry of Defence According to Article 7 of the Law on Space Activities, governance of space activities in the interests of defence and security of the Russian Federation as well as the organisation of the activities regarding the development of space equipment for military purposes are under the jurisdiction of the Ministry of Defence. Within its competence, the Ministry of Defence drafts projects on the space segment of Federal programmes on development and manufacture of arms and military equipment, and is in charge of state orders for manufacture of such military equipment. Furthermore, the Ministry of Defence plans the use of space equipment for the purposes of defence and security of the Russian Federation, certifies space military

16 No.

314 of 26.06.2004 as amended on 14.12.2006.

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equipment and technology, and coordinates activities regarding the future directions of development of space equipment and technology for military purposes. The Ministry may also perform functions not mentioned in the Law on Space Activities if it is so mandated under and by virtue of a decision of the Federal Government. The Ministry of Defence of the Russian Federation is entitled to temporarily transfer specifically suitable space infrastructure objects under its jurisdiction to Roscosmos on a contractual basis to be used for carrying out the space activities of the latter in aid of scientific and national economy purposes.

13.4 Law on Space Activities: An Overview of the Provisions The Law on Space Activities is the main lex specialis that governs space activities, determines rights and obligations of the regulatory bodies and of space industry actors regarding exploration and use of outer space, sets main principles governing the conduct of space activities, as well as provides the basis for adopting future detailed normative acts and regulations. It is comprised of seven parts, namely: General Provisions, Organisation of Space Activities, Economic Conditions of Space Activities, Space Objects and Space Infrastructure, Safety of Space Activities, International Cooperation and Responsibility. Although the following analysis will not exactly follow the structure of the Law, most of the provisions will be addressed in the same order as they appear in the document.

13.4.1 Space Activities: Notion, Goals and Principles The content of the legal notion of “space activities” is determined clearly and definitely in the Law on Space Activities. Article 2 provides that: “for the purposes of this Law, space activities shall be defined as any activities directly connected with operations to explore and use outer space, including the Moon and other celestial bodies”. The open list of the Article establishes that the main areas of space activities include: scientific space research; use of space technology for communications, including television and radio broadcasting; remote sensing of the Earth from outer space, including environmental monitoring and meteorology; use of navigational, topographical and satellite systems; manned space flights; use of space equipment, materials and technology for the purposes of defence and security; observation of objects and phenomena in outer space; testing of technology in outer space conditions; manufacturing of materials and other products in outer space; and, other types of activities performed with the aid of space technology. All of these activities may involve the manufacture, use of space equipment, space materials and space technologies, and delivery of other services related to space activities, as well as international cooperation between the Russian Federation and other countries in the field of exploration and use of outer space.17 Such an

17 Article

2(2).

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approach allows the qualification of space activities as a complex, which means that these activities involve a lot of different steps and can be regulated by norms from different fields of law. The exploration and use of outer space encompasses all kinds of space activities. It has the utmost priority among the state interests of the Russian Federation,18 and it is conducted in order to reach five aims.19 The first aim is to foster economic development in the Russian Federation, to promote the welfare of its citizens through rational and effective use of space equipment, materials and technology, and to increase the extent to which these are used. The second is to strengthen and develop the scientific, technical and intellectual potential of the space industry and infrastructure. The third aim is to promote the defence and to ensure the national security of the Russian Federation. The fourth is to facilitate the upgrading and accumulation of scientific knowledge about the Earth, outer space and celestial bodies. Finally, the fifth aim is to develop and expand international cooperation undertaken by the Russian Federation to further integrate it into the global economy and to promote international peace and security. In accordance with Article 4 the Law on Space Activities, and provided that they are not prohibited by international agreements to which the Russian federation is a party, space activities carried out in the Russian Federation, shall be conducted in accordance with the following legal principles: (1) use of advancements in space science and technology to foster peace and international security; (2) mobilisation of extra-budgetary resources for space activities with the maintenance of state control over their use and guarantee that such use shall be in furtherance of the State interests of the Russian Federation;20 (3) guarantee of the safety of space activities and protection of the environment; (4) equal and mutually beneficial participation of the Russian Federation in international cooperation in the field of space; (5) international responsibility of the Russian Federation for space activities undertaken in or by the Russian Federation;21 (6) rational combination and balanced development of space equipment and technology used for scientific and socio-economic purposes, as well as in the interests of the defence and security of the Russian Federation (“dual-use space technology”).

18 Preamble. 19 Article 3. The list expands the goals of space activities enumerated in the Preamble: development

of economy, science and technology, consolidation of defence and security, and furtherance of the international cooperation of the Russian Federation. 20 Note that this principle is listed on the second place, and thus is one of the most important principles governing space activities in Russian Federation, which combines private initiative with state control. 21 In the Russian text of the Law the two prepositions refer to two different types of jurisdictions “in” refers to the territorial, and “by” to personal jurisdiction.

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13.4.2 Economic Conditions of Space Activities Article 12 lays down the financing scheme applied to space activities, the basic principle of which is that the amount of money invested in space activities is determined annually by the federal budget. The budget also determines the financial framework for the fulfilment of state orders,22 as well as surety provisions that secure foreign investments in space activities designed to fulfil the Federal Space Programme and space activities of Russian organisations. Article 15 regulates the use (exploitation) of space equipment and names two categories of entities who are entitled to pursue such an activity: owners of space equipment and/or person(s) who have acquired relevant rights in accordance with the laws of the Russian Federation. The Article allows joint exploitation of space equipment by several entities, if such use does not affect the technical functioning of the equipment. Article 16 determines the legal protection afforded to the results of intellectual activity gained from the development of space equipment and technologies, and it contains a renvoi to the Civil Code and the regime established therein with regard to intellectual property.23 Space activities in the Russian Federation, as well as the dissemination of information about such activities shall be conducted in conformity with legal requirements for the protection of state, official and commercial secrets and exclusive intellectual property rights.

13.4.3 Space Object: Notion, Rules Regarding Jurisdiction and Flight Article 130(1) of the Russian Federation Civil Code24 provides that a space object is an immovable property, and, as such, is subject to state registration.25 A more precise definition is laid down in Article 40(3) of the Law on Pledges: “an object designed for exploration and use of outer space, the Moon and other celestial bodies

22 The

procedure regarding formation and submission of state order is laid down in Article 14. wording (excluding the renvoi to intellectual property provisions contained in laws other than the Civil Code) was introduced by the last amendment made in December 2006 and came into force on 01.01.2008. 24 Adopted by the Parliament on 21.10.1994. 25 Note, that till now there is no special mechanism of ownership registration regarding space objects, which signifies that there is no way there can be private ownership, or better to say its recognition, of space objects in the Russian Federation. See Chekanov, D. Civil law Relationships Involving Artificial Space Objects (PhD Dissertation) (Moscow, 2003) summary online: (in Russian). 23 This

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for civil purposes.”26 The Law on Space Activities does not contain a definition of a space object, but states that a space object of the Russian Federation shall be subject to registration and shall bear markings certifying its ownership by the Russian Federation.27 Roscosmos’ Draft Administrative Order regarding Fulfilment of the State Function of Maintaining the Registry of Space Objects offers the following definition of a space object: “a space mechanical device, which is designed to conduct specified tasks and is capable of independent long-term functioning in outer space”. Article 17 of the Law on Space Activities lays down jurisdiction principles regarding space objects. Under those principles, the Russian Federation shall retain jurisdiction and control over space objects registered therein during the time spent by such objects on the ground and at any stage of their flight in outer space or on celestial bodies, and also upon their return to the Earth.28 The rights of ownership of space objects shall remain unaffected both during the time spent in outer space or on celestial bodies and upon their return to the Earth.29 In cases where space objects are manufactured by Russian organizations and citizens jointly with foreign states, organisations, citizens or international organisations, the Law on Space Activities contains a double renvoi to international law, which will be applicable to determine issues of ownership, registration, jurisdiction and control over a particular object.30 Article 17(5) reaffirms the fundamental space law principle of non-appropriation of outer space and celestial bodies by declaring that rights of jurisdiction and control over space objects and of their ownership do not affect the legal status of the area of outer space or the surface or interior of the celestial body occupied by such objects. It also states that rules may be established in the direct vicinity of a space object of the Russian Federation within the minimum zone necessary to ensure safety of space activities, and that such rules shall be binding upon Russian and foreign organisations and citizens. Article 19 of the Law on Space Activities regulates special aspects of space flight control. It states that control over flight of space objects of the Russian Federation at all stages – from launch to completion of the flight – shall be retained by the organisations responsible for their use (exploitation). Landing of space objects of the Russian Federation shall take place at designated special landing sites for space objects.31 In the event of incidents in the course of space activities, including accidents and disasters, space objects of the Russian Federation may land in other regions upon due notification of competent state governmental authorities.

26 Whether

“civil purposes” condition significantly narrows the definition of the space objects is not clear, as the definition serves the purposes of the Law, and is not intended to lay down a general notion of space object. 27 Article 17(1). The Law does not contain any provisions determining registration procedure. 28 Article 17(2). 29 Article 17(3), regime that can be altered by international treaties. 30 Article 17(4). 31 Article 19(2).

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Manoeuvring of space objects in the airspace of the Russian Federation is subject to legal provisions governing the use of airspace. A space object of a foreign state may execute a single innocent flight through the airspace of the Russian Federation for the purpose of returning to the Earth, provided that the competent authorities of the Russian Federation are duly notified about the time, place, trajectory and other conditions of such a flight.32 It is the responsibility of both Roscosmos and the Ministry of Defence to notify the competent state authorities of the Russian Federation, and, where necessary interested foreign states and international organisations about the launching or landing of space objects of the Russian Federation. In the case of launching, landing or terminated existence of space objects of the Russian Federation outside its territory, the competent agencies of the Russian Federation shall perform their functions in agreement with the competent authorities of the interested foreign states.33

13.4.4 Space Infrastructure Article 18 of the Law on Space Activities lists objects which together constitute the space infrastructure of the Russian Federation. These include cosmodromes, launching complexes and installations, command and instrumentation complexes, space object flight control centres and points, data acquisition, storage and processing terminals, space equipment storage bases, fall-out areas for separating components of space objects, space object landing sites and take-off landing strips, experimental base facilities for the development of space technologies, cosmonaut training centres and equipment, as well as other ground facilities and equipment used for space activities. Objects may be included as part of space infrastructure only if they are actually used for the conduct of space activities. Space infrastructure facilities, which are federal property, are under the operating control of state organisations in charge of their operation, but may be transferred to other persons according to procedures laid down in the Russian Federation legislation.34

13.4.5 Cosmonauts Citizens of the Russian Federation who express the desire to take part in space flights and who meet the stipulated professional and medical requirements may be selected for training and for the conduct of space flights on a competitive basis according to criteria established by the Russian Federation legislation, which also governs the training process and professional activities of cosmonauts.35 32 No

conditions are determined within the body of the Law. 19(5). 34 Article 18(2). 35 Article 20(1) (2). 33 Article

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A cosmonaut who is a citizen of the Russian Federation may be appointed as commander of the crew of a manned space object of the Russian Federation. The commander is vested with the full authority necessary for the conduct of the space flight and with the control of the crew and other persons participating in the flight. Within the scope of his/her competence, the commander has responsibility for the execution of the flight programme, safety of the crew and other persons participating in the flight, and the preservation of the space object and any property contained within it.36 The Russian Federation retains jurisdiction and control over any crew of its manned space object on the ground, in space flight or during their stay in outer space or on celestial bodies, including extravehicular activity, and upon the return of the space object to the Earth. This regime is subject to the provisions of the relevant international treaties to which the Russian Federation is a party. Article 20(5) of the Law on Outer Space obligates citizens of foreign states who undergo training for a space flight in the Russian Federation or participate in a flight on board its manned space objects to abide by the laws of the Russian Federation, provided that an international treaty to which the Russian Federation is a party does not stipulate otherwise. It is not clear whether this provision encompasses space tourists. If it does, then it appears from the wording of the Article that citizens of the Russian Federation cannot be space tourists. The Civil International Space Station is the only manned space programme in which the Russian Federation participates. This important international space project is realized on the basis of the intergovernmental Agreement Concerning Cooperation on the Civil International Space Station of 29th of January 1998 as well as of the Code of Conduct for the International Space Station Crew that was approved by a Resolution of the Government of the Russian Federation.37

13.4.6 Licensing of Space Activities Article 9 of the Law on Space Activities contains a very important legal provision by virtue of which the Law establishes an authorization (licensing) procedure for the pursuit of all space activities in the Russian Federation both for scientific and socio-economic purposes. Licensing requirements apply to space activities pursued by organizations and citizens of the Russian Federation or to the space activities pursued by foreign organizations and citizens under the jurisdiction of the Russian Federation where such activity includes the testing, manufacture, storage, preparation for launch or launch of space objects, or control of space flights. The provisions of the Article are further elaborated in the Resolution on Adoption of Regulations regarding Licensing Space Activities38 that defines types, forms

36 Article

20(3). 155-r of 27.10.2000. 38 Number 403 of 30.06.2006. 37 Number

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and periods of validity of licenses, conditions and procedures for their issue, withholding, suspension or termination, and other aspects of licensing.39

13.4.7 Safety of Space Activities Safety standards applicable to space activities are established by the Russian Federation and cover all types of space activities. The Ministry of Defence and Roscosmos are the main controlling bodies in this regard. It is important to point out that Article 22(1) of the Law on Space Activities lays down the sustainability principle as it stipulates that space activities shall only be pursued if the anthropogenic influence on the environment and near-earth space does not go beyond prescribed levels. The Law does not determine concrete standards although it imposes an obligation on both Roscosmos and the Ministry of Defence to inform relevant governing institutions as well as citizens about any threats to security caused by space activities. Article 23 lays down the principles governing investigations of accidents, and Article 24 addresses the issue of search and rescue operations. Article 25 concerns the insurance of space activities, establishing a two-tier system of compulsory and voluntary insurance. The compulsory insurance regime covers organisations and citizens who use space equipment or order its manufacture and use: they must insure the health and life of cosmonauts, space infrastructure personnel, as well as against liability for damage caused to the life, health or property of third parties. Voluntary insurance refers to any organisation or person engaged in space activities and covers space equipment and the risk of loss or damage to it.

13.4.8 International Cooperation The main provision of this section is the determination of the legal status of foreign organisations and citizens who conduct space activities under the jurisdiction of the Russian Federation. Article 27 states that foreign organisations and citizens are subject to the legal regime of space activities applicable to Russian organisations and citizens to the extent that the domestic regime of the relevant foreign state is applied to nationals of the Russian Federation. The Russian Federation ensures that it will guarantee legal protection of the technology and trade secrets of foreign nationals engaged in space activities under its jurisdiction. Regarding international cooperation, the Law establishes the freedom to make contracts or treaties with foreign organisations and citizens in accordance with the legislation of the Russian Federation. Furthermore, it states that in case of an inconsistency between the legal norms of a foreign state applicable to space activities, 39 Provisions

of the Regulations will be addressed below in a separate section.

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in which Russian organisations and citizens participate, and those of the Russian Federation, the latter shall prevail provided that this regime is not altered by a valid international treaty.

13.4.9 Liability The provisions on liability that round up the Law on Space Activities are almost a verbatim implementation of Articles II and III of the Liability Convention. Compensation for personal or material damage caused by Russian space objects shall be paid by the organisations or citizens who have insured their liability according to the laws of the Russian Federation.

13.5 Other Laws and Regulations 13.5.1 Regulations Regarding Licensing: Procedure and Requirements Article 17(95) of the Law on Licensing of Certain Activities40 establishes, and Article 9 the Law on Space Activities reaffirms that space activities require licensing. The main normative acts that govern licensing the activity of Roscosmos are the Resolution on Adoption of Regulations regarding Licensing Space Activities41 and the Roscosmos Administrative Order regarding the fulfilment of the state function of licensing space activities.42 Paragraph 1 of the Licensing Regulations stipulates that the licensing regime created by the Regulations covers juridical persons conducting space activities without any reference to their nationality. In contrast, Paragraph 1.1.4 of the Licensing Order states that juridical persons of Russian Federation are the recipients of licences. Paragraph 3 of the Licensing Regulations enumerates the works and services (eight in total) that may be done or delivered in the course of space activities and therefore require licences; the list corresponds to the list of areas of space activities contained Article 2 of the Law on Space Activities. Paragraph 4 sets out a separate list of requirements to be met in order to obtain a licence for each category of activities. Almost all of them are identical, except a few (not more than 2 per activity) that are unique for each category. These conditions include inter alia availability: of the necessary infrastructure that meets the required standards; of qualified specialists; of quality control systems; organisation of storage of normative-technical documentation; compliance of technical documentation with the set requirements; permit to conduct activities that involve use of information that is classified as a state secret. 40 Number 128-FZ (in Cyrillic letters) of 08.08.2001, as amended (last amendment on 05.02.2007). 41 Number 42 Order

403 of 30.06.2006 (hereinafter Licensing Regulations). No. 51 of 25.05.2007 (hereinafter Licensing Order).

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Documents that have to be submitted to Roscosmos when filing the application to acquire a licence are listed in Paragraph 5 of the Licensing Regulations and duplicated in Paragraph 2.4.2 of the Licensing Order. The list is closed and this means that Roscosmos is not entitled to request for documents other than those listed. The list is only complemented by the requirement to submit documents identifying juridical persons as enumerated in Article 9(1) of the Law on Licensing of Certain Activities. The licence has to be issued or a decision on refusal has to be made within 45 days from the date of filing of the application.43 If granted, the term of licence is 5 years, and is renewable. Gross violations of the licensing conditions listed in Paragraph 12 of the Licensing Regulations and of the requirements to be met in order for a licence to be issued may lead to suspension and eventually termination of the license.44 Roscosmos may only suspend or terminate a license after a judicial decision has been pronounced thereby terminating the activities of a licensee for a certain period of time in order to remove gross violations of the licence. In such cases, Roscosmos enforces the court order by suspending the licence and terminating the activities of a licensee for the period ordered by the court. If the licensee fails to rectify the grounds for the suspension of its activities within the time period granted by the court, Roscosmos is obligated to file a suit demanding termination of the licence conditions. The Licensing Order grants Roscosmos authority to control and check the activities of licensees in order to track compliance of their activities with the licence requirements. The control powers come into effect at the very moment when the licence is issued and accompany licensed space activities till the moment the licence is terminated. The last part of the Licensing Order lays down the procedure for filing complaints regarding activities of Roscosmos in the sphere of licensing. The complainant has two major alternatives: the licensee can either file a complaint to the Head of Roscosmos or file a suit in court, or may rely upon any other means allowed by the legislation.

13.5.2 Regulation Regarding Acquisition, Use and Provision of Remote Sensing Data Apart from The Federal Law on Information Technologies and Information Protection,45 acquisition, distribution and protection of remote sensing data is governed by the Government of the Russian Federation Resolution on the Order of Acquisition, Use and Provision of Geo-Spatial Information.46 Apparently, this Resolution is the first piece of legislation that directly governs remote sensing issues 43 Paragraph

2.6 of the Licensing Order. 3.7 of the Licensing Order. 45 Number 149-FZ (Cyrillic letters) of 29.07.2006. 46 Number 326 of 28.05.2007 (hereinafter Remote Sensing Resolution). 44 Paragraph

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in the Russian Federation. As commentators have suggested, the document is a big step forward in the dissemination of remote sensing data, as it allows to make available high resolution remote sensing data regarding any part of Russian Federation, except for specified restricted areas, and also makes remote sensing data acquired by foreign remote sensing companies freely accessible.47 The Remote Sensing Resolution lays down the regime that governs the acquisition, use and provision of geo-spatial information by means of earth remote sensing satellites that produce images with a resolution better than 2 m. Paragraph 2 of the Remote Sensing Resolution contains a list of definitions of concepts used in the document. The definition of remote sensing is wider than that contained in the UN Principles Relating to Remote Sensing of the Earth from Outer Space,48 as the purposes of remote sensing include determination of location, description of character and time-conditioned variability of natural parameters and effects, of natural resources, environment, as well as of anthropogenic factors and formations. The Remote Sensing Resolution explicitly incorporates remote sensing data into the broader category of geo-spatial information, but does not operate with such concepts as processed data and analysed information.49 Its Section 13.5 establishes the procedure for the formation of the list of areas regarding which there are restrictions on acquisition and use of geo-spatial information. The list is put together by interested Federal government bodies and is approved by the Federal Government on a yearly basis. Section 13.7 regulates the acquisition, use and provision of remote sensing data, stating that the planning is to be undertaken by Roscosmos, and the implementation by a remote sensing facilities operator,50 with the participation of the Ministry of Defence. Federal executive bodies submit special requests to carry out remote sensing to Roscosmos, and other Russian and foreign51 users submit their requests directly to remote sensing facilities operators.52 Paragraph 20 of the Remote Sensing Resolution provides that the acquisition of remote sensing data of foreign states’ territories may be conducted by a remote sensing facilities operator and directly through the receiving stations that belong to foreign users. Together with remote

47 See

comments by Mr. V. Shalamov from the Russian Agency on Geodesy and Cartography on the regulation online: ; and The First Explanatory Comments Made with Regard to the Remote Sensing Resolution on the Russian GIS Forum . 48 GA Resolution, U.N. Doc A/RES/41/65 (1986) (hereinafter UN Principles). 49 Cf. UN Principles. 50 Operator is defined as an organisation, which carries out planning of remote sensing, reception, processing, storage and provision of remote sensing data. Remote Sensing Resolution does not mention whether the notion of operator includes foreign operators or not. 51 Foreign users have to declare that remote sensing data will be used for peaceful purposes and will adversely affect security of Russian Federation. 52 Requirements to the requests are laid down in paragraph 14 of the Remote Sensing Resolution.

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sensing facilities owners and operators, Roscosmos controls the use of remote sensing data.53 All remote sensing facilities operators are required to maintain a registry of their activities, as well as of all remote sensing data provided to Russian and foreign users. Copyright regarding remote sensing data is granted in accordance with the relevant Russian Federation legislation.54

13.5.3 Regulation Regarding the Registration of Space Objects For the time being, the Russian Federation has no space objects registration procedure. Recently,55 however, the Draft Administrative Order of Roscosmos regarding the fulfilment of the state function of keeping the registry of space objects was developed within Roscosmos. The Draft Registry Order serves the purposes of the Convention on Registration of Objects Launched into Outer Space.56 The registration of space objects by Roscosmos that it provides for is not part of the state system of registration of rights in immovable property and transactions affecting it. According to the procedure established, one month before the actual launch, Roscosmos must be provided with information from a Russian organisation that is exploiting a space object or is conducting or procuring its launch. Three days after the launch, the same organisation must file a written notification about the necessity of registration of the launched space object. Information about launched space objects must be communicated to Roscosmos within seven days from the date of launch and must include the following: name of the space object; time and date of the launch; territory or place of the launch; name of the launcher; main parameters of the orbit; general purpose of the space object; and, position in the geostationary orbit, if appropriate. The Draft Registry Order states that furnishing registration information is a juridical act of acknowledgement that a space object is actually in orbit or in outer space. This registration is the basis for the state to register the rights of owners or operators in space objects. The Draft Registry Order further states which objects should be included into the registry57 and which should not.58 Within a period of one month after having registered a launched space object, Roscosmos, in turn, has to furnish the information to the Ministry of Foreign Affairs for subsequent communication to the UN Secretary-General.

53 Paragraph

22 of the Remote Sensing Resolution. 12 of the Remote Sensing Resolution. 55 October 2007 (hereinafter Draft Registry Order). 56 UNGA Res. 3235 (XXIX) Annex, Nov. 12, 1974; ILM Vol. XV, 43. 57 Paragraph 15. 58 Paragraph 16. 54 Paragraph

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13.6 Conclusion The survey of existing legislation adopted in the Russian Federation regarding space activities shows that, although the regulatory activity began relatively recently – after the collapse of the Soviet Union – its scope is gradually expanding to cover not only general governance issues relating to space activities, but also to lay down licensing procedures for space activities and to adopt norms regulating the conduct of certain space activities. In addition to specific laws and regulations, norms of general laws (for instance relevant provisions of the Civil Code) as well as legislation on licensing of certain space activities, and intellectual property regulations, are also applicable to space activities. The Russian Federation regulations still lack some critical provisions that would foster private sector participation in space activities (for example provisions concerning the registration of rights of private organisations regarding ownership of space objects). But, taking into account the developing nature of the Russian Federation space regulations these issues might be resolved in the near future, especially considering that one of the basic principles driving the conduct of space activities is the promotion of private investments in space activities.

13.7 Annex The list of normative legal acts of the Russian Federation on space activities: 1. Constitution of Russian Federation 2. Law of Russian Federation on Space Activities, 20 August, 1993, No. 5663-1, as amended 18.12.2006. 3. Federal Law of the Russian Federation On Licensing for Certain Types of Activities, 8 August, 2001, No, 128-FZ. 4. Declaration of the Supreme Council of the Russian Federation On Space Policy Priorities of the Russian Federation, 27 April, 1993, No. 4879-1. 5. Decree of the President of the Russian Federation on Space Activities Administration Structure in the Russian Federation, 25 February, 1992, No. 185. 6. New policy 2007. 7. Decree of the President of the Russian Federation on Realization of State Policy in Rocket and Space Industry Area, 20 January, 1998, No. 54. 8. Decree of the President of the Russian Federation on Federal Executive Power Bodies Structure, 25 May, 1999, No. 651. 9. Resolution of the Government of the Russian Federation on Space Activities State Support and Provision in the Russian Federation, 11 December, 1993, No. 1282. 10. Resolution of the Government of the Russian Federation on Arrangements for Improving Efficiency of and Structure Rearrangement in Rocket and Space Industry Sector, 25 June, 1994, No. 866. 11. Resolution of the Government of the Russian Federation on Licensing for Certain Types of Activities, 24 December, 1994, No. 1418.

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12. Resolution of the Government of the Russian Federation on Space Activities Implementation for Benefit of Economy, Science and Security of the Russian Federation, 7 August 1995, No. 791. 13. Resolution of the Government of the Russian Federation on Adoption of Regulations of Space Activities Licensing, 2 February, 1996, No. 104. 14. Resolution of the Government of the Russian Federation on Approval of National Space Policy Conception of the Russian Federation, 1 May, 1996, No. 533. 15. Resolution of the Government of the Russian Federation on Arrangements for Implementing the Decree of the President of the Russian Federation of 20 January, 1998, No. 54 on Realization of State Policy in Rocket and Space Industry Area, 12 May, 1998, No. 440. 16. Resolution of the Government of the Russian Federation on Use of Military Space Systems and Complexes for Services in Space Activities Area, 8 April, 1999, No. 394. 17. Resolution of the Government of the Russian Federation on Issues of Russian Aeronautics and Space Agency, 15 July, 1999, No. 827. 18. Resolution of the Government of the Russian Federation on Adoption of Regulations for Russian Aeronautics and Space Agency, 25 October, 1999, No. 1186. 19. Resolution of the Government of the Russian Federation on Licensing for Certain Types of Activities, 11 April, 2000, No. 326. 20. Resolution of the Government of the Russian Federation on Approval of the Code of Conduct for the International Space Station Crew, 27 October, 2000, No. 155-r. 21. Resolution of the Government of the Russian Federation on Adoption of Regulations on State Commission for Space Systems and Complexes Flight Tests, 30 December, 2000, No. 1036. 22. Resolution of the Government of the Russian Federation on Organization of Licensing for Certain Types of Activities, 26 January, 2006, No. 45. 23. Resolution of the Government of the Russian Federation on Adoption of Regulations for Federal Space Agency of the Russian Federation, 26 June, 2004, No. 314, as amended (2006) 24. Resolution of the Government of the Russian Federation on Adoption of the Federal Space Program of the Russian Federation, 22 October, 2005, No. 635. 25. Resolution of the Government of the Russian Federation on Adoption of Regulations of Space Activities Licensing, 30 June, 2006, No. 403. 26. Russian Federation Space Agency Order on Adoption of Administrative Statute of Russian Space Agency Regarding Fulfilment of the State Function of Licensing Space Activities, 2007. 27. Resolution of the Government of the Russian federation on the Order of Acquisition, Use and Provision of Geo-Spatial Information, 2007. 28. Russian Space Agency Administrative Statute regarding Fulfilment of the State Function of Maintaining the Registry of Space Objects, 2007 [draft].

Chapter 14

Regulation of Space Activities in Ukraine Nataliya R. Malysheva

14.1 General Philosophy and Processes of Government Regulation 14.1.1 Law-Making Process Ukraine is a space-faring nation, having inherited about one third of the Soviet Union’s space potential after the break-up of the latter. During the independence period, Ukrainian launch vehicles were used to carry out a total of 116 launches, and they have been used to deliver into space orbit more than 200 satellites under contracts with ten countries. Ukraine-made equipment has been used for docking of all spaceships to the International Space Station. Ukraine has an essential number of space-related research institutions, design offices and enterprises. Space exploration and use on is among the priorities of the nation’s economic and social development. Space activities, both at the national as well as the international level, require adequate legal governance. Therefore, the active process of drafting and adoption of relevant legislation that was started in Ukraine in the early 1990s and is still continuing is a normal consequence of this challenge. Nine laws, 16 Presidential decrees, 68 resolutions and prescriptions of the Cabinet of Ministers of Ukraine (Government) have been adopted since the 1990s. Additionally, a number of state standards, normative regulations and rules of space activities have been developed. Ninety-seven international agreements relating to this area have been concluded with 19 countries. All of these documents constitute the basis for Ukrainian space law. It should be noted that according to Article 62(5) of the Constitution of Ukraine (1996), the foundations of space activities shall be exclusively defined by the laws of Ukraine. The Law “On Space Activities” that was adopted by the Supreme Rada of Ukraine (Parliament) is a key component of this system. This Law has laid the N.R. Malysheva (B) Volodymyr Koretsky Institute for State and Law, Ukrainian National Academy of Sciences, Kyiv, 01001, Ukraine e-mail: [email protected]

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_14,  C Springer Science+Business Media B.V. 2010

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foundations for regulating space activities and has defined the framework for further development of space legislation.

14.1.2 Basic Principles of National Laws The principles applicable to space activities in Ukraine that define the directions for legal regulation in the area are to be found in Article 4 of the Law of Ukraine On Space Activities. They include: • state regulation; • state support for commercialization of space activities and attraction of investments in the space sector of Ukraine; • evolutional development and consistency in reformation of state policy on exploration and use of outer space; • effective application of the scientific and research potential of Ukraine and opportunities related to space activities for the interests of national economy, science, state security and for commercial purposes; and, • promotion of international cooperation, preservation and further development of already available relations in the area, taking into consideration national interests. In Ukraine, the state regulation of space activities is carried out as follows: • every five years, Parliament considers and approves the National Space Program of Ukraine (the draft is submitted by the Government). Four such programs (for 1994–1997; 1998–2002; 2003–2007; 2008–2012) have already been adopted; • predominant planning and funding of space activities from the State Budget of Ukraine, as well as promotion of the involvement of other sources of funding that are not prohibited by Ukrainian law; • funding from the State Budget of Ukraine for training of specialists; and • licensing of space activities. The Measures of state support for commercialization of space activities and attraction of investments in the space sector of Ukraine are covered, inter alia, by the Law of Ukraine “On State Support for Space Activities” (2000). Based on this law, relevant changes were included in the existing tax, customs and commercial legislation. In particular, the Law of Ukraine “On Taxation of Revenue of Enterprises” (1994, with amendments) has established that “Temporarily, until 1 January 2009, subjects of space activities shall enjoy annual 20% rate for accelerated depreciation of assets of Group 3. Depreciation of assets of Group 3 shall be carried out until zero level of balanced value of the Group will be reached” However, those support measures were not prolonged for the period beyond 2009. According to Article 6 of the Law of Ukraine “On Procedure of Settlements in Foreign Currency” (1994, with amendments), “Settlements according to export and

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import operations if subjects of space activities have paid in advance for completed works on manufacturing (design) of aggregates, systems of space missile complexes (space vehicles), space apparatuses, land part of space systems and their aggregates, systems and spare parts shall be done within 500 calendar days. Prolongation of this term requires an individual license of the National Bank of Ukraine”. The evolutional development and consistency in the reform of state policy on exploration and utilization of outer space combines instruments of state regulation with the market mechanisms of self-regulation, orientation for high levels of employment, maximum realization of investment capabilities, and broad involvement of foreign capital into Ukrainian space sector. The principle of effective application of the scientific and research potential of Ukraine and the opportunities related to space activities for the interests of national economy, science, state security and for commercial purposes is realized by the broad usage of opportunities provided by space technologies in the different sectors of the economy, social, environmental and natural resources areas, in the information area, and in the strengthening of the security and defence potential of the state. The introduction of space technologies in energy, agriculture, manufacturing, transportation, medicine, telecommunications and other areas is carried out on the basis of inter-sectoral programs. The Concept of Structural Reconstruction and Innovative Development of the Space Sector was approved by a Presidential decree of 6 February 2001. In particular, the Concept envisages the creation of a complex of production facilities based on space technologies. These technologies are used in two directions: design and manufacturing of space-related products for export and in accordance with state orders; and, design and manufacturing of civil products with the usage of space technologies. The structural reconstruction has the following as its main goals: the establishment of integrated structures (that include research, design, manufacturing and financial units) according to the principal directions of activities; refurbishment of manufacturing processes through the introduction of state-of-theart resource-saving and environmentally friendly technologies; improvement of the management of the space sector; definition of enterprises that shall not be the objects of privatization and transformation of ownership forms for other enterprises. The principle of promotion of international cooperation, preservation and further development of already available relations in the area, taking into consideration national interests is implemented through Ukraine’s participation in international space projects and programmes; its membership in international organizations that address space activities; and, its support for the performance of its obligations in the relevant area. Ukraine is an active participant in various efforts aimed at attaining international integration in the space area. It cooperates with other space faring nations in the framing of such significant international space projects like Sea Launch, Dnipro, Land Launch, Cyclone-4, International Space Station, European project Vega, Variant project and others. Ukraine is a member of ten international organizations in the space area, including: The United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), Committee on Space Research of the International Council of Scientific

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Unions (COSPAR), Inter-Agency Space Debris Coordination Committee (IADC), Space Agency Forum (SAF), Committee on Earth Observation Satellites (CEOS), International Astronautic Federation (IAF) and other international organizations. Ukraine is a member of all the regimes of control regarding the non-proliferation of weapons of mass destruction and it participates actively in all the measures adopted within those regimes.

14.1.3 Organization of National Space Activities The National Space Agency of Ukraine (NSAU), a special authorized body with executive powers on space activities, was established by Presidential Decree No. 117 of 29 February 2002 for securing the state management of space activities, realization of state policy in the relevant area and control and coordination of the activities enterprises in this field. During the last 15 years, the powers of the NSAU have increased significantly. Moreover, it has preserved its separate and independent status and competence. Since 2003, the NSAU is considered as a central body of executive power with a special status. Article 6 of the Law of Ukraine On Space Activities and the Statute of the National Space Agency of Ukraine, approved by Presidential decree of 22 July 1997, regulate NSAU’s legal status. Its activities are directed and coordinated by the Cabinet of Ministers of Ukraine. NSAU’s powers are rather broad. In particular, the Agency: • develops conceptual foundations for state space policy; • secures organization of space activities in Ukraine and outside Ukraine under its jurisdiction; • together with the Ukrainian National Academy of Sciences, elaborates and secures implementation of the National space program of Ukraine; • serves as a state general purchaser of research work on space activities, research and design works in design, manufacturing, and testing of space techniques, including those related to international space projects; • is a license-granting body for space activities in Ukraine and outside Ukraine under its jurisdiction; • organizes the elaboration and operation of the System for Certification of Space Techniques in Ukraine; • registers space techniques; • keeps the State Register of Unique Objects of Space Activities and carries out state supervision of their condition and usage, and implements measures for their support; • carries out coordination and control of Ukraine’s foreign economic activities in the space area and ensures their conformity with Ukrainian law and international agreements of Ukraine;

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• organizes Ukraine’s cooperation in the space area with other states and international organizations; • performs other functions in the field of space activities according to the prevailing law. The Ukraine’s Ministry of Defence carries out space activities in the area of defence and national security. It is responsible for the implementation of those aspects of the National space program of Ukraine that are related to the creation and usage of space military and dual-use techniques. Resolution No. 788 “On Temporary Procedure of Interaction between Ministry of Defence and National Space Agency in the Process of Space Activities”, approved by the Cabinet of Ministers of Ukraine on 15 July 1997, delimits the provinces of responsibility of these two agencies.

14.2 Legal Issues Related to Launch Services (Space Transportation Systems) 14.2.1 Licensing of Launch Services Provided by Private Enterprises Licensing is the most important instrument for state regulation of space activities. It is applied for securing the unity of state policy in the field and for the protection of the state’s economic interests. According to the Article 10 of the Statute “On Space Activities”, any actors who conduct, or are going to conduct, such activities in Ukraine or outside Ukraine under its jurisdiction, shall receive a license for such activities. The Law of Ukraine “On Licensing of Certain Descriptions of Economic Activities” (2000, with changes) establishes the list of descriptions of activities that are subject to licensing. Article 9(22) of the law specifies the descriptions of space activities that are subject to licensing in Ukraine. They include: design, testing, manufacturing and exploitation of missile vehicles, space apparatuses and their components, land space infrastructure and its components, and equipment that is a part of the space segment of satellite systems. Article 4 of this Law establishes limitations on activities related to design, testing, manufacturing and exploitation of missile vehicles, including their launches for any purposes – such activities might be carried out by state enterprises and organizations only. A number of resolutions of the Cabinet of Ministers provide the details of the licensing regime. They define the state institutions authorized to carry out licensing and designate their powers; describe the various documents that should be submitted by the applicants for licensing, as well as the terms and other aspects of the licensing procedure.

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In particular, the resolution of the Cabinet of Ministers dated 14 November 2000 provides the List of Licensing Bodies and empowers the National Space Agency of Ukraine to license the actors of space activities (paragraph 15 of the List). In order to provide more detailed coverage of relations on the licensing of space activities, the joint order of the State Committee of Ukraine on Regulatory Policy and Entrepreneurship and the National Space Agency of Ukraine of 19 December 2000 (as subsequently changed on 13 July 2001) approved the Licensing Conditions for carrying out of design, testing, manufacturing and exploitation of missile vehicles, space apparatuses and their components, land space infrastructure and its components, and equipment that is a part of the space segment of satellite systems. The Licensing Conditions establish detailed requirements for the actors of space activities concerning their different descriptions (design or modernization of space technics and their components; manufacturing of space techniques; testing of space techniques; and exploitation of space techniques). According to Resolution No. 1658 of the Cabinet of Ministers of Ukraine “On Approval of the Procedure for Composition, Keeping and Usage of Information from Licensing Register and Their Submission to the Single Licensing Register”, and the Statute on Procedure of Submission of Information in Electronic Form to the Single Licensing Register, approved by Order No. 47 of the State Committee of Ukraine on Regulatory Policy and Entrepreneurship dated 6 March 2001, a standard order for preparation and submission of information in electronic format to separate registers and a Single Licensing Register is established. The licensing register that is composed and kept by the relevant licensing body is a computerized system for the collection, accumulation, protection and control of information on those subjects. As a licensing body, the NSAU, compiles the licensing register for all the licensed descriptions of space activities. Within the scope of their respective powers, the NSAU (as a licensing body) and the State Committee of Ukraine on Regulatory Policy and Entrepreneurship (as a specially authorized body on licensing issues) control the performance of Licensing Conditions by licensees in the area of space activities. This is done in accordance with the Procedure of Control on Performance of Licensing Conditions for Carrying out of Design, Testing, Manufacturing and Exploitation of Missile Vehicles, Space Apparatuses and Their Components, Land Space Infrastructure and Its Components, and Equipment that is a Part of the Space Segment of Satellite Systems approved by joint order No. 3/21 of the State Committee of Ukraine on Regulatory Policy and Entrepreneurship and the National Space Agency of Ukraine dated 22 January 2002.

14.2.2 Competition in Launch Services The space sector, including launch services, is subject to all the requirements of Ukraine’s composite body of competition law which includes the laws: “On Protection against Unfair Competition” (1996, with changes); “On Protection of Economic Competition” (2001, with changes), “On Antitrust Committee of Ukraine”, “On Foreign Economic Activities” and many others.

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In particular, this body of legislation prohibits collusive anti-competitive actions, i.e., actions that have caused or might cause non-admittance, removal or limitation of competition. If the state is a purchaser of works and services in the area of missile or missile and space activities, the norms of the Statute “On Purchase of Goods, Works and Services for State Funding” (2008, with changes) shall be applied. In order to create a competitive environment and prevent corruption in the area of state procurements, and also secure transparency of the procedure for the procurement of goods, works and services for state funding, tender procedures shall be applied if the value of procurement for the goods or services is equal to or higher than 100,000 hryvnias (UAH, roughly about USD 13,000) or, for works, is equal or higher than UAH 300,000 (about USD 38,000). However, there are some exceptions to this general rule. The procurement procedure prescribed in this law shall not be applied if procurement is carried out by a purchaser located outside Ukraine; for telecommunications services including translation of radio- and TV-signals (excluding mobile phone and Internet services); and, goods, works and services that are classified as state secrets due to their special designation. The general rule is that domestic and foreign participants operate under the same conditions during the procurement procedure. The purchaser should provide equal access to procurement-related information for all the participants. However, the specific character of the space area, the unique nature of most of the descriptions of works (services) in the area, as well as the priority accorded to them for the social and economic development of the state have resulted in the adoption of certain protectionist regulations that, by law, are applied to business agents in the area. Some of these regulations were reflected in Section (1)(ii) of this Chapter while discussing the principle of state support to the space sector. Moreover, the descriptions of space activities that are exclusively reserved to be carried out by state enterprises only were stressed in Section (1)(i). Besides this, Ukrainian legislation has established simplified customs procedures for the import into Ukraine of goods for the production of space techniques by the subjects of space activities, if the import is carried out according to the contracts that are concluded by those parties and registered according to the legal requirements.

14.2.3 National Security Concerns According to Article 92(17) of the Constitution of Ukraine, the main principles of state policy in the area of national security are defined in the Law of Ukraine “On Foundations of the National Security of Ukraine” (2003, with changes). The Strategy of National Security of Ukraine (2007) was developed on the basis of this law and approved by the President of Ukraine. This law designates various agencies for ensuring national security and sets out their responsibilities: the President of Ukraine; the Supreme Rada of Ukraine; the Council for National Security and Defence; ministries and other central bodies of executive power; the National Bank of Ukraine; courts; the Prosecutor’s Office;

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public local administrations and other local governmental bodies; the Military Forces of Ukraine; the State Security Service of Ukraine; the Foreign Intelligence Service of Ukraine; the State Frontier Service of Ukraine; and, the citizens of Ukraine and their associations. The National Space Agency of Ukraine and Ministry of Defence of Ukraine are empowered with special responsibilities for ensuring national security in the area of space activities. According to the Statute of the National Space Agency of Ukraine (1997), promotion of the strengthening of the state’s defence potential and national security by application of space-related means is among its principal goals. In order to ensure the national security of Ukraine: • NSAU shall carry out: measures for prompt detection of the sources of danger; support within the scope of its responsibilities in securing the necessary level of resistance, reliability and effectiveness of the system of state governance and defence of the state during emergency periods; secure operation of space information and communication systems for the needs of top officials; controls within the scope of its responsibility in compliance with international agreements of Ukraine; single scientific and technological policy in the area of design of missile vehicles and missile complexes according to orders of the Ministry of Defence; • NSAU together with the Ministry of Defence shall: carry out state supervision of the safety of space activities; compose and organize performance of orders on creation and usage of space military and dual-use techniques on the basis of the National Space Program; ensure the functioning and development of the relevant objects of land and space infrastructure; perform works related to the usage of those space missile vehicles that were created on the basis of strategic missile complexes and should be removed from exploitation due to exhaustion of their resources or should be subject to liquidation according to international agreements; and, secure the conversion of industrial enterprises of the space sector involved in design and manufacturing of intercontinental ballistic missiles and their components and aggregates and creation, on the basis of conversion, of high-tech production facilities of civil designation with application of state-of-the-art technologies and involvement of national and foreign investments.

14.3 Legal Issues Related to Satellite Telecommunications, Including Satellite Broadcasting Activities in the area of telecommunication and broadcasting are carried out on the basis of the laws of Ukraine “On Telecommunications” (2003), “On Radiofrequency Resource” (2000), and a number of secondary legal documents.

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14.3.1 Licensing of Private Satellite Telecommunication Operators (Both National and Foreign) Economic agents who intend to carry out activities in the area of telecommunications must serve a notice to the National Commission for Regulation of Communications (NCRC) not later than the month before the date of the beginning of such activities. The NCRC is a central body of executive power with a special status and is under the control of the President of Ukraine. On receiving the notice, the NCRC must include the economic agent in the register in a week and serve it with the relevant confirmation. Certain descriptions of activities in the area of telecommunications are subject to licensing. This licensing shall be carried out on the basis of the Law of Ukraine “On Telecommunications” and the Licensing Conditions for Activities in the Area of Telecommunication Encompassing Technical Services and Exploitation of the Networks of Air TV and Radio Broadcasting, Wire Broadcasting and TV Networks and Providing for Utilization of Electric Communication Channels (Licensing Conditions), approved by the order No. 984 of the Ministry of Transport and Communications of 10 November 2004. The following categories of activities in the area of telecommunication are subject to licensing: (a) the provision of fixed telephone communication services with the right of technical service and exploitation of telecommunication networks and providing for utilization of electric communication channels (local, national and international); (b) the provision of fixed telephone communication services with the usage of wireless access to the telecommunication network with the right of technical service and exploitation of telecommunication networks and providing for utilization of electric communication channels (local, national and international); (c) the provision of mobile telephone communication services with the right of technical service and exploitation of telecommunication networks and providing for utilization of electric communication channels; (d) the provision of technical service and exploitation of telecommunication networks, networks of air TV and radio broadcasting, wire broadcasting and TV networks; and, (e) providing for the utilization of electric communication channels (local, national and international). According to Article 6 of the Law of Ukraine “On Telecommunications”, on the territory of Ukraine the provision of telecommunications services is an exclusive right of the residents of Ukraine, i.e., legal entities based on the territory of Ukraine and registered according to Ukrainian law and/or natural persons who are subjects of entrepreneurship.

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An applicant for a license should provide documentary evidence of availability in his possession of financial resources and specialists’ potential for carrying out the category of activities he has applied for, as well as information on the possibility of creating a telecommunications network and its further utilization, technical exploitation and provision of telecommunication services. The detailed requirements concerning procedure, terms, necessary documentation and other aspects are established by relevant legal documents. An economic agent may not transfer a license or a copy thereof to another legal entity or natural person for carrying out activities in the area of telecommunications. The NCRC controls compliance by operators and providers with telecommunications licensing conditions as well as special conditions specified in the license through inspections. Inspections may be regular (not more than one per year) and irregular (if information on breach of telecommunication licensing conditions by operators or providers comes to the attention of the NCRC). The legislation also contains an exhaustive list of reasons for the revocation of license.

14.3.2 Competition According to Article 37 of the Law of Ukraine “On Telecommunications”, the operators and providers of telecommunications services shall act on the following legal basis: (a) equal rights of operators and providers on the telecommunications market of Ukraine; (b) priority of the interests of consumers of telecommunication services; (c) development of competition in terms of existence of operators and/or providers representing different ownership forms; and, (d) prevention of discriminative actions of operators and providers having monopolized (dominant) positions against other entities on the telecommunications market. Operators and providers may be classified by the Antitrust Committee of Ukraine as having monopolized (dominant) positions on the telecommunications market according to the law on protection of economic competition. The Law of Ukraine “On Telecommunications” has established, inter alia, a duty upon telecommunications operators to avoid breaches of the fair competition code on the telecommunications market. If such breaches are identified, the NCRC shall submit breach-related materials to the Antitrust Committee of Ukraine. According to Article 37 of the Law of Ukraine “On Telecommunications”, licensing shall not be used for the limitation of competition in the area of telecommunications. The NCRC is allowed to limit the total number of licenses that may be issued for the provision of telecommunications services, in particular, if any of the required resources is limited. However, such a decision shall be published and

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the reasons underlying it shall be specified. In such a case, the available licenses shall be issued a competition basis. The competition for obtaining the licenses shall be based on the principles of free access, non-discrimination and transparency. The conditions and requirements concerning competition shall be the same for all participants. An appeal against the decision on competition results might be lodged with a court. [particular court is not specified]. In the event that activities that are subject to licensing require usage of limited resources (radio-frequencies and/or numbers) the decision to grant a license or otherwise reject an application shall be made within a period of 60 business days beginning from the date of registration of the application. If international coordination for granting the radio frequencies is needed, the time period may be extended for the period determined by the Radiocommunications Regulations of the International Telecommunication Union or by relevant international agreements. The license for the category of activities in the area of telecommunication that implies usage of radio-frequency resources of Ukraine shall be granted simultaneously with the relevant license for the usage of the radio-frequency resources of Ukraine. Antitrust measures for the protection of economic competition on the telecommunications market also envisage tariff regulation for telecommunication services (see infra (c) (vi)), regulation of interconnection for telecommunication networks (see infra (c) (iv)) and some other measures.

14.3.3 Interconnection The interaction and interconnection of telecommunication networks in order to secure the possibility of communications taking place between users of all networks is among the most important principles driving the conduct of activities in the Ukrainian telecommunications sector. This is reflected in the law – Part IX of the Law of Ukraine “On Telecommunications”. The following conditions for interconnection are established by the law: (a) technical, organizational and economic conditions for interconnection of telecommunication networks of the telecommunication operators, as well as payment rates for access to those networks shall be the subject of a contract between interconnecting telecommunication operators; (b) economic conditions of interconnection for telecommunication networks of the telecommunication operators and payment rates for access to those networks shall be determined on the basis of their production value, taking into consideration the rate of profitability of the services provided by the telecommunication operators; (c) technical, organizational and economic conditions for interconnection with the telecommunication operators having monopolized (dominant) position in the telecommunication market shall be regulated by the NCRC;

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(d) payment rates for access to telecommunication networks of the telecommunication operators having monopolized (dominant) position in the telecommunication market shall be established by the NCRC; (e) based on an appeal launched by any party, the NCRC may voluntarily step into the negotiations between telecommunication operators leading to the conclusion of agreements on interconnection of their telecommunication networks. In order to secure effective competition and conditions that are non-discriminatory, fair, acceptable for both parties, and useful for consumers, the NCRC shall make its decision within the one-month period beginning from the day of appeal; and, (f) the NCRC’s decisions on relations between the parties concluding agreement on interconnection of telecommunication networks are compulsory for those operators. It may be revoked by the decision of a court upon further appeal. The NCRC shall approve and publish at least once a year a catalogue of proposals on interconnection between telecommunication networks submitted by telecommunications operators. With the exception of those operators having monopolized (dominant) positions in the telecommunications market, the submission of such proposals by telecommunication operators is not compulsory. The NCRC establishes the procedure for submission, consideration and approval of telecommunication operators’ proposals on interconnection with their telecommunication networks.

