Analysis of the 2008 French space law

The adoption of the 2008 French space law or “LOI du 3 juin 2008 relative aux opérations spatiales” on June 3, 2008, which addressed several issues intimately linked to the privatisation of space activities, marked the outcome of several years of discussions, and finally provided France with a legal framework for activities in outer space. This highly expected piece of legislation, adopted a couple of days before the beginning of the French Presidency of the Council of the European Union, aimed at setting out the legal framework for French space activities, and at the same time, it clearly indicated the perspectives of France in terms of business, national sovereignty and independence.

France in outer space

Space projects in Europe take place in a complicated environment involving many public, private and intergovernmental actors, where the participation of the private sector, as independent space operators or as sub-contractors to others, is usually subsumed under the label of “the space industry”, producing hardware, software and services to be used in outer space, in support of space activities, or using products, data or information generated with the help of space activities. It is often considered that national space legislation is the most adapted way to tie the link between the international framework and the private space actors. Besides, as a matter of domestic interest, enacting national space law is also a way for a State to set out its particular interests and orientation in terms of space policy.

Let’s recall that the French Space Agency, CNES, founded in 1961, is a major actor for outer space sustainability and implementation of voluntary guidelines. CNES is the government agency responsible for shaping and implementing France’s Space policy in Europe. Through its ability to innovate and its forward-looking vision, CNES is helping to foster new technologies that will benefit society as a whole, focusing on five themes: access to outer space (with Ariane), telecommunications, observation, science, security and defence. Through its numerous affiliations and participations in companies, CNES was in a position which enabled the control to take place.

France has adopted three main laws in support of sustainable development for Earth and outer space activities: the Law on Energy Transition to Green Growth adopted in August 2015, the Biodiversity Law adopted in July 2016, and the 2008 French space law or “LOI du 3 juin 2008 relative aux opérations spatiales”, adopted in June 2008. In order to respect the environment and to mitigate climate change, France implements exemplary policy concerning the impacts of space missions and the corresponding technical means. The mechanism implemented in the French legal system reflects the goal set out to create an extremely attractive framework for space operators.

While France opts for a conventional interpretation of the international legal system developed within the framework of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), the 2008 French space law is not only a mere transposition of the international dispositions, but it also clarifies a certain number of national issues. As a leader in the field of outer space, France confirms with the 2008 French space law its acceptance of the U.N. system, and adheres to the structures recommended by the space treaties, especially in terms of State liability.

The 2008 French space law

While France is considered as a “space power”, it had no specific legislation applicable to activities in outer space until June 2008. The problematic grew even stronger over the last decade, where the apparition and the development of private space actors (referred to as “New Space”) stressed out the evident call for legislative action. The problems resulting from the lack of national regulation were apparent and even constituted an economical deficiency, as the emerging legal uncertainty could possibly impede the further development of the commercial use of outer space. A first draft for a French national space law was introduced in 2006, and opened the way to further discussions.

The 2008 French space law or French Space Operations Act (LOS) of June 2008, supplemented by decrees and a Technical Regulation, adopted after many years of discussion, establishes the legal framework for outer space activities in France. The 2008 French space law sets up an authorisation and continuous supervision process of the outer space activities of the French operators, in accordance with the international treaties, and in particular, the 1967 Outer Space Treaty and the 1972 Liability Convention. This process allows mastering the liability of France for space activities for which it is responsible, in accordance with the aforementioned international treaties.

The 2008 French space law leads to authorise and supervise all the space operations performed by French operators, and takes into account the long-term development of space activities. In particular, the Technical Regulation was developed with due consideration paid to the Space Debris Mitigation Guidelines adopted by the Committee on the Peaceful Uses of Outer Space and endorsed by the United Nations General Assembly, the recommended practices and voluntary guidelines proposed by the Inter-Agency Space Debris Coordination Committee (IADC), and the Committee on Space Research (COSPAR), as well as the existing international technical standards, including those published by the International Organization for Standardization (ISO), and the Consultative Committee for Space Data Systems (CCSDS), generally accepted by the international space community for the safe conduct of outer space activities.

In France, the authorisation to perform a space operation (launch or on-orbit control) is given by the ministry in charge of Space, only after evaluation of compliance with the Technical Regulation. The detailed analysis of compliance with the Technical Regulation is performed by CNES on behalf of the ministry of Space (the Ministère de l’Enseignement supérieur, de la Recherche et de l’Innovation). This Technical Regulation comprises requirements ensuring that any space operation limits the number of fragments, and performs end-of-life operations respecting the protected regions, limits ground risks to populations and properties during the launch and re-entry of space objects, limits risks to public health and the environment associated with the elements coming back to Earth, and is compliant with applicable nuclear safety prescriptions via a specific plan, in case of use of radioactive materials.

The 2008 French space law provides that every operator has to carry out, for any space operation, an impact assessment on the environment, and a hazard study with a plan to manage risks and ensure safety of populations, properties, public health and the environment. The authorisation process and the assessment of compliance with the Technical Regulation provides assurance that the operators have the means, resources, necessary skills and are appropriately organised to perform the operation in compliance with the 2008 French space law. It also allows competent authorities to verify that compliance is maintained throughout operational life of the space object up until disposal, through the processing of the technical and organisational events.

For the sake of consistency, it was decided to extend previously established ad hoc practices and allocate them a legal origin so to ensure their dissemination in the space industry. This firstly concerns the cross waiver of liability clauses. This practice consists in considering that each party in a space related contract shall individually bear the risks of the activities performed and renounce to all claims against the other party (Article 20 of the 2008 French space law). The second noteworthy piece of codification carried out in the 2008 French space law concerns the liability ceiling for launch operators, and the mandatory insurance obligations for amounts below the ceiling (Article 6 of the 2008 French space law). The 2008 French space law also provides an insurance obligation for risks in orbit.

Article 4 of the 2008 French space law establishes a double stepped authorisation procedure. Based on Article VI of the 1967 Outer Space Treaty, France insures that non-governmental space activities are subject to “authorisation and control”. However, out of reasons of industrial policy and in order to relieve space operators from redundant and expensive authorisation applications, France has opted for a licensing system besides the authorisation system. Operators can apply for licences attesting that they have the guarantees required by the 2008 French space law for the granting of the authorisations. The 2008 French space law underlines the need for a harmonised approach to national space legislation at a European level.