14.3.4 Universal Access According to the Law of Ukraine “On Telecommunications”, a telecommunications network will be considered to be universal if all consumers have free access to it. Ukrainian law addresses the issue of universal telecommunication services: connection of final user’s equipment to universal telecommunication networks (universal access), services of fixed telephone communication within numbering area (local telephone communication), as well as calls to emergency services, reference services, and communication through telephone booths, excluding the services provided through wireless access. Calls from fixed telephone telecommunication networks to mobile telephone telecommunication networks are not considered as part of universal telecommunication services. The state guarantees universal access of consumers to universal networks as well as the provision of telecommunication services with free access and standardized quality according to tariffs regulated by the state. According to Ukrainian law, universal access shall satisfy the following requirements: (a) upon the customer’s request, connection of his equipment with universal networks shall be secured according to the tariffs regulated by the state; (b) universal networks to which customer’s final equipment is connected shall provide support for voice telephony, facsimile connection and data transmission that is sufficient for customers’ access to the Internet; and,

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(c) while providing universal access, prices charged for connection to a universal telecommunications network shall not depend on access technology or connection method. The development of universal services is carried out according to the Conception of Telecommunications Development in Ukraine. It contains the procedure and terms of providing access to universal services for consumers in rural and mountainous areas, as well as for vulnerable groups of consumers (low-income families, retired and disabled people). In areas with insufficient levels of universal telecommunication networks, demand for such services shall be satisfied according to the procedures prescribed by law. In the case of insufficient satisfaction of customers’ demand for universal telecommunication services in particular regions, the NCRC may oblige operators with monopolized (dominant) positions in the market as well as operators of fixed wire communication to provide such services for consumers and apply a special mechanism to compensate such operators for any losses sustained. The law also covers the procedure for providing of telecommunication services in times of emergencies and martial law. Residents of Ukraine (i.e., legal entities based in the territory of Ukraine and registered according to Ukrainian law and/or natural persons who are subjects of entrepreneurship), have the exclusive right of ownership, technical service and exploitation of telecommunication networks regardless the form of ownership. The management of universal telecommunication networks shall be carried out by the telecommunication operators exploiting those networks according to a single set of standards, norms and regulations. The utilization of the resources of universal telecommunication networks for the needs of television and broadcasting shall be based on agreements. The Law of Ukraine “On Television and Radio Broadcasting” covers the issue of provision of such telecommunication services. The Ministry of Transport and Communications makes decisions on the list of technical equipment that may be used in universal telecommunication networks, and controls compliance with the conditions of their use.

14.3.5 Rate Regulation The telecommunication operators establish tariffs on telecommunication services independently, except for cases of state regulation when marginal or fixed tariffs may be established on: (a) universal services; and (b) the usage of electric communication channels of operators having monopolized (dominant) position in the market

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The NCRC on the other hand: – carries out tariff regulation in the field of telecommunications and establishes settlement procedures between telecommunication operators; and, – grants permission for telecommunication operators and providers to establish special tariffs for disabled and socially vulnerable persons on universal telecommunication services. Tariff regulation in Ukraine’s telecommunication market is based on the following principles: (a) tariffs shall be based on the production value of services, taking into consideration the rate profitability of the services; (b) dependence between the level of tariffs and quality of services; (c) prevention of dumping or discriminative prices established by the telecommunication operators and providers; (d) avoidance of cross-subsiding of particular telecommunications services at the cost of others; and (e) charging for the time the service was actually used.

14.3.6 Content Regulation (Including Privacy) 14.3.6.1 Telecommunication Language Ukrainian and other languages are used for providing telecommunication services in Ukraine. The addresses of the sender and receiver of domestic telegrams shall be written in Ukrainian or in Russian language. The textual content of telegrams may be written in any language using Cyrillic or Latin script. The international notifications sent via universal telecommunication networks shall be processed using those languages prescribed by international agreements of Ukraine. 14.3.6.2 Time in the Area of Telecommunication Kyiv time shall be used as a single time for activities in the telecommunication area. In the case of international telecommunication, international agreements of Ukraine determine the applicable time zone. 14.3.6.3 Protection of the Privacy of Telephone Communications, Telegraph and Other Correspondence, Safety of Telecommunications The Constitution and Ukrainian laws assure the privacy of telephone communications and telegraph and other correspondence via telecommunication means, as well as informational security of telecommunication networks. The reception of

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information from the telecommunication networks is prohibited, except in specific cases prescribed by the law. Telecommunication operators and providers are obliged to implement and monitor measures to protect telecommunication networks, means of telecommunication, information related to organization of telecommunication networks with limited circulation and information transmitted by those networks. 14.3.6.4 Lands for Telecommunication Needs Lands for telecommunication needs are a component of the lands for communication needs. They include parcels of land the ownership and permanent or temporary use, including lease, of which has been transferred according to prescribed procedures to natural business persons or legal entities dislocation of linear and station installations, aerials, towers and other technical means of telecommunication. Protected areas shall be established around aerial and cable lines of electric communication and radiating installations. The persons granted licenses for telecommunication activities are eligible to require land owners or land-users to establish servitudes for the construction of underground telecommunication networks and/or their reparation. The Cabinet of Ministers of Ukraine establishes rates of payments/compensation for those servitudes. 14.3.6.5 Protection of Information About the Consumer The operators and providers of telecommunications shall secure and are responsible for the protection of information about consumers and telecommunication services provided, including the reception of services, their duration, routes of transmission, etc. Generally accessible telephone directories, including their electronic versions and data bases, may contain information on the customer, if he/she consents to the publication of this information in the contract under which the telecommunication services are provided. The consumer has the right to claim complete or partial exclusion of information about him from electronic versions of databases of reference services free of charge. Information about the consumer and the telecommunications services he has received may be provided in specified cases and according to the procedure prescribed by law. In all the other cases, this information may be disseminated only if the consumer so consents in writing. 14.3.6.6 Protection of Consumers’ Interests in Cases Where Operators or Providers Terminate Their Activities in Providing Telecommunication Services An operator or provider of telecommunications services who ceases his activities is obliged to warn consumers not later than three months before the day of the ceasing. In the event that an operator’s license for numbered and/or radio-frequency resource

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is revoked due to violations of the law, the concerned operator or provider is obliged to compensate consumers for losses according to a procedure prescribed by the law. 14.3.6.7 Liability of Consumers of Telecommunication Services Customers may be penalized with fines for delays in paying for telecommunication services provided. If damage to telecommunication networks is due wholly to the fault of the customer, the customer shall be liable to reimburse the telecommunications operator for all expenditures incurred in reparation, as well as to pay compensation all other losses (including lost profit). The law also regulates the other conditions for providing telecommunication services.

14.4 Earth Observation Services, Including Data Processing and Distribution Earth observation shall be carried out on the basis of following legal documents. Ukraine’s laws “On Topography-geodesic and Cartography Activities” (1998), “On State Secrets” (1994), “On Metrology and Metrological Activities” (1998), Statute on Procedure of Disposition by Cartographic Information, approved by the Cabinet of Ministers resolution No. 269 of 25 March 1997; Statute of the State System for Environment Monitoring, approved by the Cabinet of Ministers resolution No. 391 of 30 March 1998; Procedure for Receiving, Storage, Usage and Inventory of Materials of the State Cartography-geodesic Fund of Ukraine, approved by the Cabinet of Ministers resolution No. 1344 of 22 July 1999 and other legal documents. The National Standard of Ukraine applicable to remote sensing is titled “DSTU 4758:2007 Remote Sensing of the Earth from Outer Space, Data Processing, Terminology and Definitions” entered into force on 1 October 2007.

14.4.1 Licensing of Remote Sensing Satellite Operators The State Service for Geodesy, Cartography and Cadastre attached to the Ministry of Environmental Protection of Ukraine is responsible for astronomic-geodesic and aerospace survey, remote sensing of the Earth, exploration of natural resources, and the state of the environment. This organ grants licenses for topographic-geodesic and cartographic works and ensures compliance with licensing conditions. The Licensing Conditions for Economic Activities in the Area of Topographic-geodesic and Cartographic Works are approved by the joint order No. 24/43 of the State Committee of Ukraine on Regulatory Policy and Entrepreneurship and the Ministry of Environmental Protection of Ukraine dated 12 February 2001.

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In particular, Licensing Conditions establish qualifications, organizational, technological and the other requirements for economic activities involving remote sensing of the Earth. The licensing conditions are compulsory for all economic agents regardless of their organizational, legal, and ownership structure. An economic agent may carry out topographic-geodesic and cartographic works under the following conditions: – depending on the description of works, availability in the agent’s staff of specialists of a particular profile who have graduated from universities with geodesy qualification. The same requirements are set for natural persons who are subjects of entrepreneurship – they should have the relevant qualification. They are required to use prescribed equipment certified as meeting established levels of precision and as having passed the relevant metrological tests.

14.4.2 Distribution of Data In Ukraine, the law has established the manner of disposition (providing for usage and sale) of state-owned, declassified information obtained from aerospace surveys. A special regime is established for classified information. Legal entities and natural persons possessing classified data determine the procedure for their distribution. Regardless of its ownership, cartographic information, including data from aerospace surveys, is subject to compulsory registration and inventory at the State Cartography-geodesic Fund of Ukraine. The Ministry of Environmental Protection defines the content and volume of the information as well as the procedures for inventory and access to the information. State-owned cartographic information transferred to the Fund shall be provided for use on a contractual basis. In particular, for organs of the state exercising executive powers and local governments, such state-owned information must be provided free of charge. Legal entities and natural persons who intend to purchase cartographic information or acquire it for usage shall file a request to that effect with the Main Administration for Geodesy, Cartography and Cadastre attached to the Cabinet of Ministers of Ukraine. This request shall be considered within a month period. The rates chargeable for state-owned cartographic information shall be defined taking into consideration: the significance of the object enquired about; the level of comprehensiveness and the detailed character of the information sought; the demand for this information; the expenditure incurred in its preparation; and, the purpose of its usage. The export of cartographic information shall be carried out in accordance with Ukraine’s law on foreign economic activities. A positive resolution of the expert commission composed by the Main Administration for Geodesy, Cartography and

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Cadastre and the Ministry of Environmental Protection concerning possibility of exporting a particular item is a necessary prerequisite for customs formalities.

14.4.3 National Security Concerns According to the Law of Ukraine “On Topography-geodesic and Cartography Activities”, remote sensing of the Earth and geodynamic research on the basis of geodesic and space measurements are considered as topographic-geodesic and cartographic works. At the same time, the applicable Licensing Conditions state that the licensee shall obtain special permission of the Security Service of Ukraine (SSU) in accordance with the Law of Ukraine “On State Secrets” if he/she is going to carry out topographic-geodesic and cartographic works of national and special designation which might constitute state secrets. Such permission may be granted based on results of an expert opinion. Procedure to seek such expertise is established under Article 20 of the Law of Ukraine “On State Secrets”. The SSU has discretion to specify the duration of permissions granted. However, it may not exceed 5 years. The permission may be revoked by the SSU in the event of its breach by the licensee. On the basis of above-mentioned expertise, the SSU designates different levels of secrecy regimes [i.e. different levels of accessibility to national secret information] for state bodies, local governments and institutions if their activities are in any way related to state secrets. This information is reflected in the permissions granted. The Cabinet of Ministers of Ukraine defines the procedure for the grant, transfer, termination or revocation of permissions for activities related to state secrets.

14.5 Intellectual Property and Transfer of Technology 14.5.1 Acquisition of Intellectual Property Rights Ukraine began to enact its own legislation on intellectual property rights starting from the early 1990s. On 25 December 1991, Ukraine confirmed its participation in the Paris Convention for the Protection of Industrial Property, the Madrid Agreement Concerning the International Registration of Marks, the Agreement on Patent Cooperation and the Universal Copyright Convention. A number of laws on the protection of intellectual property rights were adopted, including the laws “On Protection of the Rights on Inventions and Useful Models” (15 December 1993), “On Protection of the Rights on Industrial Samples” (15 December 1993), “On Protection of the Rights on Trademarks” (15 December 1993), and “On Protection of Copyright and Adjacent Rights” (23 December 1993). These laws were drafted taking into consideration the applicable international standards. Articles 41 and 54 of the Constitution of Ukraine guarantee the protection of intellectual property rights.

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14.5.2 Mechanism for Exploiting IP Rights Following the collapse of the Soviet Union, problems have arisen in the distribution of intellectual property because, previously, the space sector was part of single Soviet economic system. The most serious problem existed between Ukraine and the Russian Federation (Russia), because among the many soviet republics, these two countries hosted most of the space enterprises. As a rule, those problems have been resolved through bilateral intergovernmental agreements. The principal one is the Agreement between the Government of Ukraine and the Government of the Russian Federation “On Cooperation in the Area of Industrial Property Protection” (30 June 1993). The Parties to that agreement have recognized Soviet documents on objects of industrial property according to the conditions established by the legislation of each Party. Both Parties have established in their respective statutes the right to convert Soviet author’s certificates on inventions or industrial samples into national patents. The agreement has also established “the right of previous use”, a development which is of extreme importance to the space sector. Any natural person or legal entity who has used an invention (industrial sample) in good faith for his undertaking in Ukraine or Russia, or has made relevant preparations before an application for national patent on the basis of Soviet author’s certificate is made, may continue this usage without concluding a licensing agreement with the patentee. This person shall remunerate the author of the invention (industrial sample) according to the law of the state where the invention was applied. Therefore, Ukrainian and Russian space sector enterprises have the opportunity to continue their activities, including production, without concluding licensing agreements, despite the fact that another person may have protected his intellectual property rights in relation to the invention or industrial process being used. At the same time, any enterprise which uses the invention in good faith is not obliged to conclude a licensing agreement or agreement on the right of industrial property transfer with the protected third party.

14.5.3 Trade and Transfer of Technology On 14 September 2006, the Law of Ukraine “On State Regulation of Activities in the Area of Technology Transfer” was adopted. It has established legal, economic, organizational and financial principles of state regulation of activities in the area of technology. Its aims are to promote: an effective use of the scientific, technical and intellectual potential of Ukraine; the protection of property rights in domestic technologies in the territories of states where those technologies are used or are planned to be used; and, the strengthening of international cooperation in the area. The Ministry of Education and Science of Ukraine (MESU) is a special authorized body in the area of technology transfer. The Law envisages, inter alia, the following instruments for the promotion of technology transfer:

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• state subsidies for technology transfer: amount and time distribution of subsidies shall be included into financial plans for technology transfer approved by the Commission of the Cabinet of Ministers on Organization of Activities of Technological Parks and Innovation Structure of Other Types. The amount of subsidy shall not be less than the tax charged in the process of technology transfer; • state guaranty for returning of credits provided by commercial banks for purchase of technologies and their components, if the Cabinet of Ministers has made a decision that the state or society requires those technologies; • state register of technologies shall be kept by the MESU and shall include technologies created for state funding and those offered for inclusion into the register by the subjects of technology transfer (owners of technologies); • patent situation research in the area of technology transfer is a systematized scientific analysis of the properties of technologies and their components based on their legal protection, conditions at technology markets, patent and license situation and ways of production. It is carried out according to the state standards in cases of forecasting for technology developments, their creation, and evaluation of expediency of their acquisition or transfer; • state expertise and state registration of contracts on technology transfer and keeping of state register for those contracts – powers of the MESU; • financing of patenting inventions (industrial samples) abroad from the State Budget of Ukraine or other sources attracted by the MESU; • state accreditation of natural persons and legal entities for the right to carry out mediatory activities in the area of technology transfer (introduction of the institute of technological brokers).

14.5.4 National Legal Barriers to International Transfer of Space Technology International technology transfer shall be carried out taking into consideration the laws of Ukraine “On Foreign Economic Activities”, “On Scientific and Scientific-Technical Activities”, “On Scientific and Scientific-Technical Expertise”, “On Ecological Expertise”, “On Scientific-Technical Information”, “On Innovation Activities”, “On Protection of the Rights on Inventions and Useful Models”, “On Protection of the Rights on Industrial Samples”, “On Protection of Copyright and Adjacent Rights”, “On State Control for International Transfer of Military and Dual-use Goods”, and “On National Integrated Program for High Technologies Development”. The broad spectrum of requirements, as well as complicated and prolonged procedures established by the foregoing statutes, create certain barriers to the international transfer of space technologies. In a number of cases the transfer of space technologies is hampered by the legal uncertainty in the distribution of intellectual property among the independent states that emerged after the collapse of the USSR. Foremost of all concerns the intellectual property that was created during the Soviet

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era using funding from the All-Union budget. Due to the different positions taken by Ukraine and Russia, an agreement on such issues has not been concluded between the two countries up till now.

14.6 Satellite Navigation Services “The Development of Land Infrastructure of Navigation and Special Information Systems” is one of eight components of the National Space Program of Ukraine for 2003–2007. It envisages, in particular, the following measures: • launching of a system for Ukraine’s space navigation and time support; • elaboration of the equipment and technologies for operative informational support of the safety of mobile and remote fixed objects on the basis of space systems for navigation and communication; • launching of the computerized system for collection and processing of geophysical information; • control and analysis of space situation and ballistic support for flights of space apparatuses; and, • modernization of available facilities of the functional centres, dual-use complexes and systems for the purposes of special informational support. The National Space Agency of Ukraine is responsible for introduction of satellite telecommunication technologies aimed at creating and supporting the integrity of the state navigation capability and the system of uniform time. Taking into consideration available cooperative relations between the space sectors of Ukraine and Russia, as well as demand for high-quality satellite navigation service for stable and mobile consumers, the NSAU and the Russian Aerospace Agency signed the Memorandum in the Area of Cooperation of Global Navigation Satellite Systems on 14 February 2003. According to the Memorandum, the following directions are considered as prioritized in the area: • cooperation for activities of Ukrainian and Russian enterprises in the area of design, certification, standardization and promotion on the satellite navigation equipment markets; • cooperation to create regional differential amendments for the GLONASS and GPS systems in the territories of Ukraine and Russia and exchange of information related to the navigation field control; and, • promotion of activities for the creation of prospective global navigation satellite systems and development of existing ones. According to Agreement on Peaceful Uses of Outer Space between the Government of Ukraine and the European Space Agency dated 25 January 2008, the satellite navigation is also recognised as a priority area for cooperation between the Parties.

Chapter 15

Regulation of Space Activities in the United Kingdom Sa’id Mosteshar

15.1 General Philosophy and Processes of Government Regulations 15.1.1 The United Kingdom Legal System The United Kingdom (UK) was created in 1801, by the union of Great Britain and Ireland. It took its current form in 1922 when Ireland was partitioned into the Republic of Ireland (Eire) and Northern Ireland. The United Kingdom of Great Britain and Northern Ireland comprises four countries: England, Wales, Scotland and Northern Ireland. It has three distinct legal systems, one for England and Wales, with Scotland and Northern Ireland each having their own. Each has its own court system and legal profession. Therefore, strictly, there is no UK legal system. Although the national systems that makeup the UK legal system are based in common law, they have different pedigrees. For instance, Roman law heavily influences the law of Scotland, while the laws of England have their roots in Norman law. In most matters, legislation is nevertheless extended to apply equally throughout the UK, although it is administered differently in each of the component jurisdictions. The UK joined the European Economic Community, now the European Union1 (EU) in 1973. Since then it has been required to incorporate European legislation into UK law, and to recognise the jurisdiction of the European Court of Justice (ECJ) in matters of EU law.

S. Mosteshar (B) London Institute of Space Policy and Law, London WC1B 5DR, England e-mail: Sa’[email protected] 1 See

the Maastricht Treaty 1992.

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_15,  C Springer Science+Business Media B.V. 2010

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15.1.2 Background and Constitution Neither the UK nor its component countries have a written constitution. The constitutional law of the UK consists of statute law and case law. Judicial precedent is applied in the courts by judges interpreting statute law. A third element consists of constitutional conventions that do not have statutory authority, but that are, nevertheless, treated as having binding force. Much of the relationship between the Sovereign and Parliament is conventional rather than statutory. The Queen is the Head of State, although in practice the supreme authority of the Crown is carried by the government of the day. The Government is made up of the Prime Minister, who is the leader of the majority party in the House of Commons, and ministers with departmental responsibilities who are chosen by the Prime Minister. Of these, the Ministers of State form the Cabinet. The UK Parliamentary legislature comprises the House of Commons, with 659 Members of Parliament (MPs), elected by simple majority vote in a general election, and The House of Lords.2 Since 1997 there have been significant constitutional reforms, making it necessary to exercise caution in any reliance on earlier descriptions of the UK legal system. As part of these reforms, certain aspects of government were devolved to the component countries of the UK. A separate Scottish Parliament and a Welsh Assembly were established. Northern Ireland already had its own Assembly. To distinguish the UK Parliament from these new legislatures, it is usually referred to as Westminster.

15.1.3 Organisation of National Space Activities Until recently, unlike most countries active in space, the UK had no independent space agency. One of the Government ministries, the Department of Business, Innovation and Skills (BIS), was primarily responsible for the development of UK space policy and regulation of space activity. On 1 April 2010 the UK Space Agency was established. It will continue to discharge this responsibilities of the British National Space Agency (BNSC). But, the Agency will bring all UK civil space activities under one single management. It also acts as the UK point of contact with the European Space Agency (ESA), the European Commission, and other space agencies and countries. The main task of the BNSC was to coordinate the space activities of its Partners. The BNSC was connected with ten Government Departments and non-departmental

2 Until

recently the House of Lords consisted of life peers, awarded peerages for public service, and a large number of hereditary peers. The current Government is in the process of reforming the House of Lords.

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public bodies3 (NDPBs), with a remit to co-ordinate UK civil space activity; support academic research; nurture the UK space industry; and work to increase understanding of space science and its practical benefits.4 The Agency will do the same. The BNSC’s objectives were to enhance the UK’s standing in astronomy, planetary and environmental sciences; to stimulate increased productivity by promoting the use of space in government, science and commerce; and to develop innovative space systems, in order to deliver sustainable improvement in the quality of life. The BNSC advised the Government on policy issues through the BNSC Policy Unit, which ultimately emanates from the Space Advisory Council, having filtered through a series of committees and boards.5 The main bodies involved are the UK Space Board, composed of high level officials from each of the five BNSC majority funding Partners, and the Space Advisory Council. The Agency is to have its own funding. A new Space Leadership Council is formed to advise on policy and priorities. [See www.ukspaceagency.bis.gov.uk]

15.1.4 Law Governing Space Activity The Outer Space Act 1986 (OSA) provides the legal and regulatory framework for space activities by organisations established in the UK and by UK nationals,6 wherever conducted.7 The Act has been extended to Guernsey, the Isle of Man, Jersey (all Crown Dependencies) and (with modifications) to Gibraltar, Bermuda and Cayman

3 BNSC

Partners are: Department for Business, Innovation and Skills, (BIS); Department for Children, Schools and Families, (DCSF); Department for Transport, (DfT); Ministry of Defence, (MoD); Foreign and Commonwealth Office, (FCO); Department for Environment, Food and Rural Affairs, (Defra); Natural Environment Research Council, (NERC); Science and Technology Facilities Council, (STfC); Met Office; and Technology Strategy Board, (TSB). 4 www.bnsc.gov.uk (accessed: 15 November 2009). 5 The Committee and Board structure is described in the Consultation Document on Funding and Management of UK Civil Space Activities; See www.bnsc.gov.uk (accessed: 15 November 2009). 6 OSA, Section 2 provides: (1) This Act applies to United Kingdom nationals, Scottish firms, and bodies incorporated under the law of any part of the United Kingdom. (2) For this purpose “United Kingdom national” means an individual who is(a) a British citizen, a British Dependent Territories citizen, a British National (Overseas), or a British Overseas citizen, (b) a person who under the British Nationality Act 1981 is a British subject, or (c) a British protected person within the meaning of that Act. 7 OSA,

Section 1(a).

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Islands (British Overseas Territories).8 Jurisdiction under the OSA is, therefore, in personam, rather than territorial, or subject-matter jurisdiction. All space activities9 carried out by individuals or organisations established in the UK or its Crown Dependencies and Overseas Territories need to be licensed10 under the OSA. The OSA confers licensing11 and other powers on the Secretary of State for Business, Innovation and Skills, who exercises them through the Agency. The OSA seeks to ensure compliance with the UK’s obligations under international treaties and principles covering the use of outer space, including liability for damage caused by space objects, the registration of objects launched into outer space and the principles for the remote sensing of the Earth. All persons to whom the OSA applies, whether licensed or not, must indemnify the UK Government against any claims for damage or loss arising out of licensable activities.12 This is a mandatory statutory obligation, on which no financial limit is set.13 At the time of its enactment, this obligation was consistent with that under US 8 OSA,

Section 15(6); Outer Space Act 1986 (Guernsey) Order 1990 S.I. 1990/248, Article 2; Outer Space Act 1986 (Isle of Man) Order 1990 S.I. 1990/596, Article 2; Outer Space Act 1986 (Jersey) Order 1990 S.I. 1990/597, Article 2; Outer Space Act 1986 (Gibraltar) Order 1996 S.I. 1996/1916, Arts. 1, 3, Sch; Outer Space Act 1986 (Cayman Islands) Order 1998 Statutory instruments 1998 2563 Applicants from one of the UK’s Overseas Territories to which the Act has been extended (Cayman Islands, Gibraltar, Bermuda) will need to apply to their own Governor’s office for an OSA licence. For the distinction between Crown Dependencies and Overseas Territories see http://en.wikipedia.org/wiki/Crown_Dependencies and http://en.wikipedia.org/wiki/British_overseas_territory. 9 OSA, Section 1 provides: This Act applies to the following activities whether carried on in the United Kingdom or elsewhere(a) launching or procuring the launch of a space object; (b) operating a space object; (c) any activity in outer space. “Procuring” is not defined. However, examples of licences under the OSA define “Licensed Activity” as “procuring from a launch service provider a service comprising the launch and deployment into . . . orbit of the Satellite . . . and operation of the Satellite.” See http://www.bnsc.gov.uk/assets/channels/industry/OSA2008Example.pdf (accessed: 15 November 2009). 10 OSA, Sections 3(1) and 4. No licence is required by employees or agents, or in case of activities whereby the UK’s international obligations are discharged by arrangements with another country or otherwise; OSA, Sections 3(2), (3). 11 OSA, Section 3(1). 12 OSA, Section 10. 13 OSA, Section 10(1) provides: A person to whom this Act applies shall indemnify Her Majesty’s government in the United Kingdom against any claims brought against the government in respect of damage or loss arising out of activities carried on by him to which this Act applies. [Emphasis added]

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legislation. The US soon thereafter amended its laws14 to limit the obligation, but the UK is yet to do the same. Whether such limitation would constitute an illegal subsidy under EU competition laws remains debatable. Many of the general provisions of the OSA, and of licences, are more fully discussed below in relation to launch services.

15.2 Legal Issues Related to Launch Services (Space Transportation Systems) Launch activities are not currently carried on in any part of the UK or of its dependent territories. There is no specific regulation of launch services as an activity per se. As stated above, they are regulated only if conducted by a person to whom the OSA applies. Launch services and related acts conducted anywhere in the world by UK nationals,15 companies formed under the laws of the UK, including Scottish firms, need to be licensed.16 Before a launch is conducted or procured by a person to whom the OSA applies, it is necessary for that person to obtain a licence. An application for the licence is made to the Agency at least six months before commencing the relevant operation.17 Those intending to carry out a launch need to demonstrate that they have clear understanding of the hazards involved in the planned space activity, and that a reasonable attempt has been made to limit those hazards.18 A Licensee is obliged to comply with certain oversight and terms imposed by the Licence. These fall into three broad categories. The Licensee needs to ensure that the space environment is preserved for all; that the international obligations of the United Kingdom are not breached; and that the BNSC, acting for the United Kingdom government, maintains control and supervision of the space activities.19 The terms of the Licence will, therefore, include requirements that the Licensee: 1. Prevent contamination of the space environment and changes to that of the Earth; 2. Avoid interference in the space activities of others; 3. Dispose of the Licensed space object appropriately at the end of the licensed activity and inform the Agency of the disposal and termination of the activity;

14 See

49 U.S.C. 70112 and 70113. Section 2; See supra footnote 8. 16 See supra footnotes 8 and 12. 17 Application is made in the specified Form provided by the Agency; See www.bnsc.gov.uk/ assets/channels/industry/OSA2008App.pdf (accessed: 15 November 2009). 18 See Annex A to the Revised Guidance for Applicants, Outer Space Act 1986; www.bnsc. gov.uk/assets/channels/industry/OSA2008Guide.pdf (accessed: 15 November 2009). 19 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, done 27 January 1967, “OST” or “Outer Space Treaty,” Article VI. 15 OSA,

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4. Avoid any breach of the UK’s international obligations; 5. Inform the Agency of any change in the licensed activity (e.g. change of orbit, change of owner) and seek approval prior to the change being made; 6. Obtain insurance against third party liabilities (currently to £100 million) arising from the licensed activity – the UK Government should be named as an additional insured and insurance should be for the launch and in-orbit phases of the mission; 7. Preserve the national security of the UK; and 8. Permit reasonable access to documents and inspection and testing of equipment and facilities by the Agency or its advisors as appropriate. The Agency does not treat certain activities as licensable.20 These are the leasing of space segment satellite capacity (transponders) for use by the lessee or by a person sub-letting the capacity; and the utilisation of space segment capacity using earth stations for either transmission or reception purposes. This exception does not apply to persons involved in telemetry, tracking and control of satellites in orbit.

15.3 Legal Issues Related to Satellite Telecommunications, Including Satellite Broadcasting 15.3.1 Law Governing Satellite Communications The combination of spectrum management and content regulation creates a large body of rules and procedures affecting communications. Satellite communications in the UK are regulated under laws applying to telecommunications and those governing broadcast services. Telecommunications systems and services are regulated under the Communications Act 2003, which has given effect to a set of EU Directives,21 modifying and substantially replacing the earlier legislation,22 and creating a unified regulatory authority, the Office of Communications (Ofcom). 20 Revised

Guidance for Applicants, Outer Space Act 1986; www.bnsc.gov.uk/assets/channels/ industry/OSA2008Guide.pdf (accessed: 15 November 2009). 21 Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services – Framework Directive (EUOJ L 108, 24.4.2002, pp. 33–50); Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorization of electronic communications networks and services – Authorization Directive (EUOJ L 108, 24.4.2002, pp. 21–32); Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities – Access Directive (EUOJ L 108, 24.4.2002, pp. 7–20); Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services – Universal Service Directive (EUOJ L 108, 24.4.2002, pp. 51–77); Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector – Directive on privacy and electronic communications (EUOJ L 201, 31.7.2002, pp. 37–47). 22 Telecommunications Act 1984 and the Broadcasting Acts 1990 and 1996.

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In regard to the telecommunications sector (as distinct from the broadcasting sector which Ofcom also regulates), the Communications Act abolished the requirement for telecommunications operators to hold a licence to provide telecommunications networks and services. Instead, a self-certification scheme was introduced whereby operators ensure compliance with a set of general conditions in order to operate and provide service.23 However, the use of spectrum continues to require a wireless telegraphy licence,24 administered by Ofcom. Individuals, companies or other organisations located in the UK, British Overseas Territories, the Channel Islands and the Isle of Man, wishing to submit applications through the UK for the management and processing of satellite filings, must follow Ofcom’s procedures.25 These include providing details for coordination and registration, in order to achieve international recognition under the ITU rules.26 Operators with significant market power27 (SMP) have additional conditions applied to them. These include conditions requiring network and service access and access pricing,28 to ensure dominant operators do not restrict competition. Broadcasters are also subject to conditions relating to the nature and content of the service they provide.29 Satellite television services30 must be licensed31 by Ofcom if they provide a television licensable content service (TLCS)32 for reception by the public and, if 23 There

are over twenty conditions to which operators must conform. Telegraphy Act 2006, Section 8. 25 See Management of Satellite Filings in Section 2 below. 26 Radio Regulations, Articles 9, 11, 30 and 30A. 27 An operator is deemed to have SMP in a particular economic market if ‘either individually or jointly with others, it enjoys a position equivalent to dominance, that is to say a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers and ultimately consumers’; 2003 Act, Section 78. 28 2003 Act, Sections 87–93. 29 2003 Act, Sections 211 et seq. and 232 et seq. 30 This covers programming or programme guides; 2003 Act, Sections 232(1)(a) and (2). 31 2003 Act, Section 211(2)(b). 32 See 2003 Act, Sections 362(1) and 232. 24 Wireless

As general guidance, a TLCS is a service broadcast from a satellite, distributed using an electronic communications network, or made available by means of a radio multiplex, which meets two basic criteria: a. The service consists of “television programmes or electronic programme guides”, or both. “Television programmes” includes conventional programmes, advertisements, text and still and moving images, as well as any ancillary services (like subtitling, audio-description or interactive programme enhancements) associated with them. “Electronic programme guides” are services that consist of the listing or promotion of programmes and programme services and provide access to them. b. The service is “available for reception by members of the public”. If a member of the public is able to receive the service (whether free to air, by paying for a subscription or buying a piece of receiving equipment) the service normally meets this criterion. See 2003 Act, Section 361

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they are provided by a person under the jurisdiction of the United Kingdom, for the purposes of Television without Frontiers Directive.33 The licence required is a TLCS Licence, which is a uniform licence for all such services, containing the same conditions.34 The nature of a TLCS can be editorial,35 tele-shopping or self-promotional.36 In each case, the licence obliges the licensee to, among other things, comply with the Code on the Scheduling of Television Advertising (COSTA).37 The COSTA sets out how much advertising a service may carry and deals with other matters such as where and when advertising can be inserted in the service. Some other conditions may apply to specific types of broadcaster. Broadcasts intended exclusively for reception in third countries, and which are not received directly or indirectly by the public in one or more EU Member State, are not

See Ofcom’s Television Licensable Content Service: Guidance Notes for Licence Applicants, Para. Para.41, 8 June 2009; http://www.ofcom.org.uk/tv/ifi/tvlicensing/guidance_ notes_and_apps/tlcs/guidance062009.pdf (“TLCS Guidance Notes”); see also 2003 Act, Secs. 362(1) and 232. TLCS licences are granted in respect of a particular licensable service, rather than in relation to a particular service provider. A service provider providing three separate services will therefore need three licences. The policy of one licence per service applies equally to services which utilise only part of a cable or satellite channel or, as with a near video-on-demand service, comprises programming spread across a number of channels. There is no limit to the number of TLCS licences which can be held by one person; TLCS Guidance Notes, Para. 44. 33 The European Television Without Frontiers Directive, 89/552/EEC, (amended by European Directive 97/36/EC), the Directive, provides for freedom of retransmission and reception for television services within the European Economic Area. A service licensed (or otherwise appropriately authorised) in one Member State does not need separate licensing in any other Member State. Dual licensing is not permitted. Ofcom can only license a service if the provider of that service (“the broadcaster”) falls under UK jurisdiction in accordance with the Television Without Frontiers Directive. In order to assess where a broadcaster is established and whether it falls under UK jurisdiction, applicants will need to apply the criteria in Article 2 of the Television Without Frontiers Directive. Applicants should also have regard to the European Convention on Transfrontier Broadcasting and its amending Protocol (ETS132 and ETS171). See http://ec.europa.eu/avpolicy/index_en.htm See Ofcom’s Television Licensable Content Service: Guidance Notes for Licence Applicants, Paras. 49 and 50, 8 June 2009; http://www.ofcom.org.uk/tv/ifi/tvlicensing/guidance_notes_and_apps/tlcs/guidance062009.pdf; (accessed: 15 November 2009). 34 See Ofcom’s Television Licensable Content Service: Guidance Notes for Licence Applicants, Para. Para. 23, 8 June 2009; http://www.ofcom.org.uk/tv/ifi/tvlicensing/guidance_ notes_and_apps/tlcs/guidance062009.pdf (accessed: 15 November 2009). 35 The majority of television channels’ programmes are editorial services, with conventional programme material and scheduled advertising breaks. These must not include transactional gambling, where viewers are offered rewards for participating. 36 Tele-shopping and self-promotional programmes are essentially advertising services. They pay different fees to Ofcom. 37 See www.ofcom.org.uk/tv/ifi/codes/code_adv/tacode.pdf (accessed: 15 November 2009).

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normally licensable by Ofcom.38 Certain public service channels39 may be required to offer their programming for carriage by satellite services.40 The Secretary of State has power to designate a foreign satellite service41 as unacceptable for reception in the UK, on the basis of a determination by the Independent Television Commission or of the Radio Authority,42 Designated Service. Such designation can only be made if the Secretary of State is satisfied that it would be in the public interest and compatible with the international obligations of the UK.43 It is an offence for any person in the UK to directly or indirectly supply (or arrange for another person to provide) for the purposes of the Designated Service, any goods or services, including programmes, advertising, or decoders.44

15.3.2 Management of Satellite Filings by Ofcom 15.3.2.1 Background International regulation of communications by the ITU distinguishes between planned and unplanned frequencies. Planned frequencies (e.g. the broadcasting satellite service45 ), comprise the worldwide frequency allotment and assignment plans with associated procedures and technical data.46 Ofcom’s procedures conform to the requirements of the ITU rules and regulations, and differ in appropriate respects in relation to planned and unplanned frequencies. These are outlined below.47

38 TLCS

Guidance Notes, Para. 54. provision applies also to public tele-text services; see also 2003 Act, Section 64. 40 2003 Act, Sections 272–275. 41 “Foreign satellite service” means a service which consists wholly or mainly in the transmission by satellite from a place outside the United Kingdom of television or sound programmes which are capable of being received in the United Kingdom; 2003 Act, Section 177(6). 42 A foreign satellite service is only determined to be unacceptable where the Independent Television Commission or the Radio Authority are satisfied that the service repeatedly contained in programmes included in the service material that offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or be offensive to public feeling; 2003 Act, Section 177(3). 43 2003 Act, Section 177(4). 44 2003 Act, Section 178. 45 Planned frequencies are a priori allotments set aside by the ITU, for specific services, in each of the ITU Regions, enabling each country to have access to the relevant frequencies irrespective of their economic development. The unplanned frequencies are those that are subject to the first come – first served rule, regarded less equitable to developing nations. 46 See ITU Radio Regulations, Appendices 30, 30A and 30B. 47 See Sections e and f below. 39 This

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As the satellite administration for the UK, Ofcom’s functions include those under the ITU Radio Regulations.48 These are incorporated in the Procedures49 for handling satellite filings made by operators through the United Kingdom.50 Ofcom’s Procedures must be followed by companies or other organisations located in the United Kingdom (UK), in the British Overseas Territories, in the Channel Islands and the Isle of Man making satellite filings through the UK. The Procedures document includes details of coordination and registration, necessary for achieving international recognition under the ITU Radio Regulations. In late 2007 Ofcom proposed a number of changes to the Procedures, of which three areas were of concern. The first relates to recovery of costs incurred by Ofcom in processing filings. Ofcom proposed to apply the cost recovery powers51 to the full cost of processing satellite filings. The second issue affecting satellite operators was the due diligence and milestone requirements. These have an impact on several of the commercial decisions to be taken by the applicant who makes a filing through Ofcom. The third was the role of Ofcom in withdrawal of filings where an operator decides not to proceed. Ofcom reviewed the Procedures52 and issued amendments.53 15.3.2.2 Cost Recovery by Ofcom Following the review, Ofcom decided to continue with the old basis of cost recovery.54 It is not clear if, or to what extent, Ofcom could legally recover overhead and other charges, given that many of the functions performed are legal obligations under international treaties. 48 ITU RR 2008 Edition; Article 5 (Frequency allocations); Article 9 (Procedure for effecting coor-

dination with or obtaining agreement of other administrations); and Article 11 (Notification and recording of frequency assignments, including advance publication, coordination and notification under Appendices). 49 See below; Procedures for the Management of Satellite Filings – a Statement on Amendments to Procedures, Ofcom, 30 May 2008; http://www.ofcom.org.uk/consult/condocs/ filings/statement/statement.pdf (accessed: 15 November 2009). 50 Procedures for the Management of Satellite Filings, Ofcom, 27 March 2007, “Procedures”, http://www.ofcom.org.uk/radiocomms/ifi/licensing/classes/satellite/procedure_manuals/spectrum _filings/satellite_filings.pdf. The functions of the Radiocommunications Agency were transferred to Ofcom on 29 December 2003, following the Communications Act 2003, Section 22. 51 Section 28(1) of the 2003 Act, provides that Ofcom may provide a service to any person on such terms “as they may determine in advance” or “as may be agreed between that person and Ofcom.” 52 Procedures for the Management of Satellite Filings: Charges and Amendments to Procedures, 8 November 2007, Closing Date 20 December 2007, (“2007 Consultation”). 53 Procedures for the Management of Satellite Filings: A Statement on Amendment to Procedures, 30 May 2008, (“2008 Statement”). 54 2007 Consultation, Sections 1.9 and 5.4. Ofcom would charge fees depending on the stage reached in the life cycle of the satellite filing and would be based on 3 stages: initial application; co-ordination phase; and post notification phase – in the period when the satellite network is operational. The charges would be scaled to reflect the different levels of support required during the life of the satellite network.

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15.3.2.3 Due Diligence Requirements by Ofcom Ofcom has an obligation to carry out due diligence, and to provide to the ITU certain information not later than 6 months prior to a satellite being brought into use.55 To discharge that obligation, Ofcom requires satellite operators to provide specific deliverables, prior to coordination being carried out. The purpose of these due diligence requirements is to ensure that filings are only submitted to the ITU where there is a reasonable prospect that the proposed networks will be brought into operation within the relevant time periods. They also serve to address the problem of reservation of orbit and spectrum capacity without actual use. Together with other relevant mechanisms, these requirements are intended to reduce paper filings and to bring more transparency to the filing process. The timing and detail sought under the Procedures were a cause for concern. In particular, it is not always the case that a satellite construction and launch contract will be signed prior to commencement of coordination.56 In order to address these issues, following the 2007 Consultation, Ofcom amended the due diligence deliverables and their timing.57 The deliverables are required for both non-planned and planned bands. However, the process may occur in a different order for planned and for non-planned bands. Any change to the business plan, including the key milestones, must be communicated to Ofcom by the applicant immediately. The Procedures give examples of key milestones to be met by the operator,58 and how a typical application may proceed. 15.3.2.4 Ofcom Action When Operator Relinquishes Filing59 Under the Procedures,60 Ofcom proposed to publicise relinquishment of a filing by the operator and to invite expressions of interest from other eligible operators. If more than one such expression of interest was received, Ofcom would conduct an award process. Many satellite operators are global in scope and are in competition with each other. Therefore, Ofcom decided not to pursue the retaining of the filing as a UK asset. The prospect of a filing on which co-ordination effort had been expended falling into the hands of a competitor was a disincentive for operators to relinquish filings voluntarily. Also, in some cases, allowing a relinquished filing to be acquired by another operator could make it more difficult for the original operator to pursue other filings. This would be a further disincentive to relinquish filings.

55 ITU

RR 2008, Article 9.1, Resolution 49. Table 1. 57 2008 Statement, Section 4.4. 58 Procedures, Annex 2. 59 2008 Statement, Sections 4.7–4.11. 60 Procedures, Sections 12.2 and 12.3. 56 Procedures,

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If the operator concerned wishes to relinquish its filing, Ofcom will now suppress a UK filing at the ITU, without inviting expressions of interest in the filing from other eligible operators.61 Further changes to these Procedures may be made once the EU communications and satellite regimes, are finalised and implemented. 15.3.2.5 Non-Planned Frequency Assignment As long as an application is valid, Ofcom will submit it to the ITU, without publishing details of the application.62 However, notification data about the application will only be submitted by Ofcom if it is satisfied that coordination has taken place with any affected UK network with higher regulatory precedence.63 A network with prior assignment may be brought into use after that of the applicant, before completion of coordination. However, if the former suffers harmful interference from the applicant network, the latter will have to mitigate the interference.64 Failing such mitigation, Ofcom may cancel the assignment.65 15.3.2.6 Planned Frequency Assignment On receiving applications66 to bring an unmodified UK assignment or allotment into operation, Ofcom will publish a notice indicating that an application has been received, and will invite other proposals. If additional applications are received, Ofcom will then carry out an award process to determine which application, if any, to accept. Similar rules apply where a satellite filing is not technically compatible with an unused assignment or allotment. However, there are some differences in the way Ofcom proceeds. These may include the modification of the assignment to accommodate the successful application, in accordance with the ITU procedures.67 In cases of technical incompatibility, Ofcom will require evidence of a coordination agreement with the operator of that existing usage or the existing proposed usage before submission to the ITU.68 For certain new applications requiring modification of a plan, with impact on existing UK assignments or allotments in that plan (including British Overseas 61 Sections 12.1, 12.2 and 12.3, and consequentially 12.8, 13.4, 13.5 and 13.9 of the Procedures are

amended. is so even where there is a technical conflict with other existing UK filings; Procedure, Para. 6.5. 63 Procedure, Para. 6.3. 64 Procedure, Para. 6.4. 65 Procedure, Para. 12. 66 See generally Procedure, Para. 6. 67 For the slightly different position in relation to British Overseas Territories see Procedure, Para. 6.12. 68 Procedure, Para. 6.10. 62 This

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Territories), the application will be treated in a similar manner to an application in the non-planned bands, i.e. Ofcom will not initiate a competitive process.69

15.4 Earth Observation Services, Including Data Processing and Distribution The UK is a leading participant in the development of satellite remote sensing technology.70 Its contributions are largely through ESA and other partnership missions.71 As a member of ESA, the UK also benefits from international arrangements between ESA and other international agencies and partners. There is no specific UK law dealing with collection and distribution of Earth Observation data. However, such activity is still subject to regulation. Earth Observation is subject to the UK requirements of national security,72 database protection rights73 and data privacy.74

15.4.1 National Security One of the requirements of the OSA is that outer space activities conducted by UK entities and nationals75 not be permitted if they impair national security.76 Therefore, no licence will be granted by the Agency to conduct remote sensing satellite operations that are likely to jeopardise UK national security. Consequently, such activity will be an offence under the OSA.77 Additionally, export controls restrict the overseas dissemination of sensed data, as well as export of sensing equipment on board a satellite.78 These controls are in part the result of international agreements and EU policy and law.79 69 Procedure,

Para. 6.9. scientists and industry are at the forefront of the development and operation of ENVISAT, the largest and most sophisticated European remote sensing satellite; www.bnsc.gov.uk/OurPlanet/Activities/Envisat/9231.aspx (accessed: 15 November 2009). 71 BNSC funded GIFTSS, Government Information From The Space Sector, and participates in CEOS, Committee on Earth Observation Satellites and ESA’s GMES, Global Monitoring for Environment and Security; www.bnsc.gov.uk/Our%20Planet/The%20environment /Earth%20observation/10309.aspx (accessed: 15 November 2009). 72 OSA, Section 4(2)(c); See BNSC Licence conditions, Para. (b) above. 73 Copyright, Designs and Patents Act 1988, Sections 3(1)(d) and 3A. 74 Data Protection Act 1998. 75 OSA, Sections 1 and 2(2). 76 OSA, Section 4(2)(c). 77 OSA, Section 3(1). 78 Export Control Act 2002; Export Control Order 2008. 79 See www.berr.gov.uk/whatwedo/europeandtrade/strategic-export-control/legislation/index.html (accessed: 15 November 2009). 70 UK

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15.4.2 Database Rights These are discussed in the next section.

15.4.3 Privacy Depending on the detail of the images, it may be that the privacy rights of an individual are breached by satellite earth observation activities.80 In general, there is a breach when the data is such as to identify the individual and disclose personal information relating to the individual. Public authorities have a positive obligation to make available environmental information held by them.81

15.5 Intellectual Property and Transfer of Technology 15.5.1 Copyright and Database Right Remote sensing activities by European operators raise the question of how to protect data from Earth observation satellites. These are very costly programmes and a legal tool is needed to enable satellite operators to protect their investment and to commercialise Earth observation data. No private investors will engage in the creation of computer products derived from data unless they are certain that the legal tools exist to recover their investment. A study carried out on behalf of the European Commission confirmed the confusion about which type of law should be applied (copyright, trade secrets or ownership rights), and that existing European legislation did not cover remote sensing data.82

80 Data

Protection Act 1998; Civil Procedure Rules 1998 (SI 1998/3132); Civil Procedure Rules 1998 (SI 1998/3132); European Convention for the Protection of Human Rights and Fundamental Freedoms 1950; Murray v Big Pictures (UK) Ltd [2008] 2 FLR 599, Campbell v MGN [2004] 2 AC 457; Von Hannover v Germany (Application No 59320/00) (2005) 40 EHRR 1, ECHR. 81 The Environmental Information Regulations 2004, Statutory Instrument 2004 No. 3391; Directive 2003/4/EC of the European Parliament and the Council of 28th January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ L 41, 14.2.2003, p26); Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) 1998 – United Nations Economic Commission for Europe (UNECE). 82 See Sa’id Mosteshar, Report commissioned by the European Commission presented in March 1993, Conditions of Access to Earth Observation Data: Legal Aspects – United Kingdom and Irish Republic Chapters, ECSL, April 1993.

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Following the study, the European Commission issued the Directive on Protection of Databases,83 implemented in the UK in 1997.84 This amended the 1988 Copyright Act by adding databases to the definition of works entitled to protection85 under the Act. It also created a database right86 belonging to the owner,87 which makes any unauthorised extraction or re-utilisation of all or a substantial part of the database content an infringement of the database right.88 The right is aimed at protecting those who take initiative in obtaining, verifying or presenting the contents of a database.89 Other specific rights under the 1988 Copyright Act are also applied to databases.90

15.5.2 Technology Transfer For a brief discussion of technology transfer regulations see Export Control above.

15.6 Satellite Navigational Services There are no specific regulations on satellite navigation services. Rules dealing with data protection and export control discussed in previous sections of this chapter are applicable to them.

83 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal

protection of databases; OJ L 077, 27/03/1996 P. 0020 – 0028. Copyright and Rights in Databases Regulations 1997 (S.I. 1997/3032); Copyright, Designs and Patents Act 1988, 1988 Copyright Act. 85 1988 Copyright Act, Sections 3 and 3A. 86 SI 1997/3032, Regulation 13 provides: 84 The

13 Database right (1) A property right (“database right”) subsists, in accordance with this Part, in a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database. (2) For the purposes of paragraph (1) it is immaterial whether or not the database or any of its contents is a copyright work, within the meaning of Part I of the 1988 Act. 87 SI

1997/3032, Regulations 14 and 15. 1997/3032, Regulation 16. 89 See definition of maker, SI 1997/3032, Regulations 14(1) and (5). 90 SI 1997/3032, Regulation 23. 88 SI

Chapter 16

Overview of the United States Space Policy and Law Paul Stephen Dempsey

16.1 Introduction The United States has been a major participant in space exploration and use. Its policies have helped shape the development of international law on the subject. Its domestic laws also provide a framework for the use of space by the private sector. Policies of the United States government regarding space can be found in both the language of statutes promulgated by Congress (wherein the Congress declares national policy), and in directives, executive orders and other communications of the President.1 The Congress holds hearings, conducts investigations, and promulgates legislation. The President implements the law. He is also commander-in-chief of the armed forces, chief foreign policy officer of the nation, and head of the executive branch of government, which includes most of the relevant space agencies: • The National Aeronautics and Space Administration [NASA], which is the leading federal agency performing research, technology and development of aeronautical and space science, exploration and application; • The Department of State [DOS], which has jurisdiction over export controls, and negotiates bilateral and multilateral treaties; • The Department of Transportation [DOT], which licenses and promotes commercial launch operations, exercising launch and payload approval in conjunction with other agencies, such as the Federal Communications Commission [FCC], which regulates radio frequencies for telecommunications, broadcasting and other purposes;

P.S. Dempsey (B) McGill University, Montreal, QC, Canada e-mail: [email protected] Reprinted in slightly edited form with permission from Oxford University Press, Oxford, England. 1A

new US Space Policy was issued in 2006 to supersede the national space policy issued a decade earlier. National Security Presidential Directive, August 31, 2006, “National Space Policy”; http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf (accessed: October 9, 2006).

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_16,  C Springer Science+Business Media B.V. 2010

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• The Department of Commerce [DOC], whose National Oceanic and Atmospheric Administration [NOAA] engages in remote sensing, gathers data, conducts research, makes predictions about the Earth’s environment, and whose Office of Space Commercialization coordinates space-related issues and programs within DOC; and • The Department of Defense [DOD], which uses space for intelligence gathering, communications, and potentially, for missile defense. Policies set the tenor and tone of law, though they are not legal directives per se. However, they do reveal the overriding goals of the legislative body as expressed in the law, and of the executive branch in the implementation of law. The policies of the US executive and legislative branches fall into the following general categories: Leadership Cooperation Peace Defense Science and Technology Cost-Effectiveness Commercialization Environmental Protection

Some of these policies inherently conflict. Global leadership in space technology, research and development may conflict with goals of international cooperation. Policies promoting the peaceful use of space may conflict with national defense concerns, though the US government does not recognize separate categories for peace and defense. The use of space for defense intelligence-gathering purposes may also conflict with stated goals of international cooperation in space. The use of weapons in space may create debris effectively inhibiting commercial uses of space. The aspirations of science and technological development may conflict with goals of cost effectiveness or environmental protection. All these competing goals have been the subject of US Space Policy, and the implementing agencies are left to sort through them as best they can. This chapter is divided into two sections. The first addresses the space policies of the United States, and how they have evolved over time. The second addresses the substantive national space laws of the United States.

16.2 Space Policies 16.2.1 Leadership The Soviet Union launched the first satellite (Sputnik) into orbit on October 4, 1957.2 This launch blazed a path of Soviet accomplishments in space eclipsing 2 The

USSR sent the first animal (a dog, named Laika) into space the following month.

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the nascent US space program3 and marked the beginning of an intense space rivalry between the USSR and the United States, which lasted throughout the Cold War. Both space powers realized the importance of space as the ultimate “high ground”. Therefore, the launch of Sputnik was seen not only as a scientific achievement, but also as the trigger of a military revolution with extraordinary strategic consequences.4 In an address to the US Congress the following month, President John F. Kennedy expressed his belief that it was “time for this nation to take a clearly leading role in space”, and his determination that the United States reestablish its leadership in space by putting a man on the moon: “I believe that this nation should commit itself to achieving the goal, before this decade is out, of landing a man on the moon and returning him safety to the earth.”5 That goal was accomplished on July 20, 1969, with astronauts planting a US flag (and not a UN flag) on the surface of the moon to leave no doubt about which nation had accomplished the feat.6 President Kennedy elaborated on the need for US leadership in the race for space: The exploration of space will go ahead, whether we join in it or not, . . . and no nation which expects to be the leader of other nations can expect to stay behind in the race for space. Those who came before us made certain that this country rode the first waves of the industrial revolutions, the first waves of modern invention, and the first waves of nuclear power, and this generation does not intend to founder in the backwash of the coming age of space. We mean to be a part of it—we mean to lead it. . . . [W]e have vowed that we shall not see [space] governed by a hostile flag of conquest, but by a banner of freedom and peace. We have vowed that we shall not see space filled with weapons of mass destruction, but with instruments of knowledge and understanding. Yet the vows of this Nation can only be fulfilled if we in this Nation are first, and, therefore, we intend to be first. In short, our leadership in science and industry, our hopes for peace and security, our obligations to ourselves as well as others, all require us to make this effort, to solve these mysteries, to solve them for the good of all men, and to become the world’s leading space-faring nation. . .. We choose to go to the moon. We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard, because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win. . . .7

3 The

Soviets sent the first human (Yuri Garagin) into space on April 12, 1961. In May 1961, the US sent its first astronaut (Alan Shepard) into space. In 1965, a Soviet astronaut became the first to walk in space. 4 Ivan Vlasic, “The Legal Aspects of Peaceful and Non-Peaceful Uses of Outer Space” in B. Jasani, ed., Peaceful and Non-Peaceful Uses of Space. Problems of Definition for the Prevention of an Arms Race (New York, NY: Taylor & Francis, 1991). 5 John Kennedy, Special Message to the Congress on Urgent National Needs (May 25, 1961). 6 Americans (beginning with Neil Armstrong) set foot on the Moon on July 20, 1969. The Soviets launched the first space station (Salyut I) on June 30, 1971. An unmanned American probe (Viking I) became the first earth object to land on Mars, on July 20, 1976. 7 John Kennedy, Address at Rice University on the Nation’s Space Effort (September 12, 1962).

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The United States was firmly committed to winning the space “race”.8 President Jimmy Carter decreed that US civil space programs should be pursued to “maintain United States leadership in space science, applications, and technology.”9 In his 1983 policy statement, President Reagan said, “The United States is fully committed to maintaining world leadership in space transportation. . .” and “preserve the United States preeminence in critical major space activities to enable continued exploitation and exploration of space.”10 In his 1988 policy statement, Reagan elaborated: [A] fundamental objective guiding United States space activities has been, and continues to be, space leadership. Leadership in an increasingly competitive international environment does not require United States preeminence in all areas and disciplines of space enterprise. It does require United States preeminence in key areas of space activity critical to achieving our national security, scientific, technical, economic, and foreign policy goals.11

In his 1996 policy statement, President Bill Clinton also emphasized the leadership role the United States had staked out for itself: For over three decades, the United States has led the world in the exploration and use of outer space. Our achievements in space have inspired a generation of Americans and people throughout the world. We will maintain this leadership role by supporting a strong, stable and balanced national space program that serves our goals in national security, foreign policy, economic growth, environmental stewardship and scientific and technical excellence.12

US Space Policy expressed by Congress reflects the nation’s “pioneer heritage and demonstrates [US] quest for leadership, economic growth and human understanding”.13 An important goal of US space policy has been and is to preserve “the role of the United States as a leader in aeronautical and space science and technology and in the application thereof”,14 and “leadership in the quest for international peace and progress toward human freedom, dignity, and well being. . . .”15 So too,

8 “One cannot help but observe the will of US lawmakers to grant their nation the legislative means

to support a flourishing industry so that it can maintain its leadership position far ahead of its competitors, political ones in a recent past with the former USSR, and commercial ones nowadays with Western Europe and Asia.” Patrick Salin, An Overview of US Commercial Space Legislation and Policies – Present and Future, 27 Air & Space L. 209, 210 (2002). 9 Jimmy Carter, National Space Policy, Presidential Directive/NSC-37 (May 11, 1978). 10 Ronald Reagan, National Space Policy, National Security Decision Directive No. 42 (July 4, 1982). 11 Ronald Reagan, Presidential Directive on National Space Policy (February 11, 1988). 12 Presidential Decision Directive (PDD)/NSC-49/NSTC-8, National Space Policy (September 14, 1996). 13 National Aeronautics and Space Administration Authorization Act of 1991, § 101(3), Pub. L. 101–611, (November 16, 1990). 14 National Aeronautics and Space Act of 1958 § 102(d)(5), Pub. L. 85–568 (as amended through Pub. L. 106–391, 114 Stat. 1577 (October 30, 2000). 15 National Science and Technology Policy, Organization and Priorities Act of 1976 § 101(b)(1), Pub. L. 94–282, 90 Stat. 459 (May 11, 1976).

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is “preservation of the United States preeminent position in aeronautics and space” in research, development, technology, and manufacturing.16 The international competitive position of the US is to be enhanced,17 for “preeminence in space and aeronautics is key to the national security and economic well being of the United States”,18 and “aeronautical research and development sustains [US] leadership in air transport and military aviation worldwide”.19 The US has rededicated itself “to the goal of leadership in the critical areas of space science, space exploration, and space commercialization”.20 A fundamental objective of US space policy is to “Strengthen the nation’s space leadership . . . .”21 The “Landsat system established the United States as the world leader in land remote sensing technology” and the “national interest of the United States lies in maintaining international leadership in satellite land remote sensing and in broadly promoting the beneficial use of remote sensing data.”22 The US aeronautics and space program contributes importantly to the nation’s technological competitive advantage in the world economy,23 and is viewed as directly linked to the long-term productivity and growth of the US economy,24 and a healthy employment base.25 In announcing a goal to return humans to the moon by 2020, and to use the Moon as a stepping stone toward Mars, President George W. Bush (the Younger) reminded the nation, “Just as Mercury, Gemini, and Apollo challenged a generation of Americans, a renewed US space exploration program with significant human components can inspire us – and our youth – to greater achievements on Earth and in space.”26 16 National

Aeronautics and Space Act of 1958 § 102(d)(9), Pub. L. 85–568 (as amended through Pub. L. 106–391, 114 Stat. 1577 (October 30, 2000); National Aeronautics and Space Administration Authorization Act of 1986 §§ 201–02, Pub. L. 99–170, 99 Stat. 1012 (December 5, 1985). 17 National Aeronautics and Space Administration Authorization Act of 1986 § 202(4), Pub. L. 99–170, 99 Stat. 1012 (December 5, 1985). 18 National Aeronautics and Space Administration Authorization Act of 1989 § 101(4), Pub. L. 100–685, 102 Stat. 4083 (November 17, 1988). 19 National Aeronautics and Space Administration Authorization Act of 1993 § 101(12), Pub. L. 102–588, 106 Stat. 5107 (November 4, 1992). 20 National Aeronautics and Space Administration Authorization Act of 1991, § 102(1), Pub. L. 101–611, (November 16, 1990). 21 National Security Presidential Directive, August 31, 2006, “National Space Policy” ¶ 3; http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf (accessed: October 9, 2006). 22 Land Remote Sensing Policy Act of 1992 § 2(2)(3), Pub. L. 102–555, 106 Stat. 4163 (October 28, 1992). 23 National Aeronautics and Space Administration Authorization Act of 1991, § 101(7), Pub. L. 101–611, (November 16, 1990). 24 National Aeronautics and Space Administration Authorization Act of 1993 § 101(1), Pub. L. 102–588, 106 Stat. 5107 (November 4, 1992). 25 National Aeronautics and Space Administration Authorization Act of 1993 § 101(3), Pub. L. 102–588, 106 Stat. 5107 (November 4, 1992). 26 George W. Bush, A Renewed Spirit of Discovery (January 14. 2004), reprinted in Space Law IV.B.1. (P. Dempsey, ed. February 2006).

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16.2.2 Cooperation Though leadership is an important goal, so too is cooperation with other nations in the peaceful application of the research performed.27 In 1963, President John F. Kennedy extended an offer of cooperation in space exploration to the Soviet Union, including the possibility of a joint expedition to the moon. “Surely, [he appealed to the Soviet leaders] we should explore whether the scientists and astronauts of our two countries – indeed of all the world – cannot work together in the conquest of space, sending someday in this decade to the moon not the representative of a single nation, but the representatives of all of our countries.”28 But decades would pass as the two nations engaged both in a space race, and a weapons race. President Carter’s space policy expressed an interest in international cooperation in space-related activities where they are “beneficial to the United States scientifically, politically, economically, and/or militarily.”29 President Reagan reaffirmed this policy, though he substituted the phrase “national security” for the term “militarily”,30 a subtle effort to reaffirm the right of self-defense vis-à-vis militarization of space. Reagan favored “joint scientific and research programs that yield sufficient benefits to the United States in areas as access to foreign scientific and technological expertise, and access to foreign research and development facilities. . ..”31 With the end of the Cold War, legislation called for closer scientific cooperation with the republics of the former Soviet Union, including cooperative use of the Soviet space station.32 US-Russian cooperation in space was reflected in development of the International Space Station. It began with the flight of a Russian cosmonaut (Sergei Krikalev) aboard a US shuttle in 1994. The following year, Dr. Norm Thagard became the first American to stay aboard a Russian space station. President Bush (the Younger) reaffirmed the desirability of completing the assembly of the International Space Station, “including the US components that support US space exploration goals and those provided by foreign partners”.33 International cooperation is an explicit part of US defense policy. In its space policy, the US Department of Defense declared that: multinational alliances can increase U.S. space capabilities and reduce costs, as well as give the U.S. access to foreign investment, technology and expertise . . . Civil multinational

27 National Aeronautics and Space Act of 1958 §§ 102(d)(7), 205, 404, Pub. L. 85–568 (as amended

through Pub. L. 106–391, 114 Stat. 1577 (October 30, 2000). 28 Ibid. 29 Jimmy 30 Ronald

Carter, National Space Policy, Presidential Directive/NSC-37 (May 11, 1978). Reagan, National Space Policy, National Security Decision Directive No. 42 (July 4,

1982). 31 Ronald

Reagan, National Space Policy, National Security Decision Directive No. 42 (July 4, 1982). 32 National Aeronautics and Space Administration Authorization Act of 1992 § 2(3), (8), (9), Pub. L. 102–195, 105 Stat. 1605 (December 9, 1991). 33 George W. Bush, A Renewed Spirit of Discovery (January 14. 2004), reprinted in Space Law IV.B.1. (P. Dempsey, ed. February 2006).

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alliances provide opportunities for the United States to promote international cooperation and build support among other countries, especially emerging space-faring nations and developing countries, for U.S. positions on international policy or regulatory concerns.34

President Bush (the Younger) identified potential areas of international cooperation to include space exploration, space surveillance information, and developing and operating Earth observation systems.35 Congress has emphasized that international cooperation in space and science should be pursued when it reduces the cost of undertaking missions, enables the US to pursue missions it could not unilaterally, or enhances US capabilities to use and develop space for the benefit of US citizens and is sensitive to the US policy in favor of commercial development of space, is consistent with the need of federal agencies to use space to complete their missions, and is consistent with US export control laws.36 To avoid “unnecessary duplication of effort, facilities, and equipment”, interagency cooperation is also encouraged.37 “NASA is instructed to provide technical assistance and facility support to, and perform joint projects with, other government agencies” and US industry.38 NOAA is also instructed to facilitate international and interagency coordination.39 To cut cost and eliminate duplication, President Clinton ordered the US civil and military and environmental satellite programs (under NOAA and DOD, respectively) to be joined.40 Congress has also urged NASA and DOT to “cooperate more effectively in leveraging the mutual capabilities of these agencies to conduct joint aeronautics and space missions that not only improve United States aeronautics and space capabilities, but also reduce the cost of conducting those missions.”41 The Outer Space Treaty provides that the “exploration and use of outer space . . . shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic and scientific development, and shall be the province

34 U.S.

Department of Defense, Dir. 3100.10, Space Policy 6 (July 9, 1999). Elizabeth Waldrop, Integration of Military and Civilian Space Assets: Legal and National Security Obligations, 55 A.F. L. Rev. 157 (2004). 35 National Security Presidential Directive, August 31, 2006, “National Space Policy” ¶ 8 (2006); http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf (accessed: October 9, 2006). 36 National Aeronautics and Space Administration Authorization Act of 2000 § 2(6), Pub. L. 016–391, 114 Stat. 1577 (October 30, 2000). 37 National Aeronautics and Space Act of 1958 § 102(d)(8), Pub. L. 85–568 (as amended through Pub. L. 106–391, 114 Stat. 1577 (October 30, 2000). 38 National Aeronautics and Space Administration Authorization Act of 1989 § 101(19)(E), (F), Pub. L. 100–685, 102 Stat. 4083 (November 17, 1988). 39 National Oceanic and Atmospheric Administration Authorization Act of 1992 § 105(c)(2)(E), Pub. L. 102–567, 106 Stat. 4270 (October 29, 1992). 40 Office of the White House Press Secretary, Statement by the Press Secretary (May 10, 1994). 41 National Aeronautics and Space Administration Authorization Act of 2000 § 2(7), Pub. L. 016–391, 114 Stat. 1577 (October 30, 2000).

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of all mankind.”42 That does not mean, however, that developed nations have any definable duty to share the benefits they derive from the use of space with less developed nations. In fact, the US recognizes that, “those who effectively utilize space will enjoy prosperity and security and will hold a substantial advantage over those who do not.”43

16.2.3 Peace Article IV of the Outer Space Treaty provides that the moon and other celestial bodies shall be used “exclusively for peaceful purposes.”44 President (and former General) Dwight Eisenhower pursued a “space-for-peace” policy, opposing militarization of space, but reserving the right to launch intelligence-gathering satellites over the territory of adversaries.45 In the midst of the Cold War, Eisenhower believed it important that the first US satellite be “civilian” so as to guarantee the principle of “freedom of space”, and the corresponding right of unimpeded use of outer space for the military reconnaissance satellites then being secretly developed to defend against the possibility of a surprise nuclear attack by the U.S.S.R..46 Speaking before the U.N. General Assembly in 1963, President John F. Kennedy expressed a strong desire to conclude an agreement “to keep weapons of mass destruction out of outer space.”47 As would be the case in the subsequent Outer Space Treaty of 1967, in the National Aeronautics and Space Act of 1958, Congress has declared that “activities in space should be devoted to peaceful purposes for the

42 Treaty

on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature January 27, 1967, 19 U.S.T. 2410, T.I.A.S. 6347, 610 U.N.T.S. 205, 6 I.L.M. 386, G.A. Res. 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967, 98 ratifications (of January 1, 2005); reprinted in XXX(1) Annals of Air & Space L. 3 (2005). 43 National Security Presidential Directive, August 31, 2006, “National Space Policy” ¶ 1 (2006); http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf (accessed: October 9, 2006). 44 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature January 27, 1967, 19 U.S.T. 2410, T.I.A.S. 6347, 610 U.N.T.S. 205, 6 I.L.M. 386, G.A. Res. 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967, 98 ratifications (of January 1, 2005); reprinted in XXX(1) Annals of Air & Space L. 3 (2005). (hereinafter referred to as the Outer Space Treaty). 45 Delbert Terrill, Jr., The Air Force Role in Developing International Outer Space Law (May 1999); “Peaceful” and Military Uses of Outer Space – Law and Policy, XXX(2) Annals of Air & Space Law 511, 514 (2005). 46 Christopher Petras, The Use of Force in Response to Cyber-Attack on Commercial Space Systems – Reexamining “Self-Defense” in Outer Space in Light Of The Convergence of U.S. Military And Commercial Space Activities, 67 J. Air L. & Com. 1213, 1214 (2002). 47 John Kennedy, Address Before the 18th General Assembly of the United Nations, New York (September 20, 1963).

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benefit of all mankind.”48 Science and technology are to be used to advance “the exploration and peaceful use of outer space.”49 The space station may not carry nuclear weapons or other weapons of mass destruction, and may be used only for peaceful purposes.50 President Carter rejected any claims to sovereignty over celestial bodies or outer space. But he also declared that any nation’s space systems are national property, and have the right of free operation in space without interference.51 Both principles were reaffirmed by subsequent Presidents, though Reagan added a rejection of any limitation on the right to acquire data from space,52 a principle also embraced by President Clinton.53

16.2.4 Defense The United Nations Charter applies to outer space, as explicitly provided in Article III of the Outer Space Treaty.54 Article 2(4) of the U.N. Charter provides that States must refrain from the threat or use of force, and therefore, it would be unlawful for a State to interfere in a hostile manner with the space assets of another State. However, Article 51 of the Charter accords each State the right of self-defense, which the US interprets to allow a State to defend itself against hostile actions conducted in or through space.55 Article I of the Outer Space Treaty provides that outer space is “free for exploration and use by all States” and that there is “free access

48 National

Aeronautics and Space Act of 1958 § 102(a), Pub. L. 85–568 (as amended through Pub. L. 106–391, 114 Stat. 1577 (October 30, 2000). This policy was reaffirmed by President Reagan. Ronald Reagan, National Space Policy, National Security Decision Directive No. 42 (July 4, 1982). 49 National Science and Technology Policy, Organization and Priorities Act of 1976 § 101(b)(13), Pub. L. 94–282, 90 Stat. 459 (May 11, 1976). The “peaceful use of outer space continue to be of great value and offer benefits to all mankind”. Commercial Space Launch Act § 2(1), Pub. L. 98–575, 98 Stat. 3055 (October 30, 1984). 50 National Aeronautics and Space Administration Authorization Act of 1991, § 123 Pub. L. 101–611 (November 16, 1990). 51 Jimmy Carter, National Space Policy, Presidential Directive/NSC-37 (May 11, 1978). 52 Ronald Reagan, National Space Policy, National Security Decision Directive No. 42 (July 4, 1982). 53 Bill Clinton, National Space Policy (September 19, 1996). 54 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature January 27, 1967, 19 U.S.T. 2410, T.I.A.S. 6347, 610 U.N.T.S. 205, 6 I.L.M. 386, G.A. Res. 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967, 98 ratifications (of January 1, 2005); reprinted in XXX(1) Annals of Air & Space L. 3 (2005). 55 White House Fact Sheet, National Space Policy (September 1, 1996), released October 6, 2006. Christopher Petras, “Space Force Alpha”: Military Use of the International Space Station and the Concept of “Peaceful Purposes”, 53 A.F. L. Rev. 135, 156–57 (2000). See generally, Nathan Goldman, Space Policy: An Introduction (1992).

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to all areas of celestial bodies.”56 When submitting the Outer Space Treaty to the US Senate, for its advice and consent, President Lyndon Johnson had expressed that after coming into force of the Treaty, “No one may use outer space or celestial bodies to begin war.”57 The US maintains it has the right to operate in space without interference, and that any intentional interference with the rights of passage through and operations in space constitutes an infringement of these sovereign rights. The United States opposes any restrictions that might limit its access to or use of space. These include any potential arms control agreements that might restrict the US ability to engage in research, development, testing or other operations in outer space.58 “Freedom of action in space is as important to the United States as air power or sea power.”59 The United States, apparently, seeks military dominance not only in air power and sea power, but also in space power. However, Article IV of the Outer Space Treaty60 prohibits placing nuclear weapons or weapons of mass destruction in orbit around the earth, on celestial bodies, or in outer space. Military bases, installations and fortifications, weapons testing, and military maneuvers are similarly prohibited. However, the use of military personnel for scientific research or “any other peaceful purpose” is permitted. The United States appears to take the view that neither military reconnaissance, nor a weapons defense shield, run afoul of the Outer Space Treaty. The National Aeronautics and Space Act of 1958 provides that, “activities in space should be devoted to peaceful purposes for the benefit of all mankind.”61 From the outset, the US position has been that OST’s incantation in favor of the “peaceful . . . use of outer space” means uses that are “non-aggressive”, and not “non-military”. In the US view, States may use space for military reconnaissance

56 Treaty

on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature January 27, 1967, 19 U.S.T. 2410, T.I.A.S. 6347, 610 U.N.T.S. 205, 6 I.L.M. 386, G.A. Res. 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967, 98 ratifications (of January 1, 2005); reprinted in XXX(1) Annals of Air & Space L. 3 (2005). 57 “Letter of Transmittal to the Senate of the United States by President Lyndon Johnson,” Hearings before the Committee of Foreign Relations, United States Senate, Ninetieth Congress, First Session on Executive D, 90th Congress, First Session (Washington: Government Printing Office, 1967), at 107. 58 National Security Presidential Directive, August 31, 2006, “National Space Policy” ¶ 2 (2006); http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf (accessed: October 9, 2006). 59 National Security Presidential Directive, August 31, 2006, “National Space Policy” ¶ 1 (2006); http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf (accessed: October 9, 2006). 60 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature January 27, 1967, 19 U.S.T. 2410, T.I.A.S. 6347, 610 U.N.T.S. 205, 6 I.L.M. 386, G.A. Res. 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967, 98 ratifications (of January 1, 2005); reprinted in XXX(1) Annals of Air & Space L. 3 (2005). 61 42 U.S.C. § 2451(a).

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or even armed defense, for example, but that activities that threatened these assets would be unlawful.62 The 2006 US Space Policy issued by President Bush (the Younger) provides: The United States is committed to the exploration and use of outer space by all nations for peaceful purposes, and for the benefit of all humanity. Consistent with this principle, “peaceful purposes” allow U.S. defense and intelligence-related activities in pursuit of national interests.63

The US Department of Defense is directed to, “maintain the capability to execute the mission areas of space support, force enhancement, space control, and force application.”64 One commentator observed: A review of the U.S. space policies at the Presidential and DOD levels reveals that the leadership invariably reserves a place for national security and military activity within its space policy statements. In fact, current U.S. national space policy directs the DOD to assume certain space missions that, when implemented, will have the effect of preparing the U.S. for armed conflict in space. As a result, U.S. space policy precipitates the need for an examination of the laws of war. Increasingly, prominent observers are calling for full implementation of U.S. military space policy which would result in a robust combat capability.65

President Carter decreed that the US “will pursue activities in space in support of its right of self-defense.”66 This right of self-defense has been affirmed by subsequent Presidents. President Ronald Reagan went further, listing as the first of the basic goals of US space policy to be the strengthening of the security of the United States.67 Reagan’s 1982 policy statement would “consider verifiable and equitable arms control measures that would ban or otherwise limit testing and deployment of specific weapons systems should those measures be compatible with United States national security . . .”, but “. . . oppose arms control concepts or legal regimes that seek general prohibitions on the military or intelligence use of space.”68 62 Christopher

Petras, “Space Force Alpha”: Military Use of the International Space Station and the Concept of “Peaceful Purposes”, 53 A.F. L. Rev. 135, 170 (2000). 63 National Security Presidential Directive, August 31, 2006, “National Space Policy” ¶ 2 (2006); http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf (accessed: October 9, 2006). 64 National Science and Technology Council, National Space Policy 3 (September 19, 1996); reaffirmed in National Security Presidential Directive, August 31, 2006, “National Space Policy” ¶ 5 (2006); http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf (accessed: October 9, 2006). See Robert Ramey, Armed Conflict on the Final Frontier: The Law of War in Space, 48 A.F. L. Rev. 1, 138 (2000). President Carter publicly acknowledged the existence of US military reconnaissance satellites in 1967. Christopher Petras, The Use of Force in Response to CyberAttack On Commercial Space Systems–Reexamining “Self-Defense” In Outer Space In Light of the Convergence of U.S. Military and Commercial Space Activities, 67 J. Air L. & Com. 1213, 1217 (2002). 65 Robert Ramey, Armed Conflict on the Final Frontier: The Law of War in Space, 48 A.F. L. Rev. 1, 137 (2000). 66 Jimmy Carter, National Space Policy, Presidential Directive/NSC-37 (May 11, 1978). 67 Ronald Reagan, National Space Policy, National Security Decision Directive No. 42 (July 4, 1982). 68 Ibid.

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Launching his “Star Wars” Strategic Defense Initiative [SDI] space ICBMdefense program, Reagan’s 1988 space policy was more specific, declaring that “the United States will conduct those activities in space that are necessary to national defense. Space activities will contribute to national security objectives by (1) deterring, or if necessary defending against enemy attack; (2) assuring that forces of hostile nations cannot prevent our own use of space; (3) negating, if necessary, hostile space systems; and (4) enhancing operations of United States and Allied forces.”69 The Missile Defense Act of 1999 called for creation of “an effective National Missile Defense . . . against limited ballistic missile attack.”70 President Bush (the Younger) unveiled a layered defense missile architecture, while the US Air Force was given the responsibility to train, equip and plan for “offensive and defensive space operations.”71 Space technology provides for the military intelligence, communications, weather forecasting, navigation, early warning, and defense capabilities. The US and, to a lesser extent, the former Soviet Union contended that all of these functions were consistent with the “peaceful purposes” provision in the Outer Space treaty,72 though the USSR vigorously opposed the Star Wars initiative as an attempt to turn outer space into an “arena of confrontation.”73 US policy reserves the right “to act alone, if necessary, to exercise the right of self-defense by acting preemptively” against its adversaries.74 The defense policy of the US “reflects a continuing emphasis on using space assets for traditional force enhancement”.75 Science and technology is to be used to contribute to national security.76 Space is to be used to support national defense and intelligence requirements “during times of peace, crisis, and through all levels of conflict. . ..”77 It should “support continuous, global strategic and tactical warning as well as multi-layered and integrated missile defenses” and “ensure freedom of action in space, and . . . deny such freedom to adversaries. . ..”78 Remote sensing also has national security implications. The US

69 Ronald

Reagan, Presidential Directive on National Space Policy (February 11, 1988). Security Index 2004, XXX(2) Annals of Air & Space Law 273, 362 (2005). 71 Robert Wall, Rumsfeld Revamps Space, Pushes “Black” Projects, Av. Week & Space Tech. (May 14, 2001), at 30. 72 See e.g., Douglas Anderson, A Military Look into Space: The Ultimate High Ground, 1995 Army Law. 19, 25 (1995). 73 Seth Mydans, Bonn’s Foreign Minister Sees Gromyko About Arms Issue, N.Y. Times, March 5, 1985, at A15, col. 5. 74 “Peaceful” and Military Uses of Outer Space – Law and Policy, XXX(2) Annals of Air & Space Law 511, 520 (2005). 75 Space Security Index 2004, XXX(2) Annals of Air & Space Law 273, 362 (2005). 76 National Science and Technology Policy, Organization and Priorities Act of 1976 § 101(b)(4), Pub. L. 94–282, 90 Stat. 459 (May 11, 1976). 77 National Security Presidential Directive, August 31, 2006, “National Space Policy” ¶ 5 (2006); http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf (accessed: October 9, 2006). 78 Ibid. 70 Space

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government licenses such activities and prohibits foreign ownership thereof without specific permission of DOC.79 Congress decreed that aeronautical and space activities should be the responsibility of a civilian agency (the National Aeronautics and Space Administration), except for activities involving “weapons systems, military operations, or the defense of the United States”, including research and development thereof, should fall within the province of the Department of Defense.80 NASA should also make available to defense agencies “discoveries that have military value or significance”.81 With the end of the Cold War, the space program was encouraged to use the skills of engineers and scientists formerly involved in defense.82 But the development of commercial space transportation should be encouraged to “support national security requirements”.83

16.2.5 Science and Technology A principal purpose of US space policy is to expand human knowledge of the universe84 by “enlarging the contributions of American scientists and engineers to the knowledge of man and his universe, by making discoveries of basic science widely available at home and abroad, and by utilizing technology in support of United States national and foreign policy goals”.85 President Reagan emphasized the need for the civil space program “to expand the knowledge of the Earth, its environment, the solar system, and the universe; to develop and promote selected civil applications of space technology; to preserve the United States leadership in critical aspects of space science, applications, and technology. . ..”86 The US government is to undertake long-range studies “of the potential benefits to be gained from the 79 The White House, Foreign Access to Remote Sensing Space Capabilities (March 10, 1994). See

also The White House, U.S. Remote Sensing Policy (April 25, 2003). Aeronautics and Space Act of 1958 § 102(b), Pub. L. 85–568 (as amended through Pub. L. 106–391, 114 Stat. 1577 (October 30, 2000). 81 National Aeronautics and Space Act of 1958 § 102(d)6), Pub. L. 85–568 (as amended through Pub. L. 106–391, 114 Stat. 1577 (October 30, 2000). 82 National Aeronautics and Space Administration Authorization Act of 1993 § 101(7), Pub. L. 102–588, 106 Stat. 5107 (November 4, 1992). 83 U.S. Space Transportation Policy (January 6, 2005), reprinted in Space Law IV.B.1. 24 (P. Dempsey, ed. February 2006). 84 National Aeronautics and Space Act of 1958 § 102(d)(1), Pub. L. 85–568 (as amended through Pub. L. 106–391, 114 Stat. 1577 (October 30, 2000). 85 National Science and Technology Policy, Organization and Priorities Act of 1976 § 101(b)(1), Pub. L. 94–282, 90 Stat. 459 (May 11, 1976). 86 Ronald Reagan, National Space Policy, National Security Decision Directive No. 42 (July 4, 1982). 80 National

A. Science, Applications, and Technology: United States Government civil programs shall continue a balanced strategy of research, development, operations, and exploration for science, applications, and technology. The key objectives of these programs are to:

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opportunities for, and the problems involved in” aeronautical and space activities.87 It should focus on “major national priorities of understanding, preserving, and enhancing our global environment, hypersonic transportation, human exploration, and emerging technology commercialization”.88 The US should maintain “robust aeronautical laboratories, including a first-rate technical staff and modern national facilities for the conduct of research and testing facilities”.89 Also, the US should develop and operate “vehicles capable of carrying instruments, equipment, supplies, and living organisms through space”.90 Improving the “usefulness, performance, speed, safety and efficiency” of aeronautical and space vehicles is an important objective.91 The US should emphasize emerging technologies with potential for breakthroughs.92 The national technology data base should be developed to enhance US preeminence in civil and military aviation, and improve its safety and efficiency.93 The US space transportation system should “achieve and maintain safe and reliable access to, transportation in, and return from, space”.94 (1) Preserve the United States preeminence in critical major space activities to enable continued exploitation and exploration of space. (2) Conduct research and experimentation to expand understanding of: (a) astrophysical phenomena and the origin and evolution of the universe, through long-term astrophysical observation; (b) the Earth, its environment, and its dynamic relation with the Sun; (c) the origin and evolution of the solar system, through solar, planetary, and lunar sciences and exploration; and (d) the space environment and technology required to advance knowledge in the biological sciences. (3) Continue to explore the requirements, operational concepts, and technology associated with permanent space facilities. (4) Conduct appropriate research and experimentation in advanced technology and systems to provide a basis for future civil space applications. Ibid. 87 National

Aeronautics and Space Act of 1958 § 102(e)(4), Pub. L. 85–568 (as amended through Pub. L. 106–391, 114 Stat. 1577 (October 30, 2000). 88 National Aeronautics and Space Administration Authorization Act of 1991, § 101(1), Pub. L. 101–611 (November 16, 1990). 89 National Aeronautics and Space Administration Authorization Act of 1989 § 101(19)(C), Pub. L. 100–685, 102 Stat. 4083 (November 17, 1988). 90 National Aeronautics and Space Act of 1958 § 102(d)(3), Pub. L. 85–568 (as amended through Pub. L. 106–391, 114 Stat. 1577 (October 30, 2000). 91 National Aeronautics and Space Act of 1958 § 102(d)(2), Pub. L. 85–568 (as amended through Pub. L. 106–391, 114 Stat. 1577 (October 30, 2000); National Aeronautics and Space Administration Authorization Act of 1991, § 102(6), Pub. L. 101–611 (November 16, 1990); National Aeronautics and Space Administration Authorization Act of 1992 § 3(4), Pub. L. 102–195, 105 Stat. 1605 (December 9, 1991). 92 National Aeronautics and Space Administration Authorization Act of 1989 § 101(19)(A), Pub. L. 100–685, 102 Stat. 4083 (November 17, 1988). 93 National Aeronautics and Space Administration Authorization Act of 1989 § 101(18), Pub. L. 100–685, 102 Stat. 4083 (November 17, 1988). 94 National Aeronautics and Space Administration Authorization Act of 1989 § 101(16)(A), Pub. L. 100–685, 102 Stat. 4083 (November 17, 1988).

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President Reagan commissioned a study in 1983 to determine whether to proceed with the development of a permanently manned space station.95 Beginning in 1988, Congress called for establishment of a permanently-manned United States International Space Station to conduct scientific, applications and engineering experiments, to service, rehabilitate and service satellites and service vehicles, to develop and demonstrate commercial products and processes, and to establish a space base for other space activities, including as an outpost for deeper space exploration.96 Beginning in 1990, Congress called for development of a “hypersonic aerospace plane capable of single-stage-to-orbit operation and hypersonic cruise in the atmosphere”.97 Congress called for technological innovations that would make possible advanced exploration initiatives, “such as the establishment of a lunar base and the succeeding mission to Mars, and provide high yield technology advancements for the national economy”.98 The manned exploration of Mars is expected in first half of twenty first century.99 President Bush (the Younger) called for the “robotic exploration of Mars to search for evidence of life, to understand the history of the solar system, and to prepare for future human exploration”.100 A sustained and affordable human and robotic program is to be pursued to extend “human presence across the solar system”,101 and “advance fundamental scientific knowledge of our Earth system, solar system, and universe.”102 Federal agencies also are obligated to “encourage new discoveries in space science and new applications of technology. . ..”103 In 2000, the United States opened wider its Global Positioning System [GPS] to civilian and commercial use by discontinuing the deliberate degradation of accuracy

95 Ronald

Reagan, Space Station, National Security Decision Directive 5–83 (April 11, 1983).

96 National Aeronautics and Space Administration Authorization Act of 1989 §§ 101, 303, Pub. L.

100–685, 102 Stat. 4083 (November 17, 1988); National Aeronautics and Space Administration Authorization Act of 1991, § 102(9), (11), Pub. L. 101–611 (November 16, 1990). 97 National Aeronautics and Space Administration Authorization Act of 1991, § 102(14), Pub. L. 101–611 (November 16, 1990). The vehicle is also referred to as the “National Aero-Space Plane”. National Aeronautics and Space Administration Authorization Act of 1993 § 101(13), Pub. L. 102–588, 106 Stat. 5107 (November 4, 1992). 98 National Aeronautics and Space Administration Authorization Act of 1991, § 102(15), Pub. L. 101–611 (November 16, 1990). 99 National Aeronautics and Space Administration Authorization Act of 1991, § 114(a)(1), Pub. L. 101–611 (November 16, 1990). 100 George W. Bush, A Renewed Spirit of Discovery (January 14. 2004), reprinted in Space Law IV.B.1. (P. Dempsey, ed. February 2006). 101 National Security Presidential Directive, August 31, 2006, “National Space Policy” ¶ 3 (2006); http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf (accessed: October 9, 2006). 102 National Security Presidential Directive, August 31, 2006, “National Space Policy” ¶ 6 (2006); http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf (accessed: October 9, 2006). 103 National Security Presidential Directive, August 31, 2006, “National Space Policy” ¶ 4 (2006); http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf (accessed: October 9, 2006).

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for non-military signals. The US provides uninterrupted access to US space-based global, positioning, navigation and timing services, though hostile uses are to be denied access.104

16.2.6 Cost-Effectiveness Given unlimited time and money, a group of talented engineers can conquer any task. The problem is, resources are scarce, rather than unlimited. Space science and technology are expensive. Many times, the President and Congress have urged NASA and the other space agencies to “get the biggest bang for the buck” in allocating scarce resources. The development of space is to be accomplished in the most cost-effective way possible.105 The efficiency and cost-effectiveness of the space transportation system is encouraged.106 President Nixon urged the space shuttle as a means of taking “the astronomical costs out of astronautics.”107 President Reagan emphasized that cost-effectiveness was the “first priority” of the Space Transportation System [STS] (or shuttle program). Congress has insisted that the most cost-effective use of space transportation systems should be achieved through various technological means, including development of the space shuttle and expendable launch vehicles.108 The cost of the “core program of science, space transportation, space exploration, space technology, and space applications” should not exceed inflationary growth in the economy.109 Cost-overruns should be avoided.110 The robotic program to explore the solar system and beyond should be “sustainable and affordable”.111 The US space transportation capability should “provide reliable and affordable space access, including access to, transport through, and return from space”.112

104 U.S. Space Based Positioning, Navigation and Timing Policy (December 15, 2004), reprinted in Space Law IV.B.1. (P. Dempsey, ed. February 2006). 105 National Aeronautics and Space Administration Authorization Act of 1989 § 101(16)(D), Pub. L. 100–685, 102 Stat. 4083 (November 17, 1988); National Aeronautics and Space Administration Authorization Act of 1991, § 102(6), Pub. L. 101–611, (November 16, 1990). 106 National Aeronautics and Space Administration Authorization Act of 1986 § 202(2), Pub. L. 99–170, 99 Stat. 1012 (December 5, 1985). 107 Richard Nixon, Statement on the Space Shuttle (January 5, 1972). 108 National Aeronautics and Space Administration Authorization Act of 1988 § 109, Pub. L. 100– 147, 101 Stat. 860 (October 30, 1987). 109 National Aeronautics and Space Administration Authorization Act of 1993 § 101(4)-(5), Pub. L. 102–588, 106 Stat. 5107 (November 4, 1992). 110 National Oceanic and Atmospheric Administration Authorization Act of 1992 § 105(c)(2)(D), Pub. L. 102–567, 106 Stat. 4270 (October 29, 1992). 111 George W. Bush, A Renewed Spirit of Discovery (January 14. 2004), reprinted in Space Law IV.B.1. (P. Dempsey, ed. February 2006). 112 U.S. Space Transportation Policy (January 6, 2005), reprinted in Space Law IV.B.1. 24 (P. Dempsey, ed. February 2006).

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User fees should be imposed to defray costs, and efficiently allocate the use of the space station.113 Such fees, however, may be waived in order to advance scientific or engineering knowledge, international cooperation, or the commercial use of space.114

16.2.7 Commercialization One means of cost reduction may be to enhance reliance on the private sector. For example, in the Commercial Space Act of 1998, Congress declared that “the use of free market principles in operating, servicing, allocating the use of, and adding capabilities of the [International] Space Station, and the resulting fullest possible engagement of commercial providers and participation of commercial users, will reduce Space Station operational costs. . ..”115 President Ronald Reagan encouraged “domestic commercial exploration of space capabilities, technology, and systems for national economic benefit”, though such activities must be consistent with “national security concerns, treaties, and international agreements.”116 In signing the bill to ensure the applicability of US patent law to discoveries in outer space, President George Bush (the Elder) said, “The certainty that inventions that advance space technology will be recognized under out patent laws will encourage the private sector to undertake commercial space venture, which is one of our important objectives under National Space Policy.”117 The US aerospace and aeronautics industries are viewed as significant contributors to US international prestige, influence, competitiveness, and economic well-being.118 Private sector commercial activities are seen as having the potential 113 National Aeronautics and Space Administration Authorization Act of 1988 § 110(b), Pub. L. 100–147, 101 Stat. 860 (October 30, 1987). 114 National Aeronautics and Space Administration Authorization Act of 1988 § 110(c), Pub. L. 100–147, 101 Stat. 860 (October 30, 1987). 115 Commercial Space Act of 1998 § 101, Pub. L. 105–303, 112 Stat. 2843 (October 28, 1998). The Commercial Space Launch Act of 1984, as amended in 1988, also expressed a strong US policy in favor of developing public infrastructure for the support of a commercial launch industry. 49 U.S.C. § 70101 (2003). See James Reed, The Commercial Space Launch Market and Bilateral Trade Agreements in Space Launch Services, 13 Am. U. Int’l L. Rev. 157 (1997). 116 Ronald Reagan, National Space Policy, National Security Decision Directive No. 42 (July 4, 1982).

The United States Government will provide a climate conducive to expanded private sector investment and involvement in civil space activities, with due regard to public safety and national security. Private sector space activities will be authorized and supervised or regulated by the government to the extent required by treaty and national security. Ibid. 117 George Bush, Statement On Signing the Bill Ensuring the Applicability of Patent Law to Activities in Outer Space, 26 Weekly Comp. Pres. Doc. 1828 (November 15, 1990). 118 National Aeronautics and Space Administration Authorization Act of 1993 §§ 101(11), 501, Pub. L. 102–588, 106 Stat. 5107 (November 4, 1992).

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to contribute both to the strength of the US economy and the US space program.119 Congress has decreed that NASA “seek and encourage, to the maximum extent possible, the fullest commercial use of space.”120 Space transportation services (including launch services)121 must be acquired from commercial providers whenever they are required.122 Potential privatization of the Space Shuttle program is contemplated.123 Thus, “greatly increased commercial space activity” is to be achieved.124 Private sector transportation systems are to be encouraged.125 The private commercial launch industry should be facilitated and promoted, and therefore launch services should be purchased from the private sector to the fullest extent possible.126 Commercial remote sensing is to be relied upon to the maximum extent possible to fulfill US needs for “military, intelligence, foreign policy, homeland security, and civil users”.127 In the Orbit Act of 2000,128 Congress encouraged the pro-competitive privatization of the two intergovernmental organizations providing satellite communications—INTELSAT and INMARSAT. Opening up the US GPS to commercial use was designed to enhance economic growth, economic development, and safety.129 Public aeronautical research is to be conducted with the close, active participation of the domestic aircraft industry so as to accelerate the transfer of technology to it.130 US industry should receive research results before their foreign competitors receive it.131

119 National

Aeronautics and Space Administration Authorization Act of 1991, § 101(14), Pub. L. 101–611, (November 16, 1990). 120 National Aeronautics and Space Act of 1958 § 102(c), Pub. L. 85–568 (as amended through Pub. L. 106–391, 114 Stat. 1577 (October 30, 2000). 121 Commercial Space Launch Act § 3, Pub. L. 98–575, 98 Stat. 3055 (October 30, 1984). Commercial Space Launch Act Amendments of 1988, Pub. L. 100–657 (November 15, 1988). 49 U.S.C. § 70101 (2003). 122 Commercial Space Act of 1998 § 201, Pub. L. 105–303, 112 Stat. 2843 (October 28, 1998). The general rule is subject to numerous exceptions, however. 123 Commercial Space Act of 1998 § 204, Pub. L. 105–303, 112 Stat. 2843 (October 28, 1998). 124 National Aeronautics and Space Administration Authorization Act of 1986 § 202(3), Pub. L. 99–170, 99 Stat. 1012 (December 5, 1985). 125 National Aeronautics and Space Administration Authorization Act of 1989 § 101(16)(C), Pub. L. 100–685, 102 Stat. 4083 (November 17, 1988). 126 Launch Services Purchases Act of 1990, 42 U.S.C. § 2465b (2003). 127 The White House, U.S. Commercial Remote Sensing Policy (April 25, 2003). 128 The Open Market Reorganization for the Betterment of International Telecommunications Act, Pub. L. 106–1880, 106th Cong. (March 17, 2000). 129 U.S. Space Based Positioning, Navigation and Timing Policy (December 15, 2004), reprinted in Space Law IV.B.1. (P. Dempsey, ed. February 2006). 130 National Aeronautics and Space Administration Authorization Act of 1989 § 101(19)(D), Pub. L. 100–685, 102 Stat. 4083 (November 17, 1988). 131 National Aeronautics and Space Administration Authorization Act of 1989 § 101(19)(H), Pub. L. 100–685, 102 Stat. 4083 (November 17, 1988).

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With promulgation of the Commercial Space Launch Amendments Act of 2004,132 the US Congress established a strong policy in favor of promoting commercial launches, reentry, and launch sites with stable and minimal regulatory oversight applied fairly and expeditiously, so as to enable the US to retain its competitive position internationally, and contribute to the national defense and economic well being of the nation.133 Congress encouraged creation of a strong space transportation infrastructure with robust private sector participation.134 Space should be developed peacefully to promote economic growth and entrepreneurial activity.135 The US Secretary of Transportation is instructed to “encourage, facilitate, and promote commercial space launches and reentries by the private sector . . . and . . . facilitate private sector involvement in commercial space transportation . . . and . . . promote public-private partnerships . . . to build, expand, modernize, or operate a space launch and reentry infrastructure.”136 Commercial participation in the exploration of space should be promoted to advance national scientific, security and economic interests.137 The US government is instructed to encourage and facilitate a domestic commercial space transportation industry and its industrial base, including “launch systems, infrastructure and workforce, necessary to meet ongoing . . . security and civil requirements.”138 The 2006 US Space Policy advocates increased “private sector participation in the design and development of United States Government space systems and infrastructures. . ..”139

16.2.8 Environmental Protection Article IX of the Outer Space Treaty provides that “State Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose.”

132 Pub.

L. 108–492. U.S.C. § 70101(a)(5), (6). 134 49 U.S.C. § 70101(a)(8). 135 49 U.S.C. § 70101(b). 136 49 U.S.C. § 70103(b). See Licensing and Safety Requirements for Launch, 71 Fed. Reg. 50508 (August 25, 2006). 137 George W. Bush, A Renewed Spirit of Discovery (January 14. 2004), reprinted in Space Law IV.B.1. (P. Dempsey, ed. February 2006). 138 U.S. Space Transportation Policy (January. 6, 2005), reprinted in Space Law IV.B.1. 25(P. Dempsey, ed. February 2006). 139 National Security Presidential Directive, August 31, 2006, “National Space Policy” ¶ 7 (2006); http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf (accessed: October 9, 2006). 133 49

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In the US, science and technology are to be used to preserve, foster and restore “a healthful and esthetic natural environment” as well as protect the oceans, coastal zones and polar regions, promote the conservation of natural resources, and eliminate pollution.140 US policy favors creation of ground-propulsion systems that are energy –efficient and minimize environmental harm.141 Research and technology shall be used to monitor the upper atmosphere and maintain its chemical and physical integrity.142 Long-term environmental impacts of aeronautical and space activities should be fully understood and considered.143 These include “global change, ozone depletion, acid precipitation, deforestation, and smog”.144 Beginning with the Commercial Space Launch Act of 1984, debris reduction has been an important element of US space policy.145 NASA actually began to approach the problem of space debris 3 years earlier, when it developed a 10 year plan to address the topic.146 Creation of orbital debris should be minimized.147 In its 2006 Space Policy, the United States announced it would take a leadership role to encourage foreign nations and international organizations to address means of enhancing debris

140 National Science and Technology Policy, Organization and Priorities Act of 1976 § 101(b), Pub. L. 94–282, 90 Stat. 459 (May 11, 1976). 141 National Aeronautics and Space Act of 1958 § 102(e), Pub. L. 85–568 (as amended through Pub. L. 106–391, 114 Stat. 1577 (October 30, 2000). 142 National Aeronautics and Space Act of 1958 § 401, Pub. L. 85–568 (as amended through Pub. L. 106–391, 114 Stat. 1577 (October 30, 2000). 143 National Aeronautics and Space Administration Authorization Act of 1991, § 102 (3), Pub. L. 101–611, (November 16, 1990). 144 National Aeronautics and Space Administration Authorization Act of 1991, § 102)(4), Pub. L. 101–611, (November 16, 1990); National Aeronautics and Space Administration Authorization Act of 1992 § 2(6), Pub. L. 102–195, 105 Stat. 1605 (December 9, 1991). 145 NASA Policy Directive 8710, Policy to Limit Orbital Debris Generation; U.S. Space Command (USSPACECOM) Regulation 57–2, Minimization and Mitigation of Space Debris (June 6, 1991). Elizabeth Waldrop, Integration of Military and Civilian Space Assets: Legal and National Security Obligations, 55 A.F. L. Rev. 157 (2004). 146 Christopher Williams, Space: The Cluttered Frontier, 60 J. Air L. & Com. 1139, 1166 (1995). But see, Jennifer Seymour, Containing the Cosmic Crisis: A Proposal for Curbing the Perils of Space Debris, 10 Geo. Int’l Envt’l. L. Rev. 891 (1998), who contends, “Although the U.S. government has made efforts to address the space debris problem, particularly through the National Aeronautics & Space Administration (NASA), there is no official U.S. policy regarding space debris.” Ibid. at 903. This is incorrect, and was at the time it was published. The 1996 Clinton National Space Policy specifically addressed space debris, stating that, “The United States shall seek to minimize the creation of orbital debris by government and non-government operations in space in order to preserve the space environment for future generations.” It also calls upon the United States to take a leadership role in international fora and international organizations to adopt policies and practices aimed at debris minimization and mitigation practices. 147 National Aeronautics and Space Administration Authorization Act of 1993 § 101(10), Pub. L. 102–588, 106 Stat. 5107 (November 4, 1992). In 1988, President Reagan issued a policy condemning space debris. See Gunnar Leinberg, Orbital Space Debris, 4 J. L. & Tech. 93, 106 (1989). See also Daria Diaz, Trashing the Final Frontier: An Examination of Space Debris from a Legal Perspective, 6 Tul. Envt’l L.J. 369 (1993).

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minimization.148 As the Cold War drew to an end, Congress called upon the Defense establishment to turn its sensing technology to environmental study and monitoring.149

16.3 Space Law 16.3.1 The Regulation of Satellite Communications As early as 1961, the U.N. General Assembly declared that “communication by means of satellites should be available to the nations of the world as soon as practicable on a global and non-discriminatory basis.”150 Satellite communications is the largest and fastest growing segment of the US commercial space industry. The US accounts for 26% of the satellites in the geostationary orbit [GEO].151 16.3.1.1 The First Communications Systems The Soviet Union launched the first satellite, Sputnik,in 1957. The National Aeronautics and Space Administration [NASA] was established in 1958, and NASA began launching communications satellites that year. NASA confined itself to “mirrors” or “passive” communications satellites [ECHO], while the US Department of Defense focused on “repeater” or “active” satellites.152 The first voice sent from space was President Eisenhower’s Christmas address on December 19, 1958. The first successful meteorological satellite was launched in 1960. In 1961, President Kennedy declared that the US should commit itself to successfully land a man on the moon, and bring him safely home again, by the end of the decade. That year, RCA built a medium-orbit (4,000 miles above the Earth) communications satellite [RELAY] to be launched by NASA; and NASA would also launch AT&T’s mediumorbit satellite [TELSTAR]; and NASA contracted with Hughes Aircraft Company to build a satellite [SYNCOM] to placed at a 20,300 mile-high orbit.153 In 1962, John Glenn became the first American to enter space. In 1962, NASA launched the

148 National Security Presidential Directive, August 31, 2006, “National Space Policy” ¶ 11 (2006);

http://www.ostp.gov/html/US%20National%20Space%20Policy.pdf (accessed: October 9, 2006). 149 National Aeronautics and Space Administration Authorization Act of 1992 § 2(6), Pub. L. 102– 195, 105 Stat. 1605 (December 9, 1991). 150 U.S. General Ass. Res. 1721 (December 20, 1961), reproduced in Paul Stephen Dempsey, Space Law III.B1-1 (2004). 151 US Department of Commerce, Trends in Space Commercialization, republished in Paul Stephen Dempsey, Space Law IV.B.United States.6-2 (2004). 152 David Whalen, Communications Satellites: Making the Global Village Possible, at http://www.hq.nasa.gov/office/pao/History/satcomhistory.html (accessed: May 20, 2004). 153 David Whalen, Communications Satellites: Making the Global Village Possible, at http://www.hq.nasa.gov/office/pao/History/satcomhistory.html (accessed: May 20, 2004).

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first privately-built (communications) satellite. The first telephone and television transmissions were carried by satellite that year.154 In 1962, Congress also passed the Communications Satellite Act, which created the Communications Satellite Corporation [COMSAT]. Half of its stock was owned by the public, and the other half was owned by the communications common carriers. In 1965, COMSAT launched its first satellite from Cape Canaveral, Florida. The satellite, EARLY BIRD, was built by Hughes Aircraft Company, and was parked in a 24-hour-(geosynchronous) orbit. Hughes built COMSAT’s first two satellites, while TRW built the third.155 For nearly three decades, COMSAT enjoyed a monopoly position as the exclusive provider of international communications satellite services in the US. Since its creation, COMSAT has been regulated by the Federal Communications Commission [FCC].156 The International Telecommunications Satellite Organization [INTELSAT] Agreement was concluded on August 20, 1964, by 14 countries – Australia, Canada, Denmark, France, Federal Republic of Germany, Italy, Japan, the Netherlands, Norway, Spain, Switzerland, United Kingdom, United States and Vatican City – to provide international voice, data and video communications.157 INTELSAT began operating in 1964, and began trans-Atlantic communications the following year.158 INTELSAT I became the first satellite to enter geostationary orbit, in 1965. INTELSAT III was the first satellite to provide coverage over the Indian Ocean to provide full global coverage, enabling a half billion people to watch Neil Armstrong’s “small step for a man, but giant leap for mankind” onto the Moon on July 20, 1969.159 Satellites had begun to transform the world into a global village. Today, INTELSAT is the world’s largest satellite communications service provider, serving some 150 nations.160 The International Maritime Satellite Organization [INMARSAT] was created in 1979 to facilitate maritime

154 http://www.hq.nasa.gov/office/pao/History/Defining-chron.htm

(accessed: May 17, 2004). Whalen, Communications Satellites: Making the Global Village Possible, at http://www.hq.nasa.gov/office/pao/History/satcomhistory.html (accessed: May 20, 2004). 156 Regina A. LaCroix, Developments in International Satellite Communications in The International Space Year, 1 CommLaw Conspectus 99, 100 (1993). 157 Henry Wong, 2001: A Space Legislation Odyssey – A Proposed Model for Reforming the Intergovernmental Satellite Organizations, 48 Am. U.L. Rev. 547 (1998). 158 In 1999, the FCC opened access to INTELSAT to nonaffiliated carriers at wholesale rates, and without the requirement to purchase bundled services.. In re Direct Access to the INTELSAT System, 14 FCCR 15703 (1999). Kenneth Katkin, Cable Open Access and Direct Access to INTELSAT, 53 Case W. Res. 77 (2002). 159 David Whalen, Communications Satellites: Making the Global Village Possible, at http://www.hq.nasa.gov/office/pao/History/satcomhistory.html (accessed: May 20, 2004). 160 http://samadhi.jpl.nasa.gov/msl/Programs/INTELSAT.html (accessed: 26 April 2004). 155 David

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communications.161 The International Telecommunications Union [ITU] coordinates and registers national assignments for orbital positions and radio frequencies for satellites.162 16.3.1.2 Domestic Satellites In 1959, the FCC announced it would allow new entrants into the microwave communications field.163 A decade later, MCI would acquire FCC approval to construct and lease microwave telecommunications operations between Chicago and nine other cities.164 Eventually, MCI and other communications companies were transformed from specialized common carriers, into mainstream telecommunications companies, using a matrix of land lines, microwave relays, and satellite communications technologies.165 Canada (with TELESAT CANADA) and the Soviet Union (with MOLNIYA) were the first nations to launch domestic communications satellites. The United States was third. RCA promptly leased space on TELESAT until it could launch its own satellite.166 In 1960, AT&T asked the FCC for an experimental satellite communications license. In 1965, ABC petitioned the FCC to operate its own national broadcast satellite system. The FCC returned the application, but opened Docket 16495 in 1966. It was not until 1970, that the FCC made a policy pronouncement on the subject.167 The FCC concluded that it held jurisdiction to “authorize any non-Federal Government entity, including [COMSAT], other common carriers, and noncarriers, to construct and operate (either individually or jointly) communications satellite

161 Paul Stephen Dempsey, Compliance and Enforcement in International Law – Oil Pollution of the Marine Environment by Ocean Vessels, 6 Northwestern Journal of International Law & Business 459–561 (1984); Paul Stephen Dempsey & Lisa Helling, Oil Pollution by Ocean Vessels – An Environmental Tragedy: The Legal Regime of Flags of Convenience, Multilateral Conventions and Coastal States, 10 Denver Journal of International Law & Policy 37–87 (1980). Inmarsat was privatized in 1999. Alan Aukenthaler, Update on Recent Activities of Inmarsat, 25 Annals of Air & Space L. 301 (2000). 162 Charles H. Kennedy and M. Veronica Pastor, An Introduction to International Telecommunications Law 47 (1996); Henri Wassenbergh, Access of Private Entities to Airspace and Outer Space, 24 Annals of Air & Space L. 311, 330 (1999). 163 Above 890 Decision, 27 FCC 359 (1959). 164 In re Applications of Microwave Communications, Inc., 18 FCC2nd 953 (1969). 165 Paul Stephen Dempsey, Adam Smith Assaults Ma Bell With His Invisible Hands: Divestiture, Deregulation, and the Need for a New Telecommunications Policy, 11 Hastings Communications and Entertainment Law Journal 527, 542–45 (1989). 166 David Whalen, Communications Satellites: Making the Global Village Possible, at http://www.hq.nasa.gov/office/pao/History/satcomhistory.html (accessed: May 20, 2004). 167 In The Matter of Establishment of Domestic Communication-Satellite Facilities by Nongovernmental Entities (Docket No. 16495), 22 F.C.C.2d 86 (1970).

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facilities for domestic use”,168 and that it was in the public interest to do so. Believing that the competitive supply of satellite services would encourage service and technical innovations and reduced cost and rates, the FCC adopted an “open entry” policy.169 Recognizing the enormous financial risks associated with developing new technology and science might dissuade entry, the FCC adopted liberal policies designed to minimize regulatory barriers to entry.170 For example, the FCC did not require new entrants to prove the economic viability of their proposed service offerings. Instead, the FCC was guided by the desire to maximize entry opportunities so that the technical, operational and marketing data and experience in the use of satellite technology would evolve expeditiously. The FCC subsequently recognized, “the need to monitor more closely applications for additional in-orbit capacity by existing operators. We did not retreat from our open entry, competitive policies. Instead, we found that these policies require us to exercise some oversight to insure that the orbital spectrum is being efficiently utilized.”171 Concerned that each operator’s orbital use should be justified by its traffic requirements and efficiency, the FCC began to limit new entrants to an initial two in-orbit system, the first to be used for regular service and the second for anticipated growth, back-up and restorative capacity. Additional satellites would be authorized only where the applicant demonstrated that existing and anticipated traffic would soon exhaust capacity. The applicant also must show that foreseeable traffic demands justify the amount of capacity which has been proposed.172 The first domestic satellites were launched in 1974, beginning with Western Union’s WESTAR I. The following year, RCA launched SATCOM F-1. By 1976, 120 transponders were available in the US, each capable of providing 1,500 telephone lines, or one TV channels. This quickly made possible the “movie channels” and “Super Stations” (such as WTBS Atlanta and WGN Chicago), and

168 22

F.C.C. 2nd at 86. With regard to INTELSAT, the FCC recognized the need to coordinate “with INTELSAT on such matters as use of frequencies, use of particular parking positions in synchronous orbit and prevention of interference. In addition, we should explore with INTELSAT the feasibility and desirability of such matters as joint research and development, use of available facilities for tracking, telemetry, and control, joint spares on the ground and in orbit, etc., so as to promote not only domestic operations but also the global system.” 22 F.C.C. 2nd at 100. 169 35 F.C.C. 2nd 844 (1972); 38 F.C.C.2nd 665 (1972). 170 The FCC believed that, “multiple entry is most likely to produce a fruitful demonstration of the extent to which the satellite technology may be used to provide existing and new specialized services more economically and efficiently . . ..” 35 F.C.C.2nd 844 (1972). 171 Application of Western Union Telegraph Co., 86 F.C.C.2nd 196 (1981). 172 Western Union Telegraph Co., 38 FCC2nd 1197 (1973); RCA Global Communications, 56 FCC 2nd 660 (1975).

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stimulated a dramatic growth in Cable TV.173 By 1984, there were some 50 fixed service satellites operating in either C-band or Ku-band frequencies, or in C-/Kuhybrids. 174 16.3.1.3 Earth Stations In 1972, the FCC announced a policy of authorizing special purpose users (e.g., local broadcasters, educational institutions, cable systems, or local carriers) to own receive-only earth stations.175 This would begin to unravel the monopoly grip AT&T had on long-distance communications.176 In 1975, the FCC authorized construction of the first earth station for private use – a television cable provider in Fort Pierce, Florida, which sought to bring HBO to its subscribers.177 The following year, the FCC authorized the predecessor of WTBS in Atlanta to broadcast television signals to cable providers, enabling it to become the nation’s first “supersatation.”178 Originally, satellite dishes had a required diameter of 9 m. That requirement was cut in half in 1976. By 1979, all TVROs (TV-receive only) dishes had been deregulated.179 In 1996, the FCC declared that local zoning restrictions on satellite dishes of two meters or less in diameter were preempted.180 16.3.1.4 Direct Broadcasting In 1981, the FCC extended its liberal entry policy to the operation of Direct Broadcast Service [DBS] in the Broadcast Satellite Service [BSS] band, concluding that “we believe that our basic policy should be to maintain an open and flexible approach that will allow the business judgments of individual applicants to shape the character of the service offered. By proceeding in this manner, we intend to encourage the submission of a wide variety of proposals and thereby achieve the full

173 David Whalen, Communications Satellites: Making the Global Village Possible, at http://www.hq.nasa.gov/office/pao/History/satcomhistory.html (accessed: May 20, 2004). 174 Robert Wold, Legal Legacies: Milestones in Satellite History, Via Satellite (March 1, 2003). 175 35 FCC 2nd 844 (1972). The FCC embraced a policy allowing applicants “to demonstrate how any operational and economic characteristics peculiar to the satellite technology can be used to provide existing and new specialized services more economically and efficiently than can be done by terrestrial facilities.” 35 FCC 2d 844, 846 (1972). 54 FCC 2nd 881 (1975). 176 See Paul Stephen Dempsey, Adam Smith Assaults Ma Bell with his Invisible Hands: Divestiture, Deregulation, and the Need for a New Telecommunications Policy, 11 Hastings Communications and Entertainment Law Journal 527–606 (1989). 177 54 FCC 2nd 881 (1975). 178 1986 FCC Lexis 2855 (1986). 179 1986 FCC Lexis 2818 (1986). 180 47 CFR § 25.104 (2004).

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benefits of experimentation with this new service.”181 No restrictions were placed on program content, service offerings or financing methods. The first DBS began in Indianapolis, in 1983. Congress gave the FCC authority to regulate the public interest aspects of DBS in 1992.182 In 1994, Hughes Communications’ Direct TV debuted, with highpower satellites transmitting signals in the Ku-band to 18-inch diameter dishes, a vast improvement over the several meter dishes required for traditional C-band transmissions. Soon thereafter, Primestar and Echostar Communications began dish networks.183 To further facilitate industry growth, Congress passed the Satellite Home Viewer Improvement Act of 1999. At this writing, direct broadcast television growth appears to be outpacing cable television sales.184 16.3.1.5 Satellite Transponder Sales In 1982, the FCC adopted a policy allowing satellite owners to sell transponders on their satellites, rather than lease them under a common carrier tariff.185 Four years later, the FCC relaxed its regulatory oversight again, reducing the filing requirements, requiring only that applicants “not unduly reduce the availability of satellite transponders offered on a common carrier basis.”186 Today, satellite owners often lease or sell access to their transponders to a variety of service providers such as telecommunications and data relay firms.187 Regulation of low-Earth orbit [LEO] mobile satellite systems was liberalized in the early 1990s.188 LEOs are elliptical orbits that transit the lower van Allen radiation belt.189 The FCC unilaterally laid claim all frequencies located at the WARC-92 for mobile satellite services on behalf of US operators. This gives US-licensed 181 In the Matter of Inquiry into the development of regulatory policy in regard to Direct Broadcast Satellites for the period following the 1983 Regional Administrative Radio Conference, 86 FCC 2nd 719 (1981). Michael C. Rau, Allocating Spectrum By Market Forces: The FCC Ultra Vires? 37 Cath. U.L. Rev. 149, 168 (1987); Stephen F. Varholy, Preserving the Public Interest: A Topical Analysis of Cable/DBS Crossownership in the Rulemaking for the Direct Broadcast Satellite Service, 7 CommLaw Conspectus 173 (1999). 182 47 U.S.C. § 335 (2004). 183 US Department of Commerce, Trends in Space Commercialization, republished in Paul Stephen Dempsey, Space Law IV.B.United States.6–2 (2004). 184 Craig Couvalt, Satcoms = $7 Billion, Av. Week & Space Tech. 26 (September 15, 2003). 185 Transponder Sales Order, 90 FCC2nd 1238 (1982), aff’d sub nom., World Communications v. FCC, 735 F.2nd 1465 (D.C. Cir. 1984). 186 In re Martin Marietta Comm. System, 60 Rad. Reg. 2nd (P & F) 779 (1986). Peter K. Pitsch & Arthur W. Bresnahan, Common Carrier Regulation of Telecommunications Contracts and the Private Carrier Alternative, 48 Fed. Comm. L.J. 447, 465–66 (1996). 187 US Department of Commerce, Trends in Space Commercialization, republished in Paul Stephen Dempsey, Space Law IV.B. United States.6-2 (2004). 188 59 Fed. Reg. 53294 (October 21, 1994). 189 David Whalen, Communications Satellites: Making the Global Village Possible, at http://www.hq.nasa.gov/office/pao/History/satcomhistory.html (accessed: May 20, 2004).

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systems exclusive access to the 1610–1626.5 MHz (in the L-band), and 2483.5– 2500 MHz (in the S-Band), an expropriation of questionable international law.190 Wireless communications via Global Mobile Personal Communications by Satellite [GMPCS] since has enjoyed explosive growth.191 US launch providers inaugurated LEO launches in 1997. Between 1997 and 2000, Iridium, Globalstar, and ORBCOMM successfully deployed LEO satellite constellations; ICO Global Communications began satellite launches in 2000. However, the market soon became saturated with capacity, and both Iridium and ICO declared Chapter 11 bankruptcy in August 1999, and ORBCOMM declared it in September 2000.192 At this writing (August 2009), there is a glut of transponder satellite capacity.

16.3.2 Export Controls The regulation of exports for purposes of national security began with the Trading with the Enemy Act of 1917.193 This was followed by a string of legislation, including the Atomic Energy Act of 1946, the Export Control Act of 1949, the Mutual Defense Assistance Control Act of 1951, the Export Administration Act of 1969, and the Arms Export Control Act of 1976.194 The latter two are most relevant to the instant discussion. Under the Export Administration Act, export controls may be imposed only after considering their full impact on the US economy, and only to the extent necessary to: • National Security Controls – restrict the export of goods and technology likely to make a significant contribution to the military potential of another nation, which would negatively impact US national security;

190 Jurgen Cloppenburg, The Future Regulation of Global Mobile Personnel Communications by Satellite: A Farewell to Lex Americana? 25 Annals of Air & Space L. 83, 90–91 (2000). 191 Wireless communications have grown tremendously in recent years. According to the FCC, “Since 1990, wireless communications have grown rapidly and are now increasingly gaining acceptance as an alternative to wireline telephony. Advances in technology, increased investment, and the advent of Personal Communication Services (PCS) and digital technologies have fueled a rapid expansion of commercial mobile wireless networks carrying cellular-type service n30 and the number of wireless providers has increased substantially. In 1990 there were approximately 5,283,000 cellular users served by 5,600 cell sites throughout the United States and by 2002, cellular service had grown to encompass approximately 140,766,842 users served by 131,350 cell sites. Since then, wireless services have continued to grow steadily. Six wireless providers now offer nationwide services and others offer regional and local services.” 19 FCC Rcd 3373 (2004) (citations omitted). 192 US Department of Commerce, Trends in Space Commercialization, republished in Paul Stephen Dempsey, Space Law IV.B.United States.6-2 (2004). 193 40 Stat. 411 (1917), as amended by Pub. L. 106–207 (September 22, 2000). 194 See Ram Jakhu and Joseph Wilson, The New United States Export Control Regime: Its Impact on the Communications Satellite Industry, 25 Annals of Air & Space L. 157 (2000).

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• Foreign Policy Controls – restrict exports where necessary to significantly advance US foreign policy or to advance declared US international obligations; and • Short Supply Controls – restrict exports where necessary to protect the US domestic economy from any excessive drain of scarce materials, and to reduce the inflationary impact of foreign demand.195 This statutory mandate is implemented through the Export Administration Regulations, which lists commodities, software and technology, and designates specific nations, subject to export control.196 The Arms Export Control Act authorizes the President to “control the import and export of defense articles and defense services.”197 Commodities and services designated by the President as defense-related are placed on the U.S. Munitions List, organized into 21 categories. Category XV covers Spacecraft, including communications satellites.198 No item appearing on the U.S. Munitions List may be exported without a license. From 1992 to 1995, the U.S. Commerce Department was the export licensing agency. But investigations revealed that two satellite companies – Hughes and Loral Corp. – had sold China technology capable of improving the capability of its ballistic missiles.199 The Strom Thurmond National Defense Authorization Act of 1998 provided that “it is in the national security interests of the United States that United States satellites and related items be subject to the same export controls that apply under United States law and practices to munitions.”200 It placed satellites on the Commerce Department’s list of dual use items in the Export Administration Regulations, on the US Munitions List, and under the Arms Export Control Act administered by the Department of State.201 As a consequence, export licensing authority was transferred back to the State Department, which focused more on national security and less on facilitating trade, embracing a more restrictive and less transparent licensing process than the Commerce Department’s. The result of that, in turn, was to cost US satellite manufacturers millions of dollars in sales, and to cause them to lose market share.202 195 50

U.S.C. § 2402(2) (2004). CFR Parts 730–773 (2004). 197 22 U.S.C. § 2778(a)(1) (2004). 198 22 CFR § 120.7 (2004). 199 Michael Klaus, Dual-Use Free Trade Agreements: The Contemporary Alternative to High-Tech Export Controls, 32 Denv. J. Int’l L. & Pol’y 105 (2003). 200 Pub. L. 105–261. 201 Paul Larsen, Future Protocol on Security Interests in Space Assets, 67 J. Air L. & Com. 1071, 1096 (2002). 202 “Industry officials complain that this crackdown on technology exports is creating a licensing logjam, which makes foreign companies hesitant to hire U.S. corporations to build new satellites.” Ram Jakhu and Joseph Wilson, The New United States Export Control Regime: Its Impact on the Communications Satellite Industry, 25 Annals of Air & Space L. 157, 179 (2000). 196 15

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After the tragic events of September 11, 2001, national security became paramount, and export controls tightened again.203 The Commerce Department’s Bureau of Export Administration changed its name to the Bureau of Industry and Security. Jurisdiction over exports is now fragmented between that Bureau, and the Commerce Department’s Bureau of Industry and Security, the Treasury Department’s Office of Foreign Assets Control, and the State Department’s Office of Defense Trade Controls.204

16.3.3 The Regulation of Commercial Space Launches and Facilities Space transportation consists of the movement of objects, such as communications and observation satellites, or persons to, from, or through space, above the earth’s atmosphere and gravity, and through the terrestrial atmosphere to reach space. In the 1960s, the first satellite launches were via converted intercontinental ballistic missiles [ICBMs] and intermediate range ballistic missiles [IRBMs].205 In 2007, global revenue from commercial launch services amounted to an estimated US$1.55 billion, out of which “U.S. commercial launch revenues for 2007 were estimated to be US$150 million and Russian revenues were approximately US$477 million. European revenues were about US$840 million and Sea Launch had an estimated US$70 million in commercial launch revenue. India’s one commercial launch led to US$11 million in estimated revenues.”206 A “commercial launch” may carry a variety of payloads (civil, commercial, scientific, or military); it is deemed commercial if the payload owner commercially procured the launch. 207 The Commercial Space Launch Act of 1984 [CSLA]208 authorized the Federal Aviation Administration [FAA] to license the launch of a launch vehicles, reentry of a reentry vehicles, as well as the operation of a launch or reentry site. CSLA gave the FAA authority to: • regulate the commercial space transportation industry, to the extent necessary, to ensure compliance with international obligations of the United States and to

203 See Paul Stephen Dempsey, Aviation Security: The Role of Law in the War Against Terrorism, 41 Columbia Journal of Transnational Law 649 (2003). 204 Christopher Corr, The Wall Still Stands! Complying with Export Controls on Technology Transfers in the Post-Cold War, Post 9/11 Era, 25 Hous. J. Int’l L. 441 (2003). 205 David Whalen, Communications Satellites: Making the Global Village Possible, at http://www.hq.nasa.gov/office/pao/History/satcomhistory.html (accessed: May 20, 2004). 206 FAA, Commercial Space Transportation: 2007 Year in Review, at 7. http://www. faa.gov/about/office_org/headquarters_offices/ast/media/2007_Year_In_Review_Jan_2008.pdf 207 US Department of Commerce, Trends in Space Commercialization, republished in Paul Stephen Dempsey, Space Law IV.B.United States.6-2 (2004). 208 49 U.S.C. Subtitle IX, §§ 70101–70119 (2004); 14 CFR Parts 400–450 (2004).

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protect the public health and safety, safety of property, and national security and foreign policy interest of the United States; • encourage, facilitate, and promote commercial space launches and re-entries by the private sector; • recommend appropriate changes in Federal statutes, treaties, regulations, policies, plans, and procedures; and • facilitate the strengthening and expansion of the United States space transportation infrastructure. U.S. government space activities (such as those by NASA and the Defense Department), however, are not subject to FAA jurisdiction. A U.S. citizen must obtain FAA authorization to launch, reenter or operate a launch or reentry site anywhere in the world. Any person seeking to conduct commercial space transportation in the U.S. must also obtain FAA authorization.209 Such licenses are issued by the FAA’s Associate Administrator for Commercial Space Transportation [AST], who prescribes the terms and conditions for conducting authorized activity by the vehicle or site operator. Regulatory review of a launch application focuses on public health and safety, safety of property, and U.S. national security and foreign policy concerns and obligations.210 The first licensed commercial suborbital launch occurred on March 29, 1989. Since then, about 200 launches have been authorized.211 In 2007, the US accounted for 13 percent of the global commercial launch market, while Russia captured 52% of that market and Europe conducted a record high of 26% of the all the commercial launches.212

209 However,

“amateur rocket activities" are not licensed by the FAA, although an Experimental Airworthiness Certificate may be required. Such launch activities conducted at private sites must satisfy the following characteristics: •

Powered by a motor(s) having a total impulse of 200,000 pound-seconds or less;

•

Total burning or operating time of less than 15 seconds; and

•

A ballistic coefficient – i.e., gross weight in pounds divided by frontal area of rocket vehicleless than 12 pounds per square inch. 14 CFR § 401.5 (2004).

210 68 Fed. Reg. 59977

(October 20, 2003). The CLSA gave the FAA jurisdiction to regulate commercial space activities, “only to the extent necessary to ensure compliance with international obligations of the United States and to protect the public health and safety, safety of property, and national security and foreign policy interest of the United States, . . . encourage, facilitate, and promote commercial space launches by the private sector, ·recommend appropriate changes in Federal statutes, treaties, regulations, policies, plans, and procedures, and facilitate the strengthening and expansion of the United States space transportation infrastructure.” 211 http://www.faa.gov/about/office_org/headquarters_offices/ast/launch_data/historical_launch/ (accessed: 28 July 2008). 212 FAA, Commercial Space Transportation: 2007 Year in Review, at 6. http://www.faa.gov/ about/office_org/headquarters_offices/ast/media/2007_Year_In_Review_Jan_2008.pdf

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Interest in suborbital flights increased significantly after the X-Prize foundation offered a $10 million reward to the first private vehicle that can carry a crew of three at an altitude of 100 km, and can replicate the feat within 2 weeks.213 In the nineteenth century, various prizes were awarded to the first airship flight (won by Alberto Santos-Dumont in 1901), or fly an airplane in a circle and land it intact (won by Henry Farman in 1906), or fly an aircraft across the Atlantic Ocean (by Charles Lindbergh in 1927).214 Since 1996, AST has issued site operator licenses to four US spaceports: California Spaceport at Vandenberg Air Force Base, Spaceport Florida at Cape Canaveral Air Force Station, the Virginia Space Flight Center at Wallops Island, and Kodiak Launch Complex on Kodiak Island, Alaska. These sites augment the launch capacity of the NASA and US Air Force facilities (particularly those at Cape Canaveral and Vandenberg Air Force Bases).215 The first launch from a licensed, non-federal facility was at Spaceport Florida of NASA’s Lunar Prospector aboard a Lockheed Martin Athena 2 on January 6, 1998.216

16.4 Conclusion United States space policies have evolved over time. The competition between the US and USSR for dominance of space has evolved into cooperation between the US and Russia in the International Space Station, though even in the post-Cold War era, defensive (and even offensive) applications of space garnish significant public investment. The US set out to be the leader in space research, science and technology, and undoubtedly accomplished that goal. The policies of the Eisenhower Administration to guarantee freedom to use space for defense was expanded during the Reagan and Bush Administrations. By the early twenty first century, defense had become an important, if not dominant, force in the development of US space policy. In its policies, the United States confirms that it will adhere to existing space law and treaties, though by its actions, it has exhibited little enthusiasm for the promulgation of new conventions. That may change over time as space transportation, and the commercial development of space tourism, mining and other activities, require the definition of legal rules to reduce investment risk. The United States supports freedom of navigation in space by all nations, the peaceful uses of outer space, and it does not recognize sovereignty claims to outer space and the celestial bodies. The commercial space industry, particularly international cooperation initiatives, and NASA activities, receive additional positive attention. The evolutionary movement away from governmental monopolization

213 http://apo.faa.gov/foreca03/CHAP9-04.pdf

(accessed: May 17, 2004). Gunston, Aviation: The First 100 Years 10 (2002). 215 US Department of Commerce, Trends in Space Commercialization, republished in Paul Stephen Dempsey, Space Law IV.B.United States.6-2 (2004). 216 http://ast.faa.gov/aboutast/ (accessed: May 17, 2004). 214 Bill

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of space activities – scientific and military – toward encouragement of a growing presence of private-sector institutions that could produce results at lower cost is another discernable trend. Public development of space activity is being supplemented, albeit slowly, with privatization and commercial development. Space exploration, development, and eventual colonization will depend upon dual efforts of the public and private sectors, and the development of commercially-friendly law. As the European Space Agency, and as nations such as Russia and China fulfill their ambitions in space, we shall see if the US continues its insatiable thirst for triumph, and whether it can afford its quest for dominance.

Chapter 17

Regulation of Private Launch Services in the United States Petra A. Vorwig

17.1 Introduction Companies seeking to participate in space activities launched from the United States or otherwise involving U.S. entities and equipment must be cognizant that different aspects of such activities may be regulated by different U.S. Government agencies. Furthermore, the application of these regulatory regimes may substantially impact the timing and success of a proposed activity. This chapter provides an overview of the most significant regulations a U.S.-related space activity faces; however, practioners should review the regulations closely before engaging in any such activity.

17.2 Launch and Reentry Licensing and Regulation Commercial space launch activities are regulated pursuant to the Commercial Space Launch Act of 1984, as amended (“CSLA”).1 In that Act, the U.S. Congress recognized that the development of commercial launch vehicles and private launch services both contributes to the economic well-being of the United States and is consistent with its national security and foreign policy interests. The CSLA was enacted to promote entrepreneurial activity and the development of private sector launch vehicles, while strengthening the U.S. space transportation infrastructure.2 As a result, Congress established a policy of encouraging private sector launches and reentries through minimal regulation.3 Under the CSLA, the Department of Transportation is responsible for overseeing and licensing commercial launch operations. The Office of Space Transportation P.A. Vorwig (B) Steptoe & Johnson LLP, Washington, DC, USA e-mail: [email protected] 1 49

U.S.C. §§ 70101, et seq. U.S.C. § 70101(b). 3 49 U.S.C. § 70101(a)(7). 2 49

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_17,  C Springer Science+Business Media B.V. 2010

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(“OST”), an office within the Federal Aviation Administration (“FAA”), is the office within the Department of Transportation responsible for regulating commercial launch activities. In 2004, Congress amended the CSLA to include human space flight, again designating the Department of Transportation as the agency responsible for regulating the operations and safety of commercial human space flight.4 Congress also created a new experimental permit mechanism that allows reusable suborbital launch operators to conduct testing activities, compliance demonstrations and crew training without engaging the full license process for each operation.5 The OST is responsible for issuing licenses to (i) conduct a launch from the U.S., (ii) operate a launch site within the U.S., (iii) reenter a reentry vehicle into the U.S., or (iv) operate a reentry site within the U.S.6 The term “launch” includes activities involved in preparing a launch vehicle for flight when those activities take place at a launch site in the United States; therefore, certain pre-flight activities must also be licensed.7 U.S. citizens and companies organized under U.S. law conducting launch or reentry operations or launch or reentry sites outside of the United States are also subject to FAA licensing requirements.8 Foreign entities in which a U.S. entity has a controlling interest9 must also obtain a license to engage in launch or reentry activities or operate launch or reentry sites when such operations occur either (i) in a place that is outside the territory of the U.S. and any other foreign nation unless a foreign nation has agreed to exercise jurisdiction over such operations, or (ii) from the territory of any foreign nation where the U.S. has agreed to exercise jurisdiction over such operations.10 With respect to operations occurring wholly in the U.S., at least two and possibly three licenses will have to be in place before commencing a launch or reentry operation. First, the launch site operator must be licensed to offer its site for launches. Second, the launch operator must be licensed for the particular launch under a launch-specific license or for the type of launch under a launch operator license. If

4 Pub.

L. No. 108–492, 118 Stat. 3974 (Dec. 23, 2004). This chapter focuses on the regulatory requirements for launch and reentry of a vehicle, and does not address the operational and safety requirements applied to human space flight. Human space flight regulations can be found in Part 460 of the FAA’s rules. 5 49 U.S.C. § 70105a. The FAA issued final rules creating the experimental permit regime for developmental reusable suborbital rockets on April 6, 2007. Experimental Permits for Reusable Suborbital Rockets, Final Rule, 72 Fed. Reg. 17,001 (Apr. 6, 2007). 6 14 C.F.R. § 413.3(a). 7 14 C.F.R. § 401.5. 8 14 C.F.R. § 413.3(b). 9 A U.S. entity has a controlling interest for purposes of the FAA’s regulations when it owns a sufficient “amount of equity in such [foreign] entity . . . to direct management of the entity or to void transactions entered into by management.” If the U.S. entity owns 51% or more of the equity in the foreign operator, a rebuttable presumption of control is created. 14 C.F.R. § 401.5 (incorporated into the definition of United States citizen). 10 14 C.F.R. § 413.3(c–d).

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the operations contemplate reentry, only one launch and reentry license is required. Third, the reentry site must be licensed and capable of safely receiving the reentry vehicle.

17.2.1 General Licensing Procedures Prior to filing an application, an applicant is required to consult with the FAA to discuss potential issues related to the proposed operations.11 Once an application is filed, the FAA will make a determination within 180 days.12 After 120 days, if the FAA has not made a determination, it will notify the applicant of any outstanding information required to complete its review. In the event the FAA denies a license application, it will state the reasons for its denial. The applicant may either attempt to correct the identified deficiencies or request a hearing. If the applicant attempts to correct the problems, the FAA has either 60 days or the remaining 180-day review period, whichever is greater, to determine if the corrections are sufficient to warrant a license.13 Renewal applications must be filed at least 90 days before the license expires.14 The basic application requirements are set out in Section 413 of the FAA’s rules. The FAA may waive license requirements for individual applicants if it determines that “the waiver is in the public interest and will not jeopardize the public health and safety, safety of property, and national security and foreign policy interests of the United States.”15 The FAA generally will review a waiver request on a case-bycase basis;16 however, it has adopted a four-part test to address health and safety concerns associated with waiving pre-flight activities.17

11 14

C.F.R. § 413.5. C.F.R. § 413.15. The 180-day review period may be tolled if the FAA requests further information from the applicant. 13 14 C.F.R. § 413.21. 14 14 C.F.R. § 413.23. 15 49 U.S.C. § 70105(b)(3). See also 14 C.F.R. § 404.3(a)(2–3). 16 See, e.g., Commercial Space Transportation; Waiver of Liquid Propellant Storage and Handling Requirements for Operation of a Launch Site at the Mojave Airport in California, Notice of Waiver, 69 Fed. Reg. 41327 (July 8, 2004); Commercial Space Transportation; Waiver of Public Notice Requirement for Suborbital Rocket Launch, Notice of Waiver, 69 Fed. Reg. 19604 (April 13, 2004). 17 Specifically, the FAA will ask the following questions regarding the relevant pre-flight activities: (1) Are they closely proximate in time to ignition or lift-off; (2) Do they entail critical steps preparatory to initiating flight; (3) Are they unique to space launch; and (4) Are they inherently so hazardous as to warrant FAA’s regulatory oversight? If the FAA determines that the pre-flight activities do not meet all four elements of the test, a waiver may be granted. Commercial Space Transportation; Waiver of License Requirement for Blue Origin’s Pre-flight Preparatory Activities Conducted at a U.S. Launch Site, Notice of Waiver, 71 Fed. Reg. 6,2037 (October 20, 2006). 12 14

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17.2.2 Post-License Monitoring and Enforcement After receiving a license, licensees must allow Federal officers and other individuals authorized by the FAA to observe licensed facilities and activities, including manufacturing, production and testing facilities for launch or reentry vehicles.18 OST may suspend or revoke any license if it finds that the licensee has “substantially failed” to comply with any requirement of the CSLA, FAA regulations or the terms of its license, or that public safety or national security interest so require.19 A violation may result in a civil penalty up to, but not exceeding, $100,000 for each violation or each day of a continuing violation.20 OST also may immediately terminate a licensed launch or operation of a launch site if it determines that the launch or facility is “detrimental to public health and safety, the safety of property, or any national security or foreign policy interest of the United State,” and the “detriment cannot be eliminated effectively through other authority of the Office.”21 With the exception of OST’s authority to immediately terminate a licensed launch or launch site, licensees and applicants will have an opportunity to challenge negative OST decisions. Specifically, the following are entitled to a hearing on the record following an adverse decision: • a license applicant or a proposed transferee of a license with respect to a decision to issue or transfer a license with conditions or to deny the license or transfer; • a payload owner or operator regarding a decision to prevent the launch or reentry of the payload; and • a licensee regarding any decision to suspend, modify or revoke a license or prohibit any licensed activity.22 The rules regulating the hearing process are outlined in Part 406 of the FAA’s rules.23

17.2.3 Transferring a License Licenses may be transferred only after receiving FAA approval. The transferee must file an application according to Part 413 of the FAA’s rules and meet all of the requirements set out in the licensing requirements for the relevant license – Part 415 18 14

C.F.R. § 405.1. C.F.R. § 405.3. 20 14 C.F.R. § 406.9(a). 21 14 C.F.R. § 405.5. 22 14 C.F.R. § 406.1. 23 14 C.F.R. Part 406. 19 14

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for Expendable Launch Vehicles (“ELV”) operations, Part 431 for Reusable Launch Vehicles (“RLV”) operations and Part 420 for launch site licenses.24

17.2.4 Safety Approvals Certain entities that provide launch vehicles and components, develop safety systems, or perform critical launch functions may apply for FAA approval of the “safety element” they propose to provide.25 A safety element is defined as a “launch vehicle, reentry vehicle, safety system, process, service, or any identified component thereof; or . . . qualified and trained personnel, performing a process or function related to licensed launch activities or vehicles.”26 Launch licensees may then submit the safety approvals with their license applications to demonstrate compliance.27 As with the basic licensing process, a safety approval applicant must consult with the FAA before filing an application.28 The application must describe the specific criteria the applicant used to show the adequacy of the safety element and how the safety element complies with those criteria. The application must also identify the specific operating limits of the requested safety approval.29 When a launch license applicant incorporates a safety approval into its application, it must show that its use of the safety element is consistent with the operating limits used to obtain the approval.30 Upon receiving a safety approval application, the FAA will screen it to determine if it is complete and notify the applicant that the application has been accepted for review or that it has been rejected because it is incomplete or indefinite. If the application is rejected, the FAA will identify the reasons and recommend corrective action. The applicant may withdraw the application or amend it at any time before the FAA makes a final determination.31 The FAA will evaluate the application according to performance-based standards identified in its regulations.32 Once granted, a safety approval is valid for five years.33 The safety approval holder also must maintain records to demonstrate that its activities are consistent with the representations it made in its application. The records must be maintained for the duration of the approval plus one year.34

24 See

14 C.F.R. §§ 415.13 (ELV), 431.13 (RLV), 420.45 (launch site). C.F.R. Part 414. 26 14 C.F.R. § 414.3. 27 14 C.F.R. § 413.7. 28 14 C.F.R. § 414.9. 29 14 C.F.R. § 414.11. 30 14 C.F.R. § 413.7(d). 31 14 C.F.R. § 414.15. 32 14 C.F.R. § 414.19. 33 14 C.F.R. § 414.21. 34 14 C.F.R. § 414.25. 25 14

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17.2.5 Launch and Reentry Licensing The FAA issues separate licenses for ELVs, which are defined as a “launch vehicle whose propulsive stages are flown only once,” and RLVs, which are defined as a “launch vehicle that is designed to return to Earth substantially intact and therefore may be launched more than one time or that contains vehicle stages that may be recovered by a launch operator for future use in the operation of a substantially similar launch vehicle.”35 The basic requirements are similar for both licenses, therefore they are addressed together in this section; however, the detailed ELV licensing requirements are available in Part 415 of the FAA’s rules. The post-licensing operational requirements for an ELV launch are available in Part 417. RLV licensing requirements are available in Part 431. For both launch and reentry licenses, the FAA will license either discreet launches under a launch-specific license or grant a five-year launch operator license that covers all launches involving launch vehicles from the same family of vehicles transporting specified classes of payloads and operating within a range of launch parameters.36 17.2.5.1 Licensing Process License applicants must obtain policy and safety approvals from the FAA as part of the licensing process. Before granting a policy approval, the FAA will review a license application to determine if it presents any national security or foreign policy issues. In addition to reviewing certain operational aspects of the proposed launch, the FAA will review any foreign ownership of the applicant. Specifically, sole proprietors and partnerships must identify all foreign ownership. Corporations must identify any foreign ownership of 10% or greater, and joint ventures and associations must identify any participating foreign entities.37 The FAA will consult with the Departments of Defense and State, and any other federal agencies the FAA deems relevant to its review, including the National Aeronautics and Space Administration.38 If the FAA identifies any issue during its policy review, the applicant may respond to the concern or revise its application.39 In order to obtain a safety approval, an ELV and an RLV applicant must demonstrate that it is capable of completing its proposed operations without jeopardizing public health and safety or safety of property. As described above, safety approvals 35 14

C.F.R. § 401.5. The FAA also issues reentry licenses for vehicles other than RLVs, but the application requirements mirror those for RLVs, and such reentries are subject to most of the safety and payload requirements applied to RLVs. See 14 C.F.R Part 435. 36 14 C.F.R. § 415.3 (ELV). See also 14 C.F.R. § 431.3 (allowing for mission-specific RLV licenses, which identify each authorized RLV flight, and operator licenses, which authorizes for two years an operator to launch and reenter any of a designated family of RLVs within authorized parameter). 37 14 C.F.R. § 415.25 (ELV); 14 C.F.R. § 431.25. 38 14 C.F.R. § 415.23 (ELV); 14 C.F.R. § 431.23 (RLV). 39 14 C.F.R. § 415.23(c) (ELV); 14 C.F.R. § 431.23(c) (RLV).

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may be obtained prior to submitting a license application according to the requirements of Part 413 of the FAA’s rules. The relevant information that must be provided is outlined in the FAA’s rules. Generally, all proposed launches are reviewed on a case-by-case basis; however, ELV launches conducted from a Federal launch range will be issued a safety approval if the launch operator satisfies the safety rules outlined for a launch from a Federal range40 and has contracted with the Federal launch range for the provision of safety-related services.41 In order to receive the approval under this streamlined process, the Federal launch range must meet the FAA’s launch safety requirements outlined in Part 417 of its rules.42 Launches and reentries conducted from a non-Federal range must meet more stringent requirements that are outlined in the FAA’s rules.43 Under these rules, a launch applicant must file a safety review document that contains all of the information required under Sections 415.109–415.133. All of the required information, except the ground safety analysis report, must be filed with the FAA at least six months prior to bringing any launch vehicle to the proposed launch site.44 The FAA also will review the payload proposed for the launch and, where applicable, reentry to determine if it would jeopardize public health and safety, safety of property, national security or any U.S. international obligations.45 The FAA, however, will not review payloads that are regulated by another Federal agency or owned by the U.S. Government.46 While the applicant must identify the proposed payload class in its license application, upon receiving a license, the licensee must provide current information regarding the proposed payload no later than 60 days before a scheduled launch or reentry.47 As with certain safety approvals, an operator may request a payload review before filing a license application. The FAA again will consult with the Departments of Defense and State, and any other federal agency it deems necessary to complete its payload review.48 17.2.5.2 Post-License Requirements Financial Responsibility Pursuant to 49 U.S.C. § 70112, all launch and reentry licensees are required to obtain liability insurance or otherwise demonstrate their ability to compensate liability claims brought by (1) a third party for death, bodily injury, or property damage 40 14

C.F.R. §§ 415.33–415.41. C.F.R. § 415.31. 42 14 C.F.R. Part 417. 43 14 C.F.R. § 415.101–415.133 (ELV). 44 14 C.F.R. 415.107. Appendix B to Part 415 outlines the information that must be provided in the safety review document. 45 14 C.F.R. §§ 415.51–415.63 (ELV); 14 C.F.R. §§ 431.51–431.61 (RLV). 46 14 C.F.R. § 415.53 (ELV); 145 C.F.R. § 431.51(a) (RLV). 47 14 C.F.R. § 415.55 (ELV); 14 C.F.R. § 431.53 (RLV). 48 14 C.F.R. § 415.57 (ELV); 14 C.F.R. § 431.55 (RLV). 41 14

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or loss resulting from the licensed activity; and (2) the U.S. Government for damage to government property resulting from the licensed activity.49 The specific amount of loss that must be covered (the “maximum probable loss” or “MPL”) will be determined by the FAA. The FAA will conduct separate MPL calculations for third-party claims and U.S. Government property loss claims upon a licensee’s request, and will issue the determination no later than 90 days after all of the necessary information has been submitted.50 The MPL is based on losses that are reasonably expected to result from the licensed activity. A third-party loss is reasonably expected to result from an activity if it has a probability of occurrence of no less than one in ten million. A U.S. Government property loss is reasonably expected to result from an activity if its probability of occurrence is one in one hundred thousand.51 A licensee’s MPL for third-party claims may not exceed $500 million or “the maximum liability insurance available on the world market at a reasonable cost,”52 and its MPL for U.S. Government property loss may not exceed $100 million or the maximum insurance available at a reasonable cost.53 A licensee must purchase insurance sufficient to meet its FAA-determined MPL or otherwise demonstrate its ability to cover such loss prior to commencing any launch or reentry activity.54 Third-party claim insurance must include the following entities as insured parties: (i) licensee, licensee’s customer, the licensee’s and its customer’s contractors, subcontractors and employees, (ii) the U.S. Government and its contractors and subcontractors involved in the launch or reentry activity, and (iii) U.S. Government personnel.55 The FAA has also imposed certain conditions that must be incorporated into the insurance policies purchased.56 In addition to mandatory liability insurance, the FAA requires licensees and related parties to enter into reciprocal cross-waivers. Specifically, a licensee, its contractors, subcontractors, and customers must agree to waive any claims against the other parties to the agreement, and assume financial responsibility for damage 49 49

U.S.C. § 70112(a). In the 2004 amendments to the CSLA, Congress amended the financial responsibility section to cover flight crew and space flight participants as well as experimental permits for suborbital operations. “Crew” is defined as “any employee of a licensee . . . who performs activities in the course of that employment directly relating to the launch, reentry, or other operation of or in a launch vehicle or reentry vehicle that carries human beings.” 49 U.S.C. § 70102(2). A “space flight participant” is “an individual, who is not crew, carried within a launch vehicle or reentry vehicle.” 49 U.S.C. § 70102(17). 50 14 C.F.R. § 440.7(b). Appendix A to Part 440 identifies the information that must be submitted to request an MPL determination. 51 14 C.F.R. § 440.3. 52 14 C.F.R. § 440.9(c). 53 14 C.F.R. § 440.9(e). 54 14 C.F.R. § 440.5. Evidence of insurance must be submitted at least 30 days before commencing the licensed activity, and evidence of financial responsibility other than insurance must be submitted at least 60 days prior to commencement. 14 C.F.R. § 440.15. 55 14 C.F.R. § 440.9(b). The FAA also regulates the duration of insurance policies purchased to meet these financial responsibility requirements. 14 C.F.R. §§ 440.11, 440.12. 56 14 C.F.R. § 440.13.

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it sustains, as a result of the licensed activity.57 The FAA, the licensee, and the licensee’s customer also must enter into a three-way reciprocal waiver whenever the U.S. Government is involved in the launch activity.58 In the event a licensed activity involves both the U.S. Government and a crew member or a space flight participant, the FAA and the individual also must enter into a reciprocal waiver of claims.59 All necessary waivers must be submitted to the FAA at least 30 days before any licensed activity begins.60 In the event a third party succeeds in bringing a claim in excess of the licensee’s insurance, the U.S. Government will cover the additional amount up to a total claim of $1,500,000,000, as adjusted for inflation after January 1, 1989.61 The U.S. Government will also pay for third-party claims that are not covered by the licensee’s insurance due to an exclusion in the policy that is deemed “usual” by the Government.62 Such payment is still limited to a total claim amount of $1,500,000,000, as adjusted for inflation. Any claim above $1,500,000,000 remains the responsibility of the licensee or the legally responsible party.63 Pre-Launch Reports and Updates The FAA also regulates a licensee’s responsibilities while conducting launch or reentry operations.64 The general operational requirements include filing (i) a launch schedule, which describes safety critical launch processing, (ii) a report no later than 60 days prior to each licensed launch that provides specific payload information and flight information, such as the planned flight path, staging and impact locations, and any on-orbit activity of the vehicle, (iii) a completed FAA/U.S. Space Command Launch Notification Form no later than 15 days before each licensed flight, (iv) updated flight safety analysis products no later than 30 days before each licensed launch, and (v) ground safety analysis report updates at least 30 days before any launch activity occurs.65 Launch and reentry operators must also provide the FAA certain information to meet the United States’ obligations under the Convention on Registration of Objects Launched into Outer Space, unless the object is owned and registered by a foreign entity.66 57 14

C.F.R. § 440.17(b).

58 14 C.F.R. § 440.17(c). Appendices B and C to Part 440 provide an example reciprocal waiver of

claims. 59 14 C.F.R. § 440.17(e–f). Appendix D to Part 440 provides an example reciprocal waiver for crew,

and Appendix E to Part 440 provides an example reciprocal waiver for space flight participants. C.F.R. § 440.15(a)(1). 61 14 C.F.R. § 440.19(a). The statutory authority for this shared financial responsibility sunsets on December 31, 2013. 49 U.S.C. § 70113(f). 62 14 C.F.R. § 440.19(c). 63 14 C.F.R. § 440.5(c). 64 14 C.F.R. Part 417 (ELV); 14 C.F.R. Part 431 (RLV). 65 14 C.F.R. § 417.17 (ELV); see also 14 C.F.R. § 431.79 (RLV). 66 14 C.F.R. § 417.19 (ELV); 14 C.F.R. § 431.85 (RLV). 60 14

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Prior to conducting operations from a Federal launch range, licensed operators must enter into an agreement with the range to provide access to and use of U.S. Government property and services.67 A licensed launch operator must maintain records to verify that its launch or reentry operations were conducted according to its application for three years. If a launch or reentry accident or launch or reentry incident68 occurs, the operator must retain records related to the event until any Federal investigation is completed and the FAA indicates that the operator need not retain the records.69 During 2008, the FAA licensed eleven commercial launches. Five of the launches were conducted by the Sea Launch Company from its Odyssey Platform along the equator; two were conducted by Boeing Launch Services; one was conducted by Lockheed Martin Commercial Launch Services; one was conducted by Orbital Sciences Corporation; and two were conducted Space Exploration (“SpaceX”) and the remaining two launches were conducted from Cape Canaveral in the United States.70

17.2.6 Launch and Reentry Site Licensing While the FAA licenses both launch71 and reentry sites72 separately, the requirements for licensing and operating a reentry site are significantly less onerous than those applied to a launch site. Therefore, the bulk of this section is devoted to launch site licensing requirements. The specific information required for a launch site license application is set out in Section 420.15 of the FAA’s rules.73 In addition to basic information regarding the types of launch vehicles that will be supported and a description of the site, applicants must identify foreign ownership as follows: Sole proprietors and partnerships must identify all foreign owners or partners; corporations must identify foreign ownership interests of 10% or more; and joint ventures and associations must identify any foreign entity participants. Launch site operators also must demonstrate they have entered into agreements with (i) the local U.S. Coast Guard district to establish procedures for issuing a Notice to Mariners prior to launch, and (ii) the local FAA Air Traffic Control (“ATC”) office to establish procedures for issuing a Notice to Airmen and closing 67 14

C.F.R. § 417.13 (ELV); 14 C.F.R. § 431.75(a) (RLV). terms “launch accident,” “reentry accident,” “launch incident,” and “reentry incident” are defined in 14 C.F.R. § 401.5. 69 14 C.F.R. § 417.15 (ELV); 14 C.F.R. § 431.77 (RLV). 70 See Federal Aviation Administration, Commercial Space Transportation: 2008 Year in Review (January 2009), available at http://www.faa.gov/about/office_org/headquarters_offices/ast/media/ 2008%20Year%20in%20Review.pdf. 71 See 14 C.F.R. Part 420. 72 See 14 C.F.R. Part 433. 73 14 C.F.R. § 420.15. 68 The

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air routes prior to and during the launch.74 If a launch site operator plans to operate from a Federal launch range, it may rely on previous agreements the Federal range has entered into with the U.S. Coast Guard and the FAA ATC office. The FAA will issue a license if the proposed launch site meets all of its locational requirements,75 and demonstrates that it will abide by the post-licensing scheduling and notification requirements established in the FAA’s rules.76 The FAA also will consider whether issuing a license will jeopardize U.S. foreign policy or national security interests.77 Once the FAA issues a license, the launch site operator must maintain records demonstrating its operations comply with the representations it made in its application for three years. All records relating to a launch or launch site accident must be retained until any federal investigation is completed and the FAA advises the licensee that the records do not need to be retained.78 The basic application requirements for a reentry site are set out in Part 413 of the FAA’s rules. A reentry site license authorizes the licensee to offer use of its site to support reentry vehicles for which the three-sigma footprint of the vehicle is wholly within the site.79 As of January 2007, the FAA has licensed six non-Federal launch and/or reentry sites in the U.S.,80 and several more sites have been proposed.81 Three of the currently licensed non-Federal sites are collocated with Federal launch ranges: the California Spaceport, Cape Canaveral Spaceport in Florida, and Mid-Atlantic Spaceport in Virginia.

17.3 Competition in Launch Services As noted above, one of Congress’s primary purposes for enacting CSLA was to encourage the development of private launch capabilities. The FAA has been 74 14

C.F.R. § 420.29. C.F.R. §§ 420.19, 420.21, 420.23, 420.25, 420.27, and 420.29. 76 14 C.F.R. §§ 420.53, 420.55, 420.57, 420.59, 420. 61, and 420.71. 77 14 C.F.R. § 420.17(a)(7). 78 14 C.F.R. § 420.61. 79 14 C.F.R. § 433.5. A reentry vehicle’s three-sigma footprint represents the area within three standard deviations of the intended landing point. 14 C.F.R. § 401.5. 80 The following spaceports have been licensed: California Spaceport, Cape Canaveral Spaceport in Florida, Kodiak Launch Complex in Alaska, Mid-Atlantic Regional Spaceport in Virginia, Mojave Air and Space Port in California, and Okalahoma Spaceport. See Federal Aviation Administration, 2007 U.S. Commercial Space Transportation Developments and Concepts: Vehicles, Technologies, and Spaceports, pp. 44–51 (January 2007), available at http:// www.faa.gov/library/reports/commercial_space/dev_concepts/media/2006_dev_concepts.pdf. 81 Cecil Field Spaceport in Florida; Chugwater Spaceport in Wyoming; Gulf Coast Regional Spaceport in Texas; South Texas Spaceport; Spaceport Alabama; Spaceport America in New Mexico; Spaceport Sheboygan in Wisconsin; Spaceport Washington; and West Texas Spaceport. Ibid. at pp. 57–63. 75 14

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tasked with encouraging such development through limited regulation on launch services.82 Consistent with the CSLA’s stated purpose, the National Space Policy, issued by President Bush in 2006, also recognized that the U.S. should “[e]nable a dynamic, globally competitive domestic commercial space sector in order to promote innovation, strengthen U.S. leadership, and protect national, homeland, and economic security.”83 In order to fulfill its responsibility to encourage commercial space activities, the FAA commissioned the Commercial Space Transportation Advisory Committee (“COMSTAC”), a committee of industry representatives that advises the FAA on matters relating to the U.S. commercial space industry.84 The Committee is made up of four working groups, which focus on individual issues relevant to the commercial space industry: Technology and Innovation, Launch Operations and Support, Risk Management, and Reusable Launch Vehicle Development. These working groups develop reports and make recommendations to the full Committee. If the full Committee adopts a report, it is submitted to the FAA Administrator as an industry recommendation.85 The FAA, however, is not obligated to act on that recommendation. The FAA also publishes various reports summarizing the launch activity on a quarterly and an annual basis.86

17.4 Export Controls Beyond the licensing requirements described above, entities seeking to launch or operate a U.S.-built satellite or any space object that contains certain U.S.-origin components outside of the United States, and any foreign entities seeking to collaborate with a U.S. entity on any launch operation face strict and often complicated export licensing requirements. Because the regulations are complex and apply based on the item or information to be exported and the country to which they are to be exported, the following provides an overview of the regulatory regime. Entities seeking to obtain authority to export controlled items should review the regulations carefully.

82 See, e.g., Licensing and Safety Requirements for Launch, Final Rule, 71 Fed. Reg. 50508 (Aug. 25, 2006) (“The FAA is . . . responsible for encouraging, facilitating and promoting commercial space launches by the private sector.”). 83 Available at http://www.fas.org/irp/offdocs/nspd/space.html. 84 See U.S. Department of Transportation, Federal Aviation Administration, National Policy, “Commercial Space Transportation Advisory Commission,” Order 1110.124E (September 21, 2006), available at http://www.faa.gov/about/committees/advisory/media/order1110_124E.pdf. 85 See FAA website at http://www.faa.gov/about/office_org/headquarters_offices/ast/industry/advi sory_committee/. 86 See, e.g., Federal Aviation Administration, Commercial Space Transportation: 2008 Year in Review (January 2009), available at http://www.faa.gov/about/office_org/ headquarters_offices/ast/media/2008%20Year%20in%20Review.pdf.

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U.S.-origin items and related information may be controlled under one of two primary regimes. The U.S. Department of State has been delegated authority to regulate the export and import of items designed or modified for military use pursuant to the Arms Export Control Act;87 however, its authority has been extended to cover certain non-military items such as commercial satellites. Items capable of being used for both military and non-military purposes (generally referred to as “dual-use” items) are controlled by the U.S. Department of Commerce pursuant to the Export Administration Act (“EAA”) and the International Emergency Economic Powers Act (“IEEPA”).88

17.4.1 Department of State Regulations The Directorate of Defense Trade Controls (“DDTC”) is the office within the Department of State responsible for licensing exports of defense articles (including technical data) and defense services under the International Traffic in Arms Regulations (“ITAR”).89 The ITAR sets forth the specific items that constitute “defense articles” controlled by the regulations in the U.S. Munitions List (“USML”). The USML is divided into categories. Equipment related to spacecraft and launch activities are controlled under Categories IV (Launch Vehicles), V (Propellants), XII (Guidance and Control Equipment), and XV (Spacecraft Systems and Associated Equipment).90 These categories are modified from time to time to clarify the coverage of the USML.91 DDTC controls the export of items listed on the USML as well as technical data associated with these defense articles. Technical data includes information required to design, develop, manufacture, operate, repair, test or maintain the items.92 The U.S. entity proposing to export or re-export an ITAR-controlled item, wherever located, or otherwise transfer controlled technical data to a foreign entity must apply for and receive a license from DDTC.93 Transferring the registration or control of a satellite to a foreign entity or registering a satellite in a foreign country when that satellite is located in the United States also constitutes an export that must be licensed.94 87 Pub.

L. No. 90–6629, 82 Stat. 1320 (codified at 22 U.S.C. § 27778). EAA, 50 U.S.C. app. §§ 2401–2420, expired on August 21, 2001. Since that time, Commerce’s authority to regulate dual-use exports has been maintained by Presidential order under IEEPA, 50 U.S.C. §§ 1701–1706. 89 22 C.F.R. Parts 120–130. 90 22 C.F.R. § 121.1. 91 See, e.g., Amendment to USML Category XV, 72 Fed. Reg. 39,010-11 (July 17, 2007). 92 See 22 C.F.R. §§ 120.6 (defining “defense article”), 120.10 (defining “technical data”). Note that technical data provided for any reason, including marketing activities or technical expositions, are subject to ITAR controls if they relate to defense articles. 93 The license requirements for export of defense articles are found in 22 C.F.R. Part 123. 94 22 C.F.R. § 123.8. 88 The

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In addition to exports of products and data, U.S. entities seeking to provide defense services to a foreign entity related to a controlled item must also obtain a license covering all of the services that may be provided over the entire period they may be provided. “Defense services” include any “assistance (including training) . . . in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles.”95 Thus, any service relating to a satellite article (hardware, software, or technical data) controlled by the USML would require a license from DDTC prior to exporting, re-exporting, or transferring that article to a foreign destination, entity, or person. Defense services are generally licensed pursuant to a Technical Assistance Agreement (“TAA”) between the U.S. entity and the foreign entity that must be approved by DDTC. Under the TAA, the foreign entity must agree to certain obligations with respect to protecting the ITAR-controlled information and items provided under the agreement.96 The provision of defense articles and defense services to any foreign entity must be licensed by DDTC even if that foreign entity is located in the United States. Under ITAR, any transfers to non-U.S. persons (or foreign persons)97 are deemed an export to that individual’s country of nationality or nationalities, therefore requiring a license.98 The U.S. has adopted a policy of denial with respect to certain countries. As of July 2008, these prohibited countries are Belarus, Cuba, Iran, North Korea, Syria and Venezuela.99 In addition to these specific countries, DDTC generally will deny exports to countries to which the U.S. maintains an arms embargo (e.g., Afghanistan, Angola, Belarus, Burma, China (PRC), Cyprus, Cuba, Haiti, Iran, Iraq, Liberia, Libya, Nigeria, North Korea, Rwanda, Somalia, Sudan, Syria, Vietnam, Yemen, and Zimbabwe) or where “an export would not otherwise be in furtherance of world peace and the security and foreign policy of the United States.”100 In addition to the basic export licensing requirement, special export controls apply to the export of a satellite or defense services related to a launch in a country or by the nationals of a country that is not a member of NATO or otherwise recognized as an ally.101 For example, the applicant must submit a technology transfer control plan for DDTC approval and an encryption technology control plan for approval by

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C.F.R. § 120.9. 22 C.F.R. §§ 124.1–124.12. 97 “Foreign person” means any natural person who is not a U.S. lawful permanent resident as defined by 8 U.S.C. § 1101(a)(20) or who is not a protected individual as defined by 8 U.S.C. § 1324b(a)(3). It also means any foreign corporation, business association, partnership, trust, society, or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of foreign governments (e.g., diplomatic missions). 98 See 22 C.F.R. § 120.17(a)(4). 99 22 C.F.R. § 126.1. 100 22 C.F.R. § 126.1. 101 22 C.F.R. § 124.15. 96 See

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the National Security Agency. The U.S. entity seeking the license also must arrange for Department of Defense representatives to monitor technical discussions, satellite processing and launch activities, activities related to launch failure, and all other aspects of launch.102 In the event a launch involving a U.S. entity fails, any U.S. entity involved in subsequent investigations into the failure remain subject to ITAR controls and Department of Defense officials must monitor all activities related to the investigation.103

17.4.2 EAA and EAR The Bureau of Industry Security is the office within the Department of Commerce that enforces the Export Administration Regulations (“EAR”) issued pursuant to the EAA.104 As with the ITAR, items located in the U.S. or otherwise U.S.-origin that may be exported to a foreign country or provided to a foreign person inside the U.S. are subject to the EAR. The majority of items controlled under the regulations do not require a license to export. However, a number of more sensitive items and technologies are identified on the Commerce Control List (“CCL”).105 Items on the CCL are listed by category, and then within each category by a specific Export Control Classification Number (“ECCN”). Technology that is required for the development, production, or use of a CCL item will be controlled as described in the associated CCL category.106 Depending on the proposed export’s destination, a license may be required. Certain commodities otherwise requiring a license may also be eligible for an applicable license exception if all of its conditions are met. In addition to CCL items, certain items that are not on the list may still require a license depending on their proposed end use or end user.107 For example, if a U.S. exporter knows that the proposed export will be used to support weapons proliferation, the exporter must apply for a license even if the item is not on the CCL.108

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C.F.R. § 124.15(a). C.F.R. § 124.15(b). 104 15 C.F.R. Parts 730–774. 105 15 C.F.R. Part 774. 106 See Supplement 2 to Part 774. 107 See 15 C.F.R. § 736.2. 108 15 C.F.R. § 736.2(b)(5). 103 22

Chapter 18

Regulation of Satellite Communications in the United States Petra A. Vorwig

18.1 Introduction Pursuant to the Communications Act of 1934, as amended, the Federal Communications Commission (“FCC”) is responsible for regulating the use of radio spectrum in the United States and for assigning licenses for space stations and earth stations serving the United States.1 These activities include allocating the satellite orbital locations assigned to the United States by the International Telecommunications Union. With respect to commercial satellite operations, the FCC allocates spectrum to particular services, establishes operating requirements and restrictions for the various services, and enforces violations of its rules.2 The FCC’s licensing decisions generally are based on one fundamental principle: whether the proposed operations will serve “the public interest, convenience, and necessity.”3 The FCC is also responsible for regulating the activities of common carriers.4 This authority encompasses telecommunications carriers, which are entities that provide “the transmission, between or among points specified by the user, of information of the user’s choosing” directly to the public for a fee.5 The FCC’s regulatory authority extends over various aspects of a telecommunication carrier’s operations, including facility operations, interconnection by customers and other carriers, and rates.

P.A. Vorwig (B) Steptoe & Johnson LLP, Washington, DC, USA e-mail: [email protected] 1 Pub.

L. No. 416, 48 Stat. 1064 (1934) (codified at 47 U.S.C. § 151). U.S.C. § 303. 3 47 U.S.C. § 309. 4 47 U.S.C. § 201, et seq. 5 47 U.S.C. § 153(43), (45), (46). 2 47

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_18,  C Springer Science+Business Media B.V. 2010

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18.2 Licensing of Private Communications Satellites The U.S. Congress has granted the FCC primary responsibility for regulating use of satellite spectrum,6 licensing of earth stations and satellites7 and changes in control of radio authorizations.8 Under this authority, the FCC has established a variety of regimes to license different types of satellite communications, including an “open skies” policy of granting available licenses to all comers and auctions when there are more applicants than available orbital locations. More recently, the FCC has moved toward a more unified licensing process for all satellite services. Under this process, satellites that operate with omni-directional earth stations, such as non-geostationary satellites and Mobile Satellite Service (“MSS”) satellites, are subject to a modified processing round in which all eligible applicants may receive a portion of the available spectrum. Geostationary satellites, on the other hand, generally are processed on a first-come, first-served basis. Furthermore, foreign satellite licensees are generally subject to the same licensing requirements and review process as domestic providers in the same satellite service. Under the general FCC application process, potential satellite operators must file a satellite system application pursuant to Section 25.114 of the FCC’s rules, setting forth basic legal, technical and financial information regarding the applicant and the proposed service.9 Upon a determination that the application is complete and ready for processing, the FCC will issue a public notice requesting comment typically within 30 days.10 The applicant then has 10 days to respond to any petitions or comments from interested parties, and the original petitioner may file a response within 5 days of any opposition.11 The FCC also has established operating parameters, service rules and restrictions for satellites operating in the various satellite services and the earth stations they communicate with.12 Some operating requirements may be waived upon application to the FCC.13 Section 1.3 of the Commission’s rules provides that “[a]ny provision of the rules may be waived by the Commission on its own motion or on petition if good cause therefor is shown.”14 Good cause can be shown by demonstrating that the waiver “would not undermine the policy objective of the rule or order in

6 47

U.S.C. § 301 (authority to regulate radio transmissions). U.S.C. § 307 (authority to grant satellite station licenses). 8 47 U.S.C. § 310 (authority to review assignments of or transfer of control over licenses). 9 47 C.F.R. § 25.114. There is a similar application process established for earth stations detailed in 47 C.F.R. § 25.115. 10 47 C.F.R. § 25.154. 11 Ibid. 12 See 47 C.F.R. Part 25 for all space station and earth station operating requirements. 13 47 C.F.R. § 1.3. 14 Ibid. 7 47

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question, special circumstances warrant a deviation from the general rule, and such a deviation will serve the public interest.”15 While the basic application requirements are similar for all satellites and earth stations, some distinctions remain. Some of these distinctions are outlined below.

18.2.1 Fixed Satellite Service Providers offering service in the Fixed-Satellite Service (“FSS”) provide a variety of domestic and international services, including direct-to-home video (“DTH”) service, wireless backbone infrastructure for voice and data communications, and fixed point-to-point telecommunications. In 2003, the FCC completely revamped its licensing procedures for FSS satellite operations to create two-paths to obtaining a license.16 It created a single queue of filed applications and determined to review each one in the order it was received. For non-geostationary orbit (“NGSO”) satellites and geostationary orbit (“GSO”) satellites that operate with omni-directional earth stations, the FCC created a modified processing round procedure. GSO satellites operating with non-omni directional antennas are subject to a first-come, first-served processing regime.17 18.2.1.1 Non-Geostationary Orbit For both FSS NGSO satellite systems and GSO satellite systems that operate with omni-directional earth station antennas, the FCC first will establish a processing round.18 The FCC’s processing round begins with an application for an NGSO satellite system. Once the application is accepted for filing, the FCC places the application on public notice and announces a cut-off period during which other operators may file competing applications.19 Parties opposing the application may file a

15 Telephone

Number Portability; Sprint Local Telephone Companies Petition for Waiver, Order, 19 FCC Rcd 23,962, ¶ 4 (2004). See also WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969). 16 Amendment of the Commission’s Space Station Licensing Rules and Policies; Mitigation of Orbital Debris, First Report and Order and Further Notice of Proposed Rulemaking in IB Docket No. 02–34, and First Report and Order in IB Docket No. 02–54, 18 FCC Rcd 10760 (2003) (“First-Come, First-Served Order”). 17 Earth stations providing routine FSS service in the C- and Ku-bands may be licensed to communicate with all U.S. licensed satellites operating in this band. This authority is identified by designating “ALSAT” as the earth station’s authorized point of communication on the license. See Amendment of the Commission’s Regulatory Policies To Allow Non-U.S. Licensed Space Stations to Provide Domestic and International Satellite Service in the United States, First Order on Reconsideration, 15 FCC Rcd 7207, at ¶ 13 (1999) (“DISCO II First Reconsideration Order”). Earth stations carrying the ALSAT designation also may communicate with non-U.S. satellites on the Permitted Space Station List. Ibid. at ¶¶ 16–20. 18 47 C.F.R. § 25.157. 19 First-Come, First-Served Order at ¶ 48. 47 C.F.R § 25.157.

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petition to deny to which the applicant may respond.20 The FCC will consider all of the filings in its final decision to grant or deny an application. After the cut-off period closes, if sufficient spectrum exists, the FCC will grant all eligible applications.21 If there is insufficient spectrum to accommodate all of the applications, the FCC will split the spectrum equally among all of the qualified applicants.22 If an applicant does not receive enough spectrum to meet its business plans, it can negotiate with other applicants to purchase or lease additional spectrum. In the event an operator that has been authorized to use the spectrum loses that authorization, the spectrum will be reassigned to the remaining authorized operators.23 When an applicant seeks authority to operate over spectrum that has not been allocated by the ITU, the FCC will dismiss the application.24 If the ITU has allocated the spectrum, but the FCC has not established a domestic allocation, the FCC will accept and evaluate an application, but the operator must request a waiver of the domestic Table of Frequencies and operate on a non-conforming, non-interfering basis with the allocated services.25 In the event the frequency requested has received a domestic allocation but the FCC has not established service rules, the satellite operator will be subject to the default service rules identified in Appendix C of the First-Come, First-Served Order.26 18.2.1.2 Geostationary Orbit Unlike NGSO-like satellites, numerous GSO satellites operating with non-omni directional antennas in the same frequency bands may be located in the U.S. orbital arc without causing unacceptable levels of interference into neighboring satellites. In order to accommodate multiple satellite licensees in a two-degree spacing environment and to maximize use of the U.S. orbital arc, the FCC has established operating requirements for all satellites serving the U.S. market. In the interest of efficient review, the FCC has instituted a first-come, first-served licensing regime for GSO satellites. Under this regime, when an application reaches the front of the queue, the FCC evaluates it and the applicant’s qualifications, and issues a license

20 47

C.F.R. § 25.154. C.F.R. § 25.157. 22 Ibid. Each applicant must choose its specific frequencies 30–60 days before it launches its first satellite by filing a letter with the FCC and the other applicants. First-Come, First-Served Order at ¶ 48. 23 The FCC has determined that a minimum of three operators in a band is sufficient to make reasonable use of the spectrum. If one of three operators loses its authorization, the FCC will hold a new processing round rather than reassign the spectrum. First-Come, First-Served Order at ¶¶ 61–62. 24 Ibid. at ¶ 49. 25 Ibid. at ¶ 50. 26 First-Come, First-Served Order, Appendix C. 21 47

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so long as there is an available orbital location in the requested frequency bands.27 The FCC does not open up the review process to include other applicants. Rather, subsequently filed applications for the same orbital location and frequencies are dismissed once a license is granted to the first-in-time applicant.28 In the event an application requests spectrum for which the FCC has not established service rules, the satellite will be subject to the default service rules applied to GSO-like satellites in the C-band, Ku-band, and Ka-band.29 As with NGSOlike satellites, the FCC will dismiss any application for spectrum that has not been allocated by the ITU for the requested service.30 Operations on spectrum that has not been allocated domestically will be allowed, but only on a non-conforming, non-interfering basis. If an applicant seeks spectrum using NGSO satellites in a frequency band for which NGSO/GSO sharing rules have not been established, all subsequent GSO applications for the same frequency will be dismissed.31 When applicants seek to create a system of both types of satellites using a frequency band for which the FCC has established sharing rules, the FCC will consider each component of the system as a separate application (i.e., the GSO component will be processed on a first-come, first-served basis and a processing round will be opened for the NGSO portion). Hybrid NGSO/GSO systems proposing to use spectrum for which sharing rules do not exist will be treated as an NGSO-like system, with the GSO satellites being treated as additional satellites in the system.32 The FCC’s application of a first-come, first-served processing regime was hotly contested, and continues to be debated as the FCC considers applying this approach to other satellite services. During the notice and comment period leading up to the First-Come, First-Served Order, many parties challenged the FCC’s authority to close out prospective licensees under its first-come, first-served regime.33 The parties pointed specifically to the Supreme Court’s statement in Ashbacker Radio Corporation v. FCC: “where two bona fide applications are mutually exclusive the grant of one without a hearing to both deprives the loser of the opportunity which Congress chose to give him.”34 The parties argued that, under Ashbacker the FCC was required to give all eligible applicants an opportunity to file competing applications before awarding a license. The FCC rejected the commenters’ concerns explaining that Ashbacker allowed it to enact regulations that limit applicants’ filing rights and to define the circumstances under which applications are considered

27 47

C.F.R. § 25.158. First-Served Order at ¶¶ 111–114. 29 See First-Come, First-Served Order, Appendix C. 30 Ibid. at ¶ 124. 31 First-Come, First-Served Order at ¶ 58. 32 Ibid. at ¶ 57. 33 See Ibid. at ¶¶ 102–107. 34 See Ibid. at ¶ 99 (citing Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 333 (1945)). 28 First-Come,

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mutually exclusive.35 Under this interpretation, the FCC determined that it was not required to provide entities an opportunity to file competing applications, and that a first-come, first-served processing procedure was legal.

18.2.2 Mobile Satellite Service The FCC has allocated four frequency bands to Mobile Satellite Service (“MSS”) used to provide domestic and international mobile voice and data services. The bands allocated are the L-band,36 2 GHz band,37 Big Low Earth Orbit (“LEO”),38 and Little LEO bands.39 Both the 2 GHz band and the Big LEO band (1.6/2.4 GHz) have been licensed for both NGSO and GSO operations.40 The application requirements for Big LEO and 2 GHz MSS operations are detailed in Section 25.143 of the FCC’s Rules.41 L-band spectrum use over North America is regulated by a Memorandum of Understanding between Canada, the United States, Mexico, Russia and the United Kingdom.42 As a result, the regulatory regime created for 2 GHz and Big LEO MSS systems does not apply to L-band MSS operations. Applications for the Big LEO and 2 GHz MSS bands are reviewed through a processing round similar to NGSO FSS applications.43 At the end of 2007, five companies were providing MSS in the U.S. Both Globalstar Telecommunications LTD. and Iridium Satellite LLC were providing mobile voice and data service over Big LEO MSS spectrum. Inmarsat Ltd. and Mobile Satellite Ventures (“MSV”) were also providing MSS service over the Lband spectrum. Orbcomm Inc. provides non-voice, data-only services using the Little LEO spectrum. ICO Global Communications (Holdings) Ltd., one of two companies holding 2 GHz licenses, launched its G1 satellite in April 2008.44

35 Ibid. at ¶ 100 (citing Amendment of the Rules Concerning Cut-Off Procedures for FM and TV Broadcast Stations, Report and Order, MM Docket No. 84–750, FCC 85–125, 50 Fed. Reg. 19936, 19941–42, ¶¶ 33–36 (May 13, 1985)). 36 The L-band band refers to 1525–1559 MHz downlink and 1626.5–1660.5 MHz uplink. 37 The 2 GHz MSS band refers to 2000–2020 MHz uplink and 2180–2200 MHz downlink. 38 The Big LEO MSS band consists of an uplink at 1610–1626.5 MHz and a downlink at 2483.5– 2500 MHz. 39 Amendment of the Commission’s Rules to Establish Rules and Policies Pertaining to a NonVoice, Non-Geostationary Mobile-Satellite Service, Report and Order, 8 FCC Rcd 8450 (1993). 40 See 47 C.F.R. § 25.143. However, the one GSO application in the Big LEO band, filed by American Mobile Satellite Corporation, was dismissed before receiving a license. See Letter from Donald H. Gips, Chief, International Bureau, FCC, to Lon C. Levin, Bruce D. Jacobs, and Glenn S. Richards, Counsel for AMSC (dated Jan. 31, 1997). 41 47 C.F.R. § 25.143. 42 This agreement is commonly referred to as the Mexico City Memorandum of Understanding (“MOU”). 43 47 C.F.R. § 25.157. 44 Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services, Thirteenth Report, 24 FCC Rcd 6185, ¶ 250 (2009) (“Thirteenth CMRS Competition Report”).

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TerreStar Networks, Inc., which also holds a 2 GHz MSS license, launched its satellites in 2009.45 In 2003, the FCC issued its first Report and Order establishing a regulatory framework for flexibility in the delivery of communications by MSS providers.46 In particular, this order “permit[ted] MSS licensees to integrate ancillary terrestrial components (ATCs) into their MSS networks.”47 The FCC’s original order was amended in a subsequent order released in February 2005.48 ATC authority allows MSS licensees to construct terrestrial base stations capable of reusing the MSS frequency in areas where the satellite spot beams are not available. One of the primary purposes for permitting this type of flexibility was to allow MSS licensees to provide more ubiquitous mobile service in areas that historically were difficult to serve including inside buildings and rural environments. The FCC, however, did emphasize in response to challenges from mobile telephone service providers that the ATC may not be divorced from the satellite component.49 The FCC also recognized that foreign MSS providers could apply for ATC authority by modifying their authorized existing earth stations.50 ATC authority will be granted only to MSS licensees and is subject to several requirements. Section 25.149 of the FCC’s rules outlines the information that must be provided in an ATC application;51 however, this information may be viewed in terms of the four “gating” requirements established in the ATC Report and Order: (i) geographic coverage, (ii) coverage continuity, (iii) commercial availability, and (iv) integrated offering.52 With respect to the geographic coverage requirement, ATC operators must provide service to all 50 states, Puerto Rico, and U.S. Virgin Islands.53 The coverage continuity requirement obligates licensees to repair or replace defective space stations within a reasonable period of time.54 The FCC has explained that the commercial availability means that “[m]obile-satellite service must be commercially available (viz., offering services for a fee) in accordance with the coverage requirements that pertain to each band as a prerequisite to an MSS licensee’s

45 See

File No. SAT-MOD-20080718-00143 (granted Nov. 12, 2008). for Delivery of Communications by Mobile Satellite Service Providers in the 2 GHz Band, the L-Band, and the 1.6/2.4 GHz Bands; Review of the Spectrum Sharing Plan Among NonGeostationary Satellite Orbit Mobile Satellite Service Systems in the 1.6/2.4 GHz Bands, Report and Order and Notice of Proposed Rulemaking, 18 FCC Rcd 1962 (2003) (“ATC Report and Order”). 47 Ibid. at ¶ 1. 48 Flexibility for Delivery of Communications by Mobile Satellite Service Providers in the 2 GHz Band, the L-Band, and the 1.6/2.4 GHz Bands, Memorandum Opinion and Order and Second Order on Reconsideration, 20 FCC Rcd 4616 (2005) (“ATC Second Order on Reconsideration”). 49 ATC Report and Order at ¶ 52. 50 Ibid. at ¶ 245. 51 47 C.F.R. § 25.149. 52 ATC Report and Order at ¶ 66. 53 47 C.F.R. § 25.149(b)(1). 54 ATC Report and Order at ¶ 78. 46 Flexibility

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offering ATC service.”55 The integrated service offering requirement refers to the integration of the terrestrial component of the service with the satellite service.56 In the ATC Report and Order, the FCC established a “safe harbor” for applicants that can “demonstrate that they use a dual-mode handset to provide the proposed ATC service.”57 The FCC later clarified that the safe-harbor includes personal digital assistants, laptop computers, and other digital devices that provide dual-mode operations.58 In order to qualify for the safe harbor, such dual-mode equipment must contain all the hardware and software necessary to communicate via the MSS signal and the ATC signal when the equipment is sold to the customer.59 ATC operators are not required to use dual-mode equipment, but if they do not fall within the safe harbor, then they must demonstrate that their ATC operations truly are integrated with their satellite operations. As of August 2009, the Commission has granted three applications to add ATC to MSS satellite offerings: one to MSV in the L-Band,60 one to ICO in the 2 GHz band61 and one to Globalstar in the Big LEO frequency bands.62 In October 2008, the FCC modified Globalstar’s ATC authority to operate in several additional air interface protocols, including WiMax. Due to material degradation of Globalstar’s S-band satellite, the FCC found that it failed to provide satellite coverage throughout the U.S. and would result in a first-generation ATC offering that failed to provide integrated MSS-ATC service in the S-band. The FCC also found that Globalstar did not have an in-orbit spare for S-band service as required under the gating criteria.63 Despite these failures, the FCC granted the modification subject to a limited interim waiver of these requirements to allow Globalstar an opportunity to meet them prior to deployment of the MSS-ATC service in the S-band.64

18.2.3 Direct Broadcast Satellite Service The FCC has instituted a moratorium on new DBS satellite applications at the U.S. – allotted ITU Legion Z BSS orbital locations in response to a decision by the U.S. Court of Appeals for the D.C. Circuit rejecting the FCC’s decision to auction DBS 55 47

C.F.R. § 25.149(b)(3). Report and Order at ¶ 87. 57 Ibid. at ¶ 87. 58 ATC Second Order on Reconsideration at ¶ 32. 59 Ibid. at ¶ 29. 60 Mobile Satellite Ventures Subsidiary LLC, Order and Authorization, 19 FCC Rcd 22,144 (2004). 61 New ICO Satellite Services G.P., Application for Blanket Authority to Operate Ancillary Terrestrial Component Base Stations and Dual-Mode MSS-ATC Mobile Terminals in the 2 GHz MSS bands, Order and Authorization, DA 09–38 (rel. Jan. 15, 2009). 62 Globalstar LLC, Order and Authorization, 21 FCC Rcd 398 (2006). 63 Globalstar Licensee LLC, Application for Modification of License for Operation of Ancillary Terrestrial Component Facilities, Order and Authorization, 23 FCC Rcd 15,975, ¶¶ 13–19 (2008). 64 Ibid. at ¶¶ 23, 41. 56 ATC

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spectrum. Prior to June 2005, the FCC licensed DBS spectrum allotted to the United States through auctions if there were more applicants than available orbital slots and DBS channels. The FCC held an auction for three DBS licenses at two orbital locations in July 2004. Subsequently, the Court of Appeals for the D.C. Circuit held, in response to a challenge from Northpoint Technology, Ltd. and Compass Systems, Inc., that the FCC had failed to support its decision to auction DBS spectrum in light of the ORBIT Act’s prohibition on auctioning spectrum “used for” international service.65 In response to the court’s opinion, the FCC imposed a freeze on all new DBS applications.66 On August 18, 2006, the FCC issued a Notice of Proposed Rulemaking proposing to apply the first-come, first-served processing regime to new DBS applications, and seeking comment on other options for awarding DBS licenses.67 The Reduced DBS Spacing NPRM also proposed reducing the orbital spacing between DBS satellites along the geostationary arc from 9◦ to 4.5◦ .68 Within 3 months of publishing the NPRM, the FCC granted two previously filed applications to operate DBS satellites at reduced orbital locations. The FCC granted Spectrum Five LLC a license to provide DBS service into the U.S. from two Netherlandauthorized satellites from 114.5◦ W.L.69 The FCC also granted EchoStar Satellite Operating Corporation authority to provide DBS service from 86.5◦ W.L.70 The applications were granted subject to the outcome of the Reduced DBS Spacing NPRM.

18.2.4 17/24 GHz BSS Spectrum In May 2007, the FCC issued processing and service rules for the 17/24 GHz Broadcasting-Satellite Service (“BSS”) allowing licensees to provide DTH services.71 The FCC had previously allocated 17.3–17.7 GHz band to the BSS 65 Northpoint

Technology, Ltd., et al. v. FCC, 412 F.3d 145 (D.C. Cir. 2005). Notice, Direct Broadcast Satellite (DBS) Service Auction Nullified: Commission Sets Forth Refund Procedures for Auction No. 52 Winning Bidders and Adopts a Freeze on All New DBS Service Applications, 20 FCC Rcd 20,618 (rel. Dec. 21, 2005). 67 Amendment of the Commission’s Policies and Rules for Processing Applications in the Direct Broadcast Satellite Service, Feasibility of Reduced Orbital Spacing for Provision of Direct Broadcast Satellite Service in the United States, Notice of Proposed Rulemaking, 21 FCC Rcd 9443, ¶¶ 20–27 (2006) (“Reduced DBS Spacing NPRM”). 68 Ibid. at ¶¶ 22–31. 69 Spectrum Five, LLC, Order and Authorization, 21 FCC Rcd 14,023 (2006). 70 EchoStar Satellite L.L.C., Order and Authorization, 21 FCC Rcd 14,045 (2006). 71 The Establishment of Policies and Service Rules for the Broadcasting-Satellite Service at the 17.3–17.7 GHz Frequency Band and at the 17.7–17.8 GHz Frequency Band Internationally, and at the 24.75–25.25 GHz Frequency Band for Fixed Satellite Services Providing Feeder Links to the Broadcasting-Satellite Service and for the Satellite Services Operating Bi-directionally in the 17.3–17.8 GHz Frequency Band, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 8842 (rel. May 4, 2007) (“Reverse Band Order”). 66 Public

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for downlink transmissions and 300 MHz of spectrum at 24.75–25.05 for the FSS uplink and BSS feeder links. The FCC has also allocated 200 MHz of spectrum at 25.05–25.25 GHz for shared use between the 24 GHz Fixed Service and BSS feeder links. In its order, the FCC effectively imposed the processing requirements applied to GSO FSS satellites in its First-Come, First-Served Order.72 Specifically, 17/24 GHz BSS applications are subject to a first-come, first-served application processing procedure and licensees must meet the bond and milestone requirements set out in Sections 25.164 and 25.165.73 Satellites licensed to operate in this spectrum must be capable of operating in a 4◦ spacing environment.74 Finally, foreign operators may seek access to the U.S. market using this spectrum through the DISCO II process described in Section 18.4 below. The FCC specifically noted that foreign applicants proposing to provide DTH services over the spectrum must include an ECO-Sat analysis in their applications.75 The FCC initially established a specific orbital location framework based on four degree spacing (“Appendix F orbital locations”),76 but subsequently revised the framework sua sponte to allow licensees more flexibility in choosing their orbital locations.77 The FCC’s revised framework allows operators to request to operate their 17/24 GHz BSS satellites up to one degree offset from the Appendix F orbital locations at full power and with full interference protection if there is no 17/24 GHz BSS satellite assigned to, or a prior application requesting assignment to, an orbital location less than four degrees from the proposed offset location. Once a full-power offset satellite has been licensed, subsequently licensed satellites operating less than four degrees away from the licensed offset location will be required to operate at reduced power levels to protect the offset satellite from interference and must accept any interference from the offset satellite even if the later satellite is assigned to an Appendix F orbital location.78 Section 25.140(b)(4) sets out the interference analysis that must be submitted with applications for offset orbital locations falling into three potential scenarios: (1) when there are no other 17/24 GHz BSS satellites located within four degrees of the offset location, the 17/24 GHz BSS applicant may seek to operate at full power and with full interference protection;79 (2) when there is another 17/24 GHz

72 Ibid.

at ¶¶ 7, 14–16. C.F.R. §§ 25.164, 25.165. 74 Reverse Band Order at ¶ 70. 75 Ibid. at ¶ 22. 76 Ibid., Appendix F. 77 The Establishment of Policies and Service Rules for the Broadcasting-Satellite Service at the 17.3–17.7 GHz Frequency Band and at the 17.7–17.8 GHz Frequency Band Internationally, and at the 24.75–25.25 GHz Frequency Band for Fixed Satellite Services Providing Feeder Links to the Broadcasting-Satellite Service and for the Satellite Services Operating Bi-directionally in the 17.3–17.8 GHz Frequency Band, Order on Reconsideration, 22 FCC Rcd 17,951 (2007) (“Reverse Band Reconsideration Order”). 78 Ibid. at ¶ 22. 79 47 C.F.R. §25.140(b)(4(i). 73 47

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BSS satellite operating, or a prior filed application, less than four degrees away, the applicant must demonstrate that the proposed offset operations will not cause any more interference than if it were located at the Appendix F orbital location from which it is offset;80 and (3) when the applicant does not seek to operate its offset satellite at full power or with full interference protection, it must demonstrate that the proposed satellite will not cause any more interference than if it were at the Appendix F orbital location from which it is offset.81 At the time the FCC issued its Reverse Band Reconsideration Order, five operators had filed applications to operate 17/24 GHz BSS satellites.82 The FCC granted these applicants an opportunity to amend their applications to take advantage of the revised orbital location framework.

18.2.5 Satellite Digital Audio Radio Service In 1997, the Commission adopted rules for the Satellite Digital Audio Radio Service (“SDARS”) allowing licensees to provide “continuous nationwide radio programming.”83 In its order, the FCC created two SDARS licenses, which were granted to XM Radio Inc. and Sirius Satellite Radio Inc. through an auction.84 XM began operating in 2001 and currently offers service from four GSO satellites located at 85◦ W.L. and 115◦ W.L. Sirius began providing service over three NGSO satellites in 2002. In September 2008, the FCC consented to the merger of XM and Sirius

80 47

C.F.R. § 25.140(b)(4)(ii). C.F.R. § 25.140(b)(4)(iii). 82 See DirecTV Enterprise, LLC, File Nos. SAT-LOA-19970605-00049, as amended (107◦ W.L.), SAT-LOA-19970605-00050, as amended (111◦ W.L.), SAT-LOA-19970605-00051, as amended (118.4◦ W.L.); SAT-LOA-20060908-00099, as amended (99◦ W.L.), SAT-LOA-2006090800100, as amended (103◦ W.L.); EchoStar Corporation, File Nos. SAT-LOA-20020328-00050, as amended (79◦ W.L.), SAT-LOA-20020328-00051, as amended (110.4◦ W.L.), SAT-LOA20020328-00052, as amended (107◦ W.L.), SAT-LOA-20070105-00001, as amended (62.15◦ W.L.), SAT-LOA-20070105-00003, as amended (75◦ W.L.); Intelsat North America LLC, File Nos. SAT-LOA-20050210-00028, as amended (122.9◦ W.L.), SAT-LOA-20050210-00029, as amended (99.1◦ W.L.), SAT-LOA-20050210-00030, as amended (95.15◦ W.L.), SAT-LOA-2005021000031, as amended (90.9◦ W.L.); Pegasus Development DBS Corporation, File Nos. SAT-LOA20060412-00042, as amended (91.0◦ W.L.), SAT-LOA-20060412-00043, as amended (107◦ W.L.), SAT-LOA-20060412-00044, as amended (115◦ W.L.). After the FCC opened the application process to all applicants, SkyNet Satellite Corporation (File Nos. SAT-LOA-20080910-00174, SAT-LOA-20080910-00186) and Spectrum Five LLC (SAT-LOI-20081113-00216) submitted applications. 83 Digital Audio Radio Satellite Service in the 2310–2360 MHz Frequency Band, Report and Order, Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, 12 FCC Rcd 5754, ¶ 1 (1997) (“SDARS Order”). 84 See Public Notice, FCC Announces Auction Winners for Digital Audio Radio Service, DA 97– 656 (rel. Apr. 2, 1997). 81 47

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subject to certain conditions.85 The SDARS licensing and operational requirements are outlined in Section 25.144 of the FCC’s rules.86

18.3 Regulation of Private Communication Satellite Operations 18.3.1 General Obligations for Satellite Video Programming Providers 18.3.1.1 Public Interest Obligations All DBS licensees, 17/24 GHz BSS licensees providing DTH service, and FSS operators that sell or lease Ku-band transponder capacity to video programming distributors are required to meet certain content obligations. Specifically, they must reserve 4% of their channel capacity for use by qualified programmers for noncommercial programming of an educational or informational nature.87

18.3.1.2 Statutory Copyright Licenses Operators that distribute point-to-multipoint television station signals over the DBS, FSS and 17/24 GHz BSS spectrum may also take advantage of the statutory copyright license established under Sections 119 and 122 of the Copyright Act.88 Under these statutes, the U.S. Copyright Office establishes a set copyright fee paid to programming copyright owners. Section 119 allows eligible operators to retransmit distant network signals, provided that the customers receiving the signals are deemed to be “unserved” by the local affiliate of the distant station.89 Section 122 creates a statutory license for eligible operators to retransmit a local network back into that network’s market (“local-into-local service”). This authority is restricted as the satellite operator must also carry all of the broadcast stations located in that local market that request carriage.90

85 Applications

for Consent to the Transfer of Control of Licenses, XM Satellite Radio Holdings Inc., to Sirius Satellite Radio Inc., Memorandum Opinion and Order and Report and Order, 23 FCC Rcd 12348 (2008) (“SDARS Merger Order”). 86 47 C.F.R. § 25.144. 87 47 C.F.R. § 25.701. 88 17 U.S.C. §§ 119, 122. 89 17 U.S.C. § 119. 90 47 C.F.R. § 76.66. These rights were renewed by the Satellite Television Extension and Localism Act of 2010, Pub. L. No. 111–175, 124 Stat. 1218. 3394 (2004).

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18.3.2 General Obligations for Telecommunications Providers 18.3.2.1 Common Carrier Telecommunications Authority All entities providing telecommunications service on a common carrier basis, whether as a facilities-based carrier or a reseller, must be authorized by the FCC prior to providing service (“Section 214 authority”).91 Domestic common carrier operations are authorized pursuant to Section 63.01 of the FCC’s rules, and do not require a separate application.92 Carriers providing international service, however, must apply for Section 214 authority prior to beginning service. Carriers seeking international Section 214 authority must demonstrate “how the grant of the application will serve the public interest, convenience, and necessity.”93 The FCC has created an “exclusion list,” which identifies the foreign markets and the services that require special application to receive Section 214 authority.94 Specifically, Section 214 authority will not be granted to non-U.S. licensed satellites that are not included on the FCC’s Permitted Space Station List.95 The FCC’s overarching concern in reviewing international Section 214 applications is the potential for anticompetitive conduct in the international telecommunications services market.96 Applications for international Section 214 authority must identify all entities, including individuals that own 10% or greater direct or indirect interest in the applicant, and any foreign carriers with which it has interlocking directorates.97 An applicant also must identify the foreign markets where it is considered a foreign carrier or it is affiliated with a foreign carrier.98 If the applicant intends to provide service from the United States into a market where it owns a foreign carrier, another entity owns 25% or more of both the applicant and another foreign carrier, or two or more foreign carriers own 25% or more of the applicant and are parties to a contractual agreement, such as a joint venture, the application must describe the circumstances. If the proposed foreign market is a member of the World Trade Organization (“WTO”), the application must identify it as such.99 If it is not, and the applicant is affiliated with a foreign carrier in that market, the

91 47

U.S.C. § 214. C.F.R. § 63.01. 93 47 C.F.R. § 63.18. 94 As of publication, Cuba was the only market on the exclusion list. See FCC Section 214 Filing Guide, at http://www.fcc.gov/ib/pd/pf/214guide.html. 95 To access the Permitted Station List, go to http://www.fcc.gov/ib/sd/se/permitted.html. 96 1998 Biennial Regulatory Review – Review of International Common Carrier Regulations, 14 FCC Rcd 4909, ¶ 7 (1999) (“The Commission continues to look for opportunities to remove regulatory obstacles to a fully competitive marketplace while retaining the appropriate ability to detect and deter anticompetitive conduct.”). 97 47 C.F.R. § 63.18(h). 98 47 C.F.R. § 63.18(i). 99 47 C.F.R. § 63.18(k)(1). 92 47

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applicant must certify that its affiliate lacks market power in the foreign country.100 If the applicant does not have an affiliate in the foreign market, it must certify that the proposed foreign country “provides effective competitive opportunities to U.S. carriers to compete in that country’s market for the service that the applicant seeks to provide . . . .”101 An applicant must also certify that it has not received any special concessions102 from any foreign carrier that possesses market power in the foreign country where the applicant proposes to provide U.S. service.103 Potential international carriers should be aware that they will be subject to the conditions outlined in Sections 63.21–63.23 of the FCC’s rules.104 Based on the information provided in the application, a carrier will be characterized as either dominant or non-dominant. A carrier that is neither a foreign carrier in the destination market nor affiliated with a foreign carrier in that market is presumed to be non-dominant for that route.105 Similarly, a carrier that provides international switched service through the resale of an unaffiliated U.S. facilities-based carrier is presumed to be non-dominant.106 On the other hand, a carrier that is, or is affiliated with, a foreign carrier that is a monopoly service provider in the relevant market is presumed to be a dominant carrier for that route.107 The presumption of dominance may be rebutted by demonstrating that the foreign affiliate lacks 50% market share in the international transport and the local access markets in the destination market.108 Dominant carriers are subject to greater restriction on their service and are required to file regular reports with the FCC.109 After receiving Section 214 authority, carriers must receive FCC consent prior to becoming affiliated with a foreign carrier in a destination market.110 When the authorized carrier, an entity that controls the carrier, or any entity that directly or 100 47

C.F.R. § 63.18(k)(2). C.F.R. § 63.18(k)(3). 102 A special concession is defined as “an exclusive arrangement involving service, facilities, or functions on the foreign end of a U.S. international route that are necessary for the provision of basic telecommunications services where the arrangement is not offered to similarly situated U.S.licensed carriers and involves: (1) Operating agreements for the provision of basic services; (2) Distribution arrangements or interconnection arrangement, including pricing, technical specifications, functional capabilities, or other quality and operational characteristics, such as provisioning and maintenance times; or (3) Any information prior to public disclosure, about a foreign carrier’s basic network services that affects either the provision of basic or enhanced services or interconnection to the foreign country’s domestic network by U.S. carriers or their U.S customers.” 47 C.F.R. § 63.14(b). 103 47 C.F.R. § 63.18(n). 104 47 C.F.R. §§ 63.21, 63.22, 63.23. 105 47 C.F.R. § 63.10(a)(1). 106 47 C.F.R. § 63.10(a)(4). 107 47 C.F.R. § 63.10(a)(2). 108 47 C.F.R. § 63.10(a)(3). 109 For a list of the requirements that apply to dominant carriers see 47 C.F.R. § 63.10(c)–(e). 110 The information that must be provided in the notification and the procedure the FCC will apply to the notice are described at 47 C.F.R. § 63.11(e)–(g). 101 47

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indirectly owns more than 25% of the carrier acquires a controlling interest in a foreign carrier, the FCC must give prior approval to the transaction.111 Similarly, when a foreign carrier acquires a 25% direct or indirect interest in the authorized carrier, the FCC’s prior consent must be obtained.112 The FCC has created an exception when the foreign carrier either has been determined by the FCC to lack market power in the destination market or it owns no facilities in the destination market. In either of these situations, the authorized carrier may wait up to 30 days after the transaction is consummated to notify the FCC.113 If neither of these two situations is present, post-consummation notification will still be accepted where the foreign carrier is authorized to operate in a WTO member country and (i) the authorized carrier will continue to qualify as a non-dominant carrier, or (ii) the authorized carrier agrees to comply with the restrictions in Section 63.10.114 An authorized carrier may assign its Section 214 authority, and an owner of the authorized carrier may transfer control of the carrier with prior FCC approval.115 Transactions that do not result in a substantial change in the authorized carrier or its ownership will be considered pro forma, and do not require prior approval. Parties to a pro forma transaction must notify the FCC 30 days after the transaction is completed.116 An authorized Section 214 carrier also is required to notify its affected customers 30 days before discontinuing, reducing or impairing its service.117 Dominant carriers must file an application with the FCC pursuant to Section 63.62 of its rules before reducing service.118 18.3.2.2 Universal Service In 1996, the United States Congress established the universal service system as a support mechanism to ensure the availability of affordable telecommunications services in the U.S.119 Section 254(d) of the statute mandated that “[e]very telecommunications carrier that provides interstate telecommunications services shall contribute, on an equitable and nondiscriminatory basis. . . .”120 The FCC assesses individual carrier contributions based on the carrier’s end-user revenues. The Universal Service Administrative Company (“USAC”) is responsible for

111 47

C.F.R. § 63.11(a)(1). C.F.R. § 63.11(a)(2). 113 47 C.F.R. § 63.11(b)(1). 114 47 C.F.R. § 63.11(b)(2). 115 47 C.F.R. § 63.24. 116 47 C.F.R. § 63.24(f). 117 47 C.F.R. § 63.19(a). Domestic carriers are subject to similar notification requirements under 47 C.F.R. § 63.71. 118 47 C.F.R. § 63.19(b). 119 See 47 U.S.C. §§ 151, 201, 202, 254. 120 47 U.S.C. § 254. 112 47

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administering the system and collecting contributions. In order for USAC to accomplish this, carriers are required to report their end-user telecommunications revenues to USAC on an annual basis.121 Satellite operators that provide telecommunications services subject to universal service contributions must file Forms 499Qs on a quarterly basis122 and 499As on an annual basis.123 The FCC sets the contribution factor that is to be applied to carrier revenue on a quarterly basis. The FCC has cast a wide-net with respect to satellite services that qualify for universal service liability. In implementing the Order, the FCC stated that “entities providing, on a common carrier basis, video conferencing services, channel service or video distribution services to cable head-ends would contribute to universal service.”124 However, it further clarified that “[e]ntities providing open video systems (OVS), cable leased access, or direct broadcast satellite (DBS) services would not be required to contribute on the basis of revenues derived from those services.”125 The FCC has also created a self-provider exception for DBS providers, under which entities that provide services only to themselves or to commonly-owned affiliates are not required to contribute to the universal service fund.126

18.4 Foreign Investment In 1997, the United States committed to allow foreign companies access to the U.S. telecommunications services market, including the market for satellite services, by signing the World Trade Organization Agreement on Basic Telecommunications Services. Pursuant to this agreement, the FCC developed a framework for considering foreign operators’ requests to access the U.S. satellite services market.127 121 Changes to the Board of Directors of the National Exchange Carrier Association, Inc., FederalState Joint Board on Universal Service, Report and Order and Second Order on Reconsideration, 12 FCC Rcd 18400 (1997). 122 Instructions for completing the Form 499Q are available at http://www.usac.org/_res/ documents/fund-administration/pdf/form-499Q-fy2007-instructions.pdf. 123 Instructions for completing the Form 499A are available at http://www.usac.org/_res/ documents/fund-administration/pdf/499/form-499a-FY2007-instructions.pdf. 124 Federal-State Joint Board on Universal Service, Report and Order, 12 FCC Rcd 8776, ¶ 781 (1997). 125 Ibid. 126 See Federal-State Joint Board on Universal Service, Order on Reconsideration, 19 FCC Rcd 23824, ¶ 44 (2004). 127 Amendment of the Commission’s Regulatory Policies to Allow Non-U.S. Licensed Space Stations to Provide Domestic and International Satellite Service in the United States; Amendment of Section 25.131 of the Commission’s Rules and Regulations to Eliminate the Licensing Requirement for Certain International Receive-Only Earth Stations; COMMUNICATIONS SATELLITE CORPORATION; Request for Waiver of Section 25.131(j)(1) of the Commission’s Rules as it Applies to Services Provided via the INTELSAT K Satellite, Report and Order, 12 FCC

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In DISCO II, and subsequent orders, the FCC created several methods for foreign entities to gain access to the U.S. satellite services market. First, U.S. earth station operators may file an application to communicate with a foreign satellite. Second, a foreign operator seeking to offer service from a satellite may file a “letter of intent.” Third, a foreign satellite operator may file a Petition for Declaratory Ruling requesting its satellite be placed on the Permitted Space Station List.128 Earth station applications and letters of intent will be treated the same as all new license applications. Foreign FSS satellite applications, for example, are placed in the FCC’s application queue and either evaluated in a modified processing round for NGSO-like systems or reviewed on a first-come, first-served basis for GSO satellites.129 In its DISCO II First Reconsideration Order, the FCC established the Permitted Space Station List for foreign satellites providing standard FSS service in the C- and Ku-bands.130 The list was intended to mirror the ALSAT designation provided to earth stations communicating with U.S. satellites providing FSS service in the same bands.131 Any earth station that includes an ALSAT designation will be able to communicate with a foreign satellite on the Permitted Space Station List without seeking further authorization from the FCC.132 Foreign operators applying to access the U.S. market and U.S. earth station operators seeking to communicate with foreign satellites must provide all of the information required of U.S. satellite applicants as described in Section 25.114, as well as the information required under Section 25.137 of the FCC’s rules.133 They will be subjected to the same public interest analysis that U.S. satellite applicants receive; however, the FCC will also consider the competitive effects the proposed service will have in the U.S.134 In evaluating the competitive effects, the FCC adopted a presumption in favor of WTO-member countries; therefore, applicants that are located in WTO-member countries are presumed to meet the competitive effects component.135 Non-WTO member country applicants and applicants for DTH, DBS and DARS service are not eligible for the presumption and must provide a showing under the

Rcd 24,094 (1997) (“DISCO II”). The United States did not include DTH, DBS and DARS services among its market access commitments under the agreement, and therefore, the FCC’s framework addressed these services separately. 128 See 47 C.F.R. § 25.137. DISCO II First Reconsideration Order, supra note 17. 129 First-Come, First-Served Order at ¶¶ 290–297. 130 DISCO II First Reconsideration Order at ¶¶ 16–20. 131 See supra note 17. 132 DISCO II First Reconsideration Order at ¶¶ 16–20. 133 47 C.F.R. §§ 25.114, 25.137. 134 DISCO II at ¶¶ 7, 39–41. 135 Ibid. at ¶¶ 39–40.

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FCC’s ECO-Sat test.136 Under the test, the FCC will “examine effective competitive opportunities for U.S.-licensed satellites to serve the foreign markets.”137 It will consider de jure barriers, including statutes and regulations. But it will also consider de facto barriers, such as more stringent technical requirements.138

18.5 Competition 18.5.1 FCC Policies for Encouraging Competition Encouraging competition is an important component of the FCC’s responsibility in licensing and regulating satellite services in the United States. The FCC has instituted various policies and analytical tools to encourage competition among satellite operators where a lack of resources – i.e. spectrum and orbital locations – may be the greatest barrier to entry. For example, the FCC noted in its 2007 Satellite Competition Report that it has increased available spectrum by opening Ku-band and Ka-band spectrum to non-geostationary satellite orbit service providers.139 The FCC further noted that its implementation of first-come, first-served application processing for GSO satellites and a modified processing round for NGSO applications reduced the average application processing period from several years to a few months.140 The FCC also has imposed implementation milestones and bond requirements on new satellite licensees to ensure that satellite spectrum does not lie fallow. In the 2 GHz MSS Order, and later in the First-Come, First-Served Order, the FCC instituted milestone requirements to “ensure that licensees construct and launch their systems in a timely manner.”141 A GSO satellite licensee, with the exception of DBS and DARS licensees, is required to enter into a binding, non-contingent construction contract within one year of receiving its license. Two years after licensing, it must complete the critical design review of the satellite. Three years after licensing, it must begin constructing the satellite. And five years after licensing, it must launch and operate the satellite.142 An NGSO licensee must meet the first two milestones outlined above, as well as begin construction of the first satellite in its system within two years and six months of receiving its license. Three years and six months after licensing, the licensee must launch and operate the first satellite. Within six years 136 The FCC adopted an exception when the United States has entered into a bilateral agreement with the applicant’s country for reciprocal market access. Ibid. at ¶ 143. 137 DISCO II at ¶ 99. 138 Ibid. 139 Annual Report and Analysis of Competitive Market Conditions with Respect to Domestic and International Satellite Communications Services, First Report, 22 FCC Rcd 5954, ¶ 107 (2007) (“2007 Satellite Competition Report”). 140 Ibid. at 5987–88, ¶¶ 108–10. 141 First-Come, First-Served Order at ¶ 161. 142 47 C.F.R. § 25.164.

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of licensing all of the satellites in the system must be operational.143 DBS licensees are subject to similar milestones. Specifically, they must enter into a contract within one year of grant; construction must be completed within four years; and the satellite must be operational within six years.144 The FCC typically also requires licensees to complete critical design review within two years of grant, but this requirement is generally included as a condition to the license. As a further enforcement measure, the FCC imposed a bond requirement for new licensees. Under Section 25.165, all satellite licensees, with the exception of DBS and DARS, must post a bond within 30 days of being granted the license.145 A GSO licensee must post a $3 million bond, which may be reduced by $750,000 upon meeting each milestone. An NGSO licensee must post a $5 million bond, which may be reduced by $1 million upon meeting each milestone. If a licensee fails to meet one of its milestones and cannot demonstrate the need for an extension, the FCC will deem it to be in default, the bond will be forfeited and the license revoked.146 The FCC has also limited the number of applications one applicant may have on file with the FCC to limit speculation. Section 25.159 limits applicants to five pending GSO applications or licensed-but-unbuilt GSO satellites in a particular frequency band. Applicants are also limited to one NGSO system application or one licensed-but-unbuilt system in a particular frequency band.147 The U.S. Congress also has mandated that FCC licensees may not assign their authorizations nor may control over the licensee change without prior FCC consent.148 In its review, the FCC will grant the application only if “the public interest, convenience, and necessity will be served thereby.”149

18.5.2 The State of Competition for Satellite Services Over the years, the FCC has published annual reports to the U.S. Congress on the competitive status of several industries, which include satellite operators. In October

143 Ibid. 144 47

C.F.R. § 25.148(b) C.F.R. § 25.165. 146 See, e.g., Applications of Mobile Communications Holdings, Inc. and ICO Global Communications (Holdings) Limited for Transfer of Control, Constellation Communications Holdings, Inc. and ICO Global Communications (Holdings) Limited for Transfer of Control, Mobile Communications Holdings, Inc. for Modification of 2 GHz License, Constellation Communications Holdings, Inc. for Modification of 2 GHz License, Memorandum Opinion and Order, 18 FCC Rcd 1094 (2003), application for review denied in Joint Application for Review of Constellation Communications Holdings, Inc., Mobile Communications Holdings, Inc. and ICO Global Communications (Holdings) Limited, Memorandum Opinion and Order, 19 FCC Rcd 11,631 (2004). 147 47 C.F.R. § 25.159. 148 47 U.S.C. § 310(d). 149 Ibid. See also 47 C.F.R. § 25.119. 145 47

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2008 the FCC published its second report on competition among domestic and international satellite services.150 In that report, the FCC found that such services were effectively competitive. The report evaluated publicly available information for participants in three domestic wholesale markets, three international wholesale markets and two retail markets. The market for domestic wholesale video contribution services included pointto-point capacity used by media services to transmit entertainment and news content from the location of the event to the company’s production facilities. The FCC identified several FSS satellite operators that participate in this market, including Intelsat, Ltd., Loral Space and Communications, Ltd, SES Americom, Inc., and EchoStar Fixed Satellite Services Corp.151 The FCC noted in its analysis that satellite participants in this market face competition from terrestrial distribution providers, such as Level 3 Communications, Inc., AT&T and Verizon Communications Inc. The market for domestic wholesale video distribution services consists of pointto-multipoint transmission of entertainment and news content from networks to individual broadcast stations or from a multichannel video programming distributor’s (“MVPD”) hub to its head-ends. The video is then distributed to consumers.152 The major competitors in this market are the same competitors in the video contribution market. The FCC defined the domestic network services market to include two types of service: (i) backbone satellite capacity and network integration, and ii) fixed communications services between points within the United States.153 The FCC’s report also addressed the international markets for wholesale video contribution, video distribution and networks.154 According to the Commission’s first report on satellite competition issued in 2007, since 2000, the market for wholesale satellite services has become more concentrated as a result of several mergers.155 As the FCC noted in that report, in 2000 GE Americom acquired Columbia Communications Corporation.156 The

150 Second Annual Report and Analysis of Competitive Market Conditions with Respect to Domestic and International Satellite Communications Services, 23 FCC Rcd 15170 (2008) (“2008 Satellite Competition Report”). Generally, the markets in which specific satellite operators compete are broader than the satellite operations and include terrestrial service providers. Moreover, a market that includes satellite operators may be defined differently depending on the analysis being performed. 151 Ibid. at ¶ 15. 152 Ibid. at ¶ 17. 153 Ibid. at ¶ 18. 154 Ibid. at ¶ 24. 155 2007 Satellite Competition Report, supra note 139. 156 Ibid. at ¶ 66. See also GE American Communications, Inc., CCC Merger Sub, Inc., and Columbia Communications Corp.; Application for Consent to Transfer of Space Station Licenses of Columbia Communications Corporation, Order and Authorization, 15 FCC Rcd 11590 (2000).

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combined company was then acquired by SES Global in 2001.157 In 2004, The News Corporation Limited acquired Hughes after it spun off from General Motors.158 Later that year, Intelsat acquired Loral’s North American satellites after Loral entered bankruptcy, providing Intelsat access to the U.S. video distribution market.159 In 2006, SES Global acquired New Skies160 and Intelsat acquired PanAmSat.161 In 2007, the Commission approved three additional merger transactions: the merger of Loral Skynet Corporation and Telesat Canada;162 the transfer of Stratos Global to a Canada trust with the intent of further transfer to Inmarsat plc;163 and the merger of Telenor Satellite Inc. and France Telecom Mobile Satellite Communications.164 The two domestic retail markets addressed by the FCC include fixed satellite broadband service and mobile video broadcasting service. The fixed satellite broadband services market is relatively new, and, according to the 2008 Satellite Competition Report, consists of only three U.S. participants: Wildblue

157 Application of General Electric Capital Corporation, and SES Global, S.A., for Consent to Transfer Control of Licenses and Authorizations Pursuant to Sections 214(a) and 310(d) of the Communications Act and Petition for Declaratory Ruling Pursuant to Section 310(b)(4) of the Communications Act, Order and Authorization, 16 FCC Rcd 17575 (2001); Supplemental Order, 16 FCC Rcd 18878 (2001). 158 General Motors and Hughes Electronics Corporation and the News Corporation Limited for Authority to Transfer Control, Memorandum Opinion and Order, 19 FCC Rcd 473 (2004). 159 Loral Satellite, Inc. and Loral SpaceCom Corporation and Intelsat North America, LLC; Applications for Consent to Assignments of Space Station Authorizations and Petition for Declaratory Ruling Under Section 310(b)(4) of the Communications Act of 1934, as Amended, Order and Authorization, 19 FCC Rcd 2404 (2004). 160 Application of New Skies Satellites Holdings Ltd. and SES Global S.A. to Transfer Control of Authorizations Held by New Skies Networks, Inc., and Notification of Change to Permitted Space Station List; International Authorizations Granted, Public Notice, 21 FCC Rcd 3194 (rel. Mar. 29, 2006). 161 Constellation, LLC, et al. and Intelsat Holdings, Ltd., Consolidated Application for Authority to Transfer Control of PanAmSat Licensee Corp. and PanAmSat H-2 Licensee Corp., Memorandum Opinion and Order, 21 FCC Rcd 7368 (2006). 162 Application of BCE Inc. and Loral Skynet Corporation, and 4363205 Canada, Inc., 4363213 Canada, Inc., and Skynet Satellite Corporation, for Consent to Transfer of Control or Assignment of Licenses and Authorizations Held by Telesat Canada, Able Infosat Communications, Inc., Loral Skynet Corporation, and Loral Skynet Network Services, Inc., and Petitions for Declaratory Ruling that the Transaction is Consistent with Section 310(B)(4) of the Communications Act, 22 FCC Rcd 18,049 (2007). 163 Stratos Global Corporation, Transferor, Robert M. Franklin, Transferee, Consolidated Application for Consent to Transfer of Control, Memorandum Opinion and Order and Declaratory Ruling, 22 FCC Rcd 21328 (2007). This transfer represents the first step in a two-step transaction to transfer Stratos Global to Inmarsat, plc. See ITC-T/C-20080618-00276 (filed June 18, 2008). 164 Telenor ASA, and Inceptum 1 AS, Seek FCC Consent to Transfer Control of Licenses and Authorizations and a Declaratory Ruling on Foreign Ownership, DA 07–2163, Public Notice, 22 FCC Rcd 9325 (2007).

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Communications, Inc., Hughes, and Starband. Inmarsat, a U.K. company, also provides service through U.S. resellers.165 The FCC noted in its discussion that Contact Communications, LLC, has been authorized to provide broadband services using FSS and Highly Elliptical Orbit satellites, but it has not begun offering service.166 The FCC also noted that ICO and Alcatel are plan to test satellite-based Mobile Video Broadcasting to hand-held terminals, but indicated that the commercial offering is farther in the future.167 While the 2007 Satellite Competition Report discussed SDARS, that discussion was dropped from the 2008 report because the two SDARS participants received approval to merge in August 2008.168 In the FCC’s original SDARS Order creating the two licenses that were ultimately granted to XM and Sirius through an auction, the FCC stated: “after DARS licenses are granted, one licensee will not be permitted to acquire control of the other remaining satellite DARS license.”169 In approving the merger, the Commission repealed this prohibition.170 In addition to the 2008 Satellite Competition Report, the FCC also reports on competition in the market for video programming. This report reviews the state of competition between all MVPDs including DBS and DTH providers, cable operators, and wireline video providers, which represent traditional telecommunications companies that recently began to offer video service over their telecommunications networks.171 In its most recent published report covering 2006, the FCC found that, while cable operators continue to hold the majority (68.2%) of all MVPD households, DBS operators increased their share of the MVPD market from 27.7% in 2004 to 29.2% in 2005.172 The FCC also reports on the competitive state of the commercial mobile radio service market, which includes MSS operators.173 In its report covering 2007, the FCC noted that four MSS operators were providing mobile voice and data services in the United States: Globalstar Telecommunications LTD, Iridium Satellite LLC, Inmarsat, and MSV. ICO Global Communications (Holdings) Ltd. launched its G1 satellite in April 2008, but has not begun providing service.174 TerreStar Networks, Inc., also is licensed to provide service, but has not begun operating.175

165 2008

Satellite Competition Report at ¶ 22.

166 Ibid. 167 Ibid.

at ¶ 23. SDARS Merger Order, supra note 85. 169 SDARS Order at ¶ 170, supra note 83. 170 SDARS Merger Order at ¶ 163. 171 See, e.g., Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 24 FCC Rcd 542, Thirteenth Annual Report (2009). 172 Ibid. ¶ 8. 173 Thirteenth CMRS Competition Report, supra note 44. 174 Ibid. at ¶ 250. 175 Ibid. 168 See

Chapter 19

Politics and Regulation of Earth Observation Services in the United States Eligar Sadeh

19.1 Introduction Earth Observation (EO) services are complicated due to the number of EO satellite platforms. According to the Committee on Earth Observation Satellites (CEOS), there are over sixty EO satellite missions operating, and more than ninety missions planned within the next fifteen years.1 These missions will produce terabytes of data. One key challenge involves the extent to which the different data policy interests of EO data providers are harmonized, i.e., the scientific, technical, and political coordination of EO services. The focus in this chapter is on the harmonization of EO services in the United States (U.S.) and internationally where the U.S. is a key player, on the national security issues for the U.S. that arise as a result of EO services, and on the political and legal issues in the U.S. concerning commercial EO data providers and private uses of EO services. At the international level, the harmonization efforts are exemplified by the work of CEOS, which was established in 1984. CEOS coordinates data management and policy issues for all international and national organizations responsible for EO spaceborne missions.2 In addition to CEOS, there are other actors, strategies, and

E. Sadeh (B) Astroconsulting International LLC, USA e-mail: [email protected] 1 See

http://www.ceos.org (last accessed: 25 June 2009). evolved out of scientific collaboration among national space agencies in Europe, France, India, Japan, and the United States that took place through several Multilateral Meetings on Remote Sensing held in 1980 and 1982, and through Coordination on Land Observation Satellites and Coordination on Ocean Remote Sensing Satellites. See “Minutes of the Committee on Earth Observations Satellites,” 24–25 September 1984. The membership of CEOS includes national space agencies and space-based research organizations of Australia, Brazil, Canada, China, Europe, France, Germany, India, Italy, Japan, Russia, Sweden, Ukraine, United Kingdom, and the United States; Belgium, Canada, New Zealand, and Norway are observers; and the Economic and Social Commission of Asia and Pacific, Food and Agricultural Organization, Global Climate Observing System, Global Ocean Observing System, Intergovernmental Oceanographic Commission, International Council of

2 CEOS

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_19,  C Springer Science+Business Media B.V. 2010

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systems concerned with harmonization of EO services at the international level that include the U.S. This involves the Integrated Global Observing Strategy (IGOS), and the Group on Earth Observations (GEO) and the associated Global Earth Observation System-of-Systems (GEOSS). IGOS emerged in 1998 with the goal to coordinate all in-situ and satellite EO data. The Group of Eight (G8) states took the imitative to establish GEO in 2003.3 GEO provides an international, comprehensive, integrated, and sustained EO system designated as GEOSS. In the U.S., the key program for EO is the U.S. Global Change Research Program (USGCRP).4 The primary components of USGCRP are the Earth science program of the National Aeronautics and Space Administration (NASA) and the Landsat program managed by the U.S. Geological Survey (USGS) and NASA. In addition to Landsat, NASA’s primary program involves a constellation of Earth observing satellites, known as the Earth Observing System (EOS). Commercial and private EO services also exist in the U.S. Landsat data services were commercialized from 1985 to 1992, and since 1992, the U.S. government licensed a number of private remote sensing operators that include providers of EO data services with operational systems. The primary providers are DigitalGlobe and GeoEye. First addressed in this chapter is how the actors define harmonization of EO services. Following this, how harmonization is formulated and implemented among the actors is assessed in terms of the data policies that influence harmonization. Since the utilization of EO data has both scientific and commercial values associated with it, a consideration of commercial uses of EO data and harmonization is considered herein. One dimension of commercial development of EO services

Scientific Unions, International Geosphere-Biosphere Program, United Nations Environmental Program, United Nations Office of Outer Space Affairs, World Climate Program, and World Meteorological Organization are affiliates. 3 G8 states include the U.S., France, United Kingdom, Japan, Italy, Canada, Russia, and Germany, along with the European Commission. At the G8 summit of 2003, a number of actions plans were established. The G8 action plan on Science and Technology for Sustainable Development called for the strengthening of international cooperation on global observation. It is this action plan that led to the establishment of GEO. The action called for the following: (1) developing close coordination of our respective global observation strategies for the next ten years; (2) identifying new observations to minimize data gaps; (3) building on existing work to produce reliable data products on atmosphere, land, fresh water, oceans, and ecosystems; (4) improving the world-wide reporting and archiving of these data and fill observational gaps of coverage in existing systems; (5) advancing interoperability with reciprocal data-sharing; and (6) developing an implementation plan to achieve these objectives. 4 The goal of USGCRP is to provide for the development and coordination of a comprehensive and integrated United States research program, which will assist the nation and the world, to understand, assess, predict, and respond to human-induced and natural processes of global change. This program recognizes that scientific knowledge of the Earth system is crucial to informed decision-making on environmental issues related to management of the Earth’s biosphere. See United States Global Change Research Act of 1990, Public Law 101–606, United States Congress; and Our Changing Planet: The FY 1999 US Global Change Research Program, A Report by the Subcommittee on Global Change Research, Committee on Environmental and Natural Resources of the National Science and Technology Council, Executive Office of the President.

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posits national security concerns. These concerns are a result of the greater degree of “transparency” that the state faces and the loss of state control over information about its sovereignty, e.g., natural resources, facilities, and activities. A second dimension of commercial development deals with the laws to regulate commercial EO services, and the U.S. approach to regulate deals directly with the issues of harmonization and national security.

19.2 Harmonization The actors in the EO community identify a need for harmonization.5 CEOS states the need for harmonization of EO data in its Data Exchange Principles (DEPs) that promote the use of EO data for global change research. “[The] criteria and priorities for data acquisition, processing, distribution, preservation, archiving, and purging should be harmonized to take into account the needs of users for data.”6 Harmonization is viewed as a technical issue dealing with the goal of long-term preservation of EO data. This is established as achieving coherence among the criteria for data acquisition and archiving. To implement this, the CEOS Working Group on Information Systems and Services (WGISS) functions as the “harmonization group” for data generated by EO satellites.7 WGISS deals with efforts for achieving coherent data preservation and archiving systems, and for common 5 Eligar

Sadeh, “Harmonization of Earth Observation Data: Global Change and Collective Action Conflict,” Astropolitics 3:2 (2005). This need for harmonization is reinforced by the results of a survey conducted by the author. The participants in the survey “strongly agreed” or “agreed” that there is a need for harmonization of EO data services. The respondents to the survey on the harmonization of Earth observation data included: James Acker, Contractor Scientist, Earth Sciences, NASA Goddard Space Flight Center, United States; Robert J. Andres, Associate Professor, Department of Space Studies, University of North Dakota, United States; Edward Ashford, Ashford Aerospace Consulting, United States; Ofer Beeri, Earth System Science and Policy, Upper Midwest Aerospace Consortium, University of North Dakota, United States; Pawan K. Bhartia, NASA Goddard Space Flight Center, United States; Grant Bruce, Hatfield Consultants, Canada; Peter Colohan, Secretariat, Group on Earth Observations; John Faundeen, United States Geological Survey, EROS Data Center, United States; Stephen B. Johnson, Associate Professor, Department of Space Studies, University of North Dakota, United States; Stanislav Klimov, Professor, Space Research Institute, Russian Academy of Sciences, Russia; Oleksandr Kolodyazhnyy, Head of Department, Space Research Institute, Ukraine; Ivan Petiteville, Engineer, European Space Agency; Bruce Wielicki, Senior Scientist, Atmospheric Sciences, NASA Langley Research Center, United States; Xiaoyang Zhang, Department of Geography, Center for Remote Sensing, Boston University, United States. 6 CEOS Resolution on Principles of Satellite Data Provision in Support of Operational Environmental Use for the Public Benefit, 1994. 7 The 5-year implementation plan for the CEOS WGISS, which was approved in 2004, states the strategy to maximize the practical impact of its activities in terms of harmonization between the systems and user services relating to the satellite missions of its CEOS members. CEOS Working Group on Information Systems and Services 5-Year Plan (prepared by WGISS Members, 1 October 2006). http://wgiss.ceos.org/documents/WGISS% 205-Year%20Plan%20V11a%20060915.doc (last accessed: 25 June 2009).

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data formats and standards. CEOS interprets harmonization as dealing with data preservation and data standards. Since 2002, CEOS established harmonization as a priority area among the various space-based EO coordination groups.8 These groups include the Coordination Group on Meteorological Satellites, the World Meteorological Organization (WMO) Consultative Meetings on High-Level Policy on Satellite Matters, CEOS, and GEO. CEOS is tasked with making recommendations on how to best maximize efforts to achieve common goals among these groups, so that space-based Earth observational agencies can more effectively coordinate their common goals.9 IGOS provides a comprehensive framework to harmonize the common interests of the major space-based and in-situ systems for global observation of the Earth.10 The thrust of IGOS to use data more effectively includes increasing attention to harmonization, quality assurance, and calibration and validation.11 Essential for the IGOS strategy are coherent interests for EO missions to achieve a shared common view on data policies, and a framework for the establishment of a coherent set of user requirements. GEO aims to improve coordination of strategies and systems for EO and to identify measures to minimize data gaps, with a view toward a comprehensive, coordinated, and sustained EO system.12 The implied harmonization theme is exemplified by the GEO 10-year implementation plan begun in 2006 for the coordination of EO services.13 This plan established GEOSS, which is a distributed system to coordinate data observations, data processing, data archiving, and data exchange and dissemination. GEO and the associated GEOSS identify the variables of importance that do relate to the theme of harmonization of EO services. These variables include data preservation and standards. Specific issues of data preservation concern gaps in specific data sets, uncertainty over continuity of

8 Gregory

W. Withee, D. Brent Smith, and Michael B. Hales, “Multilateral Cooperation in Earth Observation: Current Thrusts of the Committee on Earth Observation Satellites and the Integrated Global Observing Strategy, and the Formation of the Ad-Hoc Group on Earth Observation,” paper presented at the 54th International Astronautical Congress, International Astronautical Federation, Bremen, Germany, 29 September–3 October 2003. 9 http://www.ceos.org (last accessed: 25 June 2009). 10 The Integrated Global Observing Strategy (IGOS) Partnership Process (5 May 2004). http://www.igospartners.org/docs/IGOS-P%20Process%20Paper%205%20May%2004_F.doc (last accessed: 25 June 2009). 11 “Integrated Global Observing Strategy (IGOS) into the New Millennium,” IGOS Partnership Forum, UNISPACE III Conference, Vienna, Austria, 21 July 1999. 12 Terms of Reference for the ad-hoc Group on Earth Observation (GEO), Annex 3, 2 August 2003. http://ocean-partners.org/attachments/243_GEO-WashSummannexes.pdf (last accessed: 25 June 2009). 13 http://www.earthobservations.org (last accessed: 20 June 2009). See From Observation to Action – Achieving Comprehensive, Coordinated, and Sustained Earth Observations for the Benefit of Humankind, Framework for a 10-Year Implementation Plan, Earth Observation Summit II, 25 April 2004. http://www.mext.go.jp/english/kaihatu/earth/pdf/framworkdocument.pdf (last accessed: 25 June 2009).

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observations, inadequate user involvement, e.g., what are the preferences of the users, a lack of relevant processing systems to transform data into useful information, and insufficient long-term data archiving. The issues identified for data standards concern eroding technical infrastructure, and inadequate data integration and interoperability. The U.S. supports harmonization through policies that call for the preservation of data by establishing appropriate archives, standard criteria and procedures for data acquisition and data access, and the elimination of any period of exclusive data use. The U.S. data policies call for global change research with an implicit suggestion of harmonization. The call is for making use of national and international standards for processing and communication of global data sets.14

19.3 Data Policies There are a number of variables that affect harmonization as shown in Table 19.1. The highlighted variables include: data access, data protection, data preservation, and data standards. Related to these variables are more specific variables that appear in italics. The specific variables entail: access, cost, availability, protection, archiving, distribution, and standards. The values placed on these specific variables are determined by user needs of EO services and the ways in which EO actors, strategies, and systems provide EO data services. It is the difference between user needs and providers that indicate the degree to which harmonization is affected. Table 19.1 Variables of Earth observation services Data access Access to data Cost of data and cost of harmonization When data is available Data preservation Data archiving Data distribution

Data protection Protection on access to data

Data standards Common data and interoperability standards

19.3.1 Data Access Data access deals with the terms and conditions for who has access to data, when data should be made available, the cost of data as reflected in pricing policies, 14 Policy

Statements on Data Management for Global Change Research, United States Global Change Research Program, 1991. Also, see http://www.gcrio.org/DifHolding/GCRIO085.html (last accessed: 20 June 2009).

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and the cost of harmonization itself. Expectations concerning return on investments dealing with the scientific and economic values assigned to EO data directly affect data access policies. The expectation among CEOS and the U.S., specifically NASA’s EOS program, is to maximize the utilization of EO data for global change science. These actors endorse open access to EO data on a non-discriminatory basis. Access is based on the open availability of EO data as soon as the data is calibrated and validated. Exclusive data access for calibration and validation purposes is limited, usually to three months. This view is promoted by the CEOS. The U.S. policy is similar except that each funding agency should explicitly define the duration of any exclusive use period. Of note to data access is the 1986 United Nations (UN) Principles Relating to Remote Sensing of the Earth from Outer Space, known as the Remote Sensing Principles.15 Although the Remote Sensing Principles are customary law, i.e., nonbinding legal guidelines, stated therein is the idea of access to EO data on a non-discriminatory basis. The Remote Sensing Principles indicate that as soon as the primary or unenhanced data and the processed or value-added data concerning the territory under its jurisdiction are produced the “sensed” state shall have access to the data on a non-discriminatory basis.16 The U.S. applies this idea of nondiscrimination through Congressional Public Law, i.e., the Land Remote Sensing Policy Act of 1992.17 The EO data providers, who expect an economic return on investment, require pricing policies and data protection that can restrict the optimal realization of harmonization. This is an issue for the U.S. Landsat program. With regard to pricing policies, there is a common view among the CEOS and the U.S. to promote data distribution at a reasonable or lowest possible cost. The lowest cost concept is implemented as the reasonable dissemination costs of EO data. The Remote Sensing Principles call for dissemination of data not only on a non-discriminatory basis as discussed earlier, but also on reasonable cost terms.18 U.S. Public Law, as reflected in the Land Remote Sensing Policy Act of 1992, applies reasonable cost terms. Notwithstanding the U.S. policy, there was an attempt to commercialize the U.S. Landsat system in 1985 through the creation of a public-private company called the Earth Observation Satellite Company (Eosat). Eosat possessed the exclusive rights to market Landsat data. This translated into Eosat’s right to charge market-based prices for Landsat data, even though Eosat was obligated by law to provide nondiscriminatory access to unenhanced data products.19 However, Landsat commercialization failed by 1992. There existed as well the failed attempts to commercialize

15 Principles

Relating to Remote Sensing of the Earth from Outer Space, Adopted 3 December 1986, United Nations. 16 Article XII, Principles Relating to Remote Sensing of the Earth from Outer Space. 17 Land Remote Sensing Policy Act of 1992, Public Law 102-555. 18 Article XII, Principles Relating to Remote Sensing of the Earth from Outer Space. 19 Land Remote Sensing Commercialization Act of 1984, Public Law 98–365.

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Landsat for the proposed Landsat Data Continuity Mission (LDCM), which would have established private ownership over the data, while ensuring non-discriminatory access only for the data procured by the U.S. Government.20 Though, LDCM is moving forward with a planned launch by 2012 as a NASA and USGS program. The cost associated with the achievement of harmonization is another factor in data pricing policies. It is an important aspect of whether low cost access or harmonization is more valuable for users of EO data.21 If the goal is the lowest possible cost, then the cost of harmonization cannot be reflected in the access fees for EO data. In other words, if EO data providers pass on the costs of harmonization to scientific users, then the goal of harmonization undermines the policy of low cost as understood in terms of nominal, reasonable costs or cost of film user request (COFUR). This scenario is what undermined Eosat in the U.S. One resolution to this conflict between harmonization and low cost data is to budget for the cost associated with harmonization as part of the operational budgets of the EO platforms or as part of budgets for archiving programs, such as is the case with the U.S. Earth Observing System Data and Information System (EOSDIS).

19.3.2 Data Protection Data protection is an issue that can influence harmonization through the placement of restrictions on access to data. The data protection policies, in the form of exclusive rights to market data and data ownership rights, are evident in the U.S. as demonstrated by Eosat and proposed strategies for LDCM. Concomitantly, NASA’s EOS program and the operational Landsat missions, Landsat 5 and Landsat 7, apply no form of data protection because of its value as a public good. This value is based on the idea that since the public has bought the data once in creating it, the public should not have to pay twice except for the cost of the copy itself. Through the USGS Earth Resources Observation Systems (EROS) Data Center, EOS data is distributed free of charge and Landsat data is made available through COFUR requests.22

19.3.3 Data Preservation The preservation of EO data is essential as it provides a long-term record of the Earth system. The meaningful data interpretation is not primarily a problem of

20 Personal

correspondence with Jon Christopherson, Principal Engineer, Science Applications International Corporation (SAIC), United States Geological Survey (USGS), Earth Resources Observation Systems (EROS) Data Center, 22 September 2003; and Jon Christopherson, LDCM, Landsat Data Continuity Mission, Department of Space Studies Colloquium, University of North Dakota, 22 September 2003. 21 Personal correspondence with Robert J. Andres, Associate Professor, Department of Space Studies, University of North Dakota, United States, 10 November 2005. 22 http://edc.usgs.gov/ (last accessed: 25 June 2009).

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its technical complexity, but can be attributed to the lack of spatially comprehensive observations over sufficiently long periods.23 The important issues include: the availability of funding for data preservation, and EO data management involving the implementation of data acquisition plans. The issue of funding was resolved by the U.S. through a coherent national policy with attendant legislation to ensure that EO data is preserved in the long-term.24 The Global Change Data and Information System, as part of the USGCRP, is designed for this purpose. The EOSDIS was developed to implement long-term archiving and distribution services for NASA’s Earth science data products. The intent of EO data management is to integrate fragmented and diverse data sets to facilitate effective data utilization for the long-term stewardship of the environment. The management of data generated by EO satellites is a critical issue from the onset of USGCRP and NASA’s Earth sciences programs, including EOS.25 Data management deals with the technical issues of data acquisition. This includes data processing, distribution, retrieval, and archiving. An important concern is how best to realize these technical aspects of data management through organizational structures. Since the inception of USGCRP, there have been four organizational models precipitated by three organizational changes. The organizational models include: (i) data-specific, (ii) centralized data management, (iii) decentralized data management, and (iv) distributed federation. Initially, the EO data was managed in a distributed organizational fashion through independent data centers. This was the data-specific organizational model where each data center operated independently from the others with its own data formats and policies. With this outcome, the different data standards constrained harmonization. Given the anticipated terabytes of data that NASA’s EOS would generate and the need to manage this data for global change researchers, the first organizational change took place through the development of EOSDIS. The system involved a centralized data management organizational model entailing “one-stop shopping” access to data. This data management model optimized harmonization, but for various reasons, among them cost, organizational capacity, and computing capabilities, was neither feasible nor practical. Due to these shortcomings, the data management was then decentralized. This model is based on discipline-specific Distributed Active Archive Centers (DAACs) that encompass the range of Earth science research.26 Decentralization raised concerns with Earth scientists in that there is a particular need to generate and access 23 Rosenquist,

Ake, Anthony K. Milne, and Reiner Zimmermann, “Systematic Data Acquisitions – A Prerequisite for Meaningful Biophysical Parameter Retrieval,” IEEE Transactions on Geosciences and Remote Sensing, 41: 7, July 2003. 24 Land Remote Sensing Policy Act of 1992, Public Law 102–555, United States Congress; and Policy Statements on Data Management for Global Change Research, United States Global Change Research Program, 1991. 25 National Research Council, Global Environmental Change: Research Pathways for the Next Decade (Washington, D.C.: National Academy Press, 1999). 26 http://www-v0ims.gsfc.nasa.gov/v0ims/DAACS.html (last accessed: 25 June 2009).

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data within a unified framework that integrates data sets and data centers in a seamless way.27 Given this concern, NASA and the EO community in the U.S. began striving for some degree of centralization within the DAAC system to facilitate multidisciplinary research for global change science.28 This led to the organizational model that is identified as a distributed federation one. In this model, which is currently the model employed, DAACs operate in a coherent fashion being attentive not only to data-specific Earth science disciplines, but also to multidisciplinary research.29 A unified framework for data standards is put forward in this scheme.

19.3.4 Data Standards Developing common data and interoperability standards enables the maximum utilization of EO data. The common standards in data sub-setting and data formatting facilitate data access in terms of convenience of use. “Satellites produce huge amounts of data that are often unwieldy to use, so even if the data are freely available the cost of using the data can be very large if the data are not formatted properly.”30 The discussion above on DAAC is an example of the importance of data standards. There are two international approaches to standards, which are established by CEOS and the Consultative Committee on Space Data Systems (CCSDS). CEOS states that data formats have different characteristics, and a single standard is not capable of satisfying all formatting needs. Consequently, CEOS recommends that EO data providers use some common meta-data standards.31 These standards involve the CEOS superstructure and hierarchical data formats. The CCSDS approach encourages the production of self-describing data that can adapt rapidly to changing technologies.32 CEOS and CCSDS seek to remove barriers for the different data formats and to foster data standardization on a multilateral basis. The U.S. agreed to use such common data formats to promote communication among global data sets. Data access also plays a role in facilitating data standards. One aspect of this is the U.S. policy of data as a public good. This approach makes it easier to apply one standard for data utilization as the DAAC case illustrates. If EO data is not provided

27 National

Research Council, Assessment of the Usefulness and Availability of NASA’s Earth and Space Science Mission Data (Washington, D.C.: National Academy Press, 2002). 28 National Research Council, Review of NASA’s Distributed Active Archive Centers (Washington, D.C.: National Academy Press, 1998). 29 National Research Council, Assessment of the Usefulness and Availability of NASA’s Earth and Space Science Mission Data (Washington, D.C.: National Academy Press, 2002). 30 Personal correspondence with Pawan K. Bhartia, NASA Goddard Space Flight Center, United States, 10 November 2005. 31 Guidelines on Standard Formats and Data Description Languages Version 1.0, Working Group on Information Systems and Service Data Group, CEOS.WGISS.DS.TN01, 1998. 32 Raymond Harris, Earth Observation Data Policy (New York, N.Y.: John Willey & Sons, 1997).

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as a public good, and instead commercialized, then competing, or non-coordinated, systems for data processing can emerge with different data standards.

19.4 Public and Commercial Uses The same sets of standard formats for EO services is useful for scientists to enable easier data handling and for commercial providers, as a more stable input data format is important to foster the development of services. In the commercial sector, EO service providers cannot afford to spend too much time adapting their services and software to all possible data formats. This observation is reinforced by the manner in which the U.S. government provides subsidies for the commercialization of EO data. The U.S. policy of EO data as a public good is a subsidy for the commercial use of that data as it fosters a value-added industry for data products. There is a mix of both public and commercial uses of EO data.33 The mix of public and commercial uses in the U.S. is a matter of intended policy with Landsat and congressional public law as is evident with the Commercial Space Act of 1998. This Act calls for scientific users to acquire, where appropriate and applicable, Earth science data from commercial providers: . . .to the extent possible and while satisfying the scientific or educational requirements of the National Aeronautics and Space Administration, and where appropriate, of other Federal agencies and scientific researchers, acquire, where cost-effective, space-based and airborne Earth remote sensing data, services, distribution, and applications from a commercial provider.34

19.5 National Security and Commercial Uses EO data as a public good and the commercial development of EO services has implications for national security as to the control over knowledge and information. Historically, states controlled knowledge through the principle of national sovereignty. EO satellites make sovereignty “transparent” because data acquired on the natural resources of a state are public goods that are available to any user either free of charge, as in the case of NASA’s EOS program, or at a minimal processing fee per user request. This represents a constraint on the projection of national security power in the sense that the state is forced into a “sovereignty bargain.”

33 The

Land Remote Sensing Laws and Policies of National Governments: A Global Survey, National Center for Remote Sensing, Air, and Space Law, College of Law, University of Mississippi. http://www.spacelaw.olemiss.edu/publications/noaa.pdf (last accessed: 25 June 2009). Some scientists may want to buy commercial data for a scientific purpose, and some commercial companies may want to buy scientific data for commercial purposes, thus mixing the categories, regardless of the platform. 34 Commercial Space Act of 1998, Public Law 105–303.

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The bargain is that the state must sacrifice some control over knowledge about its territory in exchange for the benefits in use that EO services offer. The concern with sovereignty and national security is that EO data undercuts the ability of the state to control knowledge both in its creation and application.35 One important sovereignty concern is the proliferation of commercial remote sensing systems. This gives rise to knowledge diffusion and the sovereignty bargain. National security issues surrounding Earth remote sensing emanate from the proliferation of high-resolution commercial satellite imagery in the context of the events of 11 September 2001 (9/11) and the global war on terrorism. One issue is the increased certainty of an adversary’s capabilities that may negate the foundation for deterrence. A second issue deals with the possibility of misinterpretation and international deception leading to shifts in balances of power and conflict. A third issue involves asymmetrical access to EO satellite imagery and processing capabilities. This provides substantial advantages for some states over their neighbors, e.g., the developed states over the developing ones, with destabilizing effects on the international system. In the civil or public sector, it is well understood that remote sensing data primarily serves scientific research use and value-added uses for natural resource management. Further, such data is at relatively low spatial resolutions limiting its utility for intelligence use. In the commercial sector, the data is an economic commodity, and this sector developed and deployed systems with high spatial resolutions at less than one meter (m) that can be used for intelligence purposes. It is the policy of the U.S. government to foster the development of commercial imagery systems with spatial resolutions of less then one m (as of August 2009 the policy allows resolutions as low as 0.25 m). This is encouraged by the Commercial Space Act of 1998, the Land Remote Sensing Policy Act of 1992, Presidential Decision Directive (PDD) 23 issued by the Clinton Administration on 1994, and the U.S. Commercial Remote Sensing Policy put forward by President Bush in 2003. While national policies support the development of a remote sensing industry and mandate government data buy-out contracts with primary commercial remote sensing operators in the U.S., i.e., DigitalGlobe and GeoEye, the threats that commercial systems posit to national security were recognized as well. This recognition was manifested in PDD 23 and reiterated in the 2003 Bush policy as “shutter control” directed to protect U.S. national security and foreign policy interests. The shutter control allows the Secretaries of Defense and State in the U.S. to determine when national security, international obligations, and foreign policy is compromised as a result of commercial remote sensing, and mandates specific restrictions as to where on the Earth the commercial systems can acquire data. The shutter control policy attempts to mitigate the loss of control of knowledge that can harm national security

35 Earth

remote sensed data sets have the potential to engender sovereignty transparency and the “unbundling of territoriality.” For a further discussion on this unbundling concept and international relations, see John G. Ruggie, “Territoriality and Beyond: Problematizing Modernity in International Relations,” International Organization 47: 1 (1993).

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power. Despite this concern, shutter control is difficult to apply and for the most part is not a viable policy. Nevertheless, it remains an issue for EO commercial interests. Since the emergence of commercial uses of remote sensing, the resolution limitations imposed to protect national security have lessened. In the late 1970s, the Carter Administration lowered the spatial resolution limit on non-military remote sensing systems to 10 m. After the U.S. Congress passed the Land Remote Sensing Policy Act of 1992 directed to end the federal monopoly on remote sensing technology and data distribution, numerous commercial interests began to apply for remote sensing satellite licenses and lobbied for lower spatial resolution restrictions. PDD 23 removed spatial resolution restrictions on commercial remote sensing satellites, making the resolution limit a decision to be made by the authority licensing the system, i.e., the U.S. Department of Commerce, on a case-by-case basis. This stood in stark contrast to the previous national security protection elements of imposing spatial resolution limits and access to remotely sensed data.36 The U.S. government authorities have continuously debated shutter control since PDD 23. In an attempt to further clarify when and how shutter control might be implemented, the Department of Commerce signed a Memorandum of Understanding (MOU) with the U.S. Departments of State, Defense, and Interior, and the Intelligence Community as to how they would work together during the licensing process to make certain that all the elements of national security are taken into consideration. The MOU discussed when and how shutter control restrictions could be placed upon a system. In response to the concern of commercial satellite operators, the MOU makes the shutter control decision occur at the highest levels of the respective governmental departments. If they cannot agree, then the issue is sent to the U.S. President for a decision.37 In the aftermath of 9/11 and during military operations in Afghanistan following 9/11, the U.S. opted not to exercise shutter control as specifically described in PDD 23 and the MOU. However, the U.S. did make use of alternative means to control the use of remotely sensed data. The National Imagery and Mapping Agency (NIMA), which was renamed the National Geospatial Intelligence Agency (NGA), signed a contract with Space Imaging in October 2001, whose Ikonos satellite was the only U.S. commercial high-resolution satellite (one m panchromatic spatial resolution) operating at the time, for the exclusive rights to Ikonos imagery collected

36 Michael

R. Hoversten, U.S. National Security and Government Regulation of Commercial Remote Sensing from Outer Space, Air Force Law Review 50 (Winter 2001). 37 Attempting to clarify when shutter control might occur, the memorandum of understanding states: “conditions should be imposed for the smallest area and for the shortest period necessary to protect national security [defense and intelligence], international obligations, or foreign policy concerns at issue. Alternatives to prohibitions on collection and/or distribution shall be considered, such as delaying the transmission or distribution of data, restricting the field of view of the system, encryption of the data if available, or other means to control the use of the data.” U.S. President, National Science and Technology Council, Fact Sheet: Regarding the Memorandum of Understanding Concerning the Licensing of Private Remote Sensing Satellite Systems (1 November 2001).

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over Afghanistan and the surrounding areas.38 This established a means for how to control data distribution from U.S. commercial operators and data providers, albeit via methods other than what was originally intended with the shutter control policy. During the blackout on the distribution of high-resolution Ikonos data to others besides the U.S. Intelligence Community, ImageSat International, an Israeli firm, sold high-resolution imagery to news media and other organizations on the open market. As the U.S. war efforts in Afghanistan continued, NIMA discontinued the imagery buyout of Ikonos data. Since then, DigitalGlobe operates QuickBird and WorldView satellites at lower panchromatic spatial resolutions than Ikonos (0.6 and 0.5 m respectively), and GeoEye operates GeoEye-1 with a capability of 0.41 m resolution. To add, commercial remote sensing companies and systems existed prior to Ikonos, such as Spot Image in France, and proliferated abroad from ImageSat to commercial remote sensing entities and commercial data products in Canada, Europe, India, and Russia. These developments indicate that the shutter control is limited as a viable policy, and that global transparency and the associated factor of loss of control over sovereignty represent new international norms with which U.S. national security power must contend with.

19.6 Regulation and Licensing of Commercial Remote Sensing The commercial uses of EO data sparked the development of law in the U.S. to license and regulate. The Land Remote Sensing Policy Act of 1992 led to the practice of licensing commercial EO data services in the U.S.39 This practice is codified as the Licensing of Private Land Remote-Sensing Space Systems: Final Rule that was issued by the National Oceanic and Atmospheric Administration (NOAA) of the U.S. Department of Commerce in 2006.40 The Final Rule deals with many of the issues discussed in this chapter.41 This includes harmonization as to data access,

38 Orbimage

acquired Space Imaging and the company was named GeoEye. the Land Remote Sensing Policy Act of 1992, the National Oceanic and Atmospheric Administration issued licenses to a number of companies. Current licensees include: AstroVision (AVStar); Ball Aerospace (SAR); DigitalGlobe (EarlyBird-1 , QuickBird-1, QuickBird-II followon , M-5 , WorldView); EchoStar (EchoStar-11); GeoEye (OrbView-2, OrbView-3, IKONOS, IKONOS Block II, IKONOS Block II Add-On, GeoEye-1); Northrop Grumman (Continuum); and Technica (EaglEye). http://www.licensing.noaa.gov/licensees.html (last accessed: 25 June 2009). 40 NOAA issued interim final rules on 31 July 2000. For the final rule that became effective on 25 May 2006, see www.nesdis.noaa.gov/CRSCMP/REGS%20MAY%202006.pdf (last accessed: 25 June 2009). 41 There are other important issues that the Regulation and Licensing of Commercial Remote Sensing in the U.S. deals with that are not within the focus of this chapter. Two important issues worth mentioning are the obligations for a debris mitigation plan and export controls on the commercial availability of data. 39 Since

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data protection, and data standards, and issues that deal with national security and the shutter control policy. Data access deals with both international and national obligations. The obligation for the licensee is to make available on a non-discriminatory basis to the government of any sensed state, including the U.S., unenhanced data concerning the sovereign territory that is sensed on reasonable commercial cost terms, which implies a COFUR approach mentioned earlier. This approach is in congruence with the public good concept of EO data that underlies U.S. data policies and international data policies codified in the UN Remote Sensing Principles and advanced through the efforts of the CEOS, IGOS, and GEOSS. The Final Rule further implies that non-discrimination and reasonable cost terms exist for all classes of users and customers, e.g., scientific, educational, other public benefit users, commercial end users, and value-added distributors. “Reasonable cost” does allow for different cost terms to be applied to each user category. The key criterion for determining “reasonable” is that the cost for data does not impose any undue financial hardship. Data protection is specified through the condition for a data protection plan for EO data services, i.e., operations, processing, archiving, and dissemination. This is established to provide for secured delivery to the U.S. Government when required to do so, and for protecting the communications links to enable other secured delivery and to protect commercial options. The national security issues in the formulation of the Final Rule prompted a broad legal view on compliance with shutter control that requires not only specific restrictions where data can be acquired, but also places limits on commercial distribution of data. There is as well a requirement that any unenhanced data that is collected is exclusively available to the U.S. Government. This exclusive availability incorporates a data standard obligation in terms of a data downlink format that allows the government access and use of the data. The outright data denial is also permitted by law in the U.S. The National Defense Authorization Act of 2005 contains language that states the right for the U.S. government to deny land remote sensing data if warranted by national security considerations.42 The advent of private high-resolution EO systems is a countervailing force to the public good view on EO data and services. This development represents a “controlled access” view to EO data and services, and a narrow view on the commitment to harmonization, the UN Remote Sensing Principles, and existing data policies.43

42 National

Defense Authorization Act of 2005, Public Law 108–375. as a public good is the rule versus the exception, particularly in the case of lowspatial resolution EO systems. However, this is not the case per se with private highresolution EO systems where the “controlled access” view is an emerging trend. The Land Remote Sensing Laws and Policies of National Governments: A Global Survey, The National Center for Remote Sensing, Air, and Space Law, College of Law, University of Mississippi. http://www.spacelaw.olemiss.edu/publications/noaa.pdf (last accessed: 25 June 2009).

43 Data

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19.7 Conclusions In regard to the U.S. and EO services, there is common view expressed nationally and internationally that harmonization of these services is an important end. All variable types related to harmonization discussed herein, including data access, data protection, data preservation, and data standards, are critical to harmonization. Concomitantly, there are interests that constrain harmonization. These interests are the commercial development of EO systems and services, and the attendant national security issues that this development fosters. One trend favorable to harmonization includes EO data as a public good based on data policies of non-discriminatory access to data on reasonable cost terms. For EO systems and services in the public sector with low-spatial resolutions, this is generally the norm. A trend that limits the extent to which the coordination of EO services can be realized is beginning to emerge over the last few years in parallel with the development of a commercial remote sensing sector in the U.S. and worldwide. For this sector, the commercial interests are foremost in mind establishing a basis for data protection policies. Further, the commercial EO sector favors highresolution systems that posit national security concerns, and thus the policies, like shutter control, that aim to address these concerns. There is a functional need to optimize harmonization by reconciling these two trends. Some of the important issues related to this are: • The Licensing of Private Land Remote-Sensing Space Systems: Final Rule in the U.S. works to reconcile the trends by obligating licensees to data as a public good, while accounting for commercial interests, like a data protection plan and national security commitments in accordance with shutter control policies. • Despite the political and legal commitments to lowest possible cost, the potential cost of harmonization itself could undermine this approach to data access. The viability of lowest possible cost depends on funding the cost of harmonization separately from the funding of EO platforms. One way to achieve this is by funding data preservation programs separately from the EO platforms, as is the case with EOSDIS in the U.S. • There is a need for some type of data protection for scientific and commercial users. For scientific use, some period of exclusive data use allows for investigators of the flight instruments on the EO platforms the time to assess the data. For the commercial sector, some form of data protection is needed since it is a form of property rights that allow commercial providers to get a return on investment. With the commercialization of remote sensing activities, it is more difficult to ensure the dissemination of EO data on a non-discriminatory basis and on lowest cost terms. This questions the viability of existing U.S. data policies. • Data protection policies may result in data that are not useable by all since protection implies different data standards for different uses. Thus, it is important to realize one data standard or at least a unified framework for data standards. This is the goal of CEOS and of EOSDIS, and the associated DAACs in the U.S.

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• The initial comercial approach proposed, though not implemented for various reasons, with LDCM served to mitigate conflicts over dual-uses, scientific and commercial, of EO data and services. The idea with LDCM was to provide U.S. Government funding to partner with a commercial entity. This entity would then commercialize the platform and data, while the government would require that it be allowed to procure broad area coverage unenhanced data at lowest possible cost terms. This raw data would then be calibrated and validated at government expense to ensure a commitment to the scientific, public good uses of the Landsat data sets. • CEOS and GEO are playing an essential role to advance harmonization. These arrangements are “soft” policy and law and do not commit actors to any binding EO data policies. To date, this has facilitated some effectiveness. Yet, if the outstanding issues for an optimal realization of harmonization are to be resolved, then it is important to view CEOS and GEO as political and legal means to more formal policy. In other words, “self-governance” and “best efforts” as models for the long-term are unlikely to promote optimal harmonization. At the national level in the U.S., the Land Remote Sensing Policy Act of 1992 that established a licensing regime for commercial remote sensing and codified EO data polices is one path forward in the direction of formal law.

Chapter 20

Regulation of Global Navigation and Positioning Services in the United States Paul B. Larsen

20.1 Introduction: The Global Positioning System The U.S. Global Positioning System (GPS) consists of three parts: (i) The Government-owned and operated positioning and navigation satellites in orbit at an altitude of approximately 11,000 miles, (ii) the earthbound stations which monitor and control the satellites operated by the Department of Defense, and (iii) the public and private GPS recipients of the signals from the GPS satellites. GPS is currently the primary world-wide radio navigation system. It offers tremendous benefits for all users. GPS is the main navigation tool for airplanes, and other modes of transportation. It provides timing and location services in disasters such as earthquakes, storms and floods. All U.S. cell phones are required to have GPS receiver capability so that the owner of a cell phone can be located in case of emergencies. Farmers, surveyors, fishermen, geologists depend on GPS in their businesses. GPS is a dual use system: both the military and civilians use GPS. It is owned and operated by the US military forces, but it is made freely available for civilians all over the world. The very precise atomic clock on board the GPS satellites is the timing mechanism used for navigation and positioning. Global Positioning Satellites are governed by international law ranging from the UN Charter to treaties on space law, the ITU, air law, maritime and military law.

20.2 GNSS Availability The U.S. government provides two levels of GPS service: (i) the Standard Positioning Service (SPS) which is the standard level of positioning, navigation and timing accuracy available to all GNSS users on a continuous global basis, and

P.B. Larsen (B) Georgetown University Law Center, Washington, DC, USA e-mail: [email protected]

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_20,  C Springer Science+Business Media B.V. 2010

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(ii) the Precise Positioning Service (PPS) which provides a higher quality (more accurate) service to designated users. According to the White House GPS Policy Statement of December 4, 2004,1 the United States will provide Standard Positioning Service on a continuous, worldwide basis to civilian users for navigation and positioning purposes. It will “provide open, free access to information necessary to develop and build equipment to use these services.” Furthermore the United States will provide uninterrupted access to PPS to support positioning, navigation and timing for U.S and allied national security systems. On May 1, 2000 the United States “recognized the increasing importance of the Global Positioning System to civil and commercial users by discontinuing the deliberate degradation of accuracy for non-military signals, known as Selective Availability.” The United States is committed to continue this policy.2

20.3 U.S. National GNSS Institutions A government interagency executive committee manages space-based positioning, navigation and timing services in the United States. This committee bridges the civilian and military agencies. The Deputy Secretary of the Department of Defense (DOD) and the Deputy Secretary of the Department of Transportation (DOT) cochair the committee. Also on the executive committee are high level representatives from the Departments of State, Commerce, Homeland Security, Joint Chiefs of Staff, NASA and other agencies as required.3 The US President is the chief executive of both the civilian and the military branches of the US government. President Bush’s GPS policy statement of 15 December, 2004, is the latest Presidential Decision Directive (PDD) formally allocating GPS resources between the civilian and the military sectors. GNSS is such a fast developing technology that the President can be expected to be a continuing factor in GPS decision-making. Future PDDs may be expected. From a civilian point of view, it may be important to know that a civilian, the President, is the ultimate GNSS decision-maker.

1 White

House GPS Policy Statement (2004), 3. See http://pnt.gov/policy / (accessed: 29 July 2008). 2 Ibid., 2. 3 Policy Statement, supra note 1. The increasing civilian pressure for adequate satellite navigation and positioning service caused the US President to issue the 1996 Presidential Decision Document (PDD). It administratively divided GPS responsibilities between the Department of Defense (DOD) and the Department of Transportation (DOT). The PDD made DOT responsible for all civilian GPS matters and made DOD responsible for military GPS. The PDD established an interagency council, jointly chaired by DOT and DOD, to coordinate GPS. Under the PDD the US Coast Guard and the FAA issues notices to mariners and to airmen about disruptions. Such notices are issued when satellites are being tested and new GPS satellites are put into use. The notices are also sent to international organizations and to foreign governments. The PDD was revised again in the 2004 White House GPS Policy Statement.

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The GPS executive committee coordinates strategic decisions and allocation of resources. The Committee must “[e]nsure that the utility of the civil [GPS] service exceeds, or is at least equivalent to, those routinely provided by foreign space-based positioning, navigation, and timing services.”4 That means that GPS service to civilian users must be better than or at a least equal to GLONASS and future Galileo services. The executive committee constantly upgrades GPS and determines how the requirements of GPS and its augmentations are apportioned. The executive committee appoints the Positioning, Navigation, and Timing Advisory Board which is composed of experts from the private sector. The GPS executive committee is supported by a standing National SpaceBased Positioning, Navigation, and Timing Coordination Office which serves as the Secretariat for the executive committee and carries out the duties assigned by the committee. All government departments and agencies must keep the Secretariat informed about all aspects of GPS. Because GPS requires constant and very significant financial resources to be appropriated by the U.S. Congress, the White House policy statement decided that DOD shall provide the funding for GPS research, development, operation, and sustainment. However, each of the civil agencies shall provide funding for their augmentations and other unique requirements and capabilities.5 The U.S. Federal Radionavigation Plan (FRP) is an important government institution for civilian-military coordination of GPS. The FRP is a continuing report on GPS issued jointly by the Secretaries of Transportation, Defense and Homeland Security.6 The FRP is signed by all three Secretaries. It is a current audit of all radio navigation. It is also an agreed statement and description of GPS and of U.S. government GPS policy. Public comments are invited during its preparation and the report is publicly available. In order to formalize their working relationship DOD and DOT have entered into a memorandum of understanding governing the working relationship between the two agencies. In their memorandum the two agencies have agreed to keep each other informed of GPS developments. They have agreed to coordinate GPS planning, to seek to use common systems, equipment and procedures, to jointly publish the FRP, and to coordinate policies and procedures. Much of the coordination regarding GPS now takes place under the umbrella of the interagency executive committee.7

4 Policy

Statement, supra note 1, 4 See www.pnt.gov for further information. The US Congress is also an important GNSS institution because all GPS functions are subject to funding appropriations by the US Congress. Without adequate appropriations the governmental GPS functions come to a halt. During 1974– 2006, GPS has been well funded by Congress enabling the Government to spend $16.3 billion on GPS research, development, procurement, launch, operation and maintenance of satellites and ground stations; each year the U.S. government spends $750 million on GPS, Aviation Week & Space Tech., Sept 12, 2005, 56. 6 10 U.S.C. 2281; 2005 FRP at i. See http://pnt.gov 7 2005 FRP at. 1-2; Also see Memoranda of Agreement between DOD and DOD on Use of the Global Positioning System and on Coordination of the Federal Radionavigation and Positioning Systems Planning, January 8, 1993 and January 19, 1999. 5 Id.

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The functions of government agencies arise from their legal authority. The DOT is by law8 charged with ensuring safety and efficiency of transportation. Furthermore, DOT must maintain air safety, which includes conduct of air navigation. The Homeland Security Department through the U.S. Coast Guard supervises maritime navigation.9 Both DOT and the Coast Guard operate augmentations to GPS. DOT maintains and has over-all responsibility for civilian use of GPS. This function includes not only all coordination with civilian users, but also research, development and deployment of GPS augmentations for civilian purposes. DOT has established a national and international network of civilian GPS users to keep DOT informed about users’ needs. Regular public meetings are an essential part of DOT’s public information system. At the public meetings DOT not only receives requests from national and international civilian users, but also explains the military’s GPS needs. DOT coordinates GPS use by foreign civilian users and is the foreign users’ communication channel to the GPS provider (primarily DOD). DOT participates in the international standardization of GPS signals. Finally DOT is given the mandate to require satellite navigation aboard airplanes and ships at the earliest possible time.10 The Department of Defense operates GPS as a navigational aid for national defense pursuant to 19 USC 2281(b). It is also responsible for research and development, acquisition of equipment and launch of GPS satellites. This authority protects DOD’s military purposes and gives DOD firm control over GPS. It does not want to lose this authority because it protects DOD’s military purposes. To keep GPS continuously available DOD must keep it free from adversary jamming and other kinds of interference. As operator of GPS the DOD also retains the capability of denying adversaries the advantages of positioning, navigation and timing services. However, the U.S. President cautioned DOD in the 2004 White House GPS Policy Statement that such denials must not unduly disrupt civil, commercial and scientific uses of GPS outside military conflict areas.

20.4 Liability Regime GNSS liability is a controversial legal issue. The international liability issue is raised most directly in the air transportation mode. Airlines, their passengers and shippers are used to recovering compensation from the air traffic control agency for negligent air traffic control, for example, for failure to separate airplanes from each other. Users of air transportation analogize GNSS to air traffic control and tend to believe that the GNSS provider should likewise be held liable for negligent GNSS service. However, GNSS differs fundamentally from air traffic control. Air traffic control is an active and operational control system whereas GNSS is a passive control. Under 8 49

U.S.C. 101 and 49 USC 40101 et seq. U.S.C. 2 and 81. Also see www.navcen.uscg.gov 10 White House GPS Policy Statement, supra note 1, 4. Also see http://pnt.gov 9 14

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GNSS guidance the airplanes receive the correct time from the GNSS receiver and navigate by knowing the correct time. There is not an air traffic controller who transmits guidance to the pilot. Thus an airplane is not directly controlled by GNSS. The pilot controls. Nevertheless, GPS is not entirely a passive navigation system. Errors may enter into the GNSS channel of navigation information to the airplane. The satellite may have been uploaded with erroneous information from the ground control station. The satellite may malfunction because it was in the wrong orbit or it was impacted by debris while in orbit. It is also possible that the satellite was negligently constructed by the manufacturer. The GNSS users want to be as safe as possible. Liability of the GNSS provider for inaccuracy of its service would be an effective deterrent. It is the view of many airlines and aviation states that they should be assured that the GNSS service is virtually free of fault. Therefore they seek an international liability regime holding the GNSS provider liable for faulty GNSS service. The pressure in ICAO11 for a liability regime has mainly been directed towards the chief global GNSS provider, the United States government. The United States provides its GNSS service free of charge and intends to continue this policy. According to the White House policy statement of December 2004,12 the U.S. government shall “Provide on a continuous, worldwide basis civil space-based positioning, navigation, and timing services free of direct user fees for civil, commercial, and scientific uses, and for homeland security through the Global Positioning System and its augmentations.” The U.S. provider’s belief is that as long as it provides the GNSS service free of user charge, then the provider should not have to bear the additional burden of international liability for faulty service. The United States is of the view that “nothing about the implementation of satellite navigation, communication, and surveillance – including advent of additional participants in provision of air traffic control service – raises legal or factual issues that cannot be handled by current claim mechanisms.”13 The reference to current claim mechanisms is to compensation under national laws. Because GPS service is provided by the government, the compensation for faulty GPS service would come from the government. Thus, it is important to know the U.S. law on governmental immunity. Under the U.S. Foreign Sovereign Immunities Act,14 foreign governments enjoy immunity from suits in U.S. courts. Furthermore, U.S. governmental immunity is governed by the U.S. Federal Tort Claims Act (FTCA).15 The FTCA permits the US government to be held liable for its negligent acts if those acts are not “discretionary acts.” The FTCA does not define “discretionary acts.” However, the federal

11 Paul

B. Larsen, “Issues Relating to Civilian and Military Dual Uses of GNSS,” Space Policy (2001), 114–115. See Francis Lyall and Paul B. Larsen, Space Law: A Treatise, Chapter 12 (2009). 12 White House GPS Policy Statement, supra note 1, 3. 13 ICAO Doc. SSG-CSN/2-WP/6, 10. 14 28 U.S.C. 1604 et seq. 15 28 USC 1346, 1402, 2402–2405, 2671–2680.

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courts have defined “discretionary acts” in a series of cases beginning with the landmark case of Dalehite v. United States.16 In the later case of United States v. Union Trust,17 the federal court held the federal government liable for negligent air traffic control (the case involved government air traffic controllers negligently clearing two airplanes for landing on the same runway at the same time). The court decided that air traffic control is not a discretionary act, it is an operational act and therefore not immune under the FTCA. Therefore, to the extent that GPS service can be equated to air traffic control, it is possible to hold the government liable for negligent GPS service under the FTCA. However, it is questionable whether GPS can be compared to traditional air traffic control where air traffic controllers actively watch airplanes from the ATC tower or on radar and thus keep airplanes separate, because GPS is passive. It is not as directly involved in controlling airplanes as are the air traffic controllers. GPS navigation constitutes a major change in the division of authority between the ground elements and the aircraft elements. The U.S. courts have not yet decided any cases on the issue of whether GPS service by the government is discretionary or operational. The FTCA,18 states that it does not pertain to: “Any claim arising in a foreign country.” For example, the U.S. Supreme Court held in Smith v. United States,19 that a claim arising in Antarctica was barred by the foreign country exception in the FTCA. Thus a GPS related claim must arise in the United States in order to be compensable. Furthermore the claim must be brought in a U.S. federal court. The GNSS user may have more success in claiming compensation from the manufacturer of the GNSS satellite. The manufacturer may have built the satellite negligently and thereby caused an aircraft accident. However, in the United States the GNSS manufacturer in that situation may still manage to come within the government’s immunity umbrella. U.S. case law, Boyle v. United Technologies,20 holds that if the satellite is built according to the U.S. government specifications, it would not be fair to hold the manufacturer liable for the government’s negligent design if the manufacturer conformed to the government’s design specifications. The manufacturer’s defense is particularly good if the manufacturer knew of the weakness of the government’s design and warned the government, but the government insisted on having its negligent design.21

16 346

U.S. 15 (1954). U.S. 907 (1955). 18 28 USC 2680(l). 19 507 U.S. 197 (1993). 20 487 U.S. 500 (1988). 21 See discussion of Boyle v. United Technologies in Larsen, Sweeney and Gillick, Aviation Law: Cases, Laws and Related Sources, 507. (2006) 17 350

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Products liability requires application of the national law on compensation of victims. Thus the compensation will vary from country to country. The European Union has made progress towards creating uniform law on products liability.22

20.5 Conclusion GPS is undergoing rapid technological transformation. It is being transformed and coordinated so that it will be interoperable with other GNSS systems. Furthermore, GPS augmentation systems are being developed and put into use. It is important for the policy makers and for the technicians involved in forming new arrangements within the new international GNSS coordination to know the range and specifics of the laws to which their new arrangements are subject. Knowledge of the laws may both facilitate their work and will enable them to know their limitations.

22 Von

der Dunk, “Liability for Global Navigation Satellite Services: A Comparative Analysis of GPS and Galileo,” 30 Journal of Space Law, 155.

Chapter 21

State and Municipal Regulation of the Aerospace Industry in the United States Patricia Margaret Sterns and Leslie I. Tennen

21.1 Introduction The regulation of space activities conducted by the private sector generally is viewed as a matter to be considered on the national level. For those countries which have signed or ratified the Outer Space Treaty,1 such regulation takes the form of the authorization and continuing supervision required by article VI. However, subsidiary jurisdictions, including the individual states of the United States, and local counties, cities and other municipal entities, may have a role in the regulation of the aerospace industry. This chapter describes the regulation of the aerospace sector as set forth in the statutes of the individual states of the United States. The discussion in this chapter refers to the status of legislation as of mid 2007, but any of the fifty individual state legislatures may adopt, amend or repeal relevant statutes at any time, such that the current status of regulation is amorphous at best, and can only be analogized to a snapshot at any given moment. Nevertheless, this chapter endeavors to capture the essential forms, structures, and subjects of state regulation as they appear within the statutes of the separate states. Although certain state legislatures have authorized agencies or other regulatory bodies to promulgate regulations, a review of the status of any extant local regulations is beyond the scope of this chapter. Similarly, local governmental jurisdictions may have zoning, environmental, labor, and other rules and requirements which may be applicable to the aerospace industry both generally and specifically, but a review of such matters is outside the scope of this discussion. Also outside the scope of this chapter are issues concerning conflicts between the laws of the individual states. L.I. Tennen (B) Law Offices of Sterns and Tennen, Phoenix, AZ, USA e-mail: [email protected] 1 Treaty

on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature January 27, 1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205, text reproduced in United Nations Treaties and Principles on Outer Space 3 (2002).

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9_21,  C Springer Science+Business Media B.V. 2010

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Not all states have statutes specifically relating to the space industry. Some states have no statutes at all that expressly mention aerospace matters. Certain other states have only a reference to a memorial or other public acknowledgment of a local astronaut’s achievements in their statutes, but otherwise do not regulate space commerce.2 On the other hand, the majority of states have adopted statutes which expressly regulate the nascent aerospace industry, ranging from tax incentives, to detailed structures for the regulation of the aerospace industry in general, and/or the operation of commercial spaceports in particular. The regulation of the space industry by the states as well as by the federal government raises the question whether any individual state statute may be challenged on constitutional or other grounds. States may not enact enforceable statutes in an area which has been pre-empted by federal law.3 State statutes may be unenforceable even where an area has not been pre-empted, if the state statute conflicts with federal law.4 Within these structures, states have wide latitude to adopt statutes that will withstand constitutional scrutiny. The requirements of individual states for lawful adoption of statutes must be followed, as well as any requirements concerning specificity, subject matter, ambiguity, interpretation with other statutes, etc. that may exist under local law. State regulation of the business of aerospace generally relates to the economic development of the industry as a means of promoting the interests of the state. Aerospace is considered to represent a sophisticated, educated and technical workforce, which is reflected in the rate of compensation vis-a-vis other industry sectors. Thus, the interests of the state in promoting aerospace extend to education, job training, quality of life, creation and retention of employment opportunities, and contribution to the commercial intercourse, not to mention the potential tax revenues generated thereby. Most, but not all states, have sought to take advantage of the opportunities presented by a robust aerospace industry within their borders. The statutes which have been adopted by the individual states range from pronouncements of basic policy to elaborate regulatory infrastructures. There is little uniformity apart from the broad policy of promoting economic development. Beyond that, states have adopted a wide variety of programs, and projects, as well as implemented tax incentives and

2 See,

e.g., Nevada Senate Concurrent Resolution No. 25, (2005) (McCool Science Center); New Hampshire R.S.A. § 12-L:2 (Christa McAuliffe Planetarium and Alan B. Shepard Discovery Center). 3 See U . S . CONST. Art. VI, cl. 2; Watters v. Wachovia Bank, N. A., 127 S. Ct. 1559, 167 L. Ed. 2d 389, 2007 U.S. LEXIS 4336, 75 U.S.L.W. 4176, 20 Fla. L. Weekly Fed. S 170 (2007); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992); McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L. Ed. 579 (1819); Montalvo v. Spirit Airlines, 2007 U.S. App. LEXIS 26146, (11-9-2007). 4 See U.S. v. Locke, 529 U.S. 89, 120 S. Ct. 1135, 146 L.Ed.2d 69 (2000); SPGGC, LLC v. Blumenthal, 505 F.3d. 183, 2007 U.S. App. LEXIS 24436 (2007); Wachovia Bank, N.A. v. Burke, 414 F.3d 305 (2nd Cir. 2005).

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benefits to favor the aerospace industry in general or a specific company in particular. A number of states, however, have taken a more pro-active approach, and created specific entities, such as “space commissions.” As with the statutory approaches in general, there is little uniformity in the legislation establishing these space commissions. Some states appear to limit the activities of their commissions to providing information and technical assistance to other agencies, divisions or branches of the government. Other states, however, establish new governmental or quasi-governmental entities empowered with extensive authority to permit, prohibit or limit the activities of private entities seeking to conduct aerospace activities from or within the state. A number of states have established programs to promote economic development by providing tangible resources at reduced or no cost to private enterprises, and some states will provide grants or issue bonds to fund approved ventures. Moreover, many states have begun to regulate the emerging commercial launch industry, including space tourism, by adopting statutes concerning the operation of spaceports. These statutes regulate matters ranging from limits of liability to space flight participants, to prohibitions on the use of certain fuels in launch vehicles, to environmental contamination from the removal of aerospace coatings. Some states also regulate the ownership of space above their borders.

21.2 Space Commissions Several states, including Arizona, Hawaii, Louisiana, and Ohio, have created space commissions with a limited statutory infrastructure. Arizona has established the Arizona Aerospace and Defense Commission (AzADC),5 as the successor to the Arizona Space Commission. The AzADC is designated as the “sole coordinator of all aerospace and defense related commercial partnerships” for the state,6 and is to provide technical support to other government agencies, and industrial development organizations.7 In general, the role of the AzADC is typical of other space commissions, in that it is to “develop goals and objectives, establish guidelines, recommend legislation, and provide general direction regarding this state’s interests in aerospace and defense related commerce.”8 Membership on the AzADC is also typical of space commissions of other states, and is comprised of both members appointed by the governor, as well as ex officio representatives from the legislature, universities, and economic development organizations.9 The AzADC has the authority to adopt rules to further its objectives and programs.10 5 Arizona

R.S. § 41–1561. R.S. § 41–1563(A). 7 Ibid. at Subsection (B)(1). 8 Ibid. at Subsection (C). 9 Arizona R.S. § 41–1561(1–6). 10 Arizona R.S. § 41–1563(B)(2). 6 Arizona

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Hawaii has established the Office of Space Industry within the Department of Business, Economic Development and Tourism.11 The structure of this Office is not well developed in the statutes, which focus primarily on the duties of the director. These duties are fairly representative of the duties and functions of space commissions in general,12 and include: • Oversee, supervise, and direct the planning, evaluation, and coordination of space-related activities in the State; • Initiate discussions for private and international involvement in space-related activities in the State; • Review the effectiveness of present publications, pamphlets, and other sources of information about Hawaii’s space-related activities produced and distributed by the State; • Have the office serve as a clearinghouse for information on Hawaii’s spacerelated activities, to include but not be limited to, those of the University of Hawaii and federal agencies located in Hawaii; • Develop a business plan for a commercial space facility and for pursuing appropriate business partners; • Target existing businesses which can provide products or services of importance to the space industry to support the expansion of such businesses in Hawaii; • Increase contact and maintain liaison with the National Aeronautics and Space Administration and other federal agencies and facilities; • Institute procedures by which citizen input on proposed space facilities development shall be invited at the earliest possible time in the development process; • Adopt, amend, and repeal rules . . . necessary to carry out [these purposes]; • Contract for such services as may be necessary for [these purposes]; and • Do all other things necessary or proper to carry out [these purposes].13 Hawaii statutes also contain a provision for the development of “appropriate mechanisms for the consideration and protection of Hawaiian cultural values and resources, religious rights, and traditional and customary uses which may be affected by space-related activities.”14 Unlike other states, Hawaii statutes include a specific prohibition against the launch from within its borders of weapons of destruction or nuclear waste materials, or the use of radioactive materials as a power source in launch vehicles.15

11 Hawaii

R.S. § 201–71 et seq. e.g., Alaska Statutes § 14.40.866; Arizona R.S. § 41-1563; California Government Code § 13999.2; Florida S.A. § 331.305; Wisconsin S.A. § 114.62. 13 Hawaii R.S. § 201–73. 14 Ibid. at Subsection 9. 15 Hawaii R.S. § 201–75. 12 See,

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Ohio has established the Ohio Aerospace and Defense Advisory Council,16 although the structure of the council is not detailed in the statutes beyond the elaboration of general powers and duties. Louisiana created the Louisiana Nuclear and Space Authority (LNSA),17 but it was not well developed in the statutes, which essentially just designated the members of the board without providing for any grant of authority or power. The LNSA subsequently was transferred to the State Board of Commerce and Industry and the State Department of Economic Development.18 Louisiana previously had established the Louisiana Aerospace and Aviation Development Authority, but it was repealed, effective July 7, 1989.19 Similarly, Colorado established the Office of Space Advocacy in 1990, but repealed it effective July 1, 1994.20 Two sections of the statutes of Texas refer to the Texas Aerospace Commission, a former agency of the state which ceased operations after 2002.21 Nevertheless, one statute directs the Texas Aerospace Commission to cooperate with the Texas Higher Education Coordinating Board and the Development Corporation for Spaceport Facilities in developing courses to be held at or near a spaceport.22 The second statute authorizes the issuance of special Texas Aerospace Commission license plates.23 The Texas Economic Development and Tourism Office, acting through the aerospace and aviation office, currently is charged with the promotion of the space industry within the state.24

21.3 Space Commissions and Spaceports A number of states, including Alaska, Florida, and Wisconsin, have established space commissions with extensive statutory frameworks, some of which extend to the regulation of spaceports. Alaska has created the Alaska Aerospace Development Corporation (AADC), which is a separate and independent legal entity within the Department of Commerce Community and Economic Development, and is affiliated with the University of Alaska.25 The purposes of the AADC include the promotion of economic development broadly, but also the promotion of the Poker Flat Research Range as a launch site, for educational purposes, and for tourism.26 16 Ohio

R.C. § 122.98. S.A. § 1351. 18 Ibid. at § 929. 19 See ibid. at §§ 4631 et seq. 20 See Colorado R.S.A. former §§ 24.48.101–24.48.105 (1990). 21 See Sunset Commission Decisions Texas Aerospace Commission November 2002, http://www.sunset.state.tx.us/78threports/tac/dec_02.pdf (accessed November 7, 2008). 22 Texas V.T.C.A. Government Code, Title 83, Chapter 10, art. 5190.6, § 4E(h). 23 Ibid. at § 504.610. 24 Texas V.T.C.A. Government Code, Title 4, § 481.0066. 25 Alaska Statutes § 14.40.821 et seq. 26 Alaska Statutes § 14.40.861(3, 4, 5). 17 Louisiana

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The AADC is authorized to do all things necessary or convenient to carry out its corporate purposes and exercise its statutory powers.27 Specifically, the AADC has broad authority to adopt regulations,28 but is statutorily precluded from utilizing the power of eminent domain.29 The AADC is authorized to issue bonds,30 to finance or develop space related projects with any public and private entities,31 and to own and operate launch sites, payload and rocket facilities, and space business incubators.32 Legislative approval is required for construction projects over $1,000,000,33 and for the issuance of bonds in excess of $1,000,000 each calendar year, or if debt service on all issued and proposed bonds exceeds $1,000,000 in a fiscal year.34 The bonds and interest paid thereon are declared to be exempt from taxes.35 The AADC is required to maintain the confidentiality of trade secrets, which do not become public records, and to adopt regulations for this purpose.36 Finally, the AADC is authorized to apply to the federal government for a grant allowing the designation of the corporation as a foreign trade zone.37 The state of Florida has enacted a comprehensive statutory framework for the promotion of aerospace in the Space Florida Act.38 This act creates Space Florida, as a special district, body politic and corporate, and a subdivision of the state, but not an agency.39 Space Florida is the successor to the Florida Space Authority, the Florida Space Research Institute, and the Florida Aerospace Finance Corporation. The purposes of Space Florida include promoting space and preserving the unique national role of Cape Canaveral. The mandate of Space Florida includes reducing costs and improving regulatory flexibility for commercial sector launches. In addition, Space Florida is charged with pursuing the development of commercial horizontal launch sites.40 It is noteworthy that the Act defines “aerospace” to include “application of aerospace technologies in air-based, land-based, and sea-based platforms for commercial, civil, and defense purposes.”41 Space Florida enjoys a broad grant of authority pursuant to which it may exercise all powers which are necessary or convenient to effect any or all of the purposes for

27 Alaska

Statutes § 14.40.866(a)(9). Statutes § 14.40.871(a). 29 Ibid. at § 14.40.866(6). 30 Ibid. at § 14.40.866(a)(7). 31 Ibid. at § 14.40.866(17). 32 Alaska Statutes § 14.40.866(a)(10). 33 Ibid. at § 14.40.886. 34 Alaska Statutes § 14.40.891(b). 35 Alaska Statutes § 14.40.906. 36 Alaska Statutes § 14.40.881. 37 Alaska Statutes § 14.40.866(18). 38 Florida S.A. §§ 331.301, et seq. 39 Florida S.A. § 331.302. 40 Florida S.A. § 331.3011(2). 41 Florida S.A. § 331.303(1). 28 Alaska

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which it is organized.42 This includes owning launch vehicles and payloads;43 and adopting regulations to prohibit or control pollution of air or water.44 Space Florida also may issue bonds, which, while not the obligation of the state,45 nevertheless are subject to approval of the legislature or governor and cabinet.46 The Act provides that Space Florida shall assist commercial launch operators in obtaining federal approval to launch from the state.47 In addition, the statutes provide for the confidentiality of trade secrets.48 The statutes also authorize Space Florida to apply for designation of the spaceport territory as a foreign trade zone.49 Finally, Space Florida has the authority to grant consent for any company to use the names “Space Florida” “Florida Space Authority” “Florida Aerospace Finance Corporation” “Florida Space Research Institute” “Spaceport Florida” or “Florida Spaceport.”50 Wisconsin has created the Wisconsin Aerospace Authority (WAA),51 which among other things, is charged with owning and operating spaceports, including “establishing a spaceport in the city of Sheboygan in Sheboygan County.”52 The WAA is comprised of 6 members appointed by the governor, plus representatives of both houses of the legislature, and the director of the Wisconsin Space Grant Consortium.53 In addition to spaceports, the WAA has the authority to own, develop and operate any spacecraft or other vehicle,54 and more generally, any program or project.55 The WAA is empowered to issue bonds to fund any spaceport, facility or service of the authority.56 The WAA also is empowered to exercise the power of eminent domain.57 The WAA also has the right to prohibit any person from using the words “Wisconsin Spaceport” or “Spaceport Wisconsin” in any business related name.58 42 Florida

S.A. § 331.305(7). S.A. § 331.305(11). 44 Florida S.A. § 331.320(1). 45 Florida S.A. § 331.347. 46 Florida S.A. § 331.305(20). 47 Florida S.A. § 331.3051(7) (d). 48 Florida S.A. § 331.326. 49 Florida S.A. § 331.327. 50 Florida S.A. § 331.355. 51 Wisconsin S.A. §§ 114.60 et seq. 52 Wisconsin S.A. § 114.62(10)(a). 53 Wisconsin S.A. § 114.61. Pursuant to subsection (12), the Wisconsin Space Grant Consortium means the statewide regional consortium designated by NASA in accordance with 42 USC 2486f (a) (1) (B). 54 Wisconsin S.A. § 114.62(10)(b). 55 Ibid. at Subsection (10)(c). 56 Ibid. at Subsection (13). 57 Ibid. at Subsection (17). 58 Ibid. at Subsection (21). 43 Florida

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The WAA has exclusive jurisdiction over spaceports within the state, subject, of course, to federal laws.59 The Wisconsin statutes provide that any spaceport “open to the general public” must have effective runway and landing strip lengths which are properly reported, published and marked. In addition, runways and landing strips must be located such that “approaching and departing aircraft or spacecraft clear all public roads, highways, railroads, waterways or other traverse ways by a height which complies with applicable federal standards.”60 The location of a spaceport is subject to the approval by the secretary of transportation, based on compatibility with other existing or planned transportation facilities in the area.61 Public hearings may be conducted during the approval process, and shall be held on request of any applicant if the location is not approved.62 Aerial approaches to a spaceport may be regulated and taken for safety reasons. It is noteworthy that an aggrieved property owner has only six months within which to submit a claim for damages or such claim is barred.63 Finally Wisconsin provides that any municipality or person that accepts federal monies for spaceport purposes is deemed to have given consent to the “unified certification disadvantage business program.”64

21.4 Spaceport Regulation Independent of a Space Commission Many states have adopted statutes regulating the operation of spaceports independent of the establishment of a space commission. The laws of Montana, for example, authorize local governing bodies to create aerospace transportation districts for aerospace transportation.65 More detailed statutory regimes for the operation of spaceports have been enacted by California,66 New Mexico,67 and Texas.68 A common thread in these statutes is the promotion of business development, and funding mechanisms frequently are authorized.69 Moreover, the spaceport authorities often are granted broad powers to accomplish their purposes, even if specifics are left for future determination.70 59 Ibid.

at Subsection (22). S.A. § 114.134. 61 Wisconsin S.A. § 114.134(3). 62 Wisconsin S.A. § 114.134(4). 63 Wisconsin S.A. § 114.135. 64 Wisconsin S.A. § 84.072(3). 65 Montana C.A. § 7-15-4296. 66 California Government Code, §§ 13999 et seq. 67 New Mexico S.A. §§ 58-31-1 et seq. 68 Texas V.T.C.A. Government Code, Title 83, Chapter 10, art. 5190.6, § 4E. 69 New Mexico S.A. § 58-31-17 (spaceport authority fund); Texas V.T.C.A. Government Code, Title 83, Chapter 10, art. 5190.6, § 4E(i)(2) (Development Corporation for Spaceport Facilities bonding authority); see also § 481.0069 (Spaceport Trust Fund). 70 See, e.g., New Mexico S.A. § 58-31-5; Texas V.T.C.A. Government Code, Title 83, Chapter 10, art. 5190.6, § 4E(c). 60 Wisconsin

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California, for example, has adopted a suite of programs to encourage aerospace commerce and develop spaceport resources within the state. The Space Enterprise Development Act71 provides for a space enterprise development program to be conducted within the Business, Housing and Transportation Agency.72 A California non-profit corporation is to be designated by the secretary of the agency to serve as the California Spaceport Authority (CSA).73 Among other business and economic development activities, the CSA shall review applications for and promote the California Space Enterprise Competitive Grant Program.74 The California Spaceport Authority can designate launch and re-entry sites within the state, although spaceport site operators remain subject to appropriate licensing by the federal government.75 Intercity and county airport districts are empowered to provide and maintain spaceports,76 including the power to make rules,77 and to issue bonds, the proceeds of which to be used to purchase real property for spaceport purposes.78 The California statutes contain an extensive glossary of defined terms, including “launch,” which is deemed to include all preparatory activities. That is, in California, a launch “begins with the arrival of the launch vehicle or payload at the launch site.”79 New Mexico has created the New Mexico Spaceport Authority, a state agency administratively attached to the economic development department.80 Among other functions, the NMSA shall create avenues of communication between the federal government, the space industry, including users of launch services, and academia.81 In addition, the NMSA is authorized to “initiate, develop, acquire, own, construct, maintain and lease space-related projects.”82 The NMSA is also directed to “perform environmental, transportation, communication, land use, and other studies necessary or advisable for projects and programs” or to obtain appropriate federal licenses.83 The NMSA is authorized to issue revenue bonds,84 which are exempt

71 California

Government Code §§ 13999 et seq. Government Code § 13999.2(a). 73 California Government Code § 13999.2(c);(d)(1). 74 California Government Code § 13999.2(a) (9); see also § 13999.4. 75 California Government Code § 13999.3(c). 76 California Government Code § 22553. 77 California Government Code § 22555. 78 California Government Code § 22702. 79 California Government Code § 13999.1(e). 80 New Mexico S.A. § 58-31-4(A). 81 New Mexico S.A. § 58-31-5(A)(7). 82 Ibid. at Subsection (A)(4). The term “project” defined to mean “any land, building or other improvements acquired as part of a spaceport or associated with a spaceport or to aid commerce in connection with a spaceport and all real and personal property deemed necessary in connection with the spaceport.” New Mexico S.A. § 58-31-3(B). 83 New Mexico S.A. § 58-31-5(A)(12)(emphasis added). 84 Ibid. at Subsection (B)(7). 72 California

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from state taxes,85 but which are not general obligations of the state or subject to the full faith and credit of the state.86 Local governments in New Mexico can establish and operate a spaceport pursuant to the “Regional Spaceport District Act.”87 For purposes of the Act, a “spaceport” is defined as “any facility in New Mexico at which space vehicles may be launched or landed, including all facilities and support infrastructure related to launch, landing or payload processing.”88 Counties and municipalities which desire to become members of a regional spaceport district must first adopt an ordinance imposing a “regional spaceport gross receipts tax,” which is an excise tax of not more than one-half percent of the gross receipts of a person engaged in business within the district area of that jurisdiction.89 The tax must be approved by the voters in an election prior to going into effect.90 Spaceport operations may be supported by both the tax revenues generated by the ordinance as well as by bonds issued by the NMSA.91 However, in the event a majority of the voters reject the tax, the municipality or county is prohibited from re-proposing the tax for a period of one year.92 Pursuant to these provisions, a regional spaceport gross receipts tax was approved by the voters of Dona Ana County and Sierra County in March, 2007, and April, 2008, respectively, for the establishment and operation of the New Mexico Spaceport America. This spaceport is to be an operational site for tourist flights by Virgin Galactic.93 Pursuant to the statutes of Texas, a corporation for the development of spaceport facilities may be established by a county or a combination of municipalities and counties.94 This corporation has broad powers including the power of eminent domain,95 and including also the authority to require the relocation or modification of a railroad, utility line, pipeline, or other facility that may interfere with a spaceport.96 The corporation also may issue bonds, which are not an obligation or pledge of the faith and credit of the state, but which are payable solely from the revenue of the spaceport, and which must mature within fifty years of their issuance.97

85 New

Mexico S.A. § 58-31-16. Mexico S.A. § 58-31-5(C)(1); see also New Mexico S.A. § 58-31-9. 87 New Mexico S.A. §§ 5-16-1 et seq. 88 New Mexico S.A. § 5-16-3(I). 89 New Mexico S.A. § 7-19D-15(A)(municipality); § 7-20E-25(A)(county). 90 New Mexico S.A. § 7-19D-15(C)(municipality); § 7-20E-25(C)(county). 91 New Mexico S.A. § 5-16-7. New Mexico Laws 2006, Chapter 111, § 68, authorized $100,000,000 in severance tax bonds for a regional spaceport in Sierra County, to be expended in increments through 2008. 92 New Mexico S.A. § 7-19D-15(A) (municipality); § 7-20E-25(A)(county). 93 .http://www.airportbusiness.com/web/online/Top-News-Headlines/NM-County-PassesSpaceport-Tax/1$11331 (accessed: January 5, 2008). 94 Texas V.T.C.A. Government Code, Title 83, Chapter 10, art. 5190.6, § 4E. 95 Ibid. at § 4E(c)(2). 96 Ibid. at § 4E(c)(2)(B). 97 Ibid. at § 4E(k). 86 New

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Virginia has adopted statutes which do not directly regulate the operation of spaceports, but nevertheless may have an impact on space flight activities. Specifically, Virginia statutes provide civil immunity for a space flight entity for damages to a space flight participant, provided that certain disclosures are made.98 The term damage includes personal injury, including death, emotional injury, and damage to property.99 Liability may be imposed, however, for intentional damages, and for damages proximately caused by gross negligence evidencing willful or wanton disregard for the safety of the participant.100 Florida and New Mexico also have adopted statutes to limit liability to space flight participants.101

21.5 Business Development Programs States have adopted a variety of business development programs in addition to specific spaceport legislation. These business development programs fall into three general categories: first, direct grants or assistance to a specific entity; second, programs to benefit the aerospace industry in particular; and third, programs which are intended to benefit a wide range of industries, including aerospace.

21.5.1 Financial Assistance for a Specific Company Two states have adopted statutes which provide a direct subsidy to a specific entity, in both cases, Boeing. Alabama has authorized the payment of up to $760,000 “for the acquisition of high technology and audio-visual equipment for an advanced aerospace training facility for Boeing.”102 Similarly, Oregon has by statute authorized the lease of the “Space Age Industrial Park” to Boeing.103

21.5.2 Financial Assistance for Aerospace Projects A number of states, including Arkansas, California, Ohio, Tennessee, Texas, Wisconsin, and Wyoming, have created programs to promote the general development of the aerospace industry within their borders. These programs may include the establishment of an office or agency, which is similar in function or complementary to a “space commission.” For example, Arkansas has created the Industry and 98 Virginia

Code § 8.01-227.9(A). § 8.01-227.8. 100 Ibid. § 8.01-227.9(B). 101 Florida S.A. § 331.501; New Mexico S.B. 9, Space Flight Informed Consent Act, February 27, 2010, text reproduced in http://rescommunis.wordpress.com/2010/03/04/new-mexico-spaceflight-informed-consent-act/.” 102 Alabama Code § 41-10-674(a). 103 Oregon R.S. §§ 273.382 et seq. 99 Ibid.

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Aerospace Development Fund.104 The Fund is to be used by the Arkansas Economic Development Commission and the Arkansas Aviation and Aerospace Commission. However, the Arkansas Aviation and Aerospace Commission was to be abolished on June 30, 2007, pursuant to sunset legislation.105 California has instituted the Space Enterprise Competition Grant Program. This Program provides funding assistance to space enterprises, and is open to both the public and private sectors, as well as to both commercial and non-profit organizations.106 Applications are reviewed by an independent panel,107 although one requirement for receiving a grant is that the majority of project will be undertaken in California.108 Provision is made in the statutes for the protection of intellectual property rights.109 Within the California Department of Transportation, in the Business, Housing and Transportation Agency, is a unit known as the Spaceport Office, the purpose of which is to seek and obtain federal funding for the commercialization of private space activities in the state.110 The New Mexico state investment officer is empowered to make investments in businesses, including aerospace businesses, to create job opportunities and support new, emerging or expanding businesses.111 Ohio has implemented a grant program affiliated with the university system. The chancellor of the Ohio Board of Regents may issue grant funds to a nonprofit entity that provides a statewide resource for aerospace research, education, and technology. The grants are conditioned on the nonprofit entity making its resources accessible to colleges, universities and agencies within and outside of Ohio.112 Tennessee also has adopted a program affiliated with its higher education facilities, the University of Tennessee Space Institute.113 Texas, on the other hand, has created the Aerospace and Aviation Office within the Texas Economic Development and Tourism Office.114 Utah has authorized the creation of an Aerospace and Aviation Development Zone at or in the vicinity of an airport.115 Wisconsin has sought to promote the development of spaceports, by creating an advance land acquisition loan program for spaceport projects and authorizing loans with a total balance of up to $10,000,000.116 Wyoming has taken a more limited approach, and has authorized the Wyoming Aeronautics Commission to encourage the study 104 Arkansas

C.A. § 19-5-1049. C.A. § 25-39-302. 106 California Government Code § 13999.4(a). 107 California Government Code § 13999.4(c). 108 California Government Code § 13999.4(b) (2)(D). 109 California Government Code § 13999.4(b) (2) (E). 110 California Government Code § 14007.1. 111 New Mexico S.A. § 7-27-5.15(E)(1)(b). 112 Ohio R.C. § 3333.042. 113 Tennessee C.A. § 49-9-601(a)(1). 114 Texas V.T.C.A. Government Code § 481.0066. 115 Utah C.A. § 63-38f-1303. 116 Wisconsin S.A. § 114.375(c). 105 Arkansas

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of aerospace engineering and to sponsor and participate in aerospace education workshops.117 Virginia has enacted the Virginia Commercial Space Flight Authority Act, which created a statewide political subdivision for the purposes of disseminating knowledge including in the area of commercial space flight, and the promotion of economic development.118 The Authority is granted broad powers to carry out its purposes,119 including the development and operation of any project,120 and the ability to issue bonds.121

21.5.3 Promotion of Space Business In addition to the foregoing, several states have adopted programs which are intended to promote and benefit a number of high technology industry segments, specifically including aerospace. States with such programs include Connecticut,122 Illinois,123 Indiana,124 North Dakota,125 Texas,126 and Washington.127 New Jersey by statute has ratified the SMART Research and Development Compact with Delaware, Maryland, and Pennsylvania.128 SMART, which stands for Strengthening the Mid-Atlantic Region for Tomorrow, is intended to link universities, public and private entities involved in scientific and technological pursuits, including aerospace, and to provide a model for effective use of limited funding sources. South Carolina has established the South Carolina Research Authority, and created three Research Innovation Centers for the development, testing, and implementation of new advances in industries including aerospace. Twelve million dollars in funding was allocated for the first three years, and the Research Innovation Centers (RIC) are empowered to grant recipient entities up to $200,000, plus physical and staff resources. The South Carolina RIC also may provide financing and allow waivers of rent and other fees.129

117 Wyoming

S.A. § 10-3-201(c). Code §§ 2.2-2201 et seq. 119 Virginia Code § 2.2-2204. 120 Ibid. at § 2.2-2204(4). 121 Ibid. at § 2.2-2204(7). 122 Connecticut G.S.A. § 32-41u(a). 123 Illinois S.H.A. 20 ILS § 700/1003. 124 Indiana A.I.C. § 5-28-10 et seq. 125 North Dakota C.C. §§ 15-69-01(5)(f). 126 Texas V.T.C.A. Government Code § 490.003(b)(12). 127 Washington R.C.W.A. § 43.330.090. Washington also has a special program for training unemployed aerospace workers. R.C.W.A. § 50.20.042. 128 New Jersey S.A. § 52:9X-12. 129 South Carolina Code § 13-17-87. 118 Virginia

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21.5.4 Tax Incentives for Aerospace Activities Many states have supplemented business development and promotion activities by enacting a variety of tax incentives and reductions for the aerospace industry. There is little consistency between the states in this regard, and the kinds of tax preferences vary widely from state to state. In addition, the terminology of the statutes often is vague and imprecise. For example, Arizona provides a credit for net increases in employment of full time employees in a military reuse zone engaged in aviation or aerospace services or products.130 In addition, favorable classifications are provided for taxable property used in aerospace products and services.131 Exemptions are provided for aircraft from non-profit educational institutions that offer associate or baccalaureate degrees in aviation or aerospace related fields.132 Favorable treatment also is provided for contracts for construction within military reuse zones for aviation or aerospace products and services.133 Colorado allows a sales and use tax refund for tangible personal property used in research and development including aerospace.134 Connecticut provides a rolling tax credit for research and development including aerospace companies.135 Georgia has an exemption for sales and use taxes on sales of services or tangible personal property to the Department of Defense or NASA for the purpose of national defense.136 Hawaii exempts from the general excise tax the proceeds from performing scientific work for the U.S. government, including activities performed at aerospace and astronomical facilities.137 Louisiana provides a tax credit for new jobs in the aviation or aerospace industries,138 while Massachusetts has a credit against excise taxes for research expenses for defense related activities, including equipment for NASA.139 New Mexico provides a tax deduction for receipts from launching, operating or recovering space vehicles or payloads, as well as for preparing payloads and operating a spaceport.140 A payload is defined as “a system, subsystem or other mechanical structure or material to be conveyed into space that is designed,

130 Arizona

R.S. § 43-1079. R.S. § 41-1532(c); see also § 42-12006. 132 Arizona R.S. § 42-5071. 133 Arizona R.S. § 42-5075. 134 Colorado R.S.A. § 39-26-601(2)(a)(I, and II). 135 Connecticut G.S.A. § 12-271n(e). 136 Georgia O.C.G.A. § 48-8-3(B)(1). This exemption was due to expire on January 1, 2009. Ibid. at Subsection (c). 137 Hawaii R.S. § 237-26(b). 138 Louisiana S.A. § 1787(A)(2)(b). 139 Massachusetts G.L.A. Chapter 63, § 38 M(i)(2)(B). 140 New Mexico S.A. § 7-9-54.2(A–C). 131 Arizona

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constructed or intended to perform a function in space.”141 Interestingly, “space” is defined as the location above 60,000 feet above mean sea level.142 New Mexico also allows for the deduction of receipts from the performing or selling of an aerospace service for resale to a buyer who delivers a nontaxable transaction certificate.143 Oregon allows an exemption from ad valorem taxes for parts and materials for property for a defense or space contract.144 South Carolina grants depreciation allowances for machinery and equipment for the aerospace industry, including the manufacture of aircraft, spacecraft, rockets, missiles and component parts.145 Tennessee has an exemption from taxes on tangible personal property used in testing space and aerospace technologies and industries.146 The Utah statutes exempt sales and use of tooling, equipment and parts used in the aerospace industry under contract and subcontract with the U.S. government.147 Virginia, on the other hand, exempts from taxation the sale, lease, and use of space facilities, vehicles, satellites, components, and fuels, during the period of July 1, 1997, to July 1, 2011.148 Finally, West Virginia grants a credit for qualified investment in an aerospace industrial facility.149 For purposes of the statute, an aerospace industrial facility means a facility used for the manufacturing, rebuilding or physical refurbishment of space vehicles, guided missile and space vehicle propulsion units, space vehicle parts, or guided missile and space vehicle auxiliary parts.150

21.5.5 Regulation of Specific Aerospace Industry Segments In addition to economic development and taxation issues, states have begun to regulate specific aspects of space industry. These regulatory structures can be expected to increase in the future, as several states with space commissions have delegated authority to that body to adopt rules and regulations. Examples of current regulation on a state level are as follows. Delaware has statutes which control volatile organic compound emissions during depainting of the outer surface of aerospace vehicles.151 Iowa has enacted emission standards for air pollutants in the “manufacture, repair, or rework of aerospace 141 New

Mexico S.A. § 7-9-54.2(E)(2)(emphasis added). at subsection (E)(3). 143 New Mexico S.A. § 7-9-54.1. 144 Oregon R.S. § 307.065. 145 South Carolina Code § 12-37-930. 146 Tennessee C.A. § 67-6-209. 147 Utah C.A. § 59-12-104. 148 Virginia Code § 58.1-609.3(13). 149 West Virginia Code § 11-13D-3 f. 150 Ibid. at subsections (d) (1)(G–L); see also subsection (d)(4) for definition of “eligible taxpayer” (accord). 151 Delaware Title 7 DNREC, 1100 Air Quality Management Section, 1124, 10.0 Aerospace Coatings. 142 Ibid.

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components and assemblies.”152 Pennsylvania has authorized the Environmental Quality Board to adopt alternative volatile organic compound emission limitations for aerospace coatings and solvents as are consistent with the federal Clean Air Act. 153 State statutes specifically regulating components of the aerospace industry are not limited to environmental matters. Maine has adopted statutes specifically regulating launch sites.154 Mississippi has established the Mississippi Coordinating Council for Remote Sensing and Geographic Information Systems to “set and assure enforcement of policies and standards to make it easier for remote sensing and geographic information system users around the state to share information and to facilitate cost-sharing arrangements to reduce the costs of acquiring remote sensing and geographic information system data.”155

21.5.6 Miscellaneous Statutory References Nebraska, for purposes of its Emergency Management Act, defines a technological hazard to include debris from space.156 New Jersey defines “air terminals” to include navigation of or in air or space by carriers engaged in the transportation of passengers or cargo.157 Finally, a number of states have statutes regarding “sovereignty” or “ownership” of space, which could have implications for traffic control for spaceports through navigatable airspace. Idaho,158 Indiana,159 Maine,160 and Montana161 have adopted statutes which declare that the sovereignty in the space above the lands and waters of the state rests in the state, except where granted to the federal government by a constitutional grant from the people of the state. Missouri,162 Pennsylvania,163 and Vermont,164 on the other hand, declare that the ownership of the space above the lands is vested in the owner of the surface,165 subject however, to the right of flight of aircraft.

152 Iowa

C.A. § 567-23.1(4)(ag). C.S.A. Title 35, chapter 23, § 4005(a)(13). 154 Maine R.S. Title 6, Aeronautics, Chapter 15, Missiles and Rockets, §§ 271 et seq. 155 Mississippi Code § 25-58-21. 156 Nebraska R.R.S. § 81-829.39. 157 New Jersey S.A. § 32:1-35.3; see also § 32:1-35.19 and 32:1-154.18. 158 Idaho C. § 21-202. 159 Indiana A.I.C. § 8-21-4-2. 160 Maine Title 1, § 6. 161 Montana C.A. § 67-1-202. 162 Missouri V.A.M.S. § 305.020. 163 Pennsylvania C.S.A. Title 74, chapter 55, § 5501. 164 Vermont S.A. § 402. 165 These statutes are an application of the ancient doctrine of cujus est solum ejus est usque ad coelum, that is, ownership of the land extends to the periphery of the universe. See Laird v. Nelms, 153 Pennsylvania

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Pennsylvania further limits the rights of the surface owner to as far as necessary for the enjoyment of the surface. North Carolina, South Carolina, and South Dakota have both provisions in their statutes, such that sovereignty in the space above the lands and waters rests in the state or federal government,166 but ownership of the space is vested in the owner of the surface.167 The descriptive title in the South Dakota statutes indicates that the subject matter relates to air space, and that would appear to be consistent with the intent of the statutes in that and other jurisdictions. However, the substance of the statutes is not similarly limited, and the states could assert the ability to assume jurisdiction above relatively low altitudes for spaceport traffic management and other purposes.168

406 U.S. 797, 92 S. Ct. 1899, 32 L. Ed. 2d 499, 1972 U.S. LEXIS 123, 2 ELR 20363 (1972); United States v. Causby, 328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206, 1946 U.S. LEXIS 3008 (1946); Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322, 1922 U.S. LEXIS 2381, 28 A.L.R. 1321 (1922)(dissent of Brandeis). 166 North Carolina G.S. § 63-11; South Carolina Code § 55-3-30; South Dakota C.L. § 50-13-2. 167 North Carolina G.S. § 63-12; South Carolina Code § 55-3-40; South Dakota C.L. § 50-13-3. 168 See New Mexico S.A. § 7-9-54.2(E) (3) (defining space to mean “any location beyond altitudes of sixty thousand feet above the earth’s mean sea level”).

Index

A AADC, see Alaska Aerospace Development Corporation (AADC) ACL, see Area Control List (ACL) Administrative Regulations, 14, 247, 249, 257, 261, 264 Air Navigation Services (ANS), 190, 192, 225 Alaska Aerospace Development Corporation (AADC), 471 ANS, see Air Navigation Services (ANS) Area Control List (ACL), 87, 90 Argentina government regulation of space activities in basic principles of national laws, 24–25 law-making processes, 23–24 organization of national space activities, 25–26 launch services, legal issues related to, 26–28 safety concerns, 28 space object registry, 29–30 supervision of activities in outer space, 29 National Commission on Space Activities (CONAE), 24 National Communications Commission (CNC), 24 National Registry of Objects Launched into Outer Space, 30 National Space Plan, 23, 25, 26 satellite telecommunications and broadcasting, legal issues related to, 30–31 general satellite telecommunications framework, 31–32 licensing of private satellite telecommunications operators, 32–35 Space Object Registry, 27, 29–30

Arizona Aerospace and Defense Commission (AzADC), 469 Arms control agreements, 4 ATC Report and Order, 427, 428 Australia Australia Group, 20 Australian Centre for Remote Sensing (ACRES), 57 Australian Communications and Media Authority (ACMA), 57 legislative instruments affecting, 58 policies of, 58 Australian Constitution Act, 37 Australian Government Space Engagement: Policy Framework and Overview, 41 Australian Government Space Forum, 41 Australian Space Science Program, 42, 44 Cooperative Research Centre for Satellite Systems (CRCSS), 41 government and legal regulation for space activities in Australian legal system, 37–38 involvement in space activities, 38–40 space policy, 40–44 launch services, legal issues related to history and objectives, 44–48 legislations for space activities, 48–57 satellite data distribution policy, 57 satellite telecommunications and broadcasting, legal issues related to, 57–59 AzADC, see Arizona Aerospace and Defense Commission (AzADC) B Ballistic Missile Defense (BMD) system, 105, 215 Berne Convention, 196, 310 Black Economic Empowerment Act, 290

Ram S. Jakhu (ed.), National Regulation of Space Activities, Space Regulations Library Series 5, DOI 10.1007/978-90-481-9008-9,  C Springer Science+Business Media B.V. 2010

485

486 BMD, see Ballistic Missile Defense (BMD) system BNSC, see British National Space Centre (BNSC) Brazil Brazilian Association of Air and Space Law (SBDA), 79 Brazilian-Russian cooperation for launch vehicles, 69 Brazilian space law, 62–63 first phase of, 63–66 second phase of, 66–68 third phase of, 68–71 Brazilian-Ukrainian joint venture for commercial launching of space vehicles, 70 Brazil-U.S. Technological Safeguard Agreement, 70 Chinese-Brazilian Earth Resources Satellite System (CBERS), 69 launch licensing and authorizing regimes, 71–72 administrative edicts, 73–74 business plan, 78 documents required, 75–76 focus on commercial potential of Alcantara Launching Centre, 74 foreign legal persons, special requirements for, 77 liability issues, 76–77 license and authorization, 74–75 national legislation for space activities, 72–73 settlement of disputes, 77 space launching activities, 75 national general law on space activities, 79 National Policy for the Development of Space Activities (PNDAE), 65, 67 national space law, 62 National System of Space Activities Development (SINDAE), 68 regulations on space safety, 78 British National Space Centre (BNSC), 358–362, 369 British North America Act (1867), 82 Broadcasting, defined, 283 Broadcasting service defined, 283 licenses, 176 Broadcast satellite services (BSS), 16, 397, 428–431 Budapest Treaty, 310

Index C Cable Television Networks (Regulation) Act, 171 California Space Enterprise Competitive Grant Program, 475 Canada Broadcasting Policy, elements of, 94 Canadian Aeronautics Act, 85 Canadian Aviation Regulations, 85, 86 Canadian Department of Transport, 86 Canadian Space Agency (CSA), 84, 85, 97, 103, 104 constitutional basis space regulatory regime in, 82–84 Export and Import Permits Act (EIPA), 87, 88, 89, 91 export control regulations in, 87–91 Export Permits Regulations, 87 human space activities and microgravity research in, 100–104 Import Permits Regulations, 87 international responsibility for national space activities, 106 launch activities in, 85–87 military uses of outer space, 104–105 organisation of space activities in, 84–85 remote sensing technologies and systems in, 96–100 satellite communications in, 91–96 space programs, 84 Transport Canada, 86 Canadian Radio-television and Telecommunications Commission Act, 93 Carriage by Air Act, 161, 191 CBERS, see Chinese-Brazilian Earth Resources Satellite System (CBERS) CD, see Disarmament, Committee on (CD) Central Customs Act, 196–197 CEOS, see Earth Observation Satellites, Committee on (CEOS) Chemical Weapons Convention, 20 Chicago Convention, 8, 187, 190 China China National Space Administration (CNSA), 248, 250–251 civil space launch projects, 248, 251 “foreign-Chinese-Chinese” joint venture, 255 government regulation of space activities in basic principles of national laws, 249–250

Index law-making processes, 247–249 organization of national space activities, 250–251 intellectual property and transfer of technology acquisition of intellectual property rights, 262 legal barriers to international transfer of space technology, 263–264 mechanism for exploiting IP rights, 263 launch services, legal issues related to competition in launch services, 252–253 licensing of launch services carried out by private enterprises, 251–252 satellite telecommunications and broadcasting, legal issues related to competition, 257–259 content regulation (including privacy), 261 foreign investments, 255–257 interconnections, 259 licensing of private satellite telecommunications operators, 253–254 rate regulation, 260 universal access, 259–260 Chinese-Brazilian Earth Resources Satellite System (CBERS), 69 Civil International Space Station Agreement Implementation Act, 102 CNC, see National Communications Commission (CNC) COCOM, see Coordinating Committee for Multilateral Export Controls (COCOM) COFUR, see Cost of Fulfilling User Request (COFUR) Commercial and Foreign Entity program, 12 Communications Convergence Bill, 169 Communications Satellite Corporation (COMSAT), 394, 395 CONAE, see National Commission on Space Activities (CONAE) Concentrated market, meaning of, 291 Consumer Protection Act (CPA), 191, 192 Control interest, defined, 291 Controlled Goods Program, 89 Controlled Goods Regulations, 89 Cooperative Research Centre for Satellite Systems (CRCSS), 41 Coordinating Committee for Multilateral Export Controls (COCOM), 20

487 Cosmonauts, 325–326 COSPAR, see Space Research of the International Council of Scientific Unions, Committee on (COSPAR) Cost of Fulfilling User Request (COFUR), 308 Council for Security Cooperation in Asia Pacific (CSCAP), 167 CPA, see Consumer Protection Act (CPA) CRCSS, see Cooperative Research Centre for Satellite Systems (CRCSS) CSCAP, see Council for Security Cooperation in Asia Pacific (CSCAP) D DAACs, see Distributed Active Archive Centers (DAACs) Declaration of Legal Principles Governing the Activities of States in Outer Space (1963), 6 Defense Production Act (DPA), 89 Direct Broadcast Satellite (DBS) Service, 428–429, 436 Direct-to-Home (DTH) Broadcasting Service, 33, 34 license for, 177–178 Disarmament, Committee on (CD), 4, 14 Disarmament, Conference on (Geneva), 52 Distributed Active Archive Centers (DAACs), 450 DPA, see Defense Production Act (DPA) E Earth Observation Satellites, Committee on (CEOS), 338, 443, 445, 446, 448, 451, 456, 457, 458 Earth observation services France, 119–120 Germany, 142–145 India, 181–184 Japan, 222 South Africa, 307–310 Ukraine, 350–352 United Kingdom, 369–370 United States, 443–458 Earth Resources Observation Systems (EROS), 449 ECL, see Export Control List (ECL) ECNS, see Electronic communications network services (ECNS) ECS, see Electronic communications services (ECS) EIPA, see Export and Import Permits Act (EIPA)

488 ELDO, see European Launcher Development Organisation (ELDO) Electronic communications, 283 Electronic communications network services (ECNS), 282, 284, 285, 286, 287, 290, 298, 299, 303 Electronic communications services (ECS), 115–118, 277, 289, 300, 301, 302 ELV, see Expendable Launch Vehicles (ELV) EROS, see Earth Resources Observation Systems (EROS) ESA, see European Space Agency (ESA) EUMETSAT, see European Organisation for the Exploitation of Meteorological Satellites (EUMETSAT) European Launcher Development Organisation (ELDO), 40 European Organisation for the Exploitation of Meteorological Satellites (EUMETSAT), 128, 228 European Space Agency (ESA), 57, 66, 110, 127, 129, 143, 151, 197, 225, 358, 404 EXIM Policy, 196 Expendable Launch Vehicles (ELV), 388, 409 Export and Import Permits Act (EIPA), 87 Export Control List (ECL), 87, 90, 91, 213, 264 Export Control Regulations, 87, 89, 90 Export controls, 18–20 The Export Controls Handbook, 87 F FDI, see Foreign direct investment (FDI) Federal Regulations, Code of (United States), 90 Federal Torts Claim Act (FTCA), 189 FIRs, see Flight Information Regions (FIRs) Fixed-Satellite Service (FSS), 16, 432, 437, 440, 442 geostationary orbit, 424–426 non-geostationary orbit (NGSO), 423–424 Flight Information Regions (FIRs), 188, 190 Foreign direct investment (FDI), 136, 177, 219, 255, 256, 292 Foreign legal persons, special requirements, 77 Foreign Trade Law, 150 Foreign Trade Regulation, 150 France Code of Post and Electronic Communications, 113 Declaration of the Rights of Man and of the Citizen, 120

Index Earth observation services data distribution, 119–120 licensing of remote sensing satellite operators, 119 national security concerns, 120 Freedom of Communication Act, 118, 119 French Space Act, 110, 119, 120, 121 Frequencies Agency, 113 government regulation of space activities in basic principles of national laws, 109–110 law-making processes, 109 organization of national space activities, 110 intellectual property and transfer of technology acquisition of intellectual property rights, 121 legal barriers to international transfer of space technology, 121–122 mechanism for exploiting IP rights, 121 trade and transfer of technology, 121 Intellectual Property Code, 121 launch services, legal issues related to competition in launch services, 112 licensing of launch services carried out by private enterprises, 111–112 national security concerns, 112 National Commission for Data Protection and the Liberties, 117 satellite navigational services in, 122 satellite telecommunications and broadcasting, legal issues related to competition, 115–116 content regulation (including privacy), 117–119 foreign investments, 115 interconnections, 116 licensing of private satellite telecommunications operators, 113–115 rate regulation, 116 universal access, 116 FSS, see Fixed-Satellite service (FSS) FTCA, see Federal Torts Claim Act (FTCA) G GAGAN, see Geo-Augmented Navigation (GAGAN) “Galileo” (European satellite navigation project), 128, 151, 186 GATS, see General Agreement on Trade in Services (GATS)

Index General Agreement on Tariffs and Trade (GATT), 195 General Agreement on Trade in Services (GATS), 195, 231 GEO, see Geosynchronous earth orbit (GEO); Group on Earth Observations (GEO) Geo-Augmented Navigation (GAGAN), 185, 187, 192 application of international legal regime to, 188–190 GEOSS, see Global Earth Observation System-of-Systems (GEOSS) Geostationary Satellite Launch Vehicles (GSLV), 163, 197 Geostationary satellite services, licensing of, 32–35 Geosynchronous earth orbit (GEO), 11, 14, 15, 16, 253 Germany Aviation Code, 127, 130 Civil Code, 127 Earth observation services data distribution, 143 licensing of remote sensing satellite operators, 142–143 national security concerns, 143–145 Federal Network Agency, 134, 138, 140, 141, 142 foreign direct investment (FDI), 136 government regulation of space activities in basic principles of national laws, 127 law-making processes, 123–126 organization of national space activities, 127–130 intellectual property and transfer of technology, 145–146 acquisition of intellectual property rights, 146–150 legal barriers to international transfer of space technology, 150 launch services, legal issues related to competition in launch services, 131 licensing of launch services carried out by private enterprises, 130–131 national security concerns, 132 Luftverkehrs-Zulassungs-Ordnung (LuftVZO), 130 Ordinance on the Satellite Data Security Law, 145 satellite navigational services in, 151

489 satellite telecommunications and broadcasting, legal issues related to, 132–134 competition, 137 content regulation (including privacy), 142 foreign investment, 136–137 interconnections, 137–139 licensing of private satellite telecommunications operators, 134–136 rate regulation, 141–142 universal service, 139–141 Telecommunications Act, 134, 139 Trade Mark Law, 149 Universal Service Directive, 141 Voice Over Internet Protocol, 137 GIRSPOT working group, 120 Global Earth Observation System-of-Systems (GEOSS), 444, 446, 456 Global Mobile Personal Communications via Satellite (GMPCS), 176, 180, 287, 399 Global Monitoring for Environment and Security (GMES), 128, 142 Global Navigation Satellite Systems (GNSS), 10, 192 availability of, 459–460 and GPS, 185 international legal regime for liability, 188 sovereignty, 187–188 Global Positioning System (GPS), 185, 355, 387 United States GNSS availability, 459–460 levels of GPS service in, 459 liability regime, 462–465 national GNSS institutions, 460–462 GLONASS (Russian Satellite Navigation System), 186, 355, 461 GMES, see Global Monitoring for Environment and Security (GMES) GMPCS, see Global Mobile Personal Communications via Satellite (GMPCS) GNSS, see Global Navigation Satellite Systems (GNSS) GPS, see Global Positioning System (GPS) Group on Earth Observations (GEO), 269, 444 GSLV, see Geostationary Satellite Launch Vehicles (GSLV)

490 A Guide to Canada’s Export Controls, 88 Guyanese Space Centre, 110 H Hague Code of Conduct, 167 High Power Rocket Safety Code, 86 Historically disadvantaged persons, defined, 291 Hyshot Scramjet launch project, 42 I IADC, see Inter-Agency Space Debris Coordination Committee (IADC) IAF, see International Astronautic Federation (IAF) ICAO, see International Civil Aviation Organization (ICAO) ICBMs, see Intercontinental ballistic missiles (ICBMs) ICJ, see International Court of Justice (ICJ) ICOC, see International Code of Conduct against Ballistic Missile Proliferation (ICOC) IGA, see Inter-Governmental Agreement (IGA) IGOS, see Integrated Global Observing Strategy (IGOS) India Cable Television Networks (Regulation) Act, 171 challenges in developing space launch industry, 164 Chandrayaan I lunar mission, 154 commercialization of space launch services, 164 Communications Convergence Bill, 169 Copyright Act, 193 data distribution policy in, 181–183 decision-making process and international obligations international obligations, 156–163 organization related to space activities, 155–156 Department of Space (DOS), 153 Geostationary Satellite Launch Vehicles (GSLV), 163, 197 Guidelines for Merger of Licences in a Service Area, 175 Indian Space Research Organization (ISRO), 153–155, 163–165, 171, 173, 183–186, 194, 197 Indian Telegraph Act, 169 Indian Wireless Telegraphy Act, 169 INSAT series of satellites, 171

Index intellectual property rights and transfer of technology acquisition of, 193–194 mechanism for exploiting, 194 national barriers to, 196–197 trade and transfer of technology, 195–196 launch services, legal issues related to, 163–164 competition in launch services, 165 licensing of launch services carried out by private enterprises, 164–165 national security concerns, 166–169 National Remote Sensing Agency (NRSA), 182, 184 New Telecom Policy, 169, 170 Polar Satellite Launch Vehicles (PSLV), 163 Reference Interconnect Offer (RIO), 175 Remote Sensing Data Policy, 2001 (RSDP), 182, 183 SatCom Policy, 155, 171, 172, 194 satellite navigational services, legal issues related to, 184–185 aeronautical navigation services, 190–192 application of international legal regime to GAGAN and IRNSS, 188–190 Galileo, participation in, 186 GLONASS, participation in, 186 GPS and GAGAN, 185 Indian Regional Navigation Satellite System (IRNSS) project, 185–186 international legal regime for GNSS, 187–188 satellite telecommunications and broadcasting, legal issues related to, 169–171 satellite broadcasting, 176–180 satellite telecommunications, 172–176 Significant Market Power (SMP), 175 Telecom Disputes and Appellate Tribunal (TDSAT), 172 Telecom Regulatory Authority of India (TRAI), 169 Thumba Equatorial Rocket Launching Station (TERLS), 153 Unified Access Service License (UASL), 174 Indian Regional Navigation Satellite System (IRNSS), 185–186 application of international legal regime to, 188–190

Index Indian Space Research Organization (ISRO), 153–155, 163–165, 171, 173, 183–186, 194, 197 INMARSAT, see International Maritime Satellite Organization (INMARSAT) Integrated Global Observing Strategy (IGOS), 444 Intellectual property and transfer of technology, policies in China, 262–264 France, 121–122 Germany, 145–150 India, 193–197 Japan, 222 South Africa, 310–313 Ukraine, 352–355 United Kingdom, 370–371 Inter-Agency Space Debris Coordination Committee (IADC), 17, 18, 338 Intercontinental ballistic missiles (ICBMs), 363, 401 Inter-Governmental Agreement (IGA), 101 Intermediate range ballistic missiles (IRBMs), 401 International Astronautic Federation (IAF), 338 International Civil Aviation, Convention on, 190 International Civil Aviation Organization (ICAO), 8, 16, 187, 208, 211, 463 International Code of Conduct against Ballistic Missile Proliferation (ICOC), 167 International Court of Justice (ICJ), 1 International Maritime Satellite Organization (INMARSAT), 176, 228, 231, 390, 394, 411, 415 International space organization, 8 International Space Station (ISS), 100, 128, 130, 378 International Telecommunication Law, 13–17 International Telecommunications Satellite Organization (INTELSAT) Agreement, 394 International Telecommunication Union (ITU), 4, 11, 13, 14, 16, 57 International Traffic in Arms Regulations (ITAR), 89, 90 IRBMs, see Intermediate range ballistic missiles (IRBMs) IRNSS, see Indian Regional Navigation Satellite System (IRNSS) ISRO, see Indian Space Research Organization (ISRO)

491 ISS, see International Space Station (ISS) ITAR, see International Traffic in Arms Regulations (ITAR) ITU, see International Telecommunication Union (ITU) J Japan agencies involved in development and use of space, 204–205 Basic Space Bill, 204 Basic Space Law, 204 Civil Law (Continental Law) system, 200 Council for Science and Technology Policy (CSTP), 202–204 Earth observation services, 222 Export Trade Control Order, 214, 222 Foreign Exchange and Foreign Trade Act (FEFTA), 213, 214, 215, 219, 222 Geographic Information (GIS Act), 222 government regulation of space activities in basic principles of national laws, 200 constitutional matters and implementation of international treaties, 207 law-making processes, 199–200 organization of national space activities, 201–207 intellectual property and transfer of technology, 222 Japan Aerospace Exploration Agency (JAXA), 201–202 authorization and supervision of, 205–207 launch services, legal issues related to competition in launch services, 212–213 licensing of launch services carried out by private enterprises, 207–212 national security concerns, 213–217 licensing procedural rules relating to radio stations, 218 national security concerns related to launch services export control laws and policy, 213–215 inward direct investment, 215 peaceful uses, 216–217 national space policy, 202–204 quasi-zenith satellite systems (QZSS), 204–205, 222 Radio Law, 217, 219, 221 satellite navigation services, 222–223

492 Japan (cont.) satellite telecommunications and broadcasting, legal issues related to competition, interconnection, universal access, and rate regulation, 220 content regulation (including privacy), 220–221 foreign investments, 219 licensing of private satellite telecommunications operators, 217–219 Space Activities Bill, 211, 222 Space Activities Commission (SAC), 202–204 Telecommunications Business Law (TBL), 219 L Launching state, concept of, 12–13 Launch Safety Officer, 53–54 Launch services, legal issues in Argentina, 26–30 Australia, 44–57 China, 251–253 France, 111–112 Germany, 130–132 India, 163–169 Japan, 207–217 South Africa, 280–281 Ukraine, 339–342 United Kingdom, 361–362 United States, 405–419 LEO, see Low Earth Orbit (LEO) Liability Convention, 9–12, 24, 26, 28, 45, 54, 55, 76, 157, 159, 161–163, 174, 189, 208, 209, 227, 232–237, 242, 249, 274, 281, 328 Louisiana Nuclear and Space Authority (LNSA), 471 Low Earth Orbit (LEO), 46, 131, 253, 398 M Madrid Agreement, 196, 352 Master International Frequency Register, 15 Maximum Probable Loss (MPL), 55, 77, 162, 242, 412 MFN, see Most-Favored-Nation (MFN) Missile Technology Control Regime (MTCR), 19, 68, 89, 167, 197, 214, 268, 313 Mobile Satellite Service (MSS), 422, 426–428 Model Rocket Safety Code, 86 Montreal Convention, 10 Moon Agreement, 4, 8, 81, 227, 248, 274 Most-Favored-Nation (MFN), 256

Index MPL, see Maximum Probable Loss (MPL) MSS, see Mobile Satellite Service (MSS) MTRC, see Missile Technology Control Regime (MTCR) Multichannel video programming distributor (MVPD), 440, 442 N National Aeronautics and Space Administration (NASA), 101, 103, 267, 269, 373, 379, 385, 388, 390, 392, 393, 402, 403, 444, 451, 460, 480 National Commission on Space Activities (CONAE), 24, 25 Resolution 252/96, 30 Resolution 330, 26, 27 Resolution 463/97, 29 National Communications Commission (CNC), 24 National Geospatial Intelligence Agency (NGA), 454 National Imagery and Mapping Agency (NIMA), 454 National Registry of Objects Launched into Outer Space, 30 National Space Agency of Ukraine (NSAU), 338, 340, 342, 355 National Space Plan, Argentina, 23, 25 The Netherlands Dutch Space Activities Act, 235 amendments to other legislation, 243–244 concluding provisions, 244 enforcement, 243 general provisions, 236–238 licences, 238–240 redress, 242–243 registry of space objects, 240–242 Dutch “spacescape,” 229–231 gateway to outer space, 244–245 and international space law, 226–229 maximum probable loss, concept of, 242 Mircorp and new skies satellites, 231–235 and outer space, 225–226 Next Steps in Strategic Partnership (NSSP), 197 NGA, see National Geospatial Intelligence Agency (NGA) NIMA, see National Imagery and Mapping Agency (NIMA) Non geostationary satellite services, licensing of, 35 Non-Proliferation of Weapons of Mass Destruction Act, 268, 275, 313

Index NSAU, see National Space Agency of Ukraine (NSAU) NSG, see Nuclear Suppliers Group (NSG) NSSP, see Next Steps in Strategic Partnership (NSSP) Nuclear Suppliers Group (NSG), 20, 167 O Office of Communications (Ofcom), United Kingdom functions under ITU Radio Regulations, 366 management of satellite filings by action when operator relinquishes filing, 367–368 background, 365–366 cost recovery, 366 due diligence requirements, 367 non-planned frequency assignment, 368 planned frequency assignment, 368–369 procedures, 366 OGL, see Open general license (OGL) Ohio Aerospace and Defense Advisory Council, 471 Open general license (OGL), 196 Open video systems (OVS), 436 Orbital debris, 17 Outer space definition of, 52 as ‘Fourth Territory,’ 52 military uses of, 104–105 Outer Space Treaty, 2, 3, 4, 11 Article III, 6, 8, 381 Article IV, 380, 382 Article VI, 5, 6, 9, 21 Article VII, 6 Article VIII, 11, 146 Article IX, 6 Article XI(5), 8 export controls, 18–20 implementation of, 6, 8 principles of, 6 purpose of, 5 ratification by China, 248 and space law agreements, 5 Overseas launch certificate, 50–51 OVS, see Open video systems (OVS) Ownership interest, defined, 291 P Paris Convention for the Protection of Industrial Property, 149, 196, 310, 352

493 Patents, 146 Personal Communications Satellite (PCS) services, 35 Personal Data Protection Bill, 193 Polar Satellite Launch Vehicles (PSLV), 163 Principles Governing the Activities of States in the Exploration and Use of Outer Space, Treaty on, 119–120 Private satellite telecommunications operators, licensing of geostationary satellite services, 32–35 non geostationary satellite services, 35 PSLV, see Polar Satellite Launch Vehicles (PSLV) PSTN, see Public switched telephone network (PSTN) Public international law, 5 Public switched telephone network (PSTN), 180 Q Quasi-zenith satellite systems (QZSS), 204–205, 222 R Radar Imaging Satellite (RISAT), 182 Radiocommunciations (Foreign Space Objects) Determination (2000), 59 Radiocommunication Bureau, 15, 135 Radiocommunications Act, 58, 59, 92 Radio Regulations, 14, 15, 16, 17 Reference Interconnect Offer (RIO), 175 Registration Convention, 10–12, 21, 24, 29, 40, 45, 56, 75, 131, 208, 227, 241, 264, 274 Remote sensing, 10, 57, 96–100 commercialization of services related to, 194 of Earth from outer space, 181 Remote Sensing of the Earth from Outer Space, principles relating to, 120 Remote Sensing Resolution, 330 Remote sensing satellite operators, licensing of in France, 119 in Germany, 142–143 in South Africa, 307 in Ukraine, 350–351 The Remote Sensing Space Systems Act, 98 Remote Sensing Space Systems Regulations, 99 Rescue Agreement, 11, 159, 160, 207, 227, 273 Resolution on the Application of the concept of the “Launching State” (2004), 6

494 Reusable Launch Vehicles (RLV), 10, 46, 409, 416 RIO, see Reference Interconnect Offer (RIO) RISAT, see Radar Imaging Satellite (RISAT) RLV, see Reusable Launch Vehicles (RLV) Rome Convention, 196 Russia authorities in charge of regulation of space activities in Federal Government, 319 Federal Space Agency, 319–320 Ministry of Defence, 320–321 President, 318–319 current legislation, 316 law on space activities in cosmonauts, 325–326 economic conditions of space activities, 323 international cooperation, 327–328 licensing, 326–327 notion, goals and principles, 321–322 provisions on liability, 328 safety standards, 327 space infrastructure, 325 space objects, rules regarding jurisdiction and flight of, 323–325 regulations regarding acquisition, use and provision of remote sensing data, 329–331 licensing, 328–329 registration of space objects, 331 space activities in authorities in charge of regulation of, 318–321 hierarchy of norms governing, 316–317 law on, 321–328 principles and overview of current programmes governing, 317–318 space legislation, history of, 315–316 S SACFA, see Standing Advisory Committee for Frequency Allocation (SACFA) SAF, see Space Agency Forum (SAF) SALT, see South African Large Telescope (SALT) Satellite broadcasting in India broadcasting service licenses, 176 content regulation, 178–179 global mobile personal communications via satellite, 180 license for Direct-to-Home (DTH) Broadcasting Service, 177–178

Index license for up-linking, 176–177 national security concerns, 180 Very Small Aperture Terminal (VSAT) Operators, 179–180 Satellite communications, 91–96 Satellite Digital Audio Radio Service (SDARS), 431–432 Satellite navigation, services in France, 122 Germany, 151 India, 184–192 Japan, 222–223 Ukraine, 355 United Kingdom, 371 Satellite telecommunications and broadcasting, legal issues in Argentina, 30–35 Australia, 57–59 Canada, 91–96 France, 113–119 Germany, 132–142 India, 169–180 Japan, 217–221 South Africa, 281–307 Ukraine, 342–350 United Kingdom, 362–365 Satellite telecommunications in India basic licensing requirements for, 172–173 leasing foreign satellite capacity, 173 licensing of private satellite telecommunications operators, 172 private Indian satellite systems, 173–174 telecom service license categories, 174–176 SDARS, see Satellite Digital Audio Radio Service (SDARS) SHARE, see Southern Hemisphere Auroral Radar Experiment (SHARE) SIC, see Space Information Cycle (SIC) Significant Market Power (SMP), 115, 116, 175, 295, 297, 298, 363 SLASO, see Space Licensing and Safety Office (SLASO) SMP, see Significant Market Power (SMP) South Africa Astronomy Geographic Advantage Act, 277–278 Black Economic Empowerment Act, 290 content regulation for satellite telecommunications and broadcasting, 303–304 advertising, 306 channel authorisation, 307 codes of conduct, 304

Index election broadcasting, 306 local content, 304–305 “Must Carry” obligations, 306–307 TV sports rights, 305–306 Conventional Arms Control Act, 276 Cost of Fulfilling User Request (COFUR), 308 Earth observation services data distribution, 307–310 licensing of remote sensing satellite operators, 307 Electronic Communications Act, 276–277 electronic communications network, 283 government regulation of space activities in basic principles of national laws, 273–274 law-making processes, 272–273 organization of national space activities, 274–279 ICASA Act, 290 intellectual property and transfer of technology acquisition of intellectual property rights, 310 trade and transfer of technology, 313–314 Karoo Array Telescope (MeerKAT), 270 launch services, legal issues related to competition in launch services, 281 licensing of launch services carried out by private enterprises, 280–281 licence conditions, 284 Mobile Cellular Telecommunications Services (MCTS), 303 National Antarctic Programme Antarctic Magnetosphere, Ionosphere Ground-based Observations (AMIGO), 271 Antarctic Research on Cosmic Rays (ANOKS), 271 Astrid Satellite Telemetry Station, 271 GPS project, 271 Southern Hemisphere Auroral Radar Experiment (SHARE), 270–271 Upper Atmosphere Physics project, 271 National Space Agency Act, 279 Non-Proliferation Act, 275 Public Switched Telecommunication Services (PSTS), 303 satellite telecommunications and broadcasting, legal issues related to competition, 293–298 content regulation, 303–307

495 foreign investments, 289–293 interconnections, 298–300 licensing of private satellite telecommunications operators, 281–285 licensing process, 286–289 rate regulation, 303 universal access, 300–303 Sound Music Content Regulations, 305 South African Astronomic Observatory, 270 South African Earth Observation System (SAEOS), 310 South African Large Telescope (SALT), 269 South African Spatial Data Infrastructure (SASDI), 308 Space Affairs Act, 268, 274, 275, 279–281, 307, 314 space launch vehicle programme, 269 Spatial Data Infrastructure Act, 276, 307, 308, 310, 312 Square Kilometre Array (SKA), 270 Subscription Broadcasting Regulations, 304, 306, 307 Technology Innovation Agency Act, 278–279 Universal Service and Access Agency, 300 Universal Service and Access Fund, 301 South African Large Telescope (SALT), 269 Southern Hemisphere Auroral Radar Experiment (SHARE), 270–271 Space Activities Act, 42, 46, 244 parts of, 48–57 Space activities, law and regulations in Argentina, 23–35 Australia, 37–59 Brazil, 61–79 Canada, 81–107 China, 247–265 France, 109–122 Germany, 123–152 India, 153–198 Japan, 199–223 The Netherlands, 225–245 Russia, 315–332 South Africa, 267–314 Ukraine, 335–355 United Kingdom, 357–371 Space Activities Regulations (2001), 47 Space Agency Forum (SAF), 338 Space based weapons, prohibition against, 4 Spacecraft, definition of, 88

496 Space debris mitigation guidelines, 17–18 Space Information Cycle (SIC), 26 Space junks, see Orbital debris Space Licensing and Safety Office (SLASO), 47, 49, 50, 51 establishment of, 52–53 Space object, definition of, 52 Space Operators Registry, 29 Space qualified, definition of, 88 Space Research of the International Council of Scientific Unions, Committee on (COSPAR), 337–338 Space safety, regulations on, 78 Space situational awareness (SSA), 11 Space Transportation System (STS), 10, 388 in Argentina, 26–28 in Australia, 44–57 in China, 251–253 in France, 111–112 in Germany, 130–132 in Japan, 207–213 risk associated with, 164 in South Africa, 280–281 in Ukraine, 339–342 in United Kingdom, 361–362 Special Chemicals, Organisms, Materials, Equipment and Technologies (SCOMET) List, 168 SSA, see Space situational awareness (SSA) Standing Advisory Committee for Frequency Allocation (SACFA), 177 STS, see Space Transportation System (STS) T Table of Frequency Allocations, 15, 16 Tasmanian Remote Sensing Resources Satellite System (TERSS), 57 Telecom Regulatory Authority of India (TRAI), 169, 172, 175, 179 Telesat Canada Reorganization and Divestiture Act, 91 TERLS, see Thumba Equatorial Rocket Launching Station (TERLS) terra nullius, principle of, 38 TERSS, see Tasmanian Remote Sensing Resources Satellite System (TERSS) Thumba Equatorial Rocket Launching Station (TERLS), 153 Trade marks, 149 Trade Related Aspects of Intellectual Property Rights (TRIP), 195, 196 TRAI, see Telecom Regulatory Authority of India (TRAI)

Index TRIP, see Trade Related Aspects of Intellectual Property Rights (TRIP) U UASL, see Unified Access Service License (UASL) Ukraine Earth observation services data distribution, 351–352 licensing of remote sensing satellite operators, 350–351 national security concerns, 352 government regulation of space activities in basic principles of national laws, 336–338 law-making processes, 335–336 organization of national space activities, 338–339 intellectual property and transfer of technology acquisition of intellectual property rights, 352 legal barriers to international transfer of space technology, 354–355 mechanism for exploiting IP rights, 353 trade and transfer of technology, 353–354 launch services, legal issues related to competition in launch services, 340–341 licensing of launch services carried out by private enterprises, 339–340 national security concerns, 341–342 satellite navigation services in, 355 satellite telecommunications and broadcasting, legal issues related to competition, 344–345 content regulation (including privacy), 348–350 interconnections, 345–346 liability of consumers of telecommunication services, 350 licensing of private satellite telecommunications operators, 343–344 rate regulation, 347–348 universal access, 346–347 UNCOPUOS, see United Nations Committee on the Peaceful Use of Outer Space (UNCOPUOS) Unified Access Service License (UASL), 174 United Kingdom British National Space Centre (BNSC), 358–362, 369

Index Code on the Scheduling of Television Advertising (COSTA), 364 Earth observation services database rights, 370 national security concerns, 369 privacy, 370 foreign satellite service, 365 intellectual property and transfer of technology copyright and database right, 370–371 technology transfer regulations, 371 launch services, legal issues related to, 361–362 legal system governing space activities background and constitution, 358 law governing space activity, 359–361 organisation of national space activities, 358–359 United Kingdom legal system, 357 Outer Space Act 1986 (OSA), 359 regulations on satellite navigation services, 371 satellite telecommunications and broadcasting, legal issues related to law governing satellite communications, 362–365 management of satellite filings by Ofcom, 365–369 television licensable content service (TLCS), 363 United Nations Committee on the Peaceful Use of Outer Space (UNCOPUOS), 4, 14, 18, 248, 337 United Nations General Assembly, 10 United Nations public registry, 10, 11 United Nations Security Council Resolution, 166 United States aerospace industry, regulation of business development programs, 477–483 space commissions, 469–471 space commissions and spaceports, 471–474 spaceport regulation independent of space commission, 474–477 Arms Export Control Act, 400, 417 business development programs financial assistance for aerospace projects, 477–479 financial assistance for a specific company, 477

497 miscellaneous statutory references, 482–483 promotion of space business, 479 regulation of specific aerospace industry segments, 481–482 tax incentives for aerospace activities, 480–481 California Space Enterprise Competitive Grant Program, 475 civil space programs, 376, 385 Commerce Control List (CCL), 419 Commercial Space Act, 389, 452, 453 Commercial Space Launch Act (CSLA), 392, 401, 405, 406, 408, 415, 416 Commercial Space Launch Amendments Act, 391 competition among satellite operators FCC policies for encouraging competition, 438–439 state of competition for satellite services, 439–442 Data Exchange Principles (DEPs), 445 data policies for Earth observation services data access, 447–449 data preservation, 449–451 data protection, 449 data standards, 451–452 Directorate of Defense Trade Controls (DDTC), 417 Earth observation (EO) services, 443–445 commercial remote sensing, regulation and licensing of, 455–456 data policies, 447–452 harmonization, 445–447 national security and commercial uses, 452–455 public and commercial uses, 452 variables of, 447 Emergency Management Act, 482 Export Administration Act (EAA), 417 Export Administration Regulations (EAR), 419 Export Control Classification Number (ECCN), 419 export controls, 416–417 Department of State Regulations, 417–419 EAA and EAR, 419 Federal Aviation Administration (FAA), 401 Federal Communications Commission (FCC), 421 Federal Radionavigation Plan (FRP), 461

498 United States (cont.) Federal Tort Claims Act (FTCA), 463 fixed satellite service, licensing of geostationary orbit, 424–426 non-geostationary orbit, 423–424 foreign investment for telecommunication services, 436–438 Foreign Sovereign Immunities Act, 463 Global Change Research Program (USGCRP), 444 Global Positioning System (GPS), 387 GNSS availability, 459–460 liability regime, 462–465 national GNSS institutions, 460–462 International Emergency Economic Powers Act (IEEPA), 417 International Traffic in Arms Regulations (ITAR), 89, 90, 417, 418, 419 Land Remote Sensing Policy Act, 453, 454, 455 launch and reentry licensing and regulation, 405–407 general licensing procedures, 407 launch and reentry licensing, 410–414 launch and reentry site licensing, 414–415 post-license monitoring and enforcement, 408 safety approvals, 409 transferring a license, 408–409 launch services, competition in, 415–416 licensing of private communications satellites, 422–423 17/24 GHz Broadcasting-Satellite Service (BSS), 429–431 direct broadcast satellite service, 428–429 fixed satellite service, 423–426 mobile satellite service, 426–428 Satellite Digital Audio Radio Service (SDARS), 431–432 Missile Defense Act, 384 National Aeronautics and Space Act, 380, 382 National Geospatial Intelligence Agency (NGA), 454 National Imagery and Mapping Agency (NIMA), 454 National Space and National Security policies, 168 Orbit Act, 390 Outer Space Treaty, 379, 380, 384

Index participant in space exploration and use, 373 Permitted Space Station List, 433, 437 Presidential Decision Directive (PDD), 453, 460 private communication satellite operations, regulation of satellite video programming providers, 432 telecommunications providers, 433–436 Regional Spaceport District Act, 476 Reverse Band Reconsideration Order, 431 satellite communications, regulation of direct broadcasting, 397–398 domestic satellites, 395–397 Earth Stations, 397 first communications systems, 393–395 satellite transponder sales, 398–399 satellite video programming providers, obligations for public interest obligations, 432 statutory copyright licenses, 432 space agencies, 373–374 Space Enterprise Development Act, 475 “space-for-peace” policy, 380 space law commercial space launches and facilities, regulation of, 401–403 export controls, 399–401 satellite communications, regulation of, 393–399 space policies commercialization, 389–391 cooperation, 378–380 cost-effectiveness, 388–389 defense, 381–385 environmental protection, 391–393 leadership, 374–377 peace, 380–381 science and technology, 385–388 “Star Wars” program, 384 telecommunications providers, obligations for Common Carrier Telecommunications Authority, 433–435 universal service system, 435–436 use of space for defense intelligencegathering, 374 U.S. Munitions List (USML), 417, 418 Virginia Commercial Space Flight Authority Act, 479 Working Group on Information Systems and Services (WGISS), 445

Index Universal Service Administrative Company (USAC), 435–436 Universal Service Directive, 141 Up-linking from India, license for, 176–177 USAC, see Universal Service Administrative Company (USAC) V Very Small Aperture Terminal (VSAT) Operators, 179–180 Voice Over Internet Protocol (VoIP), 137 W WAA, see Wisconsin Aerospace Authority (WAA) Warsaw Regime, 10 Wassenaar Arrangement, 20, 90, 91

499 Weapons of Mass Destruction and Their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (WMD Act), 166, 167 Weapons of mass destruction (WMD), 18–20, 166, 264, 275, 313, 338, 375, 380, 381, 382 Weapons of War Control Law, 150 Wisconsin Aerospace Authority (WAA), 473 WMD, see Weapons of mass destruction (WMD) World Intellectual Property Organisation (WIPO) Convention, 145, 146, 310 World Trade Organisation (WTO), 195, 231 Z Zangger Committee, 